



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Green, 2017 ONCA 244

DATE: 20170324

DOCKET: C61981

Feldman, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Justin Green

Appellant

Lance Beechener, for the appellant

Kevin Rawluk, for the respondent

Heard and released orally: March 17, 2017

On appeal from the sentence imposed on October 13, 2015 by
    Justice Edward M. Morgan of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant seeks leave to appeal his sentence based on the failure of
    the trial judge to give credit for restrictive bail terms following
R. v.
    Downes
(2006), 205 C.C.C. (3d) 488 (Ont. C.A.).

[2]

The trial judge addressed the issue at paragraphs 25-26 of his reasons. 
    It appears clear that he misapprehended the amount of time that the appellant
    was out on bail.  He referred to 42 days, which was the amount of time the
    appellant was held in custody before he was first released on bail.  However,
    he was actually out on bail for 18 months.

[3]

The trial judge rejected the request for credit on the basis that bail
    conditions which allowed the appellant to be out accompanied by one of his
    sureties were not that onerous.

[4]

In our view, this approach by the trial judge was informed by what he
    misunderstood to be the short duration of the bail term.  However, had he
    understood that the appellant was on a house arrest regime similar to that in
Downes
for 18 months, he would have given the five months credit requested by defence
    counsel.  We note that Crown counsel at trial did not take any position on the
    defence request for credit for difficult bail conditions.

[5]

We are also satisfied that, given the way the trial judge addressed the
    issue, had he understood that the bail was for 18 months under restrictive
    conditions, he would have considered it appropriate to give credit for the
    strict bail conditions as part of his consideration of a fit sentence.

[6]

In the result, leave to appeal sentence is granted and the sentence is
    reduced by five months.

K. Feldman J.A.

K. van Rensburg J.A.

G. Pardu J.A.


