R. v. Miller, (1987) 22 O.A.C. 103 (CA)

• Judge: Howland, C.J.O., Brooke and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 23, 1987
• Jurisdiction: Ontario
• Citations: (1987), 22 O.A.C. 103 (CA)

R. v. Miller (1987), 22 O.A.C. 103 (CA)

MLB headnote and full text

Her Majesty the Queen (respondent) v. James Miller (appellant)

Indexed As: R. v. Miller

Ontario Court of Appeal

Howland, C.J.O., Brooke and Blair, JJ.A.

August 18, 1987.

Summary:

The accused was convicted in 1986 of two counts of robbery and sentenced to two years less a day on each count, plus two years probation, the sentences to be concurrent. Later in 1986, the accused was sentenced to nine months consecutive, following his convictions for theft, possession of break-in instruments and two counts of assault with intent to resist arrest. In 1987 a further sentence of 30 days consecutive to time then being served was imposed, following a conviction for possession of a narcotic. The imposition of these two subsequent sentences increased the accused's total term of imprisonment to more than two years. The accused appealed respecting sentence. The issue on appeal was whether the probation originally imposed was now valid, where the total sentence being served exceeded two years.

The Ontario Court of Appeal allowed the appeal and quashed the probation order.

Criminal Law - Topic 5726

Punishments (sentence) - Probation - Circumstances when permissible - A probation order should not be made where the total sentence exceeded two years - An accused received concurrent sentences of two years less a day, plus probation - Months later, the accused was sentenced to consecutive sentences, so that the total sentence being served exceeded two years - The Ontario Court of Appeal held that the probation order became illegal when the additional consecutive sentences made the total sentence exceed two years - The court stated that the original term of imprisonment and the additional terms of imprisonment were deemed to constitute one sentence.

Cases Noticed:

R. v. Currie (1982), 65 C.C.C.(2d) 415 (Ont. C.A.), consd. [para. 6].

R. v. Hennigar (1983), 58 N.S.R.(2d) 110; 123 A.P.R. 110 (C.A.), consd. [para. 7].

R. v. Amaralik (1984), 57 A.R. 59; 16 C.C.C.(3d) 22 (N.W.T.C.A.), consd. [para. 9].

R. v. Hackett (1986), 30 C.C.C.(3d) 159 (B.C.C.A.), consd. [para. 10].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 663(1)(b) [paras. 4, 14-16]; sect. 664(1) [para. 4]; sect. 664(2) [para. 4]; sect. 664(2)(a) [para. 15].

Parole Act, R.S.C. 1970, c. P-2, as amended, sect. 14(1) [paras. 5, 16].

Counsel:

James Miller, appellant, did not appear;

R.A. Cormack, Q.C., and David A. Fairgrieve, for the Crown, respondent.

This appeal was heard before Howland, C.J.O., Brooke and Blair, JJ.A., of the Ontario Court of Appeal on June 23, 1987. The decision of the Court of Appeal was delivered by Howland, C.J.O., and released on August 18, 1987.