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Tom Rees | Criminal Defence Lawyer Winnipeg

Court of Appeal Allows 1.5:1 Credit for Pre-Sentence Custody


The Manitoba Court of Appeal dismissed a man’s appeal of his sentence, but substitutes 1.5:1 credit for his pre-sentence custody. The man was granted bail pending his appeal.

The man appealed his sentence asking that the court allow him to serve his sentence in the community on a Conditional Sentence Order.

[4]  The accused appeals on four grounds, three of which are opposed.  First, that the sentencing judge failed to properly apply the test for a conditional sentence order.  Second, that he placed too much weight on the issues of denunciation and deterrence.  Third, that he did not appropriately consider the Gladue factors (R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688).

The Court found that the sentencing judge did turn their mind to the appropriate factors, including public safety, before deciding that the accused did not qualify for a conditional sentence order. The Court also commented on the third ground of appeal:

Finally, he reviewed the Gladue/pre-sentence report and considered the Aboriginal circumstances of the accused.  In fact, in taking into account the Gladue and other mitigating factors, he reduced the sentence from the recommended 20 months to 16.

The man spent a number of months in custody prior to his disposition. He was granted bail but could not meet his bail conditions because he could not find a surety. The Crown consented to this appeal ground.

In our view, this change in position from that taken at the sentencing hearing constitutes a proper concession by the Crown in light of the Supreme Court of Canada decision of R. v. Summers, 2014 SCC 26 (CanLII), [2014] 1 S.C.R. 575.

The Court ultimately granted the man the proper credit for pre-sentence custody, but all other grounds of appeal were dismissed.


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