



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Latif, 2019 ONCA 309

DATE: 20190417

DOCKET: C66713

Benotto, Brown and Fairburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hassan Latif

Appellant

Hassan Latif, in person

Philip Norton, duty counsel

Michael Fawcett, for the respondent

Heard: April 8, 2019

On appeal from the sentence imposed on December
    7, 2018 by Justice Joseph Di Luca of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant, Hassan Latif, seeks leave to
    appeal his sentence imposed on December 7, 2018. He advances two grounds of
    appeal. The first is that the victim surcharge imposed must be set aside; the
    Crown agrees. The second ground of appeal concerns how a period of 54 days served
    as part of the sentence for other offences should be treated in determining the
    sentence for the convictions that underpin this appeal.

[2]

In October 2017, the appellant was out of
    custody but subject to (i) a recognizance, which included a term that he reside
    in his residence at all times, with limited exceptions (the Curfew Term), and
    (ii) a probation order, which included a term that he have no contact with Ms.
    Haya Tariq (the No Contact Term).

[3]

On October 7, 2017 the appellant, together with
    Ms. Tariq, robbed a gas station in Vaughan.

[4]

Following the robbery, the appellant and Ms.
    Tariq drove from Vaughan to Brampton. In the early morning hours of October 8,
    2017 they engaged in an argument in the lobby of a residential building on
    Kingsbridge Garden Circle in Mississauga.

[5]

The police were called and charges were laid
    against the appellant for failing to comply with the Curfew Term of his
    recognizance and failing to comply with the No Contact Term of his probation
    order (the Mississauga Offences). The information containing those charges
    was not in the appeal record.

[6]

The appellant pleaded guilty to the Mississauga Offences
    on November 30, 2017. He received a global sentence of four months
    imprisonment which, with credit, amounted to an effective go-forward sentence
    of 60 days incarceration. A 12-month probation order was also imposed.

[7]

On December 5, 2017 the appellant was arrested
    and charged with six offences relating to the October 7 events in Vaughan:
    robbery; disguise with intent to commit theft; breaches of a probation order,
    including the No Contact Term; and breaches of the recognizance, including the
    Curfew Term (the Vaughan Offences).

[8]

At the time of his arrest on the Vaughan Offences,
    the appellant was in custody serving the sentence for the Mississauga Offences
    imposed on November 30, 2017.

[9]

The appellant remained in custody until the
    trial of the Vaughan Offences about one year later on December 7, 2018. The
    appellant pleaded guilty to three counts: robbery; disguise with intent; and
    failure to comply with his recognizance in relation to the Curfew Term.

[10]

During the sentencing submissions following the
    plea, the Crown informed the court that the appellant had been in custody
    serving the sentence on the Mississauga Offences when the charges for the Vaughan
    Offences were laid. At that time, the appellant still had 54 days to serve on
    his 60-day sentence for the Mississauga Offences. In the Crowns view, those 54
    days should be subtracted from the 367 days of pre-sentence custody served by
    the appellant from the time of his arrest on December 5, 2017 until the
    imposition of sentence on the Vaughan Offences on December 7, 2018. That would
    result in 313 days of pre-sentence custody on the Vaughan Offences, which the
    Crown submitted should be given credit on a 1.5:1 basis.

[11]

The defence sought enhanced credit for
    pre-sentence custody at a rate of 2:1 in light of the conditions of
    incarceration experienced by the appellant. The defence agreed with the Crowns
    deduction of the 54 days from the calculation of the period of pre-sentence
    custody for the purposes of the Vaughan Offences. However, the defence argued
    that an extra day should be added to the starting point for calculating the
    length of pre-sentence custody, with the result that, after deducting the 54
    days served for the Mississauga Offences, credit for pre-sentence custody on
    the Vaughan Offences should be given for 314 days.

[12]

The sentencing judge imposed a global sentence
    of 2.5 years imprisonment on the Vaughan Offences. Using a period of 314 days
    for calculating credit for pre-sentence custody, the sentencing judge gave
    enhanced credit at the rate of 2:1, resulting in a total of 630 days of credit.

[13]

The appellant appealed his convictions on the
    Mississauga Offences. Although the materials for that appeal were not before
    this court, it is common ground that on February 22, 2019 the appellants
    appeal succeeded. As a result, his convictions were set aside and a new trial
    ordered. It is also common ground that the Crown subsequently withdrew the charges
    for the Mississauga Offences.

[14]

Following his successful appeal of the
    Mississauga Offences, the appellant filed a notice of appeal of his sentence on
    the Vaughan Offences. He contends that since his conviction on the Mississauga Offences
    has been set aside and those charges withdrawn, he should be given credit for
    the 54 days he served for the Mississauga Offences that were deducted when the
    sentence for the Vaughan Offences was calculated on December 7, 2018.

[15]

Assisted by duty counsel, the appellant
    acknowledges that the law does not permit an offender to bank custodial time
    for unrelated offences. However, the appellant submits that a middle ground
    should exist that would permit an offender to bank time spent in custody
    serving a sentence for related or interconnected convictions. In support of
    that submission, the appellant relies on the reasons of the majority of this
    court in
R. v. Wilson
, 2008 ONCA 510, 236 C.C.C. (3d) 285, where, at
    para. 45, Rosenberg J.A. stated:

But, at the end of the day when it comes time
    to sentence an offender the court can only take into account factors that
    relate to the particular offence under consideration. The fact that an
    offender, like the appellant, still happens to be in the appeal system
when a flaw in relation to a totally unrelated conviction comes
    to light is not
, in my view, a principled reason for giving that
    offender credit for the time he or she spent serving the sentence for that
    unrelated conviction. [emphasis added]

[16]

The appellant submits that the majoritys
    reference to a flaw in relation to a totally unrelated conviction strongly
    suggests that where the flaw is in relation to a related or interconnected
    conviction, a court can take into account banked custodial time served as
    part of the sentence for one offence when calculating the pre-sentence custody
    for purposes of sentencing on another offence.

[17]

We are not persuaded by this submission.

[18]

The starting point of the analysis is s. 719(3)
    of the
Criminal Code
, R.S.C. 1985, c. C-46, which provides:

In determining the sentence to be
    imposed on a person convicted of
an offence
, a
    court may take into account any time spent in custody by the person
as a
    result of
the offence
. [Emphasis added.]

[19]

As the majority of this court held in
Wilson
,
    at para. 42, to give credit for time spent serving a sentence for another
    offence would distort the sentencing regime. As a result, at the end of the
    day when it comes time to sentence an offender the court can only take into
    account factors that relate to the particular offence under consideration:
    para. 45; followed in
R. v. Perkins
, 2017 ONCA 152, 347 C.C.C. (3d)
    58, at paras. 30-33, and in
R. v. Barnett
,
    2017 ONCA 897, in respect of time served following an unrelated conviction as
    distinct from the treatment of time spent in pre-sentence custody: paras. 30
    and 33.

[20]

In the present case, the 54 days constituted
    time spent in custody serving the sentence for the Mississauga Offences, not time
    spent in custody as a result of the Vaughan Offences. Although the same
    recognizance formed the basis for the failure to comply charges in the
    Mississauga and Vaughan Offences, the events underlying those charges took
    place at different times and in different places. Applying s. 719(3) of the
Criminal
    Code
and the principles set out in
Wilson
, it is not open to the
    appellant to seek to apply the 54 days he served in custody as part of his
    sentence on the now-overturned Mississauga Offences to the calculation of the
    sentence on the Vaughan Offences.

[21]

In
Wilson
, Rosenberg J.A. observed that
    if a sentencing judge takes the prior conviction into account as a serious
    aggravating circumstance on other convictions, the fact that the accused was
    later found to be innocent of that prior offence would be a relevant
    consideration. However, in the present case, as in
Wilson
, the
    sentencing judge did not consider the prior conviction as a serious aggravating
    circumstance. The sentencing judge identified the appellants prior convictions
    for robberies to be an aggravating factor but not his conviction for the
    Mississauga Offences.

[22]

For these reasons, we grant the appellant leave
    to appeal his sentence on the Vaughan Offences. We grant the appeal to the
    extent of setting aside the victim surcharge imposed but otherwise dismiss the
    appeal.

M.L.
    Benotto J.A.

David
    Brown J.A.

Fairburn
    J.A.


