



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ayati-Ghaffari, 2014 ONCA 812

DATE: 20141119

DOCKET: C57575

Feldman, Epstein and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Fardin Ayati-Ghaffari

Appellant

Fardin Ayati-Ghaffari, acting in person

Ian Smith, appearing as duty counsel

Thomas C. Lemon, for the respondent

Heard: October 7, 2014

On appeal from the conviction entered on April 11, 2013
    by Justice
Julie A. Thorburn
of the Superior Court of
    Justice, sitting with a jury.

ENDORSEMENT

[1]

On October 7, 2014, the appeal from conviction was dismissed for oral
    reasons.

[2]

During submissions, the appellant raised for the first time, an appeal
    from sentence.  The Crown did not consent to the hearing of the sentence appeal
    but agreed to respond if called on.  He was called on and responded.  Our
    decision with respect to the appeal from sentence was reserved.  These are our
    reasons.

[3]

The sentence appeal relates to the credit the appellant received for
    pre-trial custody.  The sentencing judge found that he was entitled to a 1.5:1
    credit for some of the time served.  She referred to the poor conditions in the
    facility, the fact that programmes were unavailable and that the time spent will
    not be credited toward parole eligibility.

[4]

The appellant, relying on
R. v. Summers
,
2014 SCC 26, [2014] 1 S.C.R. 575, submits
    that the appellant should have a credit of 1.5 days for each day in pre-trial custody. 
    This would provide him with a credit of an additional 231 days.

[5]

The sentencing judges reasons make it clear that, if she had the
    benefit of
Summers
,
she would have awarded a credit of 1.5 days
    for every day served.  As stated in
Summers
,
the loss of access
    to parole and early release, in itself is generally sufficient to justify
    enhanced credit.  The sentencing judge referred to this and to the harsh
    conditions.

[6]

Under these circumstances, we agree with the appellant that the
    principles of
Summers

apply.  Enhanced credit is the norm not the
    exception.

[7]

Leave to appeal the sentence is granted and the sentence is varied to
    allow 1:5 days credit for all the time spent in pre-trial custody.

K.
    Feldman J.A.

G.J.
    Epstein J.A.

M.L.
    Benotto J.A.


