Court of Appeal for Ontario

CITATION: R. v. Mainville, 2015 ONCA 319

DATE: 20150507

DOCKET: M44947 (C60270)

Juriansz, Rouleau and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Mainville

Appellant

Counsel:

Jane Stewart, for the appellant

Leslie Paine, for the respondent

Heard and released orally: May 5, 2015

ENDORSEMENT

[1] The applicant wishes to appeal the dismissal of his appeal of his sentence to the Summary Conviction Appeal Court. He was sentenced to 45 days in jail to be served intermittently after being convicted of operating a motor vehicle with a blood alcohol content of 192 mg of alcohol in 100 ml of blood. On the record before the sentencing judge it was his fourth conviction for a drinking and driving offence. He also applies for release pending appeal.

[2] Pursuant to s. 839 of the Criminal Code, the applicant requires leave of this Court, or a judge of this Court, to appeal his sentence.

[3] We do not agree with the applicant counsel’s reading of the reasons of both the sentencing judge and the Summary Conviction Appeal judge. On our reading, both judges did consider and apply s. 718.2 of the Criminal Code. We agree with them that there was no alternative to a jail sentence and a conditional sentence was manifestly not appropriate in the circumstances.

[4] The applicant’s proposed appeal has not identified an arguable error of law alone in the Summary Conviction Appeal judge’s careful and comprehensive reasons. Further the proposed appeal has no significance to the general administration of justice and no apparent merit.

[5] The application for leave is dismissed. His application for judicial release cannot proceed in the absence of leave.

[6] This is a matter that could be dealt with by a single judge sitting in chambers.

“R.G. Juriansz J.A.”

“Paul Rouleau J.A.”

“C.W. Hourigan J.A.”