Court of Appeal for Ontario

Date: 2021-01-29 Docket: C68597

Judges: MacPherson, Trotter and Harvison Young JJ.A.

Between: Her Majesty the Queen, Respondent and Jeremey Ceasor, Appellant

Counsel: Neha Chugh, for the appellant Nicolas De Montigny, for the respondent

Heard: In writing

On appeal from the sentence imposed by Justice Deborah A. Kinsella of the Ontario Court of Justice on July 15, 2020.

Reasons for Decision

[1] On March 20, 2020, the appellant pleaded guilty to a number of weapons offences. The parties made a joint recommendation for a six month sentence to be imposed on a future date due to the pandemic. In the meantime, the appellant was released on bail.

[2] On June 12, the appellant was arrested and charged with two offences, including breaching his release order: Criminal Code, R.S.C., 1985, c. C-46, s. 145.

[3] On July 15, the appellant pleaded guilty to the s. 145 offence. The parties jointly proposed a sentence of time served (the 33 days the appellant spent in custody from June 12 to July 15). The sentence was not imposed at the time because after pleading guilty the appellant made statements suggesting that he did not breach his release order. On July 15, the trial judge also imposed the six month sentence on the earlier weapons charges.

[4] On August 4, the sentencing judge granted the accused’s application to strike his guilty plea on the s. 145 charge. The defence suggested that the 33 days of pre-sentence custody which was previously applied to the s. 145 charge could and should be shifted to the weapons charges for which the sentence was about to start. The Crown disagreed.

[5] The sentencing judge agreed with the Crown. She said:

Because if the idea was it was going to be used on these charges, I have now struck the plea. I mean ultimately if something changes and these charges resolve, he’d certainly still have that time in the bank, if I can call it that. But it may be that it’s not time that is available to be used in any other fashion because that wasn’t the intention.

[6] The appellant contends that the sentencing judge erred in reaching this conclusion. His position is that the pre-trial custody tentatively assigned by both parties to the later breach offence could be shifted to the weapons offence once the sentencing judge had set aside the appellant’s guilty plea to the breach offence. We do not accept this submission.

[7] The starting point is s. 719(3) of the Criminal Code 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….

[8] Against this backdrop, there is a long line of cases holding that s. 719(3) does not permit an offender to ‘bank’ custodial time for unrelated offences. To give credit for time spent serving a sentence for another offence would distort the sentencing regime: see, for example, R. v Wilson, 2008 ONCA 510, at paras. 40-45; R. v. Pammett, 2016 ONCA 979, at para. 20; and R. v. Perkins, 2017 ONCA 152, at para. 30.

[9] In this case, the entire focus of both parties was on the issue of credit for pre-trial custody in relation to the breach of recognizance offence. The parties reached an agreement on that issue. That agreement remains in place and can be implemented if the appellant is convicted following a guilty plea or a trial of that offence. However, if that does not come to pass, there is no connection between the two sets of offences the appellant faced. Accordingly, as Rosenberg J.A. said in Wilson, at para. 45: “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.”

[10] The appeal is dismissed. The appellant shall surrender into custody at the institution from which he was released within 72 hours of the release of these reasons, failing which a warrant shall issue for his arrest.

“J.C. MacPherson J.A.”

“Gary Trotter J.A.”

“Harvison Young J.A.”