COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Whitlock, 2015 ONCA 445

DATE: 20150618

DOCKET: C58757

Strathy C.J.O., Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jesse Sabourin Whitlock

Applicant/Appellant

John Hale, for the appellant

Robert Gattrell, for the respondent

Heard: June 15, 2015

On appeal from the sentence imposed on December 3, 2013 by Justice Gilles Renaud of the Ontario Court of Justice.

By the Court:

[1] There is no dispute about the fitness of the sentence of 20 months (600 days) imposed by the sentencing judge.

[2] The respondent agrees there was an error in recording the sentence for break and enter on the warrant of committal. It should have been 16 months, but it was recorded as 20 months, reflecting the global sentence. However, the sentence of 4 months for theft under was imposed and recorded as consecutive, resulting in a total sentence of 24 months instead of the 20 months intended. We agree with the respondent’s suggestion that these clerical errors can be corrected by making the sentence on theft concurrent with the break and enter.

[3] The respondent also concedes that there was an error in calculating the pre-sentence custody in 2012, which should have been 83 days rather than the 60 days credited. We agree as well.

[4] A third issue is whether, as the appellant submits, the time subtracted from the pre-trial custody to account for sentences being served on other matters (90 days and 21 days), should have been reduced by one-third to reflect the time the appellant would normally have served as a result of statutory remission. This submission was not made to the sentencing judge. In the absence of clear authority on this issue, we are not prepared to interfere with the discretion of the sentencing judge.

[5] A fourth issue is whether the appellant should have received credit at 1.5 to 1 for his pre-sentence custody pursuant to R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, instead of the 1:1 calculated by the sentencing judge. Related to this is the credit he should receive for time spent in custody after he was arrested on new charges while on bail on these charges. The Crown brought an application pursuant to s. 524(8) of the Code to revoke his bail on these outstanding charges, but the application did not proceed as the appellant did not seek bail. The respondent argues that had bail been denied, the maximum credit for the time spent after his re-arrest on February 1, 2013 would have been 1:1 pursuant to s. 719(3.1).

[6] In light of Summers, it would be appropriate to give 1.5:1 credit for the 83 days in custody prior the appellant’s release on bail on December 17, 2012.

[7] There is no 1:1 limit on credit for pre-trial custody in circumstances where the Crown has not proceeded with an application under s. 524(8). Having regard to all the circumstances, we would exercise our discretion to grant credit at 1.5 to 1 for the appellant’s time in custody in 2013.

[8] In the result, the appeal is allowed and the warrant of committal will be amended to reflect these reasons. Counsel indicated that they should be able to resolve the relatively minor differences in their calculations of pre-sentence custody.

[9] The impact of these amendments on the appellant’s statutory release date is a matter that should be raised with the parole authorities, if appropriate.

“G.R. Strathy C.J.O.”

“G. Pardu J.A.”

“M.L. Benotto J.A.”

Released: June 18, 2015