Court of Appeal for Ontario

Citation: R. v. Houlder, 2014 ONCA 372

Date: 20140509

Docket: C58270

Before: Laskin, Pepall and Pardu JJ.A.

Between

Her Majesty the Queen

Respondent

and

Solomon Houlder

Appellant

Counsel:

Breana Vandebeek, for the appellant

Katie Doherty, for the respondent

Heard and released orally: May 8, 2014

On appeal from the sentence imposed on August 30, 2013 by Justice Brian P. O’Marra of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant seeks leave to appeal his August 30, 2013 sentence for robbery with an imitation firearm. He was sentenced to three years imprisonment less credit for 15 months of pre-trial custody calculated on a 1 to 1 basis. He was also placed on probation for two years.

[2] The sentencing judge had this court’s decision in R. v. Summers, 2013 ONCA 147 and concluded that there was an insufficient basis in the record for enhanced credit. Since that time, the Supreme Court rendered its decision in R. v. Summers, 2014 SCC 26. The court stated at paragraph 79 that the onus is on the offender to demonstrate that he should be awarded enhanced credit as a result of his pre-sentence detention. Furthermore, generally speaking, the fact of pre-sentence detention is sufficient to give rise to an inference that the offender has lost eligibility for parole or early release thereby justifying the enhanced credit.

[3] At the time of the offence, the appellant was 18 years old. During his 15 months in custody at the Toronto Don Jail, he was described as a model prisoner. The record suggests that he would be entitled to parole and early release.

[4] In these circumstances, leave to appeal sentence must be granted and the appeal is allowed. The appellant is sentenced to three years imprisonment less credit for pre-trial custody of 22 and one-half months calculated on a 1 to 1.5 basis, together with probation for two years.

“John Laskin J.A.”

“S.E. Pepall J.A.”

“G. Pardu J.A.”