



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Xavier, 2021 ONCA 713

DATE: 20211012

DOCKET: C69531

Fairburn A.C.J.O., Doherty and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tiago Gomes Xavier

Appellant

Nate Jackson, for the appellant

Mark Luimes, for the respondent

Heard: in writing

On appeal from the sentence imposed by Justice Edward Prutschi
    of the Ontario Court of Justice on April 9, 2021.

REASONS FOR DECISION

[1]

The
    appellant received a sentence of ten months imprisonment for one count of
    robbery. Counsel informed the sentencing judge that the appellant had served
    three days in presentence custody, meaning he should be credited 5 days in
    total. The sentencing judge agreed.

[2]

The
    sentencing judge also gave credit pursuant to
R. v. Downes
(2006), 79 O.R. (3d) 321
    (
Downes
credit) for what he
    thought was 15 months spent on restrictive bail terms. The
Downes

and presentence custody credit came
    to a combined total of 2 months.

[3]

On
    appeal, the parties agree that the sentencing judge was misinformed about the
    amount of time spent in presentence custody and on restrictive bail conditions.
    The appellant actually spent 30 days (not 3 days) in presentence custody,
    meaning that he only spent 14 months (not 15 months) on restrictive bail
    conditions.

[4]

The
    parties agree that that this sentencing error can be remedied by decreasing the
Downes
credit by 4 days and increasing the
    presentence custody by 41 days. This results in an additional 37 days of
    credit.

[5]

We are prepared to
    accede to this joint position. An additional 37 days credit is granted and
    should be reflected on the warrant of committal. The sentence remains the same
    in all other respects.


Fairburn A.C.J.O.

Doherty J.A.

David Watt J.A.


