



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Persaud, 2019 ONCA 477

DATE: 20190611

DOCKET: C66398

Feldman, van Rensburg and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Randy Persaud

Appellant

Randy Persaud, in person

Michael Dineen, duty counsel

Michael Fawcett, for the respondent

Heard: June 4, 2019

On appeal from the sentence imposed on September 25, 2018
    by Justice Michael Block of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant seeks leave to appeal one aspect of his sentence
    pertaining to sentence calculation. Specifically, he seeks a sentence reduction
    of 25 days
to account for the approximately two
    months of time he could have been earning remission toward parole eligibility
    with respect to the sentence before the court, had the Crown been able to
    proceed with sentencing on the original date as planned
.

[2]

The following is a synopsis of the circumstances: the appellant was
    convicted of attempted murder and sentenced to 7 years and 9 months on April
    12, 2014. He was released on full parole on May 23, 2017. On January 20, 2018,
    he was arrested on the charges before the court. His parole was suspended and
    he was held in provincial remand until sentencing. The offences before the
    court are serious firearms offences for which the appellant received a 10-year
    penitentiary sentence based on a joint submission following an early guilty
    plea on September 25, 2018. The appellant served 249 days in presentence
    custody. He received a 90-day credit toward his 10-year sentence on the
    firearms offences based on significantly difficult circumstances while in the
    remand facility.

[3]

Fresh evidence was filed by the Crown
    on the appeal, explaining that Corrections Canada has determined it will treat
    the presentence custody as time spent serving out the attempt murder sentence.
    The appellants new statutory release date is being calculated as 2/3 of his
    total remaining blended sentence, counted from his arrest date on January 20,
    2018. However, his parole eligibility date on the firearms offences is being
    calculated as 1/3 of his sentence on those offences, counted from the date of
    sentencing on September 25, 2018.

[4]

On this appeal, duty counsel on behalf
    of the appellant explained that, because the time spent in custody from his
    arrest on the firearms offences to the date of sentence is being counted as
    part of the remainder of his sentence for attempted murder, he earned no
    remission during this period, since he was already on parole for that offence.
    Following the date of sentence for the firearms offences, the correction
    authorities blended the two sentences, and the appellant began to earn
    remission credit toward parole eligibility with respect to the firearms
    offences.

[5]

The appellant was prepared to plead
    guilty to the firearms offences very early and a July date was agreed upon.
    However, because of the trial Crowns personal unavailability, the plea was not
    entered until September 25. The appellant submits that he should be granted
    some reduction to his sentence to account for the approximately two months of
    time he could have been earning remission toward parole eligibility with
    respect to the firearms sentence had the sentencing been able to proceed as
    originally scheduled. He asks for 25 days off his sentence.

[6]

The Crown opposes on the basis that s.
    719(3) of the
Criminal Code
, R.S.C.
    1985, c. C-46, precludes granting such a reduction because it prohibits
    awarding credit for time served for a different offence, and refers to three
    cases:
R. v. Wilson
, 2008 ONCA 510 and
R. v. Pammett
,

[2016] O.J. No. 6700 (C.A.), from this court, and
R
    v. Mannella
, 2017 ONSC 2333, from the Superior
    Court.
[1]

[7]

Wilson
and
Pammett

deal with the
    concept of banked time served in the past for another offence for which no
    credit can be awarded. That is not what the appellant is seeking here. These
    cases are distinguishable.

[8]

Mannella

is more similar to the case at bar, but it is also
    distinguishable. Mr. Mannella was on parole with respect to a sentence for
    second degree murder when he was arrested on new domestic violence-related
    charges. His parole was revoked at the time of his arrest. He was ultimately
    found guilty of one count of assault causing bodily harm. Mr. Mannella asked
    the trial judge to apply the time he had spent in custody from the date of his
    arrest and parole revocation to the date of his sentence for assault causing
    bodily harm as either credit toward that sentence or as the basis for a
    sentence of time served. The trial judge declined to do so, concluding that
    the time Mr. Mannella had served since the date of arrest was related to his
    second degree murder conviction and not the offence before the court. In coming
    to this conclusion, the trial judge relied upon this courts decisions in
Wilson
and
Pammett
.

[9]

In the appeal before this court, the
    appellant is not seeking to apply the time he spent in custody from the date of
    his arrest to the date of his sentence for the firearms offences as credit
    toward that sentence. Rather, he is asking this court to exercise its
    discretion to remedy an unusual unfairness that has been visited upon him due
    to a delay in his sentencing caused by Crown unavailability. This request is
    something quite different and unique.

[10]

But for the Crowns unavailability, the plea and sentencing
    would have gone ahead as planned in July 2018, and the appellant would have
    begun earning remission with respect to the firearms sentence at that point in
    time. At first instance, the Crown personally accepted responsibility for this
    delay. During oral argument on appeal, Crown counsel acknowledged that it was
    unfair that the appellant lost the opportunity to earn remission toward his
    parole eligibility for the firearms sentence from the original date of sentence
    to the actual date of sentence due to the Crowns scheduling difficulties, but
    submitted that s. 719(3) prevented this court from remedying this unfairness.

[11]

In our view, s. 719(3) does not
    prevent this court from remedying this unfairness. The appellant is not seeking
    to double-count the time he spent in custody between the original date of
    sentencing in July 2018 and the actual date of sentencing in September 2018.
    Rather, as stated above, he is seeking relief from an unusual unfairness
    visited upon him due to a delay in scheduling that was the result of the
    personal unavailability of the Crown.

[12]

In the unique and narrow circumstances of this case, we are
    inclined to exercise the courts discretion to remedy this unfairness and allow
    the reduction of 25 days sought by the appellant so as to account for the
    approximately two months of time the appellant could have been earning
    remission toward parole eligibility with respect to the sentence for the
    firearms offences but for the Crowns unavailability.

[13]

Thus, leave to appeal sentence is granted, and the sentence
    is varied by deducting 25 days from the sentence imposed on count 1.

K. Feldman J.A.

K. van Rensburg J.A.

Grant Huscroft J.A.





[1]

Mr. Mannellas sentence appeal was recently dismissed by this
    court as moot:
R. v. Mannella
, 2019 ONCA 136.


