Court of Appeal for Ontario
Before: Laskin, Pepall and Pardu JJ.A.
Between
Her Majesty the Queen
Respondent
and
Solomon Houlder
Appellant
Counsel:
Breana Vandebeek, for the appellant
Katie Doherty, for the respondent
Heard and released orally: May 8, 2014
On appeal from the sentence imposed on August 30, 2013 by Justice Brian P. O’Marra of the Superior Court of Justice, sitting with a jury.
ENDORSEMENT
1The appellant seeks leave to appeal his August 30, 2013 sentence for robbery with an imitation firearm. He was sentenced to three years imprisonment less credit for 15 months of pre-trial custody calculated on a 1 to 1 basis. He was also placed on probation for two years.
2The sentencing judge had this court’s decision in R. v. Summers, 2013 ONCA 147 and concluded that there was an insufficient basis in the record for enhanced credit. Since that time, the Supreme Court rendered its decision in R. v. Summers, 2014 SCC 26. The court stated at paragraph 79 that the onus is on the offender to demonstrate that he should be awarded enhanced credit as a result of his pre-sentence detention. Furthermore, generally speaking, the fact of pre-sentence detention is sufficient to give rise to an inference that the offender has lost eligibility for parole or early release thereby justifying the enhanced credit.
3At the time of the offence, the appellant was 18 years old. During his 15 months in custody at the Toronto Don Jail, he was described as a model prisoner. The record suggests that he would be entitled to parole and early release.
4In these circumstances, leave to appeal sentence must be granted and the appeal is allowed. The appellant is sentenced to three years imprisonment less credit for pre-trial custody of 22 and one-half months calculated on a 1 to 1.5 basis, together with probation for two years.
“John Laskin J.A.”
“S.E. Pepall J.A.”
“G. Pardu J.A.”