Court of Appeal for Ontario

Date: 20211012 Docket: C69531

Fairburn A.C.J.O., Doherty and Watt JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Tiago Gomes Xavier Appellant

Counsel: Nate Jackson, for the appellant Mark Luimes, for the respondent

Heard: in writing

On appeal from the sentence imposed by Justice Edward Prutschi of the Ontario Court of Justice on April 9, 2021.

Reasons for Decision

[1] The appellant received a sentence of ten months imprisonment for one count of robbery. Counsel informed the sentencing judge that the appellant had served three days in presentence custody, meaning he should be credited 5 days in total. The sentencing judge agreed.

[2] The sentencing judge also gave credit pursuant to R. v. Downes (2006), 79 O.R. (3d) 321 (“Downes credit”) for what he thought was 15 months spent on restrictive bail terms. The Downes and presentence custody credit came to a combined total of 2 months.

[3] On appeal, the parties agree that the sentencing judge was misinformed about the amount of time spent in presentence custody and on restrictive bail conditions. The appellant actually spent 30 days (not 3 days) in presentence custody, meaning that he only spent 14 months (not 15 months) on restrictive bail conditions.

[4] The parties agree that that this sentencing error can be remedied by decreasing the Downes credit by 4 days and increasing the presentence custody by 41 days. This results in an additional 37 days of credit.

[5] We are prepared to accede to this joint position. An additional 37 days credit is granted and should be reflected on the warrant of committal. The sentence remains the same in all other respects.

"Fairburn A.C.J.O."

"Doherty J.A."

"David Watt J.A."