CITATION: R. v. Wilson, 2008 ONCA 510
DATE: 20080625
DOCKET: C46314
COURT OF APPEAL FOR ONTARIO
DOHERTY, ROSENBERG and ROULEAU JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
ROHAN WILSON
Appellant
Mark Halfyard for the appellant
Joanne Stuart for the respondent
Heard: May 5, 2008
On appeal from the sentence imposed by Justice M. Brown of the Superior Court of Justice, dated April 10, 2006.
DOHERTY J.A. (Concurring):
I. INTRODUCTION
[1] This is a sentence appeal. The appellant contends, first, that the sentences should be varied to correct what the Crown concedes was an arithmetic error in calculating pre-trial custody, and second, he argues that he should now receive credit for time spent in custody on a drug conviction that was quashed and the subject of a stay order under s. 24(1) of the Charter – events that occurred subsequent to the imposition of the sentences that form the subject-matter of this appeal.
[2] The court is unanimous that the sentences should be varied, but only to correct the arithmetic error. There is disagreement as to whether the appellant should receive “credit” on these sentences for the time spent in custody on the drug charge. I think he should receive “credit”, but my colleagues think that he should not.
II. OVERVIEW
[3] The appellant received sentences totalling seven years for ten armed robberies and two related unlawful confinements. In fixing the appropriate total sentence at seven years, the trial judge, applying the usual two-for-one credit, gave the appellant three years credit for 553 days served in pre-sentence custody on the robbery charges. Having regard to the three years credit for pre-sentence custody, the appellant received sentences equivalent to ten years.
[4] Between the appellant’s arrest on the robbery charges and his sentencing on those charges, he was convicted on a prior charge of importing cocaine and sentenced to two years less a day of imprisonment. The appellant served 494 days for the cocaine conviction. These 494 days accounted for the entirety of the importing cocaine sentence and were in addition to the 553 days of pre-sentence custody attributed to the robbery charges. Before the trial judge, counsel agreed that for the purposes of determining the appropriate sentence on the robbery charges the part of the appellant’s incarceration attributable to the cocaine charge should not be taken into account when fixing the length of his pre-sentencing custody. Counsel also advised the trial judge that the appellant’s conviction on the cocaine charge was under appeal at the time of his sentencing hearing on the robbery charges.
[5] Subsequent to sentencing on the robbery charges and while this sentence appeal was pending, this court quashed the conviction on the importing cocaine charge and ordered a new trial: see R. v. Wilson (2006), 2006 20840 (ON CA), 210 C.C.C. (3d) 23 (Ont. C.A.). Many months after the new trial was ordered, and while this appeal was still pending, the appellant moved successfully in the trial court for a stay of proceedings on the basis that his right to a trial within a reasonable time under s. 11(b) of the Charter had been infringed: see R. v. Wilson, [2007] O.J. No. 4504 (S.C.J.).
[6] Counsel for the appellant advances two submissions. First, he argues that since the cocaine conviction was quashed and the proceedings on that charge were stayed, the appellant is entitled to full pre-trial custody credit on the robbery sentences for the 494 days served on the importing cocaine sentence. Giving the appellant the usual two-for-one credit, counsel submits that his sentences on the robbery convictions should be reduced by 988 days (494 x 2).
[7] Second, counsel submits that trial counsel and, consequently, the trial judge made an arithmetic error in calculating the length of pre-sentence custody attributable to the robbery charges. Counsel submits that the appellant was short changed by 35 days and should receive credit for a further 70 days pre-trial custody. The Crown agrees with this submission.
[8] I am convinced by the appellant’s submissions that this court should take into consideration the events relating to the cocaine charge that occurred subsequent to the sentencing on the robbery charges. In my view, the court should treat this information as akin to fresh evidence on appeal and proceed to determine the fitness of the sentence on the robbery charges in light of these post-sentence developments. While I think those developments provide some mitigation, I am satisfied that sentences on the robbery charges totalling seven years minus seventy days adequately reflect that mitigation. Consequently, apart from correcting the arithmetic error described above, I would not vary the sentence imposed at trial.
III. THE SENTENCING
[9] The appellant was convicted after a lengthy trial before a judge alone on ten counts of robbery and two related unlawful confinements. The robberies occurred over a one month span in March and April of 2003. Six of the robberies occurred at McDonald’s restaurants and involved the victimization of employees working at those restaurants. Three of the robberies occurred at ATM machines, where the appellant robbed four individuals who were at those machines to make withdrawals. All of these robberies are properly described as violent serious crimes.
[10] The robberies at the McDonald’s restaurants occurred in the early morning hours. The appellant was masked and armed with a large knife and a pistol. Although it looked real, the gun was in fact an air pistol and was not an operable firearm.
[11] The appellant terrorized the employees at the McDonald’s restaurants in the course of the robberies. At one restaurant, he threatened to shoot an employee if he did not immediately open the safe. He also threatened to stab various employees. At another McDonald’s restaurant, the appellant threatened to kill the manager and left two employees handcuffed to a bread rack. At a third McDonald’s restaurant, the appellant struck an employee in the face with the pistol causing minor facial injuries. All of the violence seemed calculated to terrorize the victims.
[12] The four robberies of persons at ATM machines occurred in the Markham area. As with the McDonald’s restaurants, the appellant was masked and armed with a large knife and a realistic looking air pistol. In the course of the last ATM robbery, the appellant accosted two persons who were using the ATMs and demanded that each give him $1,000. While the appellant was robbing the two victims, a woman entered the area of the ATMs. This woman saw what was happening and tried to flee the area, but the appellant grabbed her. As the appellant grabbed this individual, one of the victims kicked the appellant in the chest and a struggle ensued. During the struggle, the appellant stabbed one of the victims. Fortunately, that person was not seriously hurt. The struggle with the appellant moved to the parking lot where an off-duty policeman happened by. He assisted in subduing the appellant.
[13] The air pistol, knife and mask were seized from the appellant at the scene of his arrest. A search of the appellant’s vehicle revealed money that had been stolen in one of the earlier ATM robberies.
[14] Seven hundred dollars was taken in one of the ATM robberies. There was no evidence as to the exact amount of the money taken in the other robberies.
[15] The trial judge did not have a great deal of information pertaining to this appellant. Nor does this court. The appellant was twenty-seven years old at the time of sentencing. He had come to Canada from Jamaica about eight years earlier. He is a landed immigrant and has signed a waiver permitting his deportation upon release. He was described as “an unsophisticated person” with cognitive disabilities. The appellant has limited work skills and a limited work record. He has two children.
[16] The appellant had a single criminal conviction prior to the events giving rise to these charges. Subsequent to the robbery charges, he was charged and convicted of assault (August 2003) and possession of cocaine (January 2004). These two convictions were in addition to the cocaine conviction which was later quashed by this court.
[17] The Crown submitted that the appellant should receive a sentence of ten to twelve years in addition to receiving credit for the equivalent of three years for his pre-trial custody. The defence submitted that the appellant should receive five to six years minus the three years credit for the pre-trial custody.
[18] In careful reasons, the trial judge identified the aggravating factors, stressing, quite properly, the vulnerability of the victims selected by the appellant. He said:
Mr. Wilson presents a clear risk to the safety of the community. Moreover, the objective of general deterrence dictates that it must be made known that there are serious, real, adverse consequences to preying upon peaceful law-abiding citizens and threatening violence to them in acts of robberies with weapons as seen in this case.
[19] The trial judge ultimately determined that ten years was the appropriate total sentence. He reduced that amount by three years to reflect the pre-trial custody resulting in a sentence of seven years.
IV. THE CALCULATION OF PRE-SENTENCE CUSTODY AT TRIAL AND ON APPEAL
[20] An understanding of the chronology relating to both the importing cocaine charge and the robbery charges is necessary for an appreciation of the arguments relating to the credit that the appellant should receive for his pre-sentence custody. Counsel for the appellant has provided a helpful chart.
| Date | Importing Cocaine | Robberies |
|---|---|---|
| May 12, 2001 | The appellant is arrested. | |
| May 13, 2001 | The appellant is released on bail. | |
| April 27, 2003 | The appellant is arrested and held. | |
| June 9, 2003 | The appellant is ordered detained pending trial. | |
| February 20, 2004 | The appellant is convicted. | |
| February 23, 2004 | The appellant is sentenced to 2 years less a day. The appellant does not make an application for bail pending appeal. | |
| February 23, 2004 | The appellant begins serving his sentence. | |
| October 13, 2004 | The appellant files a Notice of Appeal against conviction. | |
| July 2, 2005 | The appellant completes his sentence. | |
| January 26, 2006 | The appellant is convicted. | |
| March 13, 2006 | Counsel make submissions on sentence. | |
| April 10, 2006 | The appellant is sentenced to 7 years in addition to 3 years pre-trial custody (1½ years credited on a 2:1 basis). | |
| June 2006 | New trial ordered by Court of Appeal. | |
| November 2007 | Trial judge finds violation of s. 11(b) and stay of proceedings ordered. |
V. GROUNDS OF APPEAL
A. The Arithmetic Error
[21] At the time of the sentencing hearing, counsel calculated the pre-sentencing incarceration relevant to the robbery charge at 524 days. When the trial judge came to sentence the appellant 29 days later, he accepted counsel’s calculation and added 29 days yielding a total pre-sentencing period of 553 days. Counsel are now agreed that apart entirely from the time attributed to the importing cocaine charge, the appellant had served 559 days in pre-sentencing incarceration and not 524 days as indicated by counsel. Using the generally accepted two-for-one multiplier, the appellant should be given an additional 70 days credit (35 x 2) for his pre-sentencing incarceration. He is entitled to this credit regardless of whether his second argument succeeds.
B. The Post-Sentence Events Relating to the Importing Cocaine Charge
(i) Can Credit be Given on Appeal for the Time Spent Serving the Importing Cocaine Sentence?
[22] Counsel for the appellant submits that as the appellant’s cocaine conviction has been quashed and a stay entered, the appellant must be presumed innocent of the cocaine charge. Counsel submits that it flows from this presumption that all of his incarceration prior to the sentencing on the robbery charges should be attributed to those charges and he should be given the usual two-for-one credit.
[23] Counsel relies on s. 719(3) of the Criminal Code, R.S.C. 1985, c. C-46, which provides:
In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence. [Emphasis added.]
[24] I agree with Crown counsel that on a plain reading of s. 719(3) the phrase “convicted of an offence” and the phrase “as a result of the offence” must refer to the same offence or offences. Section 719(3) is directed to situations in which a person has spent time in custody prior to sentencing in respect of the offence or offences for which the person is being sentenced. It was common ground for the trial judge that part of the time the appellant spent in custody prior to sentencing was attributable to the robbery charges, but that 494 days were attributable to an entirely separate offence, the importing cocaine charge. The subsequent quashing of the cocaine conviction, and the still later stay of proceedings in respect of that charge, cannot retroactively change the reason for the appellant’s custody during the 494 days between February 23, 2004 and July 2, 2005. He was not in jail at that time as a result of the robbery charges; rather, he was serving a sentence on his conviction for importing cocaine.
[25] The inapplicability of s. 719(3) does not, however, end the matter. Courts were giving credit on sentencing for pre-sentence incarceration before the Criminal Code was amended to specifically authorize doing so: e.g. see R. v. Patterson (1946), 1946 383 (ON CA), 87 C.C.C. 86 (Ont. C.A.); and R. v. Sloan (1947), 1947 364 (ON CA), 87 C.C.C. 198 (Ont. C.A.).[^1] Courts have also from time to time given credit on sentencing for pre-sentencing custody relating to other charges where, as of the date of sentencing or the hearing of the sentence appeal, those other charges had been withdrawn or quashed: see R. v. Tsai (2005), 2005 22191 (ON CA), 198 C.C.C. (3d) 533 at paras. 19-22 (Ont. C.A.); and R. v. Lapare, 1969 1020 (MB CA), [1970] 1 C.C.C. 320 at 322 (Man. C.A.).
[26] The appellant submits that under the sentencing regime set out in the Criminal Code a sentence must be tailored to the individual offender and the specific circumstances of the particular offence. The appropriate sentence must have regard to all relevant aggravating and mitigating factors: see Criminal Code, ss. 718.1 and 718.2. The appellant contends that the quashing of the cocaine conviction and the subsequent stay of proceedings alter the facts relevant to sentencing and introduce a new mitigating factor. He argues that he stands before this court as a person who was incarcerated for an offence for which he was not properly convicted and for which he can now never be convicted. The appellant contends that on any reasonable notion of fairness, this court should redress the wrong done to the appellant in respect of the importing charge by giving him credit on the robbery sentences for the time he improperly spent serving a sentence on the importing charge.
[27] I accept that the events relating to the cocaine charge that occurred subsequent to the appellant’s sentencing can be considered by this court on this sentence appeal and may mitigate his sentences on the robbery charges. However, I attribute that mitigation not to an attempt to redress a wrong done to the appellant in respect of the cocaine charge, but to a change in the circumstances material to the fitness of the sentences on the robbery charges.
[28] When the trial judge fixed the appropriate total sentences on the robbery charges, he considered the amount of credit the appellant should receive for his pre-sentence incarceration. He calculated the pre-sentence incarceration based on the facts as they existed at the time of sentencing. On those facts, counsel agree that, apart from the arithmetic error described above, the trial judge gave proper credit for the pre-sentence incarceration. However, events subsequent to the sentencing have changed the factual landscape as it relates to the appellant’s pre-trial incarceration. I think it would be just as inappropriate for this court to ignore the changed circumstances as it would have been for the trial judge to ignore the circumstances at the time of sentencing. The changed circumstances relating to the cocaine charge can be placed before this court and considered by it under the authority of s. 687(1) of the Criminal Code. Having received the equivalent of fresh evidence, it falls to this court, having regard to the totality of the circumstances, including this new information, to determine fit sentences on the robbery charges.
(ii) Should the Appellant Receive Credit For Time Spent Serving the Cocaine Sentence?
[29] In holding that the appellant can put the subsequent events concerning the cocaine charge before this court to potentially mitigate the robbery sentences, I do not suggest that the appellant is entitled to an automatic deduction of his sentence. The extent to which his pre-sentencing incarceration for the cocaine charge should serve to mitigate the robbery sentences, if at all, will depend on the totality of the circumstances. In some situations, the incarceration may have no mitigating effect on the sentence. In others, it may be treated as identical to pre-sentencing incarceration on the charge for which the accused is being sentenced.
[30] Crown counsel argues that the appellant’s incarceration on the cocaine charge should not mitigate the robbery sentences because it reflects tactical decisions made by the appellant at the time of sentencing. If I thought that the manner in which the pre-sentence incarceration was treated at trial gave the appellant some tactical advantage, I would be inclined to agree with Crown counsel that the appellant should not be allowed to revisit that tactical decision on appeal. However, I can see no advantage to the appellant in the way his pre-sentencing incarceration was treated by the trial judge. Counsel agreed that the treatment of that incarceration by the sentencing judge reflected the reality of the situation as it stood at the time of sentencing.
[31] I would also think that this appellant should receive no mitigating credit for his incarceration on the cocaine charge if that incarceration played a significant role in securing a stay on his s. 11(b) motion. While it is difficult to think that the appellant’s completion of his sentence did not help the appellant in the s. 11(b) motion, counsel for the appellant correctly points out that the trial judge who granted the stay made no reference to the appellant having served his sentence as a factor in the granting of the stay.
[32] It is now clear that the conviction on the cocaine charge was improper. It is equally clear that the appellant will never be convicted on that charge. It follows that the appellant should not have been incarcerated on that charge. The changed circumstances with respect to the cocaine charge should be considered by this court as potentially mitigating the robbery sentences.
[33] Before turning to the question of what sentence the appellant should receive having regard to the changed circumstances, I will address one concern raised by Crown counsel. These reasons should not be read as envisioning some kind of sentencing bank. An accused who is incarcerated for an offence for which he or she is not ultimately convicted cannot store credits equal to that period of incarceration to be used if and when the accused is convicted of another crime. No such system of crediting improper incarceration against potential future convictions can or should be recognized. These reasons have a much narrower focus. They speak to this court’s power to reassess the fitness of a sentence where circumstances material to the trial judge’s sentencing decision have significantly changed between the time of sentencing and the hearing of the appeal.
(iii) What Sentence Should the Appellant Receive?
[34] Having determined that the appellant should get credit for his incarceration on the subsequently quashed and stayed cocaine charge, the question becomes how much credit should he get? I see no value in entering into the various hypothetical calculations advanced in argument. I would give the appellant the credit that was in fact given by the correctional authorities. On their calculations, the 494 days served by the appellant equalled a sentence of two years less a day.
[35] On my calculations, the appellant is entitled to three years plus 70 days credit for the 559 days served prior to his sentences and attributable to the robbery charges. He is entitled to an additional credit of two years less a day for the 494 days that were attributed at the time of sentence to the cocaine sentence. On this approach, the appellant is entitled to total pre-sentence incarceration credit of five years and 69 days.
[36] Counsel for the appellant submits that the pre-sentence credit that this court determines is appropriate should be deducted from the ten years that the trial judge fixed as an appropriate sentence on the robbery charges. He observes correctly that the Crown has not argued on appeal that ten years was an inappropriate global sentence.
[37] I accept that sentences equalling ten years are within the range of appropriate sentences for these offences and this offender. Were the circumstances before this court the same as they were before the trial judge, I would defer to his determination that sentences equalling ten years were appropriate. However, as this appeal has developed, this court is not asked to correct an error made by the trial judge (apart from the arithmetic error); instead, it is asked to reassess the fitness of the sentences in light of events subsequent to the appellant’s sentencing. For the reasons set out above, I think that reassessment is appropriate. When engaging in a reassessment in light of new information, this court does not defer to the sentence imposed at trial. Rather, it must settle on what it regards as a fit sentence bearing in mind all of the circumstances, including the changed circumstances.
[38] I do not propose to repeat the details of the offences. Like the trial judge, I regard deterrence and denunciation as the key principles in the imposition of an appropriate sentence in this case. In my view, the number and seriousness of these offences, combined with the absence of any significant mitigating factors, requires the imposition of sentences totalling twelve years. Twelve years, the otherwise appropriate sentence, should be reduced to reflect the necessary credit for the pre-sentence incarceration. On my calculation, the reduction should be five years and 69 days resulting in a sentence of seven years less 69 days. I would round that sentence off to six years, nine months and twenty days. I would give effect to this variation by varying the seven year sentences imposed on counts nine and seventeen to sentences of six years, nine months and twenty days. These sentences and the sentences imposed on the other counts run concurrently. There is, therefore, no need to alter the other sentences.
[39] In summary, and for the reasons set out above, I would allow the appeal and vary the total sentences imposed to six years, nine months and twenty days.
“Doherty J.A.”
ROSENBERG J.A.:
[40] On the appeal and fresh evidence application, the appellant argued that he is now entitled to credit against his present sentence for time he spent serving a sentence for another offence, importing cocaine. He did not argue that the time spent serving that sentence was in some fashion a mitigating circumstance. In other words, he asks this court to treat the time he spent serving this sentence as equivalent to time spent awaiting sentence for these offences, which I will refer to as the robbery offences. I would not give effect to this submission.
[41] In R. v. Wust (2000), 2000 SCC 18, 143 C.C.C. (3d) 129 (S.C.C.) at para. 41, Arbour J. explained the purpose of giving credit for pre-sentence custody:
Therefore, while pre-trial detention is not intended as punishment when it is imposed, it is, in effect, deemed part of the punishment following the offender’s conviction, by the operation of s. 719(3) [of the Criminal Code].
[42] The time the appellant spent serving his sentence for importing was not in any sense part of the “punishment” for the robbery offences; that sentence was punishment for the importing offence. To now give the appellant credit for time spent serving a sentence for another offence would distort the sentencing regime.
[43] To give effect to this submission would permit accused to “bank” time spent in custody. If this appellant can use the time he spent serving his drug offence sentence as credit for his robbery sentences, then an accused who years earlier spent time in custody for a prior offence of which he was acquitted should also be able to ask a trial judge to take that prior time into account. I can see no basis in principle for allowing credit in this case, and not giving an accused credit for time spent in custody on a prior offence that was not used up because the accused was acquitted of that prior offence at trial. Or consider the case of an accused who successfully appeals his sentence and the appeal court reduces the sentence, as it sometimes does, to “time served”. In the future, the appeal court would be asked to indicate what the appropriate sentence was so that the difference between the “appropriate sentence” and the time served could be banked for any future offence that the accused may be found guilty of. In all of these cases, the offender has spent time in jail in excess of what should have been the case if the system had worked expeditiously and flawlessly.
[44] No doubt there are flaws in our justice system. Innocent people are held in custody, and innocent people are found guilty and sentenced to terms of imprisonment. To avoid this severe unfairness, bail is granted as liberally as possible consistent with public safety, cases of in-custody accused come on for trial as soon as possible and safeguards are in place to avoid wrongful convictions. As well, in some cases, people who have been wrongfully convicted and spent time in jail receive monetary compensation from the government.
[45] But, at the end of the day when it comes time to sentence an offender the court can only take into account factors that relate to the particular offence under consideration. The fact that an offender, like the appellant, still happens to be in the appeal system when a flaw in relation to a totally unrelated conviction comes to light is not, in my view, a principled reason for giving that offender credit for the time he or she spent serving the sentence for that unrelated conviction.
[46] That said, I accept that a sentencing judge is entitled to take into account time spent serving another sentence as part of the complete picture for understanding a particular offender. For most offences there is a very broad range of what constitutes a fit sentence and events that transpired during the time an offender was serving a sentence for another offence might well affect where within that range the offender should be sentenced. For example, if the accused had a serious drug problem that made him a danger to the public, evidence that he received treatment while serving his sentence would be an important consideration in fixing the appropriate sentence. Or, it may be that an offender could not serve a prior sentence in a facility that had appropriate treatment, training or other rehabilitation opportunities because he was awaiting trial on another charge. In effect, by reason of the fact that he was awaiting trial, the circumstances under which he served the sentence were harsher than they might ordinarily be. I would think these are circumstances the sentencing judge could take into account, if made aware of them, because they relate directly to the offence for which the offender is being sentenced.
[47] In this case, defence counsel at trial pointed out that during the time the appellant was serving his importing sentence, he was moved amongst institutions on several occasions and never had the opportunity to take a welding course he was hoping to take. However, defence counsel used this information to ask the trial judge to give the appellant two-for-one credit for the time spent in pre-sentence custody solely attributable to the robbery offences. The trial judge acceded to this submission.
[48] I can see one other way in which evidence of a subsequent acquittal might be relevant on a sentence appeal. If the sentencing judge had taken the prior conviction into account as a serious aggravating circumstance, the fact that the accused was later found to be innocent of that offence would be a relevant consideration. In this case, the trial judge made only passing reference to the importing conviction. There is no indication that he considered this record to be a serious aggravating circumstance. To the contrary, his reasons for sentence are focused on the many aggravating circumstances surrounding the robbery offences. It does not appear that the appellant’s conviction for importing played any part in the sentence imposed for the robbery offences.
[49] There are two cases in which this court appears to have given credit for time spent serving sentence on another offence. In Tsai, supra, the appellant was granted bail on a drug charge. He was then charged on other matters and faced a reverse onus as a result of the outstanding charge. He was denied bail on the new matters. At sentencing for the drug charge, counsel agreed that the time spent on the second set of charges would not be taken into account. The second set of charges was subsequently withdrawn. On appeal from sentence this court gave the accused two-for-one credit for the two months spent in custody on the second set of charges. In doing so the court relied upon R. v. Reid, 2005 14964 (ON CA), [2005] O.J. No. 1790 (C.A.). The court, at para. 21, described the Reid case in these terms:
The appellant submits that the time he spent in jail should now be credited towards this sentence. In support of his submission, the appellant relies on R. v. Reid. In that case, the accused was in custody on a second set of charges and served six months before the charges were subsequently withdrawn. At the time the appellant was refused bail on the second set of charges, the Crown had brought an application under s. 524 to revoke the accused's bail on the first set of charges but the trial judge never dealt with that application. This court held that after being found guilty on the first set of charges, the trial judge should have taken the withdrawal of the second set of charges and the time served in relation thereto into account on sentencing and given the accused credit for pre-trial custody on the first set of charges.
[50] While both Reid and Tsai appear to be examples of this court permitting the banking of pre-sentence custody, it seems to me that there is another explanation. In both cases the accused was refused bail on the second set of charges (the charges that were later withdrawn) because he was already on bail for the first set of charges. Thus, in part, the time spent in custody for the withdrawn set of charges could be attributed to the first set of offences. In any event, neither Reid nor Tsai represent the stark picture presented in this case where an appellant seeks to have this court retroactively take into account time spent serving sentence on another offence.
[51] Accordingly, while I would grant leave to appeal sentence, I would allow the appeal from sentence only to the extent of reducing the sentence by 70 days that was properly attributable to detention for the robbery offences but was mistakenly not taken into account by the trial judge. Thus, I would reduce the total sentences imposed to six years, nine months and twenty days. I would not give the appellant any credit for the time spent serving the sentence for the charge of importing cocaine.
RELEASED: “DD” “JUN 25 2008”
“M. Rosenberg J.A.”
“I agree Paul Rouleau J.A.”
[^1]: The predecessor to the present s. 719(3) first appeared in the Criminal Code as part of the Bail Reform Act, R.S.C. 1970 (2nd Supp.), c. 2, s. 13.