Court of Appeal for Ontario

Date: 2019-06-11 Docket: C66398

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

Between

Her Majesty the Queen Respondent

and

Randy Persaud Appellant

Counsel

Randy Persaud, in person Michael Dineen, duty counsel Michael Fawcett, for the respondent

Heard: June 4, 2019

On appeal from the sentence imposed on September 25, 2018 by Justice Michael Block of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant seeks leave to appeal one aspect of his sentence pertaining to sentence calculation. Specifically, he seeks a sentence reduction of 25 days to account for the approximately two months of time he could have been earning remission toward parole eligibility with respect to the sentence before the court, had the Crown been able to proceed with sentencing on the original date as planned.

[2] The following is a synopsis of the circumstances: the appellant was convicted of attempted murder and sentenced to 7 years and 9 months on April 12, 2014. He was released on full parole on May 23, 2017. On January 20, 2018, he was arrested on the charges before the court. His parole was suspended and he was held in provincial remand until sentencing. The offences before the court are serious firearms offences for which the appellant received a 10-year penitentiary sentence based on a joint submission following an early guilty plea on September 25, 2018. The appellant served 249 days in presentence custody. He received a 90-day credit toward his 10-year sentence on the firearms offences based on significantly difficult circumstances while in the remand facility.

[3] Fresh evidence was filed by the Crown on the appeal, explaining that Corrections Canada has determined it will treat the presentence custody as time spent serving out the attempt murder sentence. The appellant's new statutory release date is being calculated as 2/3 of his total remaining blended sentence, counted from his arrest date on January 20, 2018. However, his parole eligibility date on the firearms offences is being calculated as 1/3 of his sentence on those offences, counted from the date of sentencing on September 25, 2018.

[4] On this appeal, duty counsel on behalf of the appellant explained that, because the time spent in custody from his arrest on the firearms offences to the date of sentence is being counted as part of the remainder of his sentence for attempted murder, he earned no remission during this period, since he was already on parole for that offence. Following the date of sentence for the firearms offences, the correction authorities blended the two sentences, and the appellant began to earn remission credit toward parole eligibility with respect to the firearms offences.

[5] The appellant was prepared to plead guilty to the firearms offences very early and a July date was agreed upon. However, because of the trial Crown's personal unavailability, the plea was not entered until September 25. The appellant submits that he should be granted some reduction to his sentence to account for the approximately two months of time he could have been earning remission toward parole eligibility with respect to the firearms sentence had the sentencing been able to proceed as originally scheduled. He asks for 25 days off his sentence.

[6] The Crown opposes on the basis that s. 719(3) of the Criminal Code, R.S.C. 1985, c. C-46, precludes granting such a reduction because it prohibits awarding credit for time served for a different offence, and refers to three cases: R. v. Wilson, 2008 ONCA 510 and R. v. Pammett, [2016] O.J. No. 6700 (C.A.), from this court, and R. v. Mannella, 2017 ONSC 2333, from the Superior Court.[1]

[7] Wilson and Pammett deal with the concept of banked time served in the past for another offence for which no credit can be awarded. That is not what the appellant is seeking here. These cases are distinguishable.

[8] Mannella is more similar to the case at bar, but it is also distinguishable. Mr. Mannella was on parole with respect to a sentence for second degree murder when he was arrested on new domestic violence-related charges. His parole was revoked at the time of his arrest. He was ultimately found guilty of one count of assault causing bodily harm. Mr. Mannella asked the trial judge to apply the time he had spent in custody from the date of his arrest and parole revocation to the date of his sentence for assault causing bodily harm as either credit toward that sentence or as the basis for a sentence of "time served". The trial judge declined to do so, concluding that the time Mr. Mannella had served since the date of arrest was related to his second degree murder conviction and not the offence before the court. In coming to this conclusion, the trial judge relied upon this court's decisions in Wilson and Pammett.

[9] In the appeal before this court, the appellant is not seeking to apply the time he spent in custody from the date of his arrest to the date of his sentence for the firearms offences as credit toward that sentence. Rather, he is asking this court to exercise its discretion to remedy an unusual unfairness that has been visited upon him due to a delay in his sentencing caused by Crown unavailability. This request is something quite different and unique.

[10] But for the Crown's unavailability, the plea and sentencing would have gone ahead as planned in July 2018, and the appellant would have begun earning remission with respect to the firearms sentence at that point in time. At first instance, the Crown personally accepted responsibility for this delay. During oral argument on appeal, Crown counsel acknowledged that it was unfair that the appellant lost the opportunity to earn remission toward his parole eligibility for the firearms sentence from the original date of sentence to the actual date of sentence due to the Crown's scheduling difficulties, but submitted that s. 719(3) prevented this court from remedying this unfairness.

[11] In our view, s. 719(3) does not prevent this court from remedying this unfairness. The appellant is not seeking to "double-count" the time he spent in custody between the original date of sentencing in July 2018 and the actual date of sentencing in September 2018. Rather, as stated above, he is seeking relief from an unusual unfairness visited upon him due to a delay in scheduling that was the result of the personal unavailability of the Crown.

[12] In the unique and narrow circumstances of this case, we are inclined to exercise the court's discretion to remedy this unfairness and allow the reduction of 25 days sought by the appellant so as to account for the approximately two months of time the appellant could have been earning remission toward parole eligibility with respect to the sentence for the firearms offences but for the Crown's unavailability.

[13] Thus, leave to appeal sentence is granted, and the sentence is varied by deducting 25 days from the sentence imposed on count 1.

K. Feldman J.A. K. van Rensburg J.A. Grant Huscroft J.A.

[1] Mr. Mannella's sentence appeal was recently dismissed by this court as moot: R. v. Mannella, 2019 ONCA 136.