R. v. M.V., 2023 ONCA 33
Background
The appellant was originally convicted of sexual assault on December 7, 2018.
On April 30, 2019, he was sentenced to 7 years’ imprisonment.
He began serving his sentence until December 11, 2022 when the Court of Appeal allowed his appeal and ordered a new trial.
On November 26, 2021, following his re-trial, the appellant was convicted once again.
On March 16, 2022, he was sentenced to 7 years’ imprisonment less 5 years’ of pre-sentence custody leaving a net sentence of two years.
The trial judge granted the appellant credit at a rate of 1:1 for the time the appellant spent in a federal penitentiary serving his original sentence, and credit at at the enhanced rate of 1.5:1 for the remaining pre-sentence custody.
The trial judge concluded that enhanced credit was not warranted for the time served in the federal penitentiary because the appellant was (1) not awaiting trial (he was awaiting hearing of his appeal) and (2) had access to programs not available in provincial institutions.
On appeal, the appellant argues that the trial judge erred in declining to give the appellant enhanced credit for the time spent in federal custody.* The Court of Appeal agrees.
*Note: the appellant also argued that the trial judge incorrectly calculated the period of pre-sentence custody. This issue was undisputed on appeal; all parties agreed the sentence should be reduced accordingly.
Disposition - Appeal allowed.
what you need to know
- It is an error in principle for trial judge to conclude that enhanced credit was not warranted simply because appellant had access to federal programming.
- Trial judge ought to have considered that, in this case, the appellant’s time served pending appeal would not count towards parole eligibility or statutory release.
For more information on enhanced credit check out Emond’s “Sentencing: Principles and Practice”, Chapter 4, Aggravating and Mitigating Factors, volume 12 of the Criminal Law Series.
Read full decision here.