R. v. Lever (T.P.), 2014 SKCA 58

• Judge: Richards, C.J.S., Jackson and Whitmore, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: March 20, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKCA 58;(2014), 438 Sask.R. 181 (CA)

R. v. Lever (T.P.) (2014), 438 Sask.R. 181 (CA);

    608 W.A.C. 181

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. MY.050

Terrance Paul Lever (appellant) v. Her Majesty the Queen (respondent)

(CACR2362; 2014 SKCA 58)

Indexed As: R. v. Lever (T.P.)

Saskatchewan Court of Appeal

Richards, C.J.S., Jackson and Whitmore, JJ.A.

March 20, 2014.

Summary:

Lever was charged with possession of cocaine for the purpose of trafficking. He spent a number of months on release, but wearing an electronic monitor, before entering a guilty plea. In his sentencing submissions, Lever contended that he should be given credit for the time he had spent on pre-sentence release. The sentencing judge disagreed and imposed a sentence of 18 months in jail. Lever appealed his sentence, but only in relation to the question of whether his jail term should have been reduced in light of time spent on electronic monitoring.

The Saskatchewan Court of Appeal dismissed the appeal.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - Lever was charged with possession of cocaine for the purpose of trafficking - He spent a number of months on release, but wearing an electronic monitor, before entering a guilty plea - In his sentencing submissions, Lever contended that he should be given credit for the time he had spent on pre-sentence release - The sentencing judge disagreed and imposed a sentence of 18 months in jail - Lever appealed his sentence, but only in relation to the question of whether his jail term should have been reduced in light of time spent on electronic monitoring - The Saskatchewan Court of Appeal dismissed the appeal.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The Saskatchewan Court of Appeal stated that "First, pre-sentence release should not be seen as the necessary equivalent of pre-sentence custody and it obviously does not automatically reduce what would otherwise be a fit sentence. ... Second, pre-sentence release does not generate sentencing 'credits' in the same way as pre-sentence custody. Rather, it is one of many potentially mitigating factors to consider when formulating an appropriate sentence ... Third, the harsher and more burdensome the pre-sentence release conditions, the more likely they are to have a valid mitigating effect. The factors to be taken into account in this regard include (but are not limited to) the length of time spent on release, the stringency of the release conditions, and the impact of those conditions on the offender's ability to carry on normal personal relationships, employment and the like. ... Fourth, and speaking generally, time spent on pre-sentence release can reduce an otherwise appropriate sentence only if it involves meaningful hardship or important limitations on the offender's liberty. Those kinds of impacts should be clearly explained or demonstrated to the sentencing judge" - See paragraphs 10 to 13.

Cases Noticed:

R. v. Nghiem (H.B.), [2009] B.C.A.C. Uned. 31; 2009 BCCA 170, refd to. [para. 9].

R. v. Dragos (B.) (2012), 294 O.A.C. 371; 291 C.C.C.(3d) 350; 2012 ONCA 538, refd to. [para. 9].

R. v. Walsh (J.D.) (2011), 280 O.A.C. 198; 2011 ONCA 325, refd to. [para. 10].

R. v. Voeller (S.T.) (2008), 335 N.B.R.(2d) 143; 861 A.P.R. 143; 2008 NBCA 37, refd to. [para. 10].

R. v. Irvine (C.W.), [2008] 6 W.W.R. 438; 225 Man.R.(2d) 281; 419 W.A.C. 281; 2008 MBCA 34, refd to. [para. 11].

R. v. Knockwood (S.J.) (2009), 283 N.S.R.(2d) 156; 900 A.P.R. 156; 2009 NSCA 98, refd to. [para. 11].

R. v Kane (M.) (2012), 325 Nfld. & P.E.I.R. 78; 1009 A.P.R. 78; 2012 NLCA 53, refd to. [para. 13].

R. v. Ijam (G.) (2007), 228 O.A.C. 296; 226 C.C.C.(3d) 376; 2007 ONCA 597, refd to. [para. 13].

R. v. Bodnaruk (J.K.) (2002), 217 Sask.R. 89; 265 W.A.C. 89; 2002 SKCA 21, refd to. [para. 14].

Counsel:

Terrance Lever, appearing on his own behalf;

Wade McBride, for the respondent.

This appeal was heard on March 20, 2014, before Richards, C.J.S., Jackson and Whitmore, JJ.A., of the Saskatchewan Court of Appeal. The Court of Appeal dismissed the appeal orally on March 20, 2014, and the following written reasons were delivered by Richards, C.J.S., on May 12, 2014.