



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gateman, 2022 ONCA 125

DATE: 20220214

DOCKET: C69772

Miller,
    Trotter and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joshua Gateman

Appellant

Joshua Gateman, acting in person

Xenia Proestos, for the respondent

Heard: February 8, 2022 by
    video conference

On appeal from
    the sentence imposed by Justice George L. Orsini of the Ontario Court of
    Justice on July 2, 2021.

REASONS FOR DECISION

[1]

The appellant entered pleas of guilty to the
    following offences: mischief under $5,000, possession of a restricted firearm
    and two counts of possession of methamphetamine.

[2]

Further to a joint submission, the trial judge
    imposed concurrent sentences of 15 months imprisonment (450 days), less credit
    for pre-sentence custody (PSC) in the amount of 68 days. The remaining time to
    be served was 382 days.

[3]

The appellant appeals his sentence on the basis
    that the sentencing judge failed to allocate proper credit for PSC. Instead of
    receiving credit on a 1:5:1 basis, the appellant says the ratio should have
    been 2:1, especially in light of the impact of COVID-19 on custodial
    communities. We do not accept this submission. The allocation of credit for PSC
    is within the discretion of sentencing judges. In this case, the amount of
    credit for PSC was an important component of the joint position. The sentence
    judge did not err in failing to give greater credit.

[4]

The appellant says he was forced into the joint
    submission by his trial counsel. However, he has not properly advanced a claim
    of ineffective assistance of counsel. The claim is unsubstantiated, and we do
    not accept it.

[5]

Ms. Proestos for the Crown advises us that there
    was an error in the sentencing judges imposition of a 15-month sentence for
    one of the counts of possession of a controlled substance. Given that the Crown
    elected to proceed summarily on this count, the maximum sentence that could be
    imposed was 12 months imprisonment. Consequently, on the Information #21-7402,
    we adjust the sentence as follows: the term that would have been imposed before
    credit is granted will be reduced to 365 days, from which 68 days credit PSC
    will be deducted. The total term of imprisonment on that count is therefore reduced
    to 297 days, to be served concurrently. All other aspects of the sentence
    remain unaltered.

[6]

Leave to appeal sentence is granted and the
    appeal is allowed in part.

B.W.
    Miller J.A.

Gary
    Trotter J.A.

B.
    Zarnett J.A.


