Court of Appeal for Ontario

Citation: R. v. Edwards, 2011 ONCA 798

Date: 20111216

Docket: C53924

Before: Simmons, Blair and Hoy JJ.A.

Between

Her MajestyThe Queen

Respondent

and

Paul King Edwards

Appellant

Counsel: Breese Davies, duty counsel Paul Edwards, in person Scott Latimer, for the respondent

Heard and released orally: December 13, 2011

On appeal from conviction entered by Justice W. Salmers of the Superior Court of Justice dated March 16, 2011 and sentence imposed on May 2, 2011.

ENDORSEMENT

[1] The Crown concedes that the trial judge erred in failing to give credit for pre-sentence custody during the period October 12, 2010 to January 6, 2011 (86 days). In fairness to the trial judge, he was not aware that the appellant’s bail had been revoked on this charge during this period.

[2] The trial judge gave the appellant one-for-one credit for two other periods of pre-sentence custody that total 60 days. The only reason the trial judge gave for departing from the usual practice of giving two-for-one credit was the fact that the appellant had been charged with breach of recognizance. However, that charge was withdrawn. The trial judge therefore erred in failing to give two-for-one credit for the first of these periods (30 days). The accused only asked for one-for-one credit for the second of these periods (30 days). The trial judge did not therefore err in giving one-for-one credit for that period.

[3] On appeal, the Crown argues that one-for-one credit should apply to the entire period of pre-sentence custody because the sentence the trial judge arrived at after giving credit for pre-sentence custody was otherwise fit. We reject this submission. The sentence the trial judge had decided to impose before giving credit for pre-sentence custody was a fit sentence. In our view, the appellant is entitled to appropriate credit for his pre-sentence custody.

[4] Accordingly, leave to appeal is granted, the appeal is allowed and the sentence is reduced by 202 days.

[5] The appellant abandoned his conviction appeal on November 15, 2011.

Signed: “Janet Simmons J.A.” “R. A. Blair J.A.” “Alexandra Hoy J.A.”