R. v. Ayati-Ghaffari, 2014 ONCA 812

ENDORSEMENT

1On October 7, 2014, the appeal from conviction was dismissed for oral reasons.

2During submissions, the appellant raised for the first time, an appeal from sentence. The Crown did not consent to the hearing of the sentence appeal but agreed to respond if called on. He was called on and responded. Our decision with respect to the appeal from sentence was reserved. These are our reasons.

3The sentence appeal relates to the credit the appellant received for pre-trial custody. The sentencing judge found that he was entitled to a 1.5:1 credit for some of the time served. She referred to the poor conditions in the facility, the fact that programmes were unavailable and that the time spent will not be credited toward parole eligibility.

4The appellant, relying on R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, submits that the appellant should have a credit of 1.5 days for each day in pre-trial custody. This would provide him with a credit of an additional 231 days.

5The sentencing judge’s reasons make it clear that, if she had the benefit of Summers, she would have awarded a credit of 1.5 days for every day served. As stated in Summers, the loss of access to parole and early release, in itself is generally sufficient to justify enhanced credit. The sentencing judge referred to this and to the harsh conditions.

6Under these circumstances, we agree with the appellant that the principles of Summers apply. Enhanced credit is the norm not the exception.

7Leave to appeal the sentence is granted and the sentence is varied to allow 1:5 days credit for all the time spent in pre-trial custody.