Ontario Criminal


Appeal

Sentence appeal

Earned remission applies to provincial, not federal system

Accused was sentenced to global four and half years’ incarceration following his convictions of four firearms offences related to handgun found in residence of mother of accused’s children. Accused successfully appealed his conviction on charge of possessing firearm knowing it was obtained by crime. Trial judge granted accused 25.5 months’ credit for pre-sentence custody at rate of 1.5-to-1. However, trial judge reduced credit by two months to reflect accused’s “bad behavior.” This behaviour resulted in assault charge while accused was in custody. Accused appealed sentence. Appeal allowed in part; pre-sentence custody increased by two months. Successful appeal of fourth count (possession of weapon obtained by crime) did not result in reduction of sentence being appropriate. All of counts on indictment, and two resulting convictions, related to possession of Beretta. Accused had long criminal record and sentence imposed was well within appropriate range, regardless of success of his appeal on count four. Trial judge’s comments during sentencing submissions indicated that he misunderstood concept of earned remission. Earned remission applies to provincial, not federal system. In federal system, under which accused was currently serving his sentence, he was entitled to statutory release after period determined under s. 127 of Corrections and Conditional Release Act (Can.). Statutory release date is generally day on which offender completes two thirds of his sentence. Consequently, credit for pre-sentence custody was increased by two months.

R. v. Jean (Feb. 22, 2016, Ont. C.A., J.C. MacPherson J.A., M. Tulloch J.A., and M.L. Benotto J.A., CA C58965) Decision at 118 W.C.B. (2d) 706 was varied. 129 W.C.B. (2d) 60.

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