COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Davis, 2007 ONCA 385

DATE: 20070522

DOCKET: C45427

LASKIN, LANG and LaFORME JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

JOHN EDWARD DAVIS

Appellant

Counsel

Vincenzo Rondinelli and Crystal E. Tomusiak for the Appellant

Kim Crosbie for the Respondent

Heard and released orally: May 14, 2007

On appeal from the sentence imposed by Justice John D.D. Evans of the Ontario Court of Justice on February 10, 2006.

ENDORSEMENT

[1] In our view, the trial judge made no reviewable error in exercising his discretion to deny a two-for-one credit to the appellant for pre-trial custody in the circumstances of this case. The three reasons for granting such a credit are the usually crowded jail conditions pending trial, the lack of rehabilitative programs and the impact on the offender’s parole eligibility. In this case, we understand the trial judge’s reference to the appellant’s position in the inmate hierarchy to mean that the appellant did not suffer from overcrowding conditions. In any event, at his own request, he served his pre-trial custody in segregation. In addition, at the time of sentencing, the appellant had not taken advantage of any treatment or other rehabilitation program. Finally, at the time of sentencing, the appellant had little expectation of early parole. Accordingly, we would not give effect to this ground of appeal.

[2] The appellant argues that the appropriate range of sentence was four to six years. However, in this case the offender met the criteria for a dangerous offender, had an extensive record, had already served two federal sentences and posed a high risk of re-offending. In the circumstances of this offence and this offender, in our view, the sentence was not outside the appropriate range.

[3] However, the appellant filed fresh evidence on this appeal indicating that he has made progress while in custody. He has requested a transfer to another institution, in part, for the purpose of seeking family violence treatment. The fact that he has no institutional offences for violence supports his positive progress and raises some hope for his rehabilitation, particularly when considered with the absence of any substance-related institutional offences. While this apparent progress is to be commended, in our view it is not sufficient to invoke a reduction in the sentence.

[4] On the final issue, the Crown properly concedes that the period of parole eligibility should have been half of the balance of the sentence imposed.

[5] Accordingly, we grant leave to appeal sentence, but dismiss the appeal, except by varying the parole eligibility to half of the balance of the six years to be served for assault causing bodily harm.

“John Laskin J.A.”

“S.E. Lang J.A.”

“H.S. LaForme J.A.”