Court of Appeal for Ontario

Citation: R. v. Ayati-Ghaffari, 2014 ONCA 812

Date: 2014-11-19

Docket: C57575

Before: Feldman, Epstein and Benotto JJ.A.

Between

Her Majesty the Queen

Respondent

and

Fardin Ayati-Ghaffari

Appellant

Counsel:

Fardin Ayati-Ghaffari, acting in person

Ian Smith, appearing as duty counsel

Thomas C. Lemon, for the respondent

Heard: October 7, 2014

On appeal from the conviction entered on April 11, 2013 by Justice Julie A. Thorburn of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] On October 7, 2014, the appeal from conviction was dismissed for oral reasons.

[2] During submissions, the appellant raised for the first time, an appeal from sentence. The Crown did not consent to the hearing of the sentence appeal but agreed to respond if called on. He was called on and responded. Our decision with respect to the appeal from sentence was reserved. These are our reasons.

[3] The sentence appeal relates to the credit the appellant received for pre-trial custody. The sentencing judge found that he was entitled to a 1.5:1 credit for some of the time served. She referred to the poor conditions in the facility, the fact that programmes were unavailable and that the time spent will not be credited toward parole eligibility.

[4] The appellant, relying on R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, submits that the appellant should have a credit of 1.5 days for each day in pre-trial custody. This would provide him with a credit of an additional 231 days.

[5] The sentencing judge’s reasons make it clear that, if she had the benefit of Summers, she would have awarded a credit of 1.5 days for every day served. As stated in Summers, the loss of access to parole and early release, in itself is generally sufficient to justify enhanced credit. The sentencing judge referred to this and to the harsh conditions.

[6] Under these circumstances, we agree with the appellant that the principles of Summers apply. Enhanced credit is the norm not the exception.

[7] Leave to appeal the sentence is granted and the sentence is varied to allow 1:5 days credit for all the time spent in pre-trial custody.

"K. Feldman J.A."

"G.J. Epstein J.A."

"M.L. Benotto J.A."