



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Fike,









2017 BCCA 11




Date: 20170110

Docket:
CA44062

Between:

Regina

Respondent

And

Eric James Fike

Appellant




Before:



The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Goepel

The Honourable Mr. Justice Fitch




On appeal from:  An
order of the Provincial Court of British Columbia,
dated March 14, 2012 (
R. v. Fike
, Prince George Registry 33053).




Counsel for the Appellant:



G. Kotz





Counsel for the Respondent:



R.D. Leong





Joint Statement on Sentence Appeal filed:



Vancouver, British
  Columbia

December 13, 2016





Place and Date of Judgment:



Vancouver, British
  Columbia

January 10, 2017









Written Reasons by:





The Honourable Mr. Justice Willcock





Concurred in by:





The Honourable Mr. Justice Goepel

The Honourable Mr. Justice Fitch








Summary:

The
appellant applies for an adjustment of time in custody in accordance with R. v. Summers,
2014 SCC 26. Held: Appeal allowed. The appellant is entitled to a credit
on a 1:1.5 basis.

Reasons
for Judgment of the Honourable Mr. Justice Willcock:

[1]

The appellant, Eric James Fike, applies for an
extension of time to appeal, leave to appeal, and if granted appeals his
sentence to reflect credit for pre‑sentence custody at a ratio of 1.5 days
for each day spent in pre‑sentence custody, in accordance with
R. v. Summers
,
2014 SCC 26.

[2]

Mr. Fike was arrested on September 24,
2010 and remained in custody for approximately 18 months until his conviction,
in Prince George, British Columbia. On March 14, 2012, he pleaded guilty
to two counts of possession of cocaine for the purpose of trafficking (counts 1
and 5) and three counts of possession of prohibited firearms with
ammunition (counts 2, 3 and 4) and was sentenced to three concurrent 9‑month
sentences in relation to each drug possession conviction, after having been
credited for pre‑sentence custody in relation to those charges of 9 months
on a 1:1 basis; and three concurrent 51‑month jail sentences (to be
served consecutively to the drug charges) in relation to the firearms offences,
after having been credited for pre‑sentence custody of 9 months on a 1:1
basis in relation to those offences. The actual sentence imposed was therefore
60 months imprisonment.

[3]

The Crown advises that it does not oppose the
granting of credit for pre‑sentence custody at a ratio of 1:1.5 and
acknowledges that Mr. Fike is not disqualified from receiving such credit
by reason of s. 719(3.1) of the
Criminal Code
. However, the parties
agree that the sentencing judge apparently gave the appellant credit for the
harsh conditions of his pre‑sentence detention, an amount not specified
and impossible to calculate given its attachment to two other considerations,
together totaling 6 months, that reduced his sentence. They jointly submit
that the appellant will have received appropriate credit for pre‑sentence
incarceration, in accordance with the principles described in
Summers
if
he is now given three months additional credit.

[4]

In these circumstances, I would grant an
extension of time for the filing of this appeal, grant leave to appeal, and
allow the appeal to the extent only that the sentence on counts 2, 3 and 4
be reduced to 48 months with credit granted of 21 months (12 months of which
are attributed to those counts) for pre‑sentence custody.

[5]

I would accordingly make the following orders:

a)       granting an extension of time to appeal;

b)       granting leave to appeal; and

c)       allowing the appeal to the extent only that the sentence on
counts 2,3 and 4 be reduced to 48 months.

The Honourable Mr. Justice Willcock

I agree:

The
Honourable Mr. Justice Goepel

I agree:

The
Honourable Mr. Justice Fitch


