R. v. Johnson (F.B.), (2013) 553 A.R. 157

• Judge: Martin, Watson and Bielby, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: April 09, 2013
• Citations: (2013), 553 A.R. 157;2013 ABCA 190

R. v. Johnson (F.B.) (2013), 553 A.R. 157; 583 W.A.C. 157 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. JN.004

Her Majesty the Queen (respondent) v. Frank Banfi Johnson (appellant)

(1303-0046-A; 2013 ABCA 190)

Indexed As: R. v. Johnson (F.B.)

Alberta Court of Appeal

Martin, Watson and Bielby, JJ.A.

June 3, 2013.

Summary:

The appellant was sentenced to two years' incarceration for charges which included aggravated assault, refusal to provide a breath sample, possession of a weapon for a dangerous purpose and possession of a prohibited weapon. The appellant appealed the sentencing judge's failure to give enhanced credit in relation to the 74 days of pre-trial custody that he spent at the Calgary Remand Centre. The appellant argued that the sentencing judge erroneously interpreted s. 719(3.1) of the Criminal Code to require exceptional circumstances as a prerequisite for the granting of enhanced credit for pre-trial custody.

The Alberta Court of Appeal dismissed the appeal. While the sentencing judge did not make an express finding on this point, the only reasonable inference which could be drawn from her reasons was that she did not believe that a finding of exceptional circumstances was a mandatory prerequisite to awarding enhanced credit for pre-trial custody. The court concluded that "exceptional circumstances" need not exist before a sentencing judge could grant enhanced credit for pre-sentence custody pursuant to s. 719(3.1). The sentencing judge did not reach an unreasonable conclusion in deciding that the circumstances did not justify the granting of enhanced pre-trial credit.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - The appellant was sentenced to two years' incarceration for various offences - The appellant appealed the sentencing judge's failure to give enhanced credit in relation to 74 days of pre-trial custody at the Calgary Remand Centre - The appellant had sought enhanced credit for that period based on the remand conditions, which included being required to sleep on the floor due to shortage of space to house prisoners and being confined to his cell for up to 22 or 23 hours per day - Sections 719(3) and 719(3.1) of the Criminal Code limited credit for pre-sentence custody to a maximum of one day for each day spent in custody, subject to increasing that credit up to one and one-half days "if the circumstances justify it" - The appellant argued that the sentencing judge erroneously interpreted s. 719(3.1) to require exceptional circumstances as a prerequisite for the granting of enhanced credit - The Alberta Court of Appeal dismissed the appeal - While the sentencing judge did not make an express finding on this point, the only reasonable inference which could be drawn from her reasons was that she did not believe that a finding of exceptional circumstances was a mandatory prerequisite to awarding enhanced credit for pre-trial custody - The court concluded that "exceptional circumstances" need not exist before a sentencing judge could grant enhanced credit for pre-sentence custody pursuant to s. 719(3.1) - The sentencing judge did not reach an unreasonable conclusion in deciding that these circumstances did not justify the granting of enhanced pre-trial credit to the appellant.

Cases Noticed:

R. v. Carvery (L.A.) (2012), 321 N.S.R.(2d) 321; 1018 A.P.R. 321; 2012 NSCA 107, leave to appeal granted [2012] S.C.C.A. No. 519, refd to. [para. 1].

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. 9].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321; 145 D.L.R.(4th) 577, refd to. [para. 9].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 10].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 11].

R. v. Sooch (S.S.) (2008), 433 A.R. 270; 429 W.A.C. 270; 2008 ABCA 186, refd to. [para. 12].

R. v. Ross (K.S.) (2013), 562 A.R. 122; 2013 ABQB 274, refd to. [para. 14].

R. v. McFadzen (M.) (2011), 499 A.R. 154; 514 W.A.C. 154; 2011 ABCA 53, refd to. [para. 16].

R. v. Morris (K.A.) (2013), 305 O.A.C. 47; 2013 ONCA 223, refd to. [para. 19].

R. v. Khan (A.M.) (2013), 544 A.R. 123; 567 W.A.C. 123; 2013 ABCA 103, refd to. [para. 21].

R. v. Stonefish (S.T.), [2013] 4 W.W.R. 28; 288 Man.R.(2d) 103; 564 W.A.C. 103; 2012 MBCA 116, refd to. [para. 22].

R. v. Summers (S.) (2013), 304 O.A.C. 322; 2013 ONCA 147, consd. [para. 22].

R. v. Ledesma (M.R.), [2012] A.R. Uned. 68; 2012 ABPC 10, refd to. [para. 37].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 719(3), sect. 719(3.1) [para. 18].

Counsel:

E.A. Gilmour, for the respondent;

A. Simic, for the appellant.

This appeal was heard on April 9, 2013, before Martin, Watson and Bielby, JJ.A., of the Alberta Court of Appeal. The following reasons for judgment reserved of the Court of Appeal were delivered by Bielby, J.A., and were filed on June 3, 2013.