R. v. Calliou (J.A.), 2014 ABCA 158

• Judge: Hunt, O'Ferrall and Wakeling, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: April 15, 2014
• Citations: 2014 ABCA 158;(2014), 575 A.R. 86

R. v. Calliou (J.A.) (2014), 575 A.R. 86; 612 W.A.C. 86 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. MY.006

Her Majesty the Queen (respondent) v. Jared Allan Calliou (appellant)

(1403-0031-A; 2014 ABCA 158)

Indexed As: R. v. Calliou (J.A.)

Alberta Court of Appeal

Hunt, O'Ferrall and Wakeling, JJ.A.

May 5, 2014.

Summary:

Calliou appealed against a sentence imposed by Provincial Court Judge Ambrose on January 13, 2014, for offences committed on October 9, 2013. The appeal was heard four days after the Supreme Court of Canada issued its decisions in R. v. Summers and R. v. Carvery. Those opinions interpreted s. 719(3.1) of the Criminal Code, the provision regulating the amount of credit an offender received for presentence detention. Relying on the Supreme Court judgments, Calliou's counsel argued that the sentencing judge should have given Calliou more credit for his presentence custody than he did. Also at issue was whether the sentencing judge imposed a global sentence for the offences committed on October 9, 2013, bearing in mind a 45 day sentence a colleague imposed on December 23, 2013, for an offence that was part of the crime spree.

The Alberta Court of Appeal allowed the appeal in part. Calliou was entitled to a credit of 113 days for the 75 days he was in presentence custody. As Judge Ambrose credited him with 75 days, he was entitled to an additional 38 days credit.

Criminal Law - Topic 5803

Sentencing - General - Consecutive sentences - Calliou appealed against a sentence imposed on January 13, 2014, for offences committed on October 9, 2013 - One issue was whether the sentencing judge imposed a global sentence for the offences committed on October 9, 2013, bearing in mind a 45 day sentence a colleague imposed on December 23, 2013, for an offence that was part of the crime spree - The Alberta Court of Appeal stated that "the Court is satisfied that the sentencing judge concluded that a global sentence of 7.5 months for the October 9, 2013 offences was fit. He was well aware that the Provincial Court had imposed a forty-five day sentence on December 23, 2013 for one part of the October 9, 2013 crime spree. The sentencing judge's reasons make it clear that he intended the sentences he imposed to be served consecutively: '[J]ust to be ... clear, all the times that I am referring to are going to be consecutive to each other'. The global sentence is within the range of demonstrably fit sentences. There is no basis to interfere with this feature of the sentence" - See paragraphs 28 to 30.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - Calliou appealed against a sentence imposed on January 13, 2014 - The appeal was heard four days after the Supreme Court of Canada issued its decisions in R. v. Summers and R. v. Carvery - Those opinions interpreted s. 719(3.1) of the Criminal Code, the provision regulating the amount of credit an offender received for presentence detention - Relying on the Supreme Court judgments, Calliou argued that the sentencing judge should have given him more credit for his presentence custody - The Alberta Court of Appeal held that the sentencing judge's failure to grant Calliou 1.5 days' credit for each day of presentence custody constituted reversible error - The court stated that "Summers means that the offender is entitled to have his sentence reduced using the formula adopted in the so-called exception provision, s. 719(3.1) of the Criminal Code. ... The state of the record does not permit the Court to conclude that facts exist which would disentitle the appellant to the benefit of the 'inference' created by the Summers opinion" - That determination did not suggest that the sentencing judge ignored the governing laws or the submissions of defence counsel - Calliou's counsel did not ask the sentencing judge to grant enhanced credit for the 75 days Calliou was in the remand unit - In addition, the principles adopted by the Supreme Court in Summers and Carvery were not law in Alberta at the time - See paragraphs 19 to 27.

Criminal Law - Topic 7664

Summary conviction proceedings - Appeals - Grounds - Where law changed after trial but before appeal heard - [See Criminal Law - Topic 5848.2 ].

Cases Noticed:

R. v. Summers (S.) (2014), 456 N.R. 1; 316 O.A.C. 349; 2014 SCC 26, refd to. [para. 2].

R. v. Carvery (2014), 456 N.R. 35; 343 N.S.R.(2d) 393; 1084 A.P.R. 393; 2014 SCC 27, refd to. [para. 2].

R. v. Johnson (F.B.) (2013), 553 A.R. 157; 583 W.A.C. 157; 85 Alta. L.R.(5th) 320; 2013 ABCA 190, refd to. [para. 10].

R. v. Ross (K.S.) (2013), 562 A.R. 122; 2013 ABQB 274, refd to. [para. 27].

R. v. Wuttunee (F.W.), [2012] A.R. Uned. 846; 2012 ABPC 348, refd to. [para. 27].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 30].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 30].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 719 [para. 12].

Counsel:

K.A. Joyce, for the respondent;

D.B. Wolsey and A.S. Millman, for the appellant.

This appeal was heard on April 15, 2014, before Hunt, O'Ferrall and Wakeling, JJ.A., of the Alberta Court of Appeal. The Court of Appeal delivered the following memorandum of judgment on May 5, 2014.