Court of Appeal for Ontario

CITATION: R. v. Mohamed, 2015 ONCA 669

DATE: 20151001

DOCKET: C57776

BEFORE: Doherty, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abdifatah Mohamed

Appellant

COUNSEL:

Abdifatah Mohamed, appearing in person

Brian Snell, appearing as duty counsel

Gregory J. Tweney, for the respondent

HEARD: September 16, 2015

On appeal from the sentence imposed by Justice Trafford of the Superior Court of Justice, dated September 27, 2013.

APPEAL BOOK ENDORSEMENT

[1] The records have not been produced. The Crown has made extensive efforts to help the appellant get the records as ordered. Atlantic Institution has acknowledged having records, but as of a short time ago was still engaged in “processing” those records. There is no apparent end date to this “processing”. The appellant has chosen to proceed without those records. We will proceed on the basis of a summary of medical condition provided by the appellant to duty counsel.

[2] Mr. Snell submits that the trial judge should have given 2:1 credit for presentence custody. The trial judge’s 1:5:1 credit indicates he would have given that credit under the “old” regime or under the current statutory regime. Under the “old” regime, judges often instead usually gave 2:1 credit, however, the credit to be given in any case was a matter for the trial judge. The trial judge was alive to the principles relevant to the exercise of that discretion (p. 15, pp. 28-30 of the reasons). He also identified the factors he relied on in the exercise of his discretion (p. 31).

[3] Each factor was relevant to the exercise of the trial judge’s discretion. In our view, the appellant’s repeated serious misconduct while in custody is perhaps the most significant consideration in the exercise of that discretion.

[4] We will not interfere. We note that the appellant is scheduled to be released on November 26, 2015.

[5] Accordingly, the appeal is dismissed.