R. v. Orr,

• Jurisdiction: British Columbia
• Judge: Prowse, Hall, Levine, Kirkpatrick and Frankel, JJ.A.
• Neutral Citation: 2008 BCCA 76
• Citation: 2008 BCCA 76,(2008), 251 B.C.A.C. 303 (CA),228 CCC (3d) 432,251 BCAC 303,[2008] BCJ No 282 (QL),251 B.C.A.C. 303,[2008] B.C.J. No 282 (QL),(2008), 251 BCAC 303 (CA)
• Date: 22 February 2008
• Court: Court of Appeal (British Columbia)

R. v. Orr (C.) (2008), 251 B.C.A.C. 303 (CA);

    420 W.A.C. 303

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. FE.042

Regina (respondent) v. Clayton Orr (appellant)

(CA035049)

Regina (respondent) v. Cash Ryan Alexander Vansanten (appellant)

(CA035390; 2008 BCCA 76)

Indexed As: R. v. Orr (C.)

British Columbia Court of Appeal

Prowse, Hall, Levine, Kirkpatrick and Frankel, JJ.A.

February 22, 2008.

Summary:

In two separate sentencing cases, one accused was denied any credit for seven months' pre-trial custody and the other accused was given only three months' credit for four months' pre-trial custody. Both accused appealed, submitting that the sentencing judges erred in failing to give double credit for pre-trial custody.

The British Columbia Court of Appeal allowed both appeals. The sentencing judges erred in failing to give the usual double credit for pre-trial custody. The court provided general guidelines respecting credit for pre-trial custody.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The British Columbia Court of Appeal stated that although giving credit for pre-trial custody was discretionary under s. 719(3) of the Criminal Code, courts generally must give some credit for pre-trial custody absent a good reason for denying it - It was not appropriate "to diminish or deny credit entirely for pre-sentence custody in cases where an accused is viewed as dangerous or has misbehaved after the commission of the offence, which misbehaviour has often resulted in a revocation of bail or a denial of bail after commission of a subsequent offence" - Parole considerations were rarely relevant in determining a fit sentence or appropriate credit for pre-trial custody - The court stated that "the rationale for usually crediting pre-sentence custody at something exceeding a one-for-one ratio is based on two considerations. Firstly, a prisoner serving time before sentence is not in a position to have his time credited toward parole eligibility ... Secondly, ... there is often greater hardship associated with pre-sentence custody, including a lack of access to the types of programming available in most institutions where offenders are incarcerated after being sentenced. ... there has emerged a general consensus in appellate courts that a credit of two-for-one for time served by an accused in pre-sentence custody will usually be appropriate. A lesser credit, generally in a ratio amount of one and a half-to-one seems more appropriate where the offender has been held for the pre-sentence period in an institution where post-sentence type programs are available. A refusal by a sentencing judge to allow any credit seems to me to be an erroneous approach ..." - See paragraphs 1 to 20.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The trial judge, in sentencing an accused to imprisonment for two years less a day plus three years' probation for a number of offences, held that it was inappropriate to give any credit for seven months' pre-trial custody where the accused was held in custody because he disobeyed his probation order and driving prohibition - The British Columbia Court of Appeal held that the judge erred in failing to give the usual double credit (14 months) for seven months' pre-trial custody - Accordingly, the net sentence was reduced to 10 months' imprisonment followed by three years' probation - See paragraphs 25 to 26.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The accused was sentenced to 15 months' imprisonment for a number of offences - The trial judge gave only three months' credit for four months' pre-trial custody, giving less than one for one credit because the accused was a danger to the public and had re-offended while on bail - The British Columbia Court of Appeal held that the trial judge erred in failing to give the usual double credit for pre-trial custody - The accused was entitled to eight months' credit for the four months' pre-trial custody - See paragraphs 27 to 28.

Cases Noticed:

R. v. Hawkins (D.W.) (2007), 247 B.C.A.C. 148; 409 W.A.C. 148; 2007 BCCA 487, refd to. [para. 1].

R. v. Rezaie (M.) (1996), 96 O.A.C. 268; 112 C.C.C.(3d) 97; 31 O.R.(3d) 713 (C.A.), refd to. [para. 5].

R. v. Mills (D.J.) (1999), 119 B.C.A.C. 284; 194 W.A.C. 284; 133 C.C.C.(3d) 451; 1999 BCCA 159, refd to. [para. 8].

R. v. Wust (L.W.) et al., [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236; 2000 SCC 18, reving. (1998), 107 B.C.A.C. 130; 174 W.A.C. 130; 125 C.C.C.(3d) 43 (C.A.), refd to. [para. 8].

R. v. Neudorf (T.J.) (2004), 200 B.C.A.C. 274; 327 W.A.C. 274; 187 C.C.C.(3d) 190; 2004 BCCA 374, refd to. [para. 11].

R. v. R.M.S. (2007), 247 B.C.A.C. 148; 409 W.A.C. 148; 2007 BCCA 502, refd to. [para. 13].

R. v. Calder Berg (S.L.) (2007), 243 B.C.A.C. 179; 401 W.A.C. 179; 221 C.C.C.(3d) 449; 2007 BCCA 343, refd to. [para. 14].

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; 105 C.C.C.(3d) 327, refd to. [para. 15].

R. v. Vermette (I.M.) (2001), 156 Man.R.(2d) 120; 246 W.A.C. 120; 154 C.C.C.(3d) 193; 2001 MBCA 64, refd to. [para. 15].

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

R. v. Tschritter (S.M.) (2006), 224 B.C.A.C. 302; 370 W.A.C. 302; 2006 BCCA 202, refd to. [para. 15].

R. v. Francis (G.) (2006), 210 O.A.C. 41; 207 C.C.C.(3d) 536; 79 O.R.(3d) 551 (C.A.), refd to. [para. 16].

R. v. Bernier (D.C.) (2003), 179 B.C.A.C. 218; 295 W.A.C. 218; 177 C.C.C.(3d) 137; 2003 BCCA 134, refd to. [para. 17].

R. v. A.A.C. (2007), 241 B.C.A.C. 228; 399 W.A.C. 228; 2007 BCCA 236, refd to. [para. 18].

R. v. C.D.H. (2002), 165 B.C.A.C. 93; 270 W.A.C. 93; 2002 BCCA 124, refd to. [para. 18].

R. v. Sidhu (G.S.) (2005), 213 B.C.A.C. 185; 352 W.A.C. 185; 2005 BCCA 308, refd to. [para. 18].

R. v. Greaves (J.M.) (2007), 245 B.C.A.C. 248; 405 W.A.C. 248; 2007 BCCA 430, refd to. [para. 18].

R. v. Chiasson (G.) (2005), 289 N.B.R.(2d) 81; 753 A.P.R. 81; 200 C.C.C.(3d) 423; 2005 NBCA 78, refd to. [para. 21].

R. v. Uppal (H.S.), [2004] B.C.T.C. 414; 2004 BCSC 414, refd to. [para. 28].

Authors and Works Noticed:

Trotter, Gary T., The Law of Bail in Canada (2nd Ed. 1999), p. 37 [para. 10].

Counsel:

P. Benning and R.P. Thirkell, for the appellants, Clayton Orr and Cash Ryan Alexander Vansanten;

W.J.S. Bell, for the Crown, respondent (Orr case);

W.L. Rubin, for the Crown, respondent (Vansanten case).

These appeals were heard on January 10, 2008, at Vancouver, B.C., before Prowse, Hall, Levine, Kirkpatrick and Frankel, JJ.A., of the British Columbia Court of Appeal.

On February 22, 2008, Hall, J.A., delivered the following judgment for the Court of Appeal.