Court of Appeal for Ontario

Citation: R. v. Gateman, 2022 ONCA 125 Date: 2022-02-14 Docket: C69772

Before: Miller, Trotter and Zarnett JJ.A.

Between:

Her Majesty the Queen Respondent

and

Joshua Gateman Appellant

Counsel: Joshua Gateman, acting in person Xenia Proestos, for the respondent

Heard: February 8, 2022 by video conference

On appeal from the sentence imposed by Justice George L. Orsini of the Ontario Court of Justice on July 2, 2021.

REASONS FOR DECISION

[1] The appellant entered pleas of guilty to the following offences: mischief under $5,000, possession of a restricted firearm and two counts of possession of methamphetamine.

[2] Further to a joint submission, the trial judge imposed concurrent sentences of 15 months’ imprisonment (450 days), less credit for pre-sentence custody (PSC) in the amount of 68 days. The remaining time to be served was 382 days.

[3] The appellant appeals his sentence on the basis that the sentencing judge failed to allocate proper credit for PSC. Instead of receiving credit on a 1:5:1 basis, the appellant says the ratio should have been 2:1, especially in light of the impact of COVID-19 on custodial communities. We do not accept this submission. The allocation of credit for PSC is within the discretion of sentencing judges. In this case, the amount of credit for PSC was an important component of the joint position. The sentence judge did not err in failing to give greater credit.

[4] The appellant says he was forced into the joint submission by his trial counsel. However, he has not properly advanced a claim of ineffective assistance of counsel. The claim is unsubstantiated, and we do not accept it.

[5] Ms. Proestos for the Crown advises us that there was an error in the sentencing judge’s imposition of a 15-month sentence for one of the counts of possession of a controlled substance. Given that the Crown elected to proceed summarily on this count, the maximum sentence that could be imposed was 12 months’ imprisonment. Consequently, on the Information #21-7402, we adjust the sentence as follows: the term that would have been imposed before credit is granted will be reduced to 365 days, from which 68 days credit PSC will be deducted. The total term of imprisonment on that count is therefore reduced to 297 days, to be served concurrently. All other aspects of the sentence remain unaltered.

[6] Leave to appeal sentence is granted and the appeal is allowed in part.

“B.W. Miller J.A.”

“Gary Trotter J.A.”

“B. Zarnett J.A.”