Court of Appeal for Ontario

Date: 2019-04-17 Docket: C66713

Judges: Benotto, Brown and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Hassan Latif Appellant

Counsel

Hassan Latif, in person Philip Norton, duty counsel Michael Fawcett, for the respondent

Heard: April 8, 2019

On appeal from the sentence imposed on December 7, 2018 by Justice Joseph Di Luca of the Superior Court of Justice.

Reasons for Decision

[1] The appellant, Hassan Latif, seeks leave to appeal his sentence imposed on December 7, 2018. He advances two grounds of appeal. The first is that the victim surcharge imposed must be set aside; the Crown agrees. The second ground of appeal concerns how a period of 54 days served as part of the sentence for other offences should be treated in determining the sentence for the convictions that underpin this appeal.

[2] In October 2017, the appellant was out of custody but subject to (i) a recognizance, which included a term that he reside in his residence at all times, with limited exceptions (the "Curfew Term"), and (ii) a probation order, which included a term that he have no contact with Ms. Haya Tariq (the "No Contact Term").

[3] On October 7, 2017 the appellant, together with Ms. Tariq, robbed a gas station in Vaughan.

[4] Following the robbery, the appellant and Ms. Tariq drove from Vaughan to Brampton. In the early morning hours of October 8, 2017 they engaged in an argument in the lobby of a residential building on Kingsbridge Garden Circle in Mississauga.

[5] The police were called and charges were laid against the appellant for failing to comply with the Curfew Term of his recognizance and failing to comply with the No Contact Term of his probation order (the "Mississauga Offences"). The information containing those charges was not in the appeal record.

[6] The appellant pleaded guilty to the Mississauga Offences on November 30, 2017. He received a global sentence of four month's imprisonment which, with credit, amounted to an effective go-forward sentence of 60 days incarceration. A 12-month probation order was also imposed.

[7] On December 5, 2017 the appellant was arrested and charged with six offences relating to the October 7 events in Vaughan: robbery; disguise with intent to commit theft; breaches of a probation order, including the No Contact Term; and breaches of the recognizance, including the Curfew Term (the "Vaughan Offences").

[8] At the time of his arrest on the Vaughan Offences, the appellant was in custody serving the sentence for the Mississauga Offences imposed on November 30, 2017.

[9] The appellant remained in custody until the trial of the Vaughan Offences about one year later on December 7, 2018. The appellant pleaded guilty to three counts: robbery; disguise with intent; and failure to comply with his recognizance in relation to the Curfew Term.

[10] During the sentencing submissions following the plea, the Crown informed the court that the appellant had been in custody serving the sentence on the Mississauga Offences when the charges for the Vaughan Offences were laid. At that time, the appellant still had 54 days to serve on his 60-day sentence for the Mississauga Offences. In the Crown's view, those 54 days should be subtracted from the 367 days of pre-sentence custody served by the appellant from the time of his arrest on December 5, 2017 until the imposition of sentence on the Vaughan Offences on December 7, 2018. That would result in 313 days of pre-sentence custody on the Vaughan Offences, which the Crown submitted should be given credit on a 1.5:1 basis.

[11] The defence sought enhanced credit for pre-sentence custody at a rate of 2:1 in light of the conditions of incarceration experienced by the appellant. The defence agreed with the Crown's deduction of the 54 days from the calculation of the period of pre-sentence custody for the purposes of the Vaughan Offences. However, the defence argued that an extra day should be added to the starting point for calculating the length of pre-sentence custody, with the result that, after deducting the 54 days served for the Mississauga Offences, credit for pre-sentence custody on the Vaughan Offences should be given for 314 days.

[12] The sentencing judge imposed a global sentence of 2.5 years imprisonment on the Vaughan Offences. Using a period of 314 days for calculating credit for pre-sentence custody, the sentencing judge gave enhanced credit at the rate of 2:1, resulting in a total of 630 days of credit.

[13] The appellant appealed his convictions on the Mississauga Offences. Although the materials for that appeal were not before this court, it is common ground that on February 22, 2019 the appellant's appeal succeeded. As a result, his convictions were set aside and a new trial ordered. It is also common ground that the Crown subsequently withdrew the charges for the Mississauga Offences.

[14] Following his successful appeal of the Mississauga Offences, the appellant filed a notice of appeal of his sentence on the Vaughan Offences. He contends that since his conviction on the Mississauga Offences has been set aside and those charges withdrawn, he should be given credit for the 54 days he served for the Mississauga Offences that were deducted when the sentence for the Vaughan Offences was calculated on December 7, 2018.

[15] Assisted by duty counsel, the appellant acknowledges that the law does not permit an offender to "bank" custodial time for unrelated offences. However, the appellant submits that a "middle ground" should exist that would permit an offender to bank time spent in custody serving a sentence for "related or interconnected convictions." In support of that submission, the appellant relies on the reasons of the majority of this court in R. v. Wilson, 2008 ONCA 510, 236 C.C.C. (3d) 285, where, at para. 45, Rosenberg J.A. stated:

But, at the end of the day when it comes time to sentence an offender the court can only take into account factors that relate to the particular offence under consideration. The fact that an offender, like the appellant, still happens to be in the appeal system when a flaw in relation to a totally unrelated conviction comes to light is not, in my view, a principled reason for giving that offender credit for the time he or she spent serving the sentence for that unrelated conviction. [emphasis added]

[16] The appellant submits that the majority's reference to "a flaw in relation to a totally unrelated conviction" strongly suggests that where the flaw is in relation to a related or interconnected conviction, a court can take into account "banked" custodial time served as part of the sentence for one offence when calculating the pre-sentence custody for purposes of sentencing on another offence.

[17] We are not persuaded by this submission.

[18] The starting point of the analysis is s. 719(3) of the Criminal Code, R.S.C. 1985, c. C-46, which provides:

In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence. [Emphasis added.]

[19] As the majority of this court held in Wilson, at para. 42, to give credit for time spent serving a sentence for another offence would distort the sentencing regime. As a result, "at the end of the day when it comes time to sentence an offender the court can only take into account factors that relate to the particular offence under consideration": para. 45; followed in R. v. Perkins, 2017 ONCA 152, 347 C.C.C. (3d) 58, at paras. 30-33, and in R. v. Barnett, 2017 ONCA 897, in respect of time served following an unrelated conviction as distinct from the treatment of time spent in pre-sentence custody: paras. 30 and 33.

[20] In the present case, the 54 days constituted time spent in custody serving the sentence for the Mississauga Offences, not time spent in custody "as a result of" the Vaughan Offences. Although the same recognizance formed the basis for the failure to comply charges in the Mississauga and Vaughan Offences, the events underlying those charges took place at different times and in different places. Applying s. 719(3) of the Criminal Code and the principles set out in Wilson, it is not open to the appellant to seek to apply the 54 days he served in custody as part of his sentence on the now-overturned Mississauga Offences to the calculation of the sentence on the Vaughan Offences.

[21] In Wilson, Rosenberg J.A. observed that if a sentencing judge takes the prior conviction into account as a serious aggravating circumstance on other convictions, the fact that the accused was later found to be innocent of that prior offence would be a relevant consideration. However, in the present case, as in Wilson, the sentencing judge did not consider the prior conviction as a serious aggravating circumstance. The sentencing judge identified the appellant's prior convictions for robberies to be an aggravating factor but not his conviction for the Mississauga Offences.

[22] For these reasons, we grant the appellant leave to appeal his sentence on the Vaughan Offences. We grant the appeal to the extent of setting aside the victim surcharge imposed but otherwise dismiss the appeal.

M.L. Benotto J.A. David Brown J.A. Fairburn J.A.