Court of Appeal for Ontario

Date: 2018-08-31 Docket: C65517

Judges: Watt, Huscroft and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Christopher Newton Appellant

Counsel

Delmar Doucette and Zahra Shariff, for the appellant

Frank Au, for the respondent

Hearing and Release

Heard and released orally: August 24, 2018

On appeal from: the sentence imposed on May 10, 2018 by Justice Alan C.R. Whitten of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant challenges the sentence imposed on him on his conviction for manslaughter entered after his plea of guilty to that offence pursuant to s. 606(4) of the Criminal Code.

[2] The appellant does not say that the length of sentence identified by the trial judge was outside the range of sentence appropriate for this offence and this offender. The nub of his complaint is that the trial judge should have assigned credit of 1.5:1 for the time the appellant spent in the penitentiary after his first conviction for murder on this indictment until this court allowed his appeal and ordered a new trial.

[3] In our view, even if it be accepted that the sentencing judge erred in principle in calculating the credit ratio for time spent in custody in the penitentiary, an issue that we find it unnecessary finally to decide, our intervention is only justified where we conclude that any error that may have occurred had an impact on the fitness of the sentence ultimately imposed.

[4] This case proceeded on the basis that the sentencing decision was all about how much additional time was necessary to arrive at a sentence that reflected the fundamental principle of proportionality and gave effect to the other applicable sentencing objectives and aggravating and mitigating factors.

[5] The sentencing judge settled on a net additional sentence of one year. We see no error in this approach or in the decision that he reached.

[6] Leave to appeal sentence is granted, but the appeal from sentence is dismissed.

"David Watt J.A."

"Grant Huscroft J.A."

"Fairburn J.A."