R. v. Gardner, 2015 ONSC 4162

Court File No.: 15-4959AP Date: 2015-06-26 Superior Court of Justice - Ontario

Re: R. v. Odain Gardner

Before: Mr Justice Ramsay

Counsel: Mr A. Leitch for the Crown, respondent Ms J. Stephenson for the appellant

Heard: June 26, 2015

Endorsement

[1] The appellant has appealed from sentence under s.813 of the Criminal Code. These are my reasons for denying bail pending appeal.

[2] The appellant pleaded guilty to three charges on summary conviction. He admitted possession of marijuana and two counts of breach of recognizance committed on February 24, 2015. While on release on a charge involving domestic violence, a charge that later resulted in an acquittal, the accused was found with a small amount of marijuana in his possession on the street outside the complainant’s house within the prohibited distance and past his curfew. The appellant’s criminal record consists of about 40 entries, including five breaches of judicial interim release. At the time of sentencing his presentence custody was 80 days, although it could have been characterized as 90 days depending on the treatment of the 10 days awaiting trial on the earlier charge. After telling counsel that he would not necessarily accept the joint submission for presentence custody plus probation, and giving both an opportunity to make submissions, the judge imposed a sentence of six months imprisonment in addition to 90 days pre-trial custody, for which he gave credit one day for one.

[3] The Crown consented to the appeal at the outset of the application for bail, but I declined to give it effect. The sentence was not illegal. The judge had a total of 18 months as a maximum sentence. In the circumstances, concurrent time was not obligatory, given the different interests protected by the law. The judge proceeded on no erroneous principal. He gave due notice that he would not necessarily accept the joint submission, and he had good reason to consider it contrary to the interest of the administration of justice to do so given the record of the accused and the nature of the offence on which he had been released. The subsequent acquittal on that offence does not reduce the seriousness of the breach of bail. Nor was there an error in principal in giving 90 days’ credit for 80 or 90 days of presentence custody. Since bail had not been revoked under s.524, the judge was not obliged to limit credit to 1 for 1, but he was entitled to reduce credit in his discretion in the circumstances: R. v. Nevills, 2014 ONCA 340.

[4] In these circumstances, while the appeal from sentence is not frivolous, the argument that the sentence was manifestly unfit is not strong. Given that and the previous record, this is not even close to a case that would justify bail pending appeal. For these reasons I denied bail pending appeal and listed the appeal for hearing in seven days’ time.

[5] The requirement for either party to file a factum is waived. The transcript and appeal book have already been filed. Each party shall have 15 minutes for oral submissions.

J.A. Ramsay J.

Date: 2015-06-26