



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Whitlock, 2015 ONCA 445

DATE: 20150618

DOCKET: C58757

Strathy C.J.O., Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jesse Sabourin Whitlock

Applicant/Appellant

John Hale, for the appellant

Robert Gattrell, for the respondent

Heard: June 15, 2015

On appeal from the sentence imposed on December 3, 2013
    by Justice Gilles Renaud of the Ontario Court of Justice.

By the Court:

[1]

There is no dispute about the fitness of the sentence of 20 months (600
    days) imposed by the sentencing judge.

[2]

The respondent agrees there was an error in recording the sentence for
    break and enter on the warrant of committal. It should have been 16 months, but
    it was recorded as 20 months, reflecting the global sentence. However, the
    sentence of 4 months for theft under was imposed and recorded as consecutive,
    resulting in a total sentence of 24 months instead of the 20 months intended.
    We agree with the respondents suggestion that these clerical errors can be
    corrected by making the sentence on theft concurrent with the break and enter.

[3]

The respondent also concedes that there was an error in calculating the
    pre-sentence custody in 2012, which should have been 83 days rather than the 60
    days credited. We agree as well.

[4]

A third issue is whether, as the appellant submits, the time subtracted
    from the pre-trial custody to account for sentences being served on other
    matters (90 days and 21 days), should have been reduced by one-third to reflect
    the time the appellant would normally have served as a result of statutory
    remission. This submission was not made to the sentencing judge. In the absence
    of clear authority on this issue, we are not prepared to interfere with the
    discretion of the sentencing judge.

[5]

A fourth issue is whether the appellant should have received credit at
    1.5 to 1 for his pre-sentence custody pursuant to
R. v. Summers
, [2014]
    1 S.C.R. 575, instead of the 1:1 calculated by the sentencing judge. Related to
    this is the credit he should receive for time spent in custody after he was
    arrested on new charges while on bail on these charges. The Crown brought an
    application pursuant to s. 524(8) of the
Code
to revoke his bail on
    these outstanding charges, but the application did not proceed as the appellant
    did not seek bail. The respondent argues that had bail been denied, the maximum
    credit for the time spent after his re-arrest on February 1, 2013 would have
    been 1:1 pursuant to s. 719(3.1).

[6]

In light of
Summers
, it would be appropriate to give 1.5:1
    credit for the 83 days in custody prior the appellants release on bail on
    December 17, 2012.

[7]

There is no 1:1 limit on credit for pre-trial custody in circumstances
    where the Crown has not proceeded with an application under s. 524(8). Having
    regard to all the circumstances, we would exercise our discretion to grant
    credit at 1.5 to 1 for the appellants time in custody in 2013.

[8]

In the result, the appeal is allowed and the warrant of committal will
    be amended to reflect these reasons. Counsel indicated that they should be able
    to resolve the relatively minor differences in their calculations of
    pre-sentence custody.

[9]

The impact of these amendments on the appellants statutory release date
    is a matter that should be raised with the parole authorities, if appropriate.

G.R. Strathy C.J.O.

G. Pardu J.A.

M.L. Benotto J.A.

Released: June 18, 2015


