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SENTENCING - Criminal Code offences - Robbery - Particular sanctions - Imprisonment - Sentencing considerations - Time already served

Wednesday, December 06, 2017 @ 10:18 AM  

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Appeal by the Crown from sentence imposed on the accused for robbery where the accused was given credit for some of the pre-sentence custody accumulated following detention. The accused had been arrested for robbery and related charges. While he was on bail prior to trial, he committed other offences for which he was detained in custody. At sentencing on the robbery charges, the judge gave the accused credit for some of the pre-sentence custody accumulated following his detention. The Crown appealed the sentence, arguing that the sentencing judge erred in crediting the accused with pre-sentence custody incurred following his detention for a later, unrelated offence. The Crown argued neither ss. 719(3) and (3.1) nor s. 726.1 of the Criminal Code allowed credit for pre-sentence custody on the robbery charge, and that pre-sentence custody accumulated due to later charges could not be used to reduce a sentence on an earlier set of charges for which bail was granted.

HELD: Appeal dismissed. In the circumstances of this case, ss. 719(3) and (3.1) were properly engaged. The accused’s pre-sentence custody was properly regarded “as a result of” both of his robbery charge, and the later charges. Sections 719(3) and (3.1) did not limit consideration of pre-sentence custody only with respect to the offence that was the immediate trigger of the detention. The court was to assess whether a sufficient link existed between the pre-sentence detention for which credit was sought and the offence or offences for which the offender was being sentenced so as to meet the “as a result” requirement of s. 719(3). Even where, as in the present case, the detention followed a later charge, the circumstances may have been such that this later detention could nonetheless be considered to be “as a result” of both the earlier and the triggering offences. Sections 719(3) and (3.1) required that there be some causal connection, a sufficient link or relation between the offence for which the offender was being sentenced and the pre-sentence custody. That relation could exist with more than one offence and was not limited to the offence that directly triggered the detention. It included offences that contributed to the denial of bail or, in the trial judge’s assessment, factored into the offender’s decision to not seek bail on the charges that triggered the detention order. To meet the “as a result of” standard, the sentencing judge would take into account factors that included, among other things, the reasons for bail having been granted on the first set of offences and denied for the second set of offences, whether bail was sought on the later offences and whether there had been revocation of bail on the first set of offences. In the present case, the Crown’s interpretation of ss. 719(3) and (3.1) resulted in the accused being re-incarcerated for an additional 491 days and the Crown’s position produced a result that seemed arbitrary, as it was not apparent why the order in which the offences occurred should have had such a potent impact on the total time he spent in custody. An interpretation of ss. 719(3) and (3.1) that reduced the likelihood of detention that ultimately proved to be unwarranted was to be favoured.

R. v. Barnett, [2017] O.J. No. 6102, Ontario Court of Appeal, D.H. Doherty, H.S. LaForme and P.S. Rouleau JJ.A., November 23, 2017. Digest No. TLD-December42017006