R. v. Canto (N.), (2015) 607 A.R. 298

• Judge: Berger, Slatter and Brown, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: June 18, 2015
• Citations: (2015), 607 A.R. 298;2015 ABCA 306

R. v. Canto (N.) (2015), 607 A.R. 298; 653 W.A.C. 298 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. OC.001

Her Majesty the Queen (respondent) v. Nelson Canto (applicant)

(1403-0276-A; 2015 ABCA 306)

Indexed As: R. v. Canto (N.)

Alberta Court of Appeal

Berger, Slatter and Brown, JJ.A.

September 30, 2015.

Summary:

In 2009, s. 719(3) of the Criminal Code was amended to cap pretrial credit at a presumptive maximum of 1 day for each day in pretrial custody. However, under s. 719(3.1) the court could grant 1.5 days for every day in custody "if the circumstances justify it". In October 2012, the accused received a global sentence of 60 months and was granted credit for 11 months of pretrial custody on a 1:1 basis. The decision in R. v. Summers (S.C.C.), released in April 2014, confirmed that eligibility for enhanced credit did not depend on "exceptional" circumstances. The accused's proposed appeal, seeking a "Summers correction", was filed six months after the release of Summers, and 23 months after the expiry of the appeal period. He applied for an extension of the time to appeal. The application was referred to a full panel of the Court: [2015] A.R. Uned. 73.

The Alberta Court of Appeal, Berger, J.A., dissenting in part, dismissed the application. The principle of finality prevailed over the other arguments.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - [See fifth Criminal Law - Topic 6208 ].

Criminal Law - Topic 6208

Sentencing - Appeals - Variation of sentence - Extension of time to appeal (incl. service) - The Alberta Court of Appeal considered the issue of whether and when the accused should be allowed to file a late appeal as a result of developments in the law since the date of his sentencing - In discussing the relevant considerations, the Court stated that the first criteria, i.e., a bona fide intention to appeal within the prescribed time, "often cannot be met in an application like this, where the appeal is based on an evolution in the law." - See paragraphs 14 and 15.

Criminal Law - Topic 6208

Sentencing - Appeals - Variation of sentence - Extension of time to appeal (incl. service) - The accused applied for an extension of time to permit a late sentence appeal seeking enhanced credit for pre-sentence custody - He argued that his proffered ground of appeal did not exist until R. v. Summers (2013) (S.C.C.) was released - The Alberta Court of Appeal rejected the accused's explanation for not appealing in time - "[A]t the time this appellant's sentence was spoken to on October 25, 2012 there was already an active debate about whether 'exceptional circumstances' were required for enhanced credit ... . At the time the appellant was sentenced, there was no binding or compelling authority on the point in Alberta. ... When he did not appeal, the legal system presumes that the appellant was satisfied that the sentence he received was fit and lawful. That is the essence of the doctrine of res judicata. Even if it can be accepted that Summers 'changed' the law, the uncertainty that was created by the amendment of s. 719(3) of the Criminal Code was well known at the time of the appellant's sentencing. ... [T]he point is that the issue was known to be unresolved." - See paragraphs 16 to 19.

Criminal Law - Topic 6208

Sentencing - Appeals - Variation of sentence - Extension of time to appeal (incl. service) - The accused applied to file a late sentence appeal as a result of developments in the law since the date of his sentencing - The Alberta Court of Appeal, in discussing the relevant considerations, noted that the law placed a premium on the finality of judgments - "In summary, the principle of finality dictates that once the appeal period has expired the principle of res judicata limits reopening the decision based on changes in the law. At that stage, if no appeal is launched, the litigants are taken to have accepted the result. A litigant is not allowed to reopen the decision at a later date on the basis that 'if only I had known', or 'if only I had launched an appeal', that litigant would have been able to take advantage of different legal presumptions and interpretations. The court retains a residual discretion to allow late appeals, but an applicant who did not appeal during the original appeal period faces a heavy burden." - See paragraph 34.

Criminal Law - Topic 6208

Sentencing - Appeals - Variation of sentence - Extension of time to appeal (incl. service) - In 2012, the accused received a global sentence of 60 months and was granted credit for 11 months of pretrial custody on a 1:1 basis - He applied to extend the time to appeal - The accused deposed that he only became aware in October 2014 of the decision in R. v. Summers (2013) (S.C.C.) and the possibility of receiving enhanced credit for pre-sentence custody - The Alberta Court of Appeal held that the merits of the proposed appeal were not strong - "As a threshold issue, an applicant seeking to rely on Summers must demonstrate that he does not fall within the class that is ineligible for enhanced credit under s. 719(3.1) of the Code. ... On the face of [the record in this case], it is arguable that the appellant could seek enhanced credit ... . Secondly, the overall strength of the proposed appeal should be considered, along with the standard of review. ... The sentencing judge in this case did not make the 'Summers error'. It was never suggested in argument, nor did the sentencing judge hold, that the appellant had to demonstrate 'extraordinary circumstances' to receive enhanced credit. ... The appellant does not have a strong argument that he would have received enhanced credit, if only he had asked [some of the sentences arose from offences he committed six days after he was released]. Thirdly, while the sentence presently under appeal was not the result of a joint submission, it will generally be inappropriate to permit an applicant who was sentenced based on a joint submission to launch a late sentence appeal. ... There is no obvious error of principle ... . [T]here is not a compelling argument that the sentences imposed, considered globally, were unduly harsh or demonstrably unfit." - See paragraphs 35 to 42.

Criminal Law - Topic 6208

Sentencing - Appeals - Variation of sentence - Extension of time to appeal (incl. service) - The accused applied for an extension of time to appeal sentence - The proposed appeal, seeking enhanced credit for his pretrial custody, was filed six months after the release of R. v. Summers (2013) (S.C.C.), and 23 months after the expiry of the appeal period - The Alberta Court of Appeal dismissed the application - "This application arises in a particular context. It is brought by an applicant who had no intention to appeal while the appeal period was open, based on later changes or clarification in the law respecting issues that were known to be uncertain at the time of his sentencing. Such an applicant faces a particular burden, but in the end the Court retains a residual discretion to allow a late appeal in any proper case. ... That discretion must, however, be exercised on a principled basis." - The application of the relevant considerations "mandates the dismissal of this application. The competing interpretations of s. 719(3.1) of the Code were well known at the time of the appellant's sentencing. He could have appealed in time, and his failure to even formulate an intention to appeal must be taken as an acknowledgment that his sentence was fit, just and lawful. There is no patent error of principle in the sentencing decision. The merits of the appeal are not strong. No overriding issue of injustice or harshness in the sentence is demonstrated. In this application, the principle of finality prevails over the other arguments." - See paragraphs 43 and 44.

Cases Noticed:

R. v. Summers (S.), 2011 CarswellOnt 16080 (Sup. Ct.), affd. (2013), 304 O.A.C. 322; 2013 ONCA 147, affd. [2014] 1 S.C.R. 575; 456 N.R. 1; 316 O.A.C. 349; 2014 SCC 26, refd to. [para. 4].

R. v. Jeffries (J.I.) (2015), 593 A.R. 366; 637 W.A.C. 366; 2015 ABCA 53, refd to. [para. 8].

R. v. Genao (R.A.), [2015] A.R. Uned. 20; 2015 ABCA 43, refd to. [para. 9].

R. v. Letiec (S.A.) (2015), 600 A.R. 48; 645 W.A.C. 48; 322 C.C.C.(3d) 306; 2015 ABCA 123, refd to. [para. 10].

R. v. Sagastume (W.C.), [2015] B.C.A.C. Uned. 20; 2015 BCCA 71, refd to. [para. 12].

R. v. Wilson (M.J.) (2015), 373 B.C.A.C. 14; 641 W.A.C. 14; 2015 BCCA 270, refd to. [para. 12].

Cairns v. Cairns, [1931] 4 D.L.R. 819 (Alta. C.A.), appld. [para. 13].

Stoddard v. Montague et al. (2006), 412 A.R. 88; 404 W.A.C. 88; 2006 ABCA 109, refd to. [para. 13].

R. v. Roberge (R.J.), [2005] 2 S.C.R. 469; 337 N.R. 389; 269 Sask.R. 37; 357 W.A.C. 37; 2005 SCC 48, refd to. [para. 13].

R. v. Hamilton (E.) (1997), 98 O.A.C. 363; 33 O.R.(3d) 202; 115 C.C.C.(3d) 89 (C.A.), refd to. [para. 14].

R. v. Carvery (L.A.) (2012), 321 N.S.R.(2d) 321; 1018 A.P.R. 321; 2012 NSCA 107, affd. (2014), 456 N.R. 35; 343 N.S.R.(2d) 393; 1084 A.P.R. 393; 2014 SCC 27, refd to. [para. 17].

R. v. Stonefish (S.T.) (2012), 288 Man.R.(2d) 103; 564 W.A.C. 103; 2012 MBCA 116, refd to. [para. 17].

R. v. Wuttunee (F.W.), [2012] A.R. Uned. 846; 2012 ABPC 348, refd to. [para. 17].

R. v. Sarson (J.A.), [1996] 2 S.C.R. 223; 197 N.R. 125; 91 O.A.C. 124, consd. [para. 22].

R. v. Wigman, [1987] 1 S.C.R. 246; 75 N.R. 51, consd. [para. 22].

R. v. Thomas, [1990] 1 S.C.R. 713; 108 N.R. 147, consd. [para. 22].

Kleinwort Benson Ltd. v. Lincoln (City), [1999] 2 A.C. 349; 233 N.R. 201 (H.L.), refd to. [para. 25].

R. v. Sarson (1992), 73 C.C.C.(3d) 1 (Ont. Gen. Div.), refd to. [para. 29].

R. v. Johnson (J.J.), [2003] 2 S.C.R. 357; 308 N.R. 333; 186 B.C.A.C. 161; 306 W.A.C. 161; 2003 SCC 46, consd. [para. 30].

R. v. M.A.G. (2002), 170 B.C.A.C. 305; 279 W.A.C. 305; 167 C.C.C.(3d) 435; 2002 BCCA 413, consd. [para. 30].

Hennig v. Northern Heights (Sault) Ltd. (1980), 30 O.R.(2d) 346; 116 D.L.R.(3d) 496 (C.A.), refd to. [para. 31].

Ernst & Young Inc. v. Central Guaranty Trust Co. (2006), 397 A.R. 225; 384 W.A.C. 225; 66 Alta. L.R.(4th) 231; 2006 ABCA 337, refd to. [para. 31].

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. 37].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 231 C.C.C.(3d) 310; 2008 SCC 31, refd to. [para. 37].

R. v. Nixon (O.), [2011] 2 S.C.R. 566; 417 N.R. 274; 502 A.R. 18; 517 W.A.C. 18; 2011 SCC 34, refd to. [para. 40].

R. v. G.W.C. (2000), 277 A.R. 20; 242 W.A.C. 20; 2000 ABCA 333, refd to. [para. 41].

R. v. Harness (G.J.) (2005), 363 A.R. 286; 343 W.A.C. 286; 2005 ABCA 27, refd to. [para. 49].

R. v. Giesbrecht (E.H.) (2007), 220 Man.R.(2d) 152; 407 W.A.C. 152; 2007 MBCA 112, refd to. [para. 49].

R. v. Bhandal (B.), [2005] O.T.C. 423 (Sup. Ct.), refd to. [para. 49].

R. v. Eastman, 1977 CarswellOnt 1708 (C.A.), refd to. [para. 49].

R. v. Hussein (J.S.) (2011), 518 A.R. 5; 2011 ABQB 601, refd to. [para. 51].

R. v. Ledesma (M.R.), [2012] A.R. Uned. 68; 2012 ABPC 10, refd to. [para. 51].

R. v. Przybyla (P.), [2012] A.R. Uned. 473; 2012 ABPC 183, refd to. [para. 51].

R. v. Chin (Y.H.), [2012] A.R. Uned. 669; 2012 ABPC 341, refd to. [para. 51].

R. v. Bradbury (E.T.) (2013), 339 B.C.A.C. 169; 578 W.A.C. 169; 2013 BCCA 280, refd to. [para. 53].

R. v. Werner (M.J.), [2015] B.C.A.C. Uned. 30; 2015 BCCA 106, refd to. [para. 56].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 678(2) [para. 13]; sect. 719(3), sect. 719(3.1) [para. 2].

Authors and Works Noticed:

Kim, Andrew Chongseh, Beyond Finality: How Making Criminal Judgments Less Final Can Further the "Interests of Finality" (2013), 1 Utah L. Rev. 561, pp. 572 to 573 [para. 55].

Russell, Sarah French, Reluctance to Resentence: Courts Congress and Collateral Review (2012), 91 N.C.L. Rev. 79, p. 151 [para. 56].

Counsel:

M.J. McGuire, for the respondent;

A. Millman, for the applicant.

This application to extend time to appeal was heard on June 18, 2015, before Berger, Slatter and Brown, JJ.A., of the Alberta Court of Appeal. The following judgment and reasons were filed at Edmonton, Alberta, on September 30, 2015:

Slatter, J.A. (Brown, J.A., concurring) - see paragraphs 1 to 45;

Berger, J.A., dissenting in part - see paragraphs 46 to 58.