COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Werth, 2014 ONCA 50

DATE: 20140122

DOCKET: C57260

Feldman, MacFarland and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shawn Werth

Appellant

Shawn Werth, acting in person

Andrew Faith, duty counsel

Vanita Goela, for the respondent

Heard and released orally: January 14, 2014

On appeal from the conviction entered on October 30, 2012 and the sentence imposed on May 8, 2013 by Justice Joseph B. Wilson of the Ontario Court of Justice sitting without a jury.

ENDORSEMENT

[1] The appellant appeals his sentence solely on the basis of the credit he received for pretrial detention of one year. The trial judge at p. 35 of his reasons said:

Having considered the evidence I am not persuaded in the circumstances of this case that there is anything exceptional about Mr. Werth’s pretrial custody that would merit an enhanced credit.

It is the use of the word “exceptional” that gives rise to this appeal.

[2] The appellant concedes that two and one-half years is a fit sentence, but on the basis of this court’s decision in R. v. Summers, 2013 ONCA 147, 114 O.R. (3d) 641 says that he is entitled to credit of 1.5 to 1 as opposed to the 1 to 1 which the trial judge gave him. It is true that in Summers, supra, it was held that the word “exceptional” does not appear in the language of the statute nor should it be read into the language. See para. 81, Summers, supra. Here the trial judge erred and used the wrong test.

[3] Before us both Crown and the appellant concede that two and one-half years is a fit sentence. Accordingly, the credit to be applied is then calculated against that sentence. Based on the sentencing submissions and the record before him, there was information that supports enhanced credit being given. This includes his likely eligibility for early release. The appellant committed no breach of his bail when he was on bail, he was well behaved while in custody, and he did nothing to delay his time in pretrial custody. See also Summers, supra, paras. 123 and 125.

[4] In our view, enhanced credit was justified in the circumstances. The appellant should have been credited on the basis of 1.5 for the year he spent in pretrial detention.

[5] In the result, the sentence of 30 months should be reduced by 18 months to leave a net sentence of incarceration of 12 months. Additionally there was a term of two years’ probation.

“K. Feldman J.A.”

“J. MacFarland J.A.”

“S.E. Pepall J.A.”