Court of Appeal for Ontario
Laskin, Cronk and Blair JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Jason Robert Foster
Applicant/Appellant
Robert Sheppard, for the applicant/appellant
Katie Doherty, for the respondent
Heard and released orally: June 18, 2014
On appeal from the sentence imposed on January 20, 2014 by Justice A.T. McKay of the Ontario Court of Justice.
ENDORSEMENT
1The appellant pleaded guilty to break, enter and theft of a dwelling house and possession of a weapon for a purpose dangerous to the public peace. He was sentenced to 12 months’ imprisonment, less credit at the rate of 1:1 for 99 days of pre-sentence custody. His effective sentence, therefore, was 8 months and 21 days’ imprisonment.
2The appellant appeals against sentence.
3The sole issue on appeal is whether the sentencing judge erred by declining to grant the appellant credit for his pre-sentence custody at the rate of 1.5:1. The appellant argues that the sentencing judge erred by concluding that there was insufficient information before him to justify enhanced credit for the appellant’s pre-sentence custody.
4We reject this argument.
5The decision whether to grant pre-sentence custody credit and, if so, the amount of credit to be granted (up to a maximum credit calculated at the rate of 1.5:1), are matters squarely within the sentencing judge’s discretion. As the Supreme Court recently confirmed in R. v. Summers, 2014 SCC 26, an offender who seeks enhanced credit for pre-sentence custody bears the onus of demonstrating that enhanced credit is warranted in all the circumstances.
6In this case, the sentencing judge concluded that the appellant failed to discharge this onus. Consequently, he denied the defence request for enhanced credit. This was his call to make. The sentencing judge’s evaluation of the sufficiency of the record in respect of pre-sentence custody credit, and his assessment of an appropriate amount of credit, attract deference from this court. We note that, in this case, there was no information or evidence before the sentencing judge regarding the appellant’s behaviour while in custody or the likelihood of his early release.
7In these circumstances, we see no basis for appellate intervention with the sentencing judge’s ruling. Accordingly, the appeal is dismissed.
“John Laskin J.A.”
“E.A. Cronk J.A.”
“R.A. Blair J.A.”