Court of Appeal for Ontario
CITATION: R. v. Pearson, 2008 ONCA 444
DATE: 20080605
DOCKET: C47309
MOLDAVER, SHARPE and BLAIR JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
JO-ANNE CONSTANCE PEARSON
Appellant
Counsel:
Peter R. Boushy for the appellant
Joan Barrett for the respondent Crown
Marie Comiskey for the Attorney General of Canada, Intervenor
Heard and endorsed: May 21, 2008
On appeal from the judgment of Justice Fletcher Dawson of the Superior Court of Justice, sitting as a Summary Conviction Appeal Judge, dated June 20, 2007.
APPEAL BOOK ENDORSEMENT
[1] The appellant abandons her constitutional challenge to the minimum incarceration regime prescribed by s. 255(1)(a)((ii) and (iii) of the Code.
[2] The trial judge imposed a sentence of 90 days intermittent plus probation and a five year driving prohibition. He did so on the mistaken belief that the appellant had two prior qualifying convictions and that accordingly, the 90-day term was the minimum sentence he could impose. On behalf of the Crown Ms. Barrett has brought to our attention that the minimum sentence in the circumstances would have been 14 days, not 90 days. We are grateful to her for alerting us to the mistake made at trial and on summary conviction appeal.
[3] Mrs. Barrett nonetheless submits that in the circumstances, we should sustain the sentence that was imposed at trial. We do not agree. We are nonetheless deeply concerned about the conduct of the appellant and the grave risk that her conduct presents to society.
[4] In the circumstances, including the fact that she has been on strict bail for four years and has complied with the conditions, we would allow the appeal and reduce the custodial sentence to twenty days intermittent. In all other respects, the sentence below shall remain the same.
[5] The appellant has surrendered before the court. We accept that as compliance with the terms of her bail order. She is now free to go and she will surrender into custody on Friday, May 23, 2008 at 7:00 p.m. at the Vanier Centre and be released on Monday, May 26, 2008 at 8:00 a.m. and thereafter on the same terms and conditions until her sentence is complete. As well, the other terms and conditions specified in the Intermittent Sentence Agreement at p. 21 of the Appeal Book shall apply.