Court of Appeal for Ontario

Date: 20230328 Docket: C 70315

Simmons, Miller and Harvison Young JJ.A.

Between

His Majesty the King Respondent

and

Jermaine Richards Appellant

Counsel: Mayleah Quenneville, for the appellant Kristen Pollock, for the respondent

Heard: March 22, 2023

On appeal from the convictions entered by Justice David G. Carr of the Ontario Court of Justice on November 12, 2020, and from the sentence imposed on January 4, 2021.

Reasons for Decision

[1] At the oral hearing, for reasons to follow, we dismissed the appellant’s conviction appeal but granted his request for leave to appeal sentence, allowed his sentence appeal concerning the terms of imprisonment imposed, and substituted revised terms of imprisonment. These are our reasons.

[2] The appellant pleaded guilty to four offences arising from his participation in an attempted convenience store robbery: unlawful confinement, robbery with a knife, wearing a disguise with intent to commit an indictable offence, and unauthorized possession of a firearm.

[3] Taking account of the mitigating factors present, and in order to avoid collateral immigration consequences, in addition to credit for pre-sentence custody and restrictive bail terms, the guilty plea judge sentenced the appellant to five months' (150 days’) imprisonment on each count, to be served consecutively, plus three years’ probation. The total credit given for pre-sentence custody and restrictive bail terms was six months, recorded as 179 days on the information.

[4] The appellant appealed against his convictions and sought leave to appeal sentence. He raised one issue on his sentence appeal, and, in the alternative, asked to set aside his guilty pleas.

The Sentence Appeal

[5] The appellant applied to introduce fresh evidence on appeal. The Crown agreed that the fresh evidence met the criteria for admission.

[6] In the fresh evidence, the appellant asserted that, following the sentencing hearing, he learned that because the guilty plea judge did not allocate the pre‑sentence credit he gave to the appellant to specific offences, the Canada Border Services Agency (“CBSA”) treats the sentence the appellant received for each individual count as being the term of imprisonment imposed for that count plus the total amount of pre-sentence credit given by the guilty plea judge i.e., 150 days’ imprisonment plus 179 days’ of pre-sentence credit on each count, for a total effective sentence on each count of 329 days’ imprisonment. Because the total effective sentence on each count exceeds 179 days, the appellant, who is a permanent resident of Canada, will lose the right to appeal any removal order that is made.

[7] Given that it was the sentencing judge's intention to impose a fit sentence but to do so in a manner that would avoid collateral immigration consequences if possible, the appellant asked that his sentence be adjusted in two ways.

[8] First, he asked that the two months’ credit he received for restrictive bail conditions be eliminated and treated simply as a mitigating factor on sentence.

[9] Second, he pointed out that the guilty plea judge gave him slightly enhanced credit for the 77 days of pre-sentence custody actually served, i.e., 120 days’ credit. He therefore asked that his credit for pre-sentence custody be reduced to 116 days to reflect exactly 1.5 to 1 credit, and that one quarter of that amount (29 days), be allocated to each count, with a resulting effective sentence of 179 days’ imprisonment on each count.

[10] The Crown did not oppose these requests.

[11] We granted the appellant's requests. Although the trial Crown sought a global sentence of three years' imprisonment for the appellant’s offences, it is apparent that, in light of the mitigating factors present, the guilty plea judge concluded that a global sentence of 20 months' imprisonment in addition to pre‑sentence credit would be appropriate. On appeal, the Crown concedes that, for this offender and his role in these offences, this sentence is not unfit.

[12] Treating the credit for pre-sentence restrictive bail conditions as a mitigating factor on sentence rather than reducing the sentence by a specific period accords with this court's jurisprudence: R. v. C.C., 2021 ONCA 600, at paras. 4, 5. Reducing the credit for pre-sentence custody to 116 days is simply an arithmetic adjustment.

[13] In the result, we granted leave to appeal sentence, set aside the sentences of imprisonment imposed by the guilty plea judge, and substituted a sentence of 150 days’ imprisonment in addition to 29 days' credit for pre-sentence custody on each count, for a total sentence of 179 days on each count, to run consecutively. All other terms of the sentence imposed by the guilty plea judge are to remain in full force and effect.

The Conviction Appeal

[14] In light of our disposition of the sentence appeal, it was unnecessary that we address the appellant's alternative request to set aside his guilty pleas. We accordingly dismissed the conviction appeal.

“Janet Simmons J.A.”

“B.W. Miller J.A.”

“A. Harvison Young J.A.”