COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ricketts, 2016 ONCA 99

DATE: 20160203

DOCKET: C56339

Watt, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Malcolm Ricketts

Appellant

Erika Chozik and Benjamin Snow, for the appellant

Christine E. Bartlett-Hughes, for the respondent

Heard and released orally: January 26, 2016

On appeal from the conviction[^1] entered on July 27, 2012 and the sentence imposed on November 16, 2012 by Justice Bonnie L. Croll of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant, a youthful first offender, was convicted of several offences of violence against his domestic partner and their infant daughter. The trial judge considered that a sentence of 8 years and 4 months in a federal penitentiary was fit for the appellant and his offences and complied with the applicable sentencing objectives, principles and factors.

[2] The trial judge sentenced the appellant on November 16, 2012. When sentence was imposed, the appellant had been in custody awaiting disposition of the charges for 32 months. The trial judge exercised her discretion under s. 719(3) of the Criminal Code to award the appellant credit for the time he had spent in custody as a result of the offences prior to sentence. She invoked s. 719(3.1) to award the appellant credit of 1.25 days for every day he had spent in pre-disposition custody. In the result, 40 months was deducted from 8 years, 4 months, leaving a sentence to serve of 5 years or 60 months.

[3] When the trial judge imposed sentence in this case, the principles governing award of enhanced credit for pre-disposition custody under s. 719(3.1) were unsettled. About 17 months later, the decision in R. v. Summers, 2014 SCC 26, determined that credit for pre-disposition custody should generally, but not always, be granted at a ratio of 1.5 days for every 1 day spent in pre-disposition custody. Self-evidently, the trial judge did not have the benefit of this clarification when she imposed the sentence.

[4] Almost two years have passed since the decision in Summers was released. On several occasions since that time, panels of this court have allowed appeals to re-evaluate the credit to be awarded for pre-disposition custody, fixing that ratio at 1.5:1 rather than 1:1 or some intermediate ratio as here.

[5] In this case, as I have said, the appellant, a youthful first offender spent 32 months in pre-disposition custody. He experienced triple bunking and lockdowns for significant periods of time. He incurred no misconducts during the entire period. There is no basis upon which to rest a conclusion that he would be denied statutory release.

[6] The parties jointly submit that the credit for pre-disposition custody should have been 48 months rather than 40 months, leaving an effective sentence of 4 years and 4 months, or 52 months, instead of the sentence of 5 years, or 60 months, the trial judge imposed. We agree.

[7] In the result, leave to appeal sentence is granted. The appeal from sentence is allowed and the sentence varied to a term of 4 years and 4 months, or 52 months, in place of the sentence of 5 years, or 60 months, imposed by the trial judge.

[8] The credit of 48 months for pre-disposition custody should be allocated to the sentence imposed on count 5, resulting in an imposed sentence for that count of 3 years consecutive to the sentence imposed on count 4.

[9] The preparation of the final order giving effect to this variation is to be expedited.

“David Watt J.A.”

“P. Lauwers J.A.”

“C.W. Hourigan J.A.”

[^1]: The conviction appeal was not argued before us. The sentence appeal was expedited by the chambers judge when the appellant sought release pending appeal.