Court of Appeal for Ontario

Date: 20240212 Docket: COA-22-CR-0377

Before: Fairburn A.C.J.O., Rouleau and Trotter JJ.A.

Between: His Majesty the King, Respondent and Jeremy Steven Halk, Appellant

Counsel: Jeremy Steven Halk, acting in person Amy Ohler, appearing as duty counsel Marie Comiskey, for the respondent

Heard and released orally: February 8, 2024

On appeal from the sentence imposed by Justice Roger Chown of the Superior Court of Justice on November 21, 2022.

Reasons for Decision

[1] The appellant pled guilty to possession of methamphetamine for the purpose of trafficking. He appeals from his sentence of 5 years, less credit, leaving a net sentence of 873 days to serve. The appellant’s primary argument is that the sentencing judge failed to sufficiently account for the harsh conditions in which he was detained during presentence custody. There is no dispute that it was harsh, including lengthy periods of lockdown and all of the other difficulties faced by those detained during the pandemic.

[2] In our view, the sentencing judge correctly approached the issue of presentence custody as a mitigating factor on sentence. The appellant fairly acknowledges that the global sentence of five years falls at the very low end of the range for his crime. When the trial judge’s reasons are read in their entire context, and all of the considerations are taken into account, including both mitigating and aggravating circumstances, it is clear that the harsh conditions of presentence custody are what resulted in a sentence at the baseline of the range for offences of this nature.

[3] As well, the appellant claims that the sentencing judge erred in other ways, including by making a mistake about the date on which methamphetamine became a Schedule I drug. Even assuming these errors were made, none of them would have impacted the sentence.

[4] However, we agree with the appellant on the final issue raised. He was refused R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, credit for a 32-day period on the basis that he had specifically refused to attend court on the original date set for sentencing. Having reviewed the transcript of the appellant’s evidence on this point, where he offered an explanation and apology that was unchallenged in cross-examination and submissions, we are of the view that he should not have been denied enhanced Summers credit for this period of time.

[5] We wish to note the appellant’s report regarding the progress he is making toward rehabilitation while in custody. We commend him for these efforts and we encourage him to continue on this path.

[6] Leave to appeal is allowed. The sentence appeal is allowed and the appellant will be credited with an additional 16 days of presentence custody.

“Fairburn A.C.J.O.”

“Paul Rouleau J.A.”

“G.T. Trotter J.A.”