Publication Ban Warning

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Date: 20230119 Docket: C70747

MacPherson, Pardu and Coroza JJ.A.

BETWEEN

His Majesty the King Respondent

and

M.V. Appellant

Counsel: Jessica Zita, for the appellant Baaba Forson, for the respondent

Heard: January 12, 2023

On appeal from the sentence imposed on March 16, 2022 by Justice Brian P. O’Marra of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant was originally convicted of sexual assault on December 7, 2018. On April 30, 2019, he was sentenced to seven years imprisonment. He served his sentence until December 11, 2020, when this court allowed his appeal and ordered a new trial because the trial judge did not provide reasons for convicting him.

[2] On November 26, 2021, the appellant was convicted of sexual assault upon his re-trial. On March 16, 2022, the appellant was sentenced to seven years imprisonment, less five years credit for pre-sentence custody leaving a net sentence of two years. Pursuant to R. v. Summers, 2014 SCC 26, [2014] 1 SCR 575, the trial judge granted credit at a rate of 1:1 for the time the appellant spent in the federal penitentiary serving his sentence imposed by the first trial judge, and credit at the rate of 1.5:1 for the remaining pre-sentence custody. The trial judge rejected the appellant’s request that enhanced credit should be given for the time served in the federal penitentiary awaiting the hearing of his appeal because at that time, the appellant was not awaiting trial and had access to programs not available in provincial remand.

[3] On appeal, the appellant raises two issues, the first of which is undisputed. Before the trial judge, all parties agreed to, and incorrectly calculated the appellant’s pre-sentence custody. Accordingly, the parties now agree that the appellant should have been given more Summers credit for pre-sentence custody and that this court should vary the sentence and reduce it by 81 days based on the 1.5:1 credit granted by the trial judge.

[4] The second issue on appeal is whether the trial judge should have granted enhanced credit for the time the appellant spent in federal custody serving his first sentence. As noted above, the trial judge granted the appellant 1:1 credit for this time.

[5] It is the appellant’s submission that enhanced credit was warranted for this time at a rate of 1.5:1. According to the appellant, the time spent in federal custody became akin to pre-trial custody once his appeal was successful, and the trial judge should have recognized that this time would not count towards the appellant’s parole and early release for the sentence he imposed. According to the appellant, the denial of enhanced credit in this case is unfair.

[6] The Crown argues that the trial judge’s apportionment of enhanced credit is highly discretionary and ought not to be interfered with absent an error of law or principle. According to the Crown, in the circumstances of this case, the trial judge was not required to grant enhanced credit for time serving the sentence imposed by the first trial judge. Requiring him to do so would contradict the qualitative rationale of Summers credit for provincial custody, that is, to account for those detained in provincial institutions being unable to access education and programs available in federal institutions.

[7] We recognize that this court should not modify a sentence unless the sentence is unfit, or the sentencing judge made an error in principle that had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 SCR 1089, at paras. 41-44.

[8] In our view, it was an error in principle for the trial judge to conclude that enhanced credit for serving that first sentence was not warranted simply because the appellant had access to federal programs. In the circumstances of this case, the trial judge should have also considered the fact that the appellant’s time served pending appeal would not count for the purposes of parole eligibility and statutory release and whether that loss worked unfairly: see e.g., R. v. Gunning, 2008 BCCA 22, 250 B.C.A.C. 243, at para. 9. In light of this error, we consider the issue of sentence afresh.

[9] The appellant was convicted by the first trial judge without providing reasons and successfully appealed on that basis. Had the appellant continued to serve his initial sentence, he would have been eligible for parole in March 2021 and eligible for statutory release in January 2023. Under the current sentence, he was eligible for parole in November 2022 and is eligible for statutory release in July 2023. The appellant will have spent more time in custody for the offence because of his successful appeal. We are of the view that to mitigate against that unfairness, the appellant should be credited at a rate of 1.5:1 for the time he served awaiting appeal.

[10] For these reasons, the appeal is allowed. The parties agree that these errors would warrant additional credit of 368 days, and accordingly, the appellant is granted an additional credit of 368 days over the trial judge’s determination of five years credit. The net sentence imposed by the trial judge of two years is accordingly reduced to a net sentence of one year. All other aspects of the sentence including the ancillary orders stand.

“J.C. MacPherson J.A.”

“G. Pardu J.A.”

“S. Coroza J.A.”