R. v. Codner (F.), (2013) 303 O.A.C. 91 (CA)

• Judge: Epstein, Lauwers and Hoy, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 06, 2013
• Jurisdiction: Ontario
• Citations: (2013), 303 O.A.C. 91 (CA);2013 ONCA 138

R. v. Codner (F.) (2013), 303 O.A.C. 91 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. MR.016

Her Majesty the Queen (respondent) v. Floyd Codner (appellant)

(C55554; 2013 ONCA 138)

Indexed As: R. v. Codner (F.)

Ontario Court of Appeal

Epstein, Lauwers and Hoy, JJ.A.

March 6, 2013.

Summary:

The accused pleaded guilty to two counts of robbery, possession of a loaded prohibited weapon and breach of a firearms prohibition. The Crown and accused jointly recommended a total sentence of 10-12 years' imprisonment, less credit for 595 days' pre-trial custody. The accused sought credit on a 2:1 basis. The Crown argued for credit on a 1.5:1 basis. The trial judge imposed a total sentence of 10 years' imprisonment, less two years' credit for pre-trial custody on a 1.2:1 basis. The trial judge found that the accused's own conduct in not complying with previous weapons prohibition orders warranted pre-trial detention and denial of the normal 2:1 credit for pre-trial custody. The accused appealed the failure to give 2:1 credit for pre-trial custody.

The Ontario Court of Appeal dismissed the appeal.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - The Ontario Court of Appeal stated that "although trial judges were entitled to depart from the practice of two for one credit, they were obliged to provide reasons that demonstrated that the deviation was on a principled basis. Departure from the normal credit has been found justified in cases such as where: 1) detention in pre-trial custody was the result of the accused's own conduct; 2) the accused would be unlikely to get early release on parole; and 3) the accused has been held in remand at an institution that has access to rehabilitative programs" - See paragraph 14.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - The accused pleaded guilty to two counts of robbery, possession of a loaded prohibited weapon and breach of a firearms prohibition - The trial judge sentenced the accused to a total of 10 years' imprisonment, which fell within the 10-12 year range recommended by both counsel - The accused sought the normal 2:1 credit for 595 days of pre-trial custody - The Crown argued for 1.5:1 credit - The trial judge gave 1.2:1 credit (two years), finding that the accused's own conduct in not complying with previous weapons prohibition orders warranted pre-trial detention and denial of the normal 2:1 credit - The Ontario Court of Appeal dismissed the accused's appeal from the failure to award 2:1 credit - There was no error in principle in denying 2:1 credit on the basis that the accused was the author of his own misfortune - The court stated that "I agree ... that the trial judge was entitled to conclude that the [accused's] own actions had contributed to his being denied bail, given that the onus had shifted on him and that the breaches for which he was charged were part of a pattern that is clear from his criminal record" - However, the trial judge did err in principle by "double counting", where "the [accused's] sentence was impacted on three different levels by his prior weapons convictions, which included the mandatory weapons prohibitions: it was an aggravating factor which increased both the overall sentence and specific sentence, it impacted the appropriate range of sentence due to the applicable mandatory minimum sentence, and the trial judge used the violation of the weapons prohibition to reduce his pre-sentence custody" - However, factoring in the credit for pre-trial custody awarded at trial, the total sentence fell within the appropriate range and was not unfit - See paragraphs 10 to 27.

Cases Noticed:

R. v. Vermette (I.M.) (2001), 156 Man.R.(2d) 120; 246 W.A.C. 120; 154 C.C.C.(3d) 193 (C.A.), refd to. [para. 13].

R. v. Pangman - see R. v. Vermette (I.M.).

R. v. Francis (G.) (2006), 210 O.A.C. 41 (C.A.), refd to. [para. 13].

R. v. Wust (L.W.), [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236, refd to. [para. 14].

R. v. Calder Berg (S.L.) (2007), 243 B.C.A.C. 179; 401 W.A.C. 179; 221 C.C.C.(3d) 449 (C.A.), refd to. [para. 21].

R. v. M.L. (2007), 228 O.A.C. 394; 2007 ONCA 642, refd to. [para. 24].

R. v. Situ (P.) et al., [2010] O.A.C. Uned. 544; 2010 ONCA 683, refd to. [para. 24].

Counsel:

Mark Halfyard, for the appellant;

Mabel Lai, for the respondent.

This appeal was heard on February 12, 2013, before Epstein, Lauwers and Hoy, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court was delivered by Epstein, J.A., and released on March 6, 2013.