Court of Appeal for Ontario

Date: 2017-09-11

Docket: C61439

Judges: MacPherson, Rouleau and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Paul McClung Appellant

Counsel

Eva Taché-Green, for the appellant

Nancy Dennison, for the respondent

Heard

September 8, 2017

Appeal Information

On appeal from the sentence imposed on June 29, 2015 by Justice Alfred Stong of the Superior Court of Justice, sitting with a jury.

Appeal Book Endorsement

[1] The appellant appeals sentence on the basis that the trial judge's reasons do not explain why he did not grant 1.5:1 credit for pre-trial custody and that the failure to grant such credit is an error in principle.

[2] We disagree. The absence of reasons for denial of enhanced credit is of concern. However, it is apparent from a reading of the reasons as a whole in the context of the submissions made that the trial judge accepted the Crown's submission as to why the appellant was not likely to be released before the expiration of his sentence and should therefore not receive enhanced credit. Specifically, the trial judge considered the nature of the manslaughter, the appellant's institutional record that shows instances of gratuitous violence, the appellant's significant criminal record and the appellant's apparent refusal to deal with his addiction issues.

[3] In conclusion, therefore, we see no basis to interfere with the trial judge's decision not to give the appellant enhanced credit. Indeed, this is one of the relatively rare cases where enhanced credit ought not to be granted.

[4] As a result, leave to appeal sentence is granted, but the sentence appeal is dismissed. The Crown concedes that there has been an error in the warrant of committal as it does not reflect the 1083 days of pre-sentence custody that was credited by the trial judge as against the 10 years sentence. The warrant of committal is therefore to be corrected to reflect credit for the 1083 days the appellant spent in pre-sentence custody at the rate of 1:1.