



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Roy,









2015 BCCA 35




Date: 20150123

Docket:
CA042321

Between:

Regina

Respondent

And

Christopher Robert
Roy

Appellant




Before:



The Honourable Madam Justice D. Smith

The Honourable Madam Justice Bennett

The Honourable Mr. Justice Willcock




On appeal from:  An
order of the Provincial Court of British Columbia,
dated November 26, 2013 (
R. v. Roy
, Kelowna File Nos. 79359-1,
79550-A-1,
79492-B-1, 78983-B-1).

Oral Reasons for Judgment




Counsel for the Appellant:



G. Barriere





Counsel for the Respondent:



E. Campbell





Written Joint Submission Filed:



January 13, 2015





Place and Date of Judgment:



Vancouver, British
  Columbia

January 23, 2015










Summary:
The appellant applies for an adjustment of time in custody in
accordance with R. v. Summers, 2014 SCC 26. Held: Appeal allowed. Based on a
joint submission, the appellant is granted a modified additional credit of three
days.

[1]

D. SMITH J.A.:
The appellant, Christopher Robert Roy, applies
for an extension of time to appeal, leave to appeal, and if leave is granted,
the reduction of his sentence on information 78983-B-1 from seven days to four days
based on the granting of enhanced credit for his pre‑sentence custody of
56 days at a ratio of 1.5 to 1 in accordance with
R. v. Summers,
2014 SCC 26.

[2]

On November 26, 2013, the appellant was sentenced on four informations
for break and enter with intent to commit theft (s. 348(1)(b)), breach of
undertaking (s. 145(5.1)), and two breaches of probation (s. 733.1(1)).
The sentences imposed included:




File



Date



Offence



Sentence





79359-1



28 March
  2013



Break
  and enter and theft of electronics and jewellery from a residence



18
  months jail and restitution





79550-A-1



29 September
  2013



Breach
  Undertaking - inside area restriction



90
  days consecutive





79492-B-1



5
  September 2013



Breach
  Probation - fail to abstain from alcohol



90
  days consecutive





78983-B-1



8 July
  2013



Breach
  Probation - fail to report



7
  days consecutive in addition to 53 days credit for pre-sentence custody






[3]

The appellants global sentence was 733 days or two years and three days.

[4]

In calculating the sentences, the judge gave the appellant 53 days
credit for 53 days pre‑sentence custody at a ratio of 1:1. He
applied that credit to the second breach of probation (information 78983-B-1),
which resulted in an actual sentence of 7 days consecutive (60 days -
53 days = 7 days).

[5]

The Crown agrees the appellant was not statutorily barred by s. 719(3.1)
from obtaining pre‑sentence credit at the ratio of 1.5:1 and there are no
other reasons to deny the appellant that enhanced credit, which would reduce
the appellants global sentence by a further 27 days.

[6]

The effect of this reduction, however, would be to transform the
appellants global sentence from one to be served in a federal penitentiary to
a sentence to be served in a provincial prison. Both parties agree that the
appellant should remain in the federal system because of the structure it
provides during the period of statutory release over the last one-third of his
sentence. That structure, we are advised, is not available in the provincial
system following an inmates earned remission at about two-thirds of his
sentence.

[7]

The appellant and respondent jointly submit that a reduction in the
appellants sentence of an additional credit of more than three days would have
the effect of undermining the rehabilitative aspect of the current federal
sentence as it would reduce the appellants sentence to one below two years
resulting in the imposition of a provincial sentence.

[8]

In these circumstances, I would grant an extension of time to appeal,
grant leave to appeal, and would vary the sentence on information 78983-B-1 by
reducing it from seven days to four days.  This gives the appellant an
additional three days credit on the sentence that was imposed. His global
sentence is now 730 days or two years.

[9]

BENNETT J.A.:
I agree.

[10]

WILLCOCK J.A.:
I agree.

The Honourable Madam Justice D. Smith


