Ontario Criminal


Appeal

Sentence appeal
Trial judge’s determination of credit for pre-trial custody was entitled to deference

Accused was engaged with his son in criminal joint venture that involved large amount of cocaine and was arrested pursuant to major police operation. While on judicial interim release, accused was arrested and charged with new offences and was detained in custody on new charges and charges currently before court for total of 608 days. Accused was convicted of trafficking in cocaine. At sentencing hearing, accused brought application that s. 719(3.1) of Criminal Code violated s. 7 of Canadian Charter of Rights and Freedoms. Accused’s Charter application was granted; accused was sentenced to 5.5 years’ imprisonment, less credit of 730 days. Portion of s. 719(3.1) of Code that removed ability to determine credit for pre-sentence custody violated s. 7 of Charter and was of no force and effect in this proceeding only. Accused was given some credit for his pre-sentence custody as he might have lost eligibility for early release and parole, but not at rate of 1.5-to-1. Accused had extensive criminal record, he did not avail himself of any available programs while in remand, and he was sanctioned for violent assault on another prisoner while in jail. Accused was given 730 days’ credit for pre-sentence credit, which was approximately 1.2 days’ credit for each day of pre-sentence custody. Accused appealed. Appeal dismissed. While sentence was clearly at high end of range, there was no error in principle. Trial judge considered circumstances of accused including his very lengthy criminal record and aggravating fact that offence was committed with his son. Trial judge’s determination of credit for pre-trial custody was entitled to deference.

R. v. Jupiter (June 1, 2016, Ont. C.A., J. MacFarland J.A., K. van Rensburg J.A., and Grant Huscroft J.A., CA C61092) Decision at 123 W.C.B. (2d) 287 was affirmed. 131 W.C.B. (2d) 185.

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