



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Collins,









2016 BCCA 36




Date: 20160126

Docket:
CA42886

Between:

Regina

Respondent

And

Neil
Elliott Collins

Appellant




Before:



The Honourable Chief Justice Bauman

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Willcock




On appeal from:  An
order of the Supreme Court of British Columbia, dated
January 20, 2014 (
R. v. Collins
, 2014 BCSC 511, Kelowna Registry 78439).




Counsel for the Appellant:



C. Darnay





Counsel for the Respondent:



T. Gerhart





Joint Statement on Sentence Appeal filed:



Vancouver, British
  Columbia

November 10, 2015





Place and Date of Judgment:



Vancouver, British
  Columbia

January
  26, 2016









Written Reasons of the Court








Summary:

The appellant appeals from
sentence, seeking enhanced credit for his time in pre‑sentence custody
pursuant to R. v. Summers, 2014 SCC 26. The Crown consents. Held: appeal
allowed. The appellant is entitled to enhanced credit at the rate of 1.5 days
for each day spent in pre‑sentence custody.

Reasons
for Judgment of the Court:

[1]

On 20 January 2014, the appellant was sentenced on Kelowna Information 78439
as follows:

·

two
counts of possessing controlled drugs for the purpose of trafficking, contrary
to s. 5(2) of the
Controlled Drugs and Substances Act
, S.C. 1996,
c. 19: three and one‑half years (1,277 days) for each count, served
concurrently, less credit of 76 days for pre‑sentence custody, for a net
sentence of 1,201 days imprisonment.

·

one count of possession of stolen property, contrary to s. 355(b)
of the
Criminal Code
, R.S.C. 1985, c. C‑46: three and one‑half
years (1,277 days), served concurrently, less credit of 76 days for pre‑sentence
custody, for a net sentence of 1,201 days imprisonment.

[2]

The appellant had been in custody for 76 days prior to sentencing.

[3]

On 11 April 2014, the Supreme Court of Canada rendered judgment in
R. v. Summers
,
2014 SCC 26.

[4]

Based on
Summers
, the appellant applies for an extension of time
to apply for leave to appeal, and leave to appeal if an extension is granted. If
leave is granted, the appellant appeals from sentence and seeks enhanced credit
for pre‑sentence custody at the rate of 1.5 days for every day spent in
pre‑sentence custody.

[5]

Applying that rate to the 76 days spent by the appellant in pre‑sentence
custody results in 114 days as the maximum enhanced credit under s. 719(3.1)
of the
Criminal Code
.

[6]

The judge held that the appropriate sentence for all three counts before
credit for pre‑sentence time in custody would have been three and one-half
years (1,277 days) served concurrently. Subtracting 114 days from that
results in a sentence of 1,163 days.

[7]

The appellant and Crown agreed to conduct this appeal in writing,
without oral argument, pursuant to a protocol established by this Court for
certain post‑
Summers
sentence appeals. The Crown does not oppose
the application for an extension of time, and does not oppose the granting of
credit at the rate of 1.5 days for each day spent in pre‑sentence custody
in light of
Summers
.

[8]

Accordingly, an extension of time to apply for leave to appeal is
granted, leave to appeal is granted, and the appeal is allowed only to the
extent that the sentence is reduced to 1,163 days, in addition to credit for 114
days spent in pre‑sentence custody.

The Honourable Chief Justice Bauman

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Willcock


