Court of Appeal for Ontario

Date: 2017-03-17 Docket: C61981

Judges: Feldman, van Rensburg and Pardu JJ.A.

Between

Her Majesty the Queen Respondent

and

Justin Green Appellant

Counsel

Lance Beechener, for the appellant

Kevin Rawluk, for the respondent

Heard and Released

Heard and released orally: March 17, 2017

On appeal from the sentence imposed on October 13, 2015 by Justice Edward M. Morgan of the Superior Court of Justice.

Endorsement

[1] The appellant seeks leave to appeal his sentence based on the failure of the trial judge to give credit for restrictive bail terms following R. v. Downes (2006), 205 C.C.C. (3d) 488 (Ont. C.A.).

[2] The trial judge addressed the issue at paragraphs 25-26 of his reasons. It appears clear that he misapprehended the amount of time that the appellant was out on bail. He referred to 42 days, which was the amount of time the appellant was held in custody before he was first released on bail. However, he was actually out on bail for 18 months.

[3] The trial judge rejected the request for credit on the basis that bail conditions which allowed the appellant to be out accompanied by one of his sureties were not that onerous.

[4] In our view, this approach by the trial judge was informed by what he misunderstood to be the short duration of the bail term. However, had he understood that the appellant was on a house arrest regime similar to that in Downes for 18 months, he would have given the five months' credit requested by defence counsel. We note that Crown counsel at trial did not take any position on the defence request for credit for difficult bail conditions.

[5] We are also satisfied that, given the way the trial judge addressed the issue, had he understood that the bail was for 18 months under restrictive conditions, he would have considered it appropriate to give credit for the strict bail conditions as part of his consideration of a fit sentence.

[6] In the result, leave to appeal sentence is granted and the sentence is reduced by five months.

K. Feldman J.A.

K. van Rensburg J.A.

G. Pardu J.A.