



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Johnson, 2016 ONCA 69

DATE: 20160126

DOCKET: C60079

Feldman, Cronk and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anthony Fitzroy Johnson

Appellant

Anthony Fitzroy Johnson, appearing by video conference

Yoni Rahamim, appearing as duty counsel

Roger A. Pinnock, for the respondent

Heard: January 14, 2016

On appeal from the sentence imposed on February 18, 2015
    by Justice Joseph R. Henderson of the Superior Court of Justice.

ENDORSEMENT

[1]

Following a trial by judge and jury, the appellant was convicted of
    aggravated assault arising from a close-range shooting incident in which the
    appellant’s co-accused shot a third party using a firearm supplied by the
    appellant.  The appellant, who was 23 years old when sentenced, was
    sentenced to five years’ imprisonment, less two years and eight
    months’ credit for pre-sentence custody, credited on a 1:1 basis.

[2]

The appellant seeks leave to appeal his sentence on the basis
    that the sentencing judge erred by
failing to award enhanced
    credit for his pre-sentence custody at the rate of 1.5:1.

[3]

We agree.

[4]

The appellant was on bail in respect of
    other offences at the time of his arrest for the predicate offence.  However,
    his bail was not revoked. Although the sentencing judge was so advised by the
    Crown, he nevertheless stated in his reasons that when the appellant was
    arrested “his bail was no doubt revoked.” This was an error. He
    went on to state that because the appellant was on bail at the time of the
    offence, it was “unlikely that he would ever have been released on bail
    on this offence pending trial.” He determined that for those reasons, the
    appellant was not entitled to enhanced credit for his pre-sentence custody.

[5]

As the sentencing judge proceeded on
    the basis of a material factual misunderstanding, the deference ordinarily
    afforded on appeal to the sentence imposed is displaced and his decision may be
    set aside.

[6]

Since the decision of the Supreme Court
    of Canada in
R. v. Summers
,
2014
    SCC 26,
[2014] 1 S.C.R. 575, the fact that
    pre-sentence detention has occurred will usually be sufficient “to give
    rise to an inference that the offender has lost eligibility for parole or early
    release, justifying enhanced credit”. However, the Crown may challenge
    this inference by showing that it is unlikely that the accused would receive
    early release or parole in any event, either because of the nature of the offence
    or the offender, or because of the offender’s conduct while in jail (
Summers
, at para. 79). In any of these circumstances, the
    withholding of enhanced credit may be justified.

[7]

In this case, the sentencing judge did
    not address the question of the likelihood that the appellant would obtain
    parole or early release. The appellant served a lengthy period of pre-sentence
    custody. There is no evidence on the record that his behaviour during that time
    or since would deprive him of eligibility for early release or parole. The
    Crown did not challenge the inference that the appellant had lost eligibility
    for parole or early release.

[8]

In our view, the appellant is entitled
    to enhanced credit of 1.5:1 for his pre-sentence custody of two years and eight
    months. Leave to appeal sentence is granted, the appeal is allowed and the duration
    of the sentence reduced accordingly.

“K. Feldman J.A.”

“E.A. Cronk J.A.”

“L.B. Roberts J.A.”


