Court File and Parties

Court of Appeal for Ontario Date: 2021-11-08 Docket: C69412

Tulloch, Hourigan and Harvison Young JJ.A.

Between: Her Majesty the Queen Respondent

And: Daniel Leslie Scott Dolbeck Appellant

Counsel: Daniel Leslie Scott Dolbeck, acting in person Michael Crystal, appearing as duty counsel Avene Derwa, for the respondent

Heard and released orally: November 3, 2021 by video conference

On appeal from the sentence imposed on March 11, 2021 by Justice Robert Gee of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant appeals his sentence. He advances two grounds of appeal.

[2] First, he submits that the sentencing judge failed to consider Gladue factors in fashioning a fit sentence. [1] Second, he submits that the trial judge erred in his calculation of Duncan credits. [2]

[3] With regard to the Gladue ground of appeal, in this case there was an express waiver of a Gladue report. Such a waiver is permitted under Gladue and related jurisprudence. In any event, given the appellant’s lengthy criminal record and the very serious charges under consideration by the court, we are not satisfied that a consideration of the Gladue factors, expressly waived by the appellant, would have had any impact on his sentence.

[4] Regarding the Duncan credits, a careful review of the sentencing judge’s reasons for sentence reveals that he gave enhanced credit for the harsh conditions at Maplehurst during the appellant’s incarceration there. The determination of the amount of credit to be given for such conditions is within the discretion of the trial judge and there is no basis to interfere with his calculation of the credit.

[5] In our view, there was no error in principle committed by the sentencing judge and the sentence was fit. Accordingly, leave to appeal sentence is granted, but the sentence appeal is dismissed.

"M. Tulloch J.A."

"C.W. Hourigan J.A."

"Harvison Young J.A."

[1] R. v. Gladue, [1999] 1 S.C.R. 688. [2] R. v. Duncan, 2016 ONCA 754.