Court of Appeal for Ontario
BEFORE: Doherty, van Rensburg and Benotto JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
James Nevills
Appellant
COUNSEL:
James Nevills, appearing in person
Joseph Di Luca, appearing as duty counsel
Riun Shandler, appearing for the respondent
HEARD: April 7, 2014
On appeal from the convictions entered by Justice J. McMahon of the Superior Court of Justice on June 29, 2012 and on appeal from the sentence imposed on October 31, 2012.
ENDORSEMENT
1The conviction appeal was not pursued in argument and is dismissed.
2The trial judge’s imposition of a global sentence of 9 years was well within the range for these very serious offences committed by a repeat offender who was under a variety of weapon prohibition and probation orders.
3The trial judge gave the appellant 1:1 credit for 19 ½ months of pretrial custody. He declined to give him 1.5:1 credit as permitted under s. 719(3.1). The trial judge who did not have the benefit of this court’s judgment in R. v. Summers, 2013 ONCA 147, [2013] O.J. No. 1068, aff’d 2014 SCC 26, 2014 S.C.C. 26 appears to have held that the loss of earned remission which does not attach to pretrial custody was not in and of itself enough to trigger s. 719(3.1). That holding cannot stand in light of this court’s pronouncement in Summers as affirmed by the Supreme Court of Canada.
4However, s. 719(3.1) requires a consideration of all of the circumstances. Certain circumstances specifically exclude the operation of s. 719(3.1) and, therefore, the availability of enhanced credit up to 1.5:1. For example, where a person was detained on a bail hearing for the reason identified in s. 515(9.1), he cannot obtain 1.5:1 credit for pretrial custody. Section 515(9.1) refers to cases where bail is refused “primarily because of a previous conviction”.
5There is no evidence whether the appellant even applied for bail. It seems clear, however, that his previous convictions would inevitably have played a dominant role had he applied for bail. He has over 70 prior convictions and was released from jail only three days before committing these offences.
6As explained in R. v. Morris, 2013 ONCA 223, [2013] O.J. No. 1583 at paras. 17-19, a trial court can consider the entirety of the circumstances. Where those circumstances clearly place the offender within the provisions that exclude the potential giving of 1.5:1 credit, the trial judge is entitled to take that into account even though the formal order required by these provisions was not made. This offender’s previous convictions more than justified his detention. He is caught by the spirit, if not the letter, of s. 719(3.1). The trial judge did not err in giving 1:1 credit.
7The appeal is dismissed.
“Doherty J.A.”
“K. van Rensburg J.A.”
“M.L. Benotto J.A.”
