



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Azaz,









2016 BCCA 35




Date: 20160126

Docket:
CA43065

Between:

Regina

Respondent

And

Brahim
Mohammed Azaz

Appellant




Before:



The Honourable Chief Justice Bauman

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Willcock




On appeal from:  An
order of the Provincial Court of British Columbia,
dated July 25, 2013 (
R. v. Azaz
, Vancouver Registry 227347).




Counsel for the Appellant:



C. Darnay





Counsel for the Respondent:



E. Campbell





Joint Statement on Sentence Appeal filed:



Vancouver, British
  Columbia

November 26, 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 25 July 2013, the appellant was sentenced on Vancouver
Information 227347-1 as follows:

·

Count
1: robbery, contrary to s. 344(1)(b) of the
Criminal Code
, R.S.C.
1985, c. C‑46: two years, in addition to 337 days credit for pre‑sentence
custody;

·

Count
2: use of imitation firearm, presumably contrary to s. 85(2) of the
Criminal
Code
, however the Notice of Appeal identifies the section as 85(1). The
sentence for this offence was one year, consecutive; and

·

Count 3: face masked with intent, contrary to s. 351(2) of
the
Criminal Code
: one year, concurrent.

[2]

The appellant had been in custody from 16 August 2012 until
sentencing. That was 343 days. However, counsel calculated it as 337 days.

[3]

The appellant served another sentence during that time. On 12 October
2012, he was sentenced to eight days, in addition to 52 days credit for theft.
After two‑thirds of that eight‑day sentence (five days), the
appellant would have resumed earning credit toward the robbery sentence. Thus, 57
days (52 + 5 days) of the time spent in custody from 16 August
2012 until 25 July 2013 was not available as credit toward the robbery
sentence. That leaves 286 days (343 less 57 days) spent in pre‑sentence
custody that is available for credit.

[4]

On 11 April 2014, the Supreme Court of Canada rendered judgment in
R. v. Summers
,
2014 SCC 26. The record indicates that upon learning of
Summers
, the
appellant acted in a timely manner to pursue an appeal from sentence.

[5]

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.

[6]

Applying that rate to the 286 days spent by the appellant in pre‑sentence
custody results in 429 days (one year and 64 days) as the maximum enhanced
credit under s. 719(3.1) of the
Criminal Code
.

[7]

The judge held that the appropriate sentence before credit for
pre-sentence time in custody would have been 1,067 days (two years plus 337
days spent in pre‑sentence custody). Subtracting 429 days from that
results in a sentence of 638 days (one year and 273 days).

[8]

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
.

[9]

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 on count 1 is reduced to one year and 273 days, in
addition to credit for 429 days (one year and 64 days) spent in pre‑sentence
custody.

The Honourable Chief Justice Bauman

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Willcock


