Court of Appeal for Ontario

Date: 2018-01-15 Docket: C63665

Judges: Epstein, Paciocco and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Paul Hasiu Appellant

Counsel:

• Eva Taché-Green, for the appellant
• Jennifer Conroy, for the respondent

Heard: November 29, 2017

On appeal from the sentence imposed by Justice Stephen J. Hunter of the Ontario Court of Justice, dated November 17, 2016.

Epstein J.A.:

OVERVIEW

[1] This is another case involving the limits on a judge's jurisdiction to amend a sentence after it is imposed.

[2] On November 17, 2016, the appellant was convicted of two counts of possession of morphine and heroin for the purpose of trafficking while incarcerated within a federal penitentiary (the "possession offences"). He was sentenced to two years' custody, in addition to 70 days of enhanced credit for pre-trial custody (the "possession sentence"). At the time of his conviction and sentencing for the possession offences, the appellant was serving a 75 month sentence for robbery (the "robbery sentence").

[3] The sentencing judge did not indicate whether the possession sentence was to be served concurrently with or consecutive to the robbery sentence. The federal institution where the appellant had been serving the robbery sentence sought the court's direction concerning this issue, and was informed that the possession sentence was to be served concurrently. Accordingly, on November 21, 2016, the appellant was released from custody pursuant to the Corrections and Conditional Release Act, S.C. 1992, c. 20 ("CCRA"), having passed his statutory release date for the robbery and possession sentences.

[4] Three days later, the sentencing judge amended the Information recording the possession sentence to include the phrase: "Consecutive to current sentence being served. Nunc pro tunc." Before amending the Information, the sentencing judge did not notify or reconvene the parties. As a result of the amendment, the appellant was arrested and re-incarcerated on November 29, 2016, eight days after his release. Under the terms of the amended Information, the possession sentence will expire on November 2, 2020.

[5] The appellant seeks leave to appeal his sentence. He argues that the sentencing judge was functus officio when he amended the Information. In support of this submission, the appellant seeks to admit fresh evidence detailing the events that transpired following the imposition of the possession sentence.

[6] I agree with the appellant that in these circumstances, the sentencing judge did not have jurisdiction to amend the Information. I would therefore grant leave to appeal, admit the fresh evidence, and allow the appeal.

BACKGROUND FACTS

(1) The Offence

[7] On November 26, 2015, the appellant was found in possession of morphine and heroin while serving the robbery sentence at Collins Bay Institution. At the appellant's trial, an expert testified that the nature of the drugs and the manner of their packaging was consistent with possession for the purpose of trafficking. In his defence, the appellant testified that (1) he had a prescription for the morphine, and (2) he found the heroin while cleaning a bathroom and had only used it for personal consumption.

[8] The trial judge rejected the appellant's evidence and convicted him of two counts of possession for the purpose of trafficking. The matter proceeded to sentencing.

(2) The Offender

[9] At sentencing, several details emerged about the appellant's personal circumstances.

[10] The appellant has a daughter. He has had sole custody of her since she was a baby. At the time of sentencing, he had not seen his daughter or other members of his family for over five years because of his run-ins with the criminal justice system. The appellant has a lengthy criminal record, largely attributable to his struggles with drug addiction.

[11] The appellant experienced hardship in prison due to the possession charges. He was denied his prescription morphine, which he began taking after a 2013 knee operation, and consequently experienced "excruciating pain". He was transferred to Collins Bay's maximum-security area and lost the majority of his personal property. When his fellow inmates learned that he had used someone else's heroin, they attacked him, causing serious injuries. Following this attack, the appellant was placed in segregation for two months.

[12] At the sentencing hearing, the appellant provided a letter outlining his ongoing struggles with addiction and plans for the future. In the letter, the appellant indicated that he was "done with the life of drugs", and planned to spend time with his family and help with his father's business after his release.

(3) Positions of the Parties on Sentence

[13] The Crown argued for a sentence between 30 to 33 months – 6 to 9 months above the two year mandatory minimum applicable to the possession offences. According to the Crown, the quantities of drugs seized, while "not large", could have caused "mayhem within the prison system in terms of safety and security". The defence sought a two year sentence. Defence counsel emphasized the repercussions the appellant had suffered as a result of the possession charges, as well as his history of addiction and plans to turn his life around.

[14] Both parties agreed that the sentence imposed should reflect 70 days of credit for the 47 days the appellant had spent on remand when he would otherwise have been on statutory release. Neither counsel made submissions on whether the possession sentence was to be served concurrently with or consecutive to the robbery sentence.

REASONS FOR SENTENCE

[15] The reasons for sentence read as follows:

In the circumstances, taking into account the fact that this is, I think in part at least, addiction driven, and the amount involved, taking into account the institutional consequences which Mr. Hasiu has already suffered or endured, if I can put it that way, I believe the appropriate disposition at this point in time is two years in custody. I will reflect 70 days of pretrial custody on the information, concurrent on both charges.

There will be a mandatory DNA order attaching. He is already on the databank in any event, and there will be a lifetime weapons prohibition under section 109 as well.

I have read the letter. Mr. Hasiu, this is not a crushing sentence, although am I sure it's not something you want to have happen. Whether or not you move forward is entirely up to you at this point. Thank you.

POST-SENTENCING EVENTS

[16] The appellant seeks to introduce, as fresh evidence, an affidavit detailing the events that took place after his sentencing hearing and up to the time he was re-arrested following the amendment to the Information. As a preliminary matter, I would admit the fresh evidence as I am satisfied it meets the test for admissibility set out in R. v. Palmer, [1980] 1 S.C.R. 759. The evidence could not have been adduced at the sentencing hearing and – as will become clear in my analysis – is necessary to determine whether the sentencing judge had jurisdiction to amend the Information. The Crown does not oppose admission of the fresh evidence, nor does the Crown contest its contents (other than to caution that they are based at certain points on hearsay).

[17] Having admitted the fresh evidence, I now turn to reviewing the relevant events that took place post-sentencing, as described in the appellant's affidavit.

[18] Following his sentencing hearing on November 17, 2016, the appellant was incarcerated in the Quinte Detention Center. Shortly thereafter, the Sentence Management Unit at Collins Bay sought direction from the court as to whether the possession sentence was to be served concurrently with or consecutively to the robbery sentence. This inquiry was made necessary by the provisions of the CCRA governing statutory release. Section 127(3) of the CCRA states that:

Subject to this section, the statutory release date of an offender sentenced on or after November 1, 1992 to imprisonment for one or more offences is the day on which the offender completes two thirds of the sentence.

[19] If the possession sentence was to be served concurrently with the robbery sentence, s. 139(1) of the CCRA would have applied:

For the purposes of the Criminal Code, the Prisons and Reformatories Act, the International Transfer of Offenders Act and this Act, a person who is subject to two or more sentences is deemed to have been sentenced to one sentence beginning on the first day of the first of those sentences to be served and ending on the last day of the last of them to be served.

[20] In this scenario, the appellant's sentence would have effectively begun on August 2, 2012 (the first day of the robbery sentence) and would have concluded on November 17, 2018 (two years after the imposition of the possession sentence). The appellant's statutory release date (based on two-thirds of his 75.5 months in custody) would have been October 30, 2016.

[21] If the possession sentence was to be served consecutive to the robbery sentence, the appellant's statutory release would have been governed by s. 127(5.1) of the CCRA:

If an offender receives an additional sentence for an offence under an Act of Parliament and their parole or statutory release is not revoked, their statutory release date is the day on which they have served, from the earlier of the day on which they are recommitted to custody as a result of the suspension of their parole or statutory release and the day on which they are recommitted to custody as a result of the additional sentence,

(a) any time remaining before the statutory release date in respect of the sentence they are serving when the additional sentence is imposed; and

(b) two thirds of the period that equals the difference between the length of the sentence that includes the additional sentence and the length of the sentence that they are serving when the additional sentence is imposed.

[22] In this scenario, the appellant's sentence would have expired on November 1, 2020 (two years after the last day of the robbery sentence), with a statutory release date of February 1, 2018.[1]

[23] Collins Bay was informed by the court that the possession sentence was concurrent to the robbery sentence, as the following note in the appellant's institutional records makes clear:

Although it was not specified whether the sentence was concurrent or consecutive, Sentence Management at Collins Bay Institution (CBI) advised this writer that they had clarified with the court and the sentence was to be concurrent. As such, on 2016-11-21 the offender was released from remand on [statutory release] with residence and transferred to the New Directions CRF in Kitchener on 2016-11-22. [Emphasis added]

[24] Accordingly, pursuant to s. 139(1) and s. 127(3) of the CCRA, the appellant was released from custody on November 21, 2016, having passed his statutory release date. Prior to his release, the appellant asked his parole officer twice if the possession sentence ran concurrently with or consecutive to the robbery sentence. Both times, the appellant's parole officer advised him that the sentences were concurrent, and that he would therefore be released.

[25] Upon his release, the appellant travelled by bus to the New Directions Halfway House in Kitchener, Ontario. He reunited with his family, started to work in his father's business and attended his daughter's 18th birthday celebration.

[26] As set out earlier, on November 24, 2016, the Information recording the possession sentence was amended without the appellant's knowledge in order to identify the sentence as consecutive to rather than concurrent with the robbery sentence. The appellant's prison records state:

On 2016-11-29, the Guelph Parole Office was informed by CBI that they had received an updated Warrant of Committal specifying that HASIU's sentence was in fact consecutive. As such, his [statutory release] date was now in the future and, subsequently, his parole became inoperative. As a result, the warden of CBI issued a Warrant of Apprehension under section 11.1 of the CCRA. The offender was apprehended by the Repeat Offender Parole Enforcement Unit on 2016-11-29 without incident.

[27] On November 29, 2016, the appellant was arrested at the New Directions Halfway House by the Repeat Offender Parole Enforcement (ROPE) Squad. The ROPE Occurrence Report states:

During his federal sentence, Hasiu was convicted of Possession for the Purpose of Trafficking x2. These charges stem from incidents while he was serving his federal sentence. The charges were dealt with and he received two years concurrent. After consultation with the sentencing Judge, it was determined that a period of incarceration on the conviction was intended (consecutive to sentence).

On November 29, 2016, after it was learned that Hasiu was released due to a clerical mistake a federal parole warrant was issued.

[28] The appellant is now serving an effective combined sentence of eight years and three months, set to expire on November 1, 2020.

ISSUES ON APPEAL

[29] The sole issue on appeal is whether the sentencing judge was functus officio when he amended the Information. The parties agree this inquiry is governed by this court's decisions in R. v. Malicia, 82 O.R. (3d) 772, and R. v. Krouglov, 2017 ONCA 197, 346 C.C.C. (3d) 148.

ANALYSIS

(1) The Governing Principles

[30] This court considered the functus officio doctrine in somewhat similar circumstances in Malicia. In that case, the sentencing judge imposed a sentence without indicating in her reasons, the indictment or the warrant of committal whether it was to be consecutive to or concurrent with a sentence already being served. When counsel brought this matter to the sentencing judge's attention two days after sentence was imposed, the sentencing judge re-convened the parties. After hearing submissions, the sentencing judge indicated that she had always intended for the sentence to be consecutive and that she retained jurisdiction to clarify her intention.

[31] On appeal, MacPherson J.A. upheld the consecutive sentence. He held that a sentencing judge may amend a sentence after it has been imposed only where the amendment does not amount to a reconsideration of her original decision. Drawing upon Major J.'s decision in R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, MacPherson J.A. outlined at para. 27 the underlying policy rationale for allowing correction of errors in such circumstances:

[T]he policy rationale enunciated in Burke for permitting correction of errors in jury cases – namely, the administration of justice would be brought into disrepute if a court were barred from correcting a recorded verdict where there is no perceptible injustice to the accused and no reasonable apprehension of bias – is precisely the same in judge alone criminal trials. A jury can make an error in recording a verdict; so can a judge. The law for permitting (and refusing to permit) corrections of errors should be, as much as possible, the same in both scenarios.

[32] MacPherson J.A. concluded that the sentencing judge's intentions were "manifest" and the record made it "crystal clear that everyone was on the same page" that the sentence would be consecutive. He therefore dismissed the appeal.

[33] In concurring reasons, Simmons J.A. supported the disposition proposed by MacPherson J.A. and generally agreed with his analysis. She noted, however, that Major J. in Burke included a second step in the test for determining whether the remedial jurisdiction to correct errors should be exercised: whether the correction created "fear of a tainted or biased jury, or the appearance of unfairness": Malicia, at para. 46. Similarly, Cronk J.A. concurred with MacPherson J.A.'s analysis, but agreed with Simmons J.A. that error correction will be precluded not only where the proposed correction is "tantamount to a reconsideration of the verdict (or sentence)", but also "where issues of unfairness or injustice to the accused or reasonable apprehension of bias arise": Malicia, at para. 61. In Cronk J.A.'s view, factors such as the passage of time might "so compromise the appearance or reality of trial fairness as to prevent correction of the error in the interests of justice": Malicia, at para. 62.

[34] This court had another opportunity to consider the functus officio doctrine in Krouglov, a case in which the sentencing judge erred by stating in his reasons both that the sentence imposed was to be 6.5 years and 66 months. The warrant of committal reflected a 66 month sentence. Several months later, after being contacted by the Corrections Service of Canada ("CSC"), the sentencing judge signed another warrant of committal – without alerting defence counsel – in which he clarified his intent to impose a sentence of 6.5 years.

[35] On appeal, this court adopted a two-step approach to determining whether a judge retains jurisdiction to amend a sentence after it is imposed:

(1) Is the proposed amendment consistent with the judge's manifest intentions at the time the sentence was imposed?

(2) Does permitting the amendment give rise to a reasonable apprehension of taint and/or cause unfairness to the offender?

[36] Addressing the first step, the Krouglov court concluded that there was nothing in the record to suggest that the trial judge undertook after-the-fact reasoning to justify his correction. The judge's intention to impose an aggregate sentence of 6.5 years was clear from the record, and the reference to 66 months had been nothing more than a mathematical error.

[37] The Krouglov court described the second step of the test as an inquiry into whether the trial judge should have exercised his jurisdiction to correct the error, taking into account any reasonable apprehension of taint or bias, as well as possible unfairness to the offender. The analysis, according to the court, must proceed from the perspective of "[a]n informed person, viewing the matter realistically and practically – and having thought the matter through": Krouglov, at para. 51.

[38] The court ultimately held that there had been no unfairness to the appellant as he had been present to hear the judge sentence him to 6.5 years of imprisonment. Moreover, the judge's subsequent clarification did not prejudice the appellant as his appeal was already underway, and he had not reached his statutory release date or been granted parole.

(2) Applying the Principles

1. Is the Amendment Consistent with the Sentencing Judge's Manifest Intentions?

[39] The appellant submits that the amendment to the Information required the sentencing judge to reconsider his original decision. The sentencing judge imposed the sentence requested by defence counsel without stating whether it was to run concurrently with or consecutive to the robbery sentence. Neither the trial Crown nor defence counsel addressed that issue in their submissions. The most plausible explanation, the appellant argues, is that the participants in the sentencing proceedings simply did not turn their minds to whether the possession sentence was to be concurrent or consecutive.

[40] The Crown contends it was obvious to all parties involved that the possession sentence would be consecutive to the robbery sentence, which is why the issue was not expressly raised. In support of this claim, the Crown points to the sentencing submissions of counsel and emphasizes defence counsel's concession that the appellant "is going back in for a period of lengthy custody." The Crown also relies on the sentencing judge's statement that "the appropriate disposition at this point in time is two years in custody" (emphasis added). Finally, the Crown submits a concurrent sentence would have been plainly inappropriate for the appellant given the gravity of the possession offences and their lack of connection to the robbery offence: R. v. Smith, 2011 ONCA 564, 88 C.R. (6th) 383, at para. 88.

Analysis

[41] This issue reduces to the following question: why is the record silent on whether the possession sentence should be served concurrently with or consecutive to the robbery sentence? Is it, as the appellant submits, because the sentencing judge did not "turn his mind to the issue"? Or is the record silent because, as the Crown argues, "the consecutive nature of the sentence was so plainly obvious that no one thought to verbalize it"?

[42] I do not believe the record supports the Crown's position, for three reasons.

[43] First, unlike in Malicia, the submissions of counsel in the proceedings below were not "anchored in a shared understanding that any sentence imposed by the judge would be consecutive to the one [the appellant] was already serving": Malicia, at para. 33. Both counsel in Malicia "requested consecutive sentences": see para. 54. The submissions in this case are considerably less clear. While the trial Crown sought a sentence above the two year mandatory minimum, he did not indicate if the sentence should be served concurrently with or consecutively to the robbery sentence. Defence counsel opened his submissions by twice requesting "a sentence of two years from today" – language consistent with a concurrent sentence (emphasis added).

[44] The Crown, on appeal, argues that defence counsel acknowledged the need for a consecutive sentence when he conceded that the appellant would be "going back in for a period of lengthy custody." I do not agree. As the appellant notes, defence counsel may not have realized that a concurrent sentence would be "calculated by the [CSC] in such a way as to result in the Appellant's immediate statutory release." That possibility was not addressed at any point during the sentencing hearing. Accordingly, defence counsel's statements can be readily interpreted as reflecting his (mistaken) belief that, irrespective of the concurrent or consecutive nature of the possession sentence, the appellant's eligibility for statutory release would be significantly delayed, resulting in his "going back in for a lengthy period custody."

[45] Second, the sentencing judge's reasons do not clarify whether the possession sentence was to be served concurrently with or consecutive to the robbery sentence. In Krouglov, this court was able to ascertain the sentencing judge's manifest intent based solely on his reasons for sentence, which referenced both the sentence mistakenly entered on the warrant of committal (66 months) and the true sentence (6.5 years). In this case, by contrast, the sentencing judge's reasons do not include any reference to a consecutive sentence. Contrary to the Crown's submission, the phrase "two years in custody" does not necessarily demonstrate that the sentencing judge intended to impose a consecutive sentence. The phrase "two years in custody" suggests no more than that the trial judge was imposing a jail term. It says nothing about whether that jail term is to be consecutive or concurrent. There is no indication the sentencing judge understood that a concurrent sentence would result in the appellant's immediate statutory release – notably, the relevant provisions of the CCRA were not raised by either party at the sentencing hearing.

[46] Third, unlike in Malicia, the sentencing judge has not declared that he always intended to impose a consecutive sentence. Had he done so, the ambiguities within counsel's submissions and his reasons for sentence may well have been overcome. The Crown submits the amendment to the Information "nunc pro tunc" should be viewed as a declaration by the sentencing judge that he always intended to impose a consecutive sentence. That declaration, in the Crown's view, should be accepted absent something "powerfully contrary" in the record.

[47] I disagree. The Crown's submission finds little support in Malicia, given MacPherson J.A.'s observation at para. 29 that "when a sentencing judge explicitly declares her intention … her declaration should be accepted by an appellate court, absent something powerfully contrary in the record." In my view, the use of the phrase "nunc pro tunc" in the amendment to the Information falls well short of an explicit declaration of the sentencing judge's manifest intent at the time he imposed the sentence. A statement of this nature carries far less weight than a declaration of intent in open court, such as the one issued in Malicia.

[48] I agree with the Crown that a consecutive sentence would likely have been the legally appropriate outcome for the appellant's case, as the robbery and possession offences took place years apart and shared no relevant factual nexus: Smith, at para. 88. The appellant, however, does not argue that the sentencing judge consciously arrived at a legally inappropriate result. His position is that the parties and the sentencing judge did not "turn [their] minds to the issue of concurrent or consecutive sentences". All participants at sentencing, while fully intending to achieve a legally correct result, could nonetheless have failed to appreciate that the consecutive or concurrent nature of the possession sentence would materially impact the appellant's statutory release date under the CCRA. This possibility finds ample support in the record, given the lack of any reference to the CCRA's provisions at sentencing, and subsequent confusion over the appellant's sentence and statutory release.

[49] Ultimately, far from reflecting the sentencing judge's "manifest intent", the record is ambiguous on whether he turned his mind to the consecutive or concurrent nature of the possession sentence. Reasonable people may draw different inferences from the evidence. For my part, I am unconvinced that the amendment to the Information is consistent with the sentencing judge's manifest intent at the sentencing hearing. The first step of the Krouglov test is therefore not met, ending the inquiry into whether the sentencing judge had jurisdiction to amend the Information. However, for completeness' sake and allowing for the possibility that I may be incorrect, I will proceed to consider the second branch of the test.

2. Does Permitting the Amendment Give Rise To A Reasonable Apprehension of Taint And/Or Cause Unfairness to the Offender?

[50] The appellant submits the amendment to the Information compromised the appearance of fairness in the proceedings below, for three reasons. First, the parties were not notified or reconvened prior to the amendment. Second, the timing of the amendment prejudiced the appellant, as he had been released and had begun reintegrating into the community. Third, unlike in Krouglov, the appellant could not have anticipated that his sentence would be amended – particularly given his conversations with his parole officer that indicated the possession sentence was concurrent to the robbery sentence.

[51] The Crown submits the proceedings below were fair to the appellant. He was present in court to hear the sentencing judge impose a sentence of "two years in custody", after his own lawyer had conceded that he faced a "period of lengthy custody" as a result of the possession offences. While the Crown concedes an administrative error was made, it submits the error was corrected swiftly and caused minimal prejudice to the appellant. Allowing the appellant to benefit from that error despite the severity of his crimes is, in the Crown's view, the larger threat to the appearance of fairness in these proceedings.

Analysis

[52] In my view, the amendment to the Information seriously compromised the appearance of fairness and cannot be sustained. I reach this conclusion for three reasons.

[53] First and foremost, the Information was amended without the parties being notified and reconvened. No one informed the appellant or his counsel about the amendment, much less gave them an opportunity to make submissions on its propriety. This approach sits uneasily with the guidance in Krouglov, where this court held at para. 60 that "[t]here can be no doubt that where a verdict or sentence has to be revisited for any reason, it would be preferable that … all parties be given the opportunity to participate in the process." It is clear that this direction needs to be reinforced.

[54] When a sentence is amended without the parties' knowledge and participation, the fairness of the sentencing process suffers. Openness is a "fundamental valu[e] in our criminal justice system": R. v. Hertrich, 67 C.C.C. (2d) 510, at p. 537; R. v. Schofield, 2012 ONCA 120, 109 O.R. (3d) 161, at para. 16. It promotes judicial accountability and enhances public confidence in the administration of justice: Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at para. 25; Canadian Broadcasting Corp. v. R., 2010 ONCA 726, 102 O.R. (3d) 673, at para. 24. Open and transparent sentencing proceedings also improve the justice system's legitimacy in the eyes of offenders, who may well be left "with a justifiable sense of injustice" if their sentences are routinely amended without their knowledge: Hertrich, at p. 537. These considerations weigh strongly against permitting an amendment to a sentence where the parties have not been notified and reconvened – though, as Krouglov demonstrates, failure to reconvene the parties will not necessarily be dispositive and must be viewed in conjunction with all the other circumstances of a given case.

[55] In my view, the sentencing judge's failure to notify and reconvene the parties significantly detracted from the appearance of fairness in the present case. Even if the sentencing judge's amendment had been consistent with his manifest intention at the sentencing hearing, the "fundamental values" of fairness and openness would have been better served if the parties had been consulted before the amendment was made.

[56] Second, the amendment had a particularly unfair effect on the appellant. Unlike in Krouglov, where the offender had not yet reached his statutory release date and had not been granted parole when his sentence was corrected, here, the appellant was prejudiced by the timing of the amendment. He had been granted statutory release, had reunited with his family, and was beginning to reintegrate into the community. Significantly, the appellant took these steps in reliance on the administration of justice. Recall that the appellant was informed not once but twice by his parole officer that the possession and robbery sentences were concurrent. Confident that he had served his time, the appellant started the difficult process of turning his life around, only to be re-arrested and returned to prison. This series of events, in my view, resulted in significant unfairness.

[57] Third, although I do not believe it to have happened, the circumstances of this case could create a reasonable apprehension that the sentencing judge may have changed his mind after the sentencing, which would be profoundly unfair. Specifically, records from Collins Bay confirm that someone from "the court" confirmed that the sentence was concurrent. Then the judge amended the Information to show the sentence to be consecutive. This apparent change in position could reasonably trouble an informed person, viewing the matter realistically and practically, and having thought the matter through.

[58] I conclude my analysis with reference to the words of Cronk J.A. in Malicia. The circumstances of this case, viewed holistically, "so compromise the appearance … [of] fairness as to prevent correction of the error in the interests of justice." It follows that the amendment to the Information was not valid and must be set aside.

DISPOSITION

[59] For these reasons, I would grant leave to appeal and allow the appeal. I would declare the amendment to the Information to be of no force and effect. As a result, the possession sentence is deemed to be concurrent with the robbery sentence,[2] and the appellant is entitled to statutory release effective immediately.

Released: January 15, 2018

"Gloria Epstein J.A."

"I agree. David M. Paciocco J.A."

"I agree. I.V.B. Nordheimer J.A."

[1] This date does not account for time the appellant spent out of custody on bail pending this appeal.

[2] R. v. McCarthy, 2005 NLCA 36, 248 Nfld. & P.E.I.R. 14, at para. 11.