R. v. Poonai, 2009 ONCA 428

CITATION: R. v. Poonai, 2009 ONCA 428

DATE: 20090522

DOCKET: C47439

COURT OF APPEAL FOR ONTARIO

Laskin, Feldman and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Pretam Poonai

Appellant

Gregory Lafontaine, for the appellant

Robert Gattrell, for the respondent

Heard: May 21, 2009

On appeal from the conviction entered on January 17, 2007, and the sentence imposed on July 13, 2007, by Justice Minoo F. Khoorshed of the Ontario Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1] In our view, the trial judge was entitled to find that the first breath sample was taken within two hours, thus entitling the Crown to the statutory presumption.

[2] Accordingly, the appeal against conviction is dismissed.

[3] The trial judge imposed a penitentiary term plus three years probation, a combination that is illegal. Therefore, the sentence cannot stand. Both the Crown and the trial judge were of the view that probation was important, and we accept their view.

[4] Accordingly, we vary the sentence to a reformatory term of two years less a day and three years probation on the terms outlined by the trial judge. We are not persuaded that the lifetime driving prohibition is unfit.

[5] Accordingly, leave to appeal sentence is granted and the sentence is varied as outlined above.