Court File and Parties

Citation: R. v. Bankay, 2010 ONCA 799 Date: 2010-11-26 Docket: C52385

Court of Appeal for Ontario Before: Winkler C.J.O., Sharpe and Karakatsanis JJ.A.

Between: Her Majesty the Queen (Applicant/Appellant) and Jacqueline Bankay (Respondent)

Counsel: Holly Loubert, for the appellant Lawrence Ben-Eliezer, for the respondent

Heard & released orally: November 24, 2010 On appeal from the judgment of Justice June Maresca of the Ontario Court of Justice dated June 16, 2010.

Endorsement

[1] This is a Crown appeal relating to sentence. The respondent pleaded guilty to aggravated assault. She had a history of conflict with the victim and bit off part of the victim’s finger during a fight on school grounds.

[2] We agree with the appellant that the trial judge erred by imposing what amounted to a disguised conditional sentence. After indicating that she intended to impose a conditional sentence, the trial judge was informed by counsel that a conditional sentence was excluded as this was a serious personal injury offence. The trial judge then made a probation order with a term that imposed to 6 months of house arrest. It was an error of law to impose a sentence that circumvented Parliament’s decision to exclude conditional sentences for this offence

[3] A custodial term was required in the circumstances. In arriving at an appropriate sentence, we must take into account that we are dealing with a youthful first offender who has served 5 months and one week of house arrest. In the circumstances, we impose a sentence of 21 days custody to be served intermittently to allow her to continue with her studies. We maintain the other terms of probation order imposed by the trial judge.

[4] Leave to appeal sentence is granted and the sentence is varied accordingly.

“W. Winkler C.J.O.”

“Robert J. Sharpe J.A.”

“A. Karakatsanis J.A.”