Court of Appeal for Ontario

CITATION: R. v. Nevills, 2014 ONCA 340

DATE: 20140501

DOCKET: C56287

BEFORE: Doherty, van Rensburg and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Nevills

Appellant

COUNSEL:

James Nevills, appearing in person

Joseph Di Luca, appearing as duty counsel

Riun Shandler, appearing for the respondent

HEARD: April 7, 2014

On appeal from the convictions entered by Justice J. McMahon of the Superior Court of Justice on June 29, 2012 and on appeal from the sentence imposed on October 31, 2012.

ENDORSEMENT

[1] The conviction appeal was not pursued in argument and is dismissed.

[2] The trial judge’s imposition of a global sentence of 9 years was well within the range for these very serious offences committed by a repeat offender who was under a variety of weapon prohibition and probation orders.

[3] The trial judge gave the appellant 1:1 credit for 19 ½ months of pretrial custody. He declined to give him 1.5:1 credit as permitted under s. 719(3.1). The trial judge who did not have the benefit of this court’s judgment in R. v. Summers, 2013 ONCA 147, [2013] O.J. No. 1068, aff’d 2014 SCC 26, 2014 S.C.C. 26 appears to have held that the loss of earned remission which does not attach to pretrial custody was not in and of itself enough to trigger s. 719(3.1). That holding cannot stand in light of this court’s pronouncement in Summers as affirmed by the Supreme Court of Canada.

[4] However, s. 719(3.1) requires a consideration of all of the circumstances. Certain circumstances specifically exclude the operation of s. 719(3.1) and, therefore, the availability of enhanced credit up to 1.5:1. For example, where a person was detained on a bail hearing for the reason identified in s. 515(9.1), he cannot obtain 1.5:1 credit for pretrial custody. Section 515(9.1) refers to cases where bail is refused “primarily because of a previous conviction”.

[5] There is no evidence whether the appellant even applied for bail. It seems clear, however, that his previous convictions would inevitably have played a dominant role had he applied for bail. He has over 70 prior convictions and was released from jail only three days before committing these offences.

[6] As explained in R. v. Morris, 2013 ONCA 223, [2013] O.J. No. 1583 at paras. 17-19, a trial court can consider the entirety of the circumstances. Where those circumstances clearly place the offender within the provisions that exclude the potential giving of 1.5:1 credit, the trial judge is entitled to take that into account even though the formal order required by these provisions was not made. This offender’s previous convictions more than justified his detention. He is caught by the spirit, if not the letter, of s. 719(3.1). The trial judge did not err in giving 1:1 credit.

[7] The appeal is dismissed.

“Doherty J.A.”

“K. van Rensburg J.A.”

“M.L. Benotto J.A.”