Court of Appeal for Ontario

Citation: R. v. Johnson, 2016 ONCA 69

Date: 2016-01-26

Docket: C60079

Judges: Feldman, Cronk and Roberts JJ.A.

Between:

Her Majesty the Queen

Respondent

and

Anthony Fitzroy Johnson

Appellant

Counsel:

Anthony Fitzroy Johnson, appearing by video conference

Yoni Rahamim, appearing as duty counsel

Roger A. Pinnock, for the respondent

Heard: January 14, 2016

On appeal from the sentence imposed on February 18, 2015 by Justice Joseph R. Henderson of the Superior Court of Justice.

Endorsement

[1] Following a trial by judge and jury, the appellant was convicted of aggravated assault arising from a close-range shooting incident in which the appellant’s co-accused shot a third party using a firearm supplied by the appellant. The appellant, who was 23 years old when sentenced, was sentenced to five years’ imprisonment, less two years and eight months’ credit for pre-sentence custody, credited on a 1:1 basis.

[2] The appellant seeks leave to appeal his sentence on the basis that the sentencing judge erred by failing to award enhanced credit for his pre-sentence custody at the rate of 1.5:1.

[3] We agree.

[4] The appellant was on bail in respect of other offences at the time of his arrest for the predicate offence. However, his bail was not revoked. Although the sentencing judge was so advised by the Crown, he nevertheless stated in his reasons that when the appellant was arrested “his bail was no doubt revoked.” This was an error. He went on to state that because the appellant was on bail at the time of the offence, it was “unlikely that he would ever have been released on bail on this offence pending trial.” He determined that for those reasons, the appellant was not entitled to enhanced credit for his pre-sentence custody.

[5] As the sentencing judge proceeded on the basis of a material factual misunderstanding, the deference ordinarily afforded on appeal to the sentence imposed is displaced and his decision may be set aside.

[6] Since the decision of the Supreme Court of Canada in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, the fact that pre-sentence detention has occurred will usually be sufficient “to give rise to an inference that the offender has lost eligibility for parole or early release, justifying enhanced credit”. However, the Crown may challenge this inference by showing that it is unlikely that the accused would receive early release or parole in any event, either because of the nature of the offence or the offender, or because of the offender’s conduct while in jail (Summers, at para. 79). In any of these circumstances, the withholding of enhanced credit may be justified.

[7] In this case, the sentencing judge did not address the question of the likelihood that the appellant would obtain parole or early release. The appellant served a lengthy period of pre-sentence custody. There is no evidence on the record that his behaviour during that time or since would deprive him of eligibility for early release or parole. The Crown did not challenge the inference that the appellant had lost eligibility for parole or early release.

[8] In our view, the appellant is entitled to enhanced credit of 1.5:1 for his pre-sentence custody of two years and eight months. Leave to appeal sentence is granted, the appeal is allowed and the duration of the sentence reduced accordingly.

“K. Feldman J.A.”

“E.A. Cronk J.A.”

“L.B. Roberts J.A.”