R. v. Wilson (R.), (2008) 240 O.A.C. 59 (CA)

• Judge: Doherty, Rosenberg and Rouleau, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 05, 2008
• Jurisdiction: Ontario
• Citations: (2008), 240 O.A.C. 59 (CA);2008 ONCA 510

R. v. Wilson (R.) (2008), 240 O.A.C. 59 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. JN.123

Her Majesty the Queen (respondent) v. Rohan Wilson (appellant)

(C46314; 2008 ONCA 510)

Indexed As: R. v. Wilson (R.)

Ontario Court of Appeal

Doherty, Rosenberg and Rouleau, JJ.A.

June 25, 2008.

Summary:

The accused received sentences totalling seven years respecting armed robberies charges. He appealed, arguing that the trial judge made an arithmetic error in calculating the length of pre-sentence custody attributable to the robbery charges and that he should have been given two-for-one credit for time he spent serving a sentence relating to a cocaine conviction which had been stayed by the court.

The Ontario Court of Appeal allowed the appeal in part. The court was unanimous in holding that the sentences should be varied to correct the arithmetic error. The majority held that the accused should not receive "credit" on the robbery sentences for the time spent in custody on the cocaine charge. Doherty, J.A., opined that the court should take into consideration the events relating to the cocaine charge that occurred subsequent to the sentencing on the robbery charges. However, Doherty, J.A., stated that while those developments provided some mitigation, he felt that the sentences on the robbery charges totalling seven years minus seventy days for the arithmetic error adequately reflected that mitigation. Therefore, he too, apart from correcting the arithmetic error, would not vary the sentence imposed at trial.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - The accused received sentences totalling seven years respecting armed robberies charges - He appealed the sentence, arguing that he should have been given two-for-one credit for time he spent serving a sentence relating to a cocaine conviction which had been subsequently stayed by the court - The Ontario Court of Appeal rejected this argument, holding that the accused should not receive "credit" on the robbery sentences for the time spent in custody on the cocaine charge - The court stated that on sentencing the court could only take into account factors that related to the particular offence under consideration - The fact that an offender, like the accused, still happened to be in the appeal system when a flaw relating to a totally unrelated conviction came to light, was not a principled reason for giving that offender credit for the time he or she spent serving the sentence for that unrelated conviction - The court discussed circumstances where a trial judge might be entitled to take into account time spent serving another sentence (i.e., where the circumstances related directly to the offence for which the accused was being sentenced) - See paragraphs 22 to 51.

Cases Noticed:

R. v. Patterson (1946), 87 C.C.C. 86 (Ont. C.A.), refd to. [para. 25].

R. v. Sloan (1947), 87 C.C.C. 198 (Ont. C.A.), refd to. [para. 25].

R. v. Tsai (S.G.) (2005), 199 O.A.C. 244; 198 C.C.C.(3d) 533 (C.A.), refd to. [para. 25].

R. v. Lapare, [1970] 1 C.C.C. 320 (Man. C.A.), refd to. [para. 25].

R. v. Wust (L.W.) (2000), 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236; 143 C.C.C.(3d) 129 (S.C.C.), refd to. [para. 41].

R. v. Reid (J.), [2005] O.A.C. Uned. 217 (C.A.), refd to. [para. 49].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 719(3) [para. 23].

Counsel:

Mark Halfyard, for the appellant;

Joanne Stuart, for the respondent.

This appeal was heard on May 5, 2008, by Doherty, Rosenberg and Rouleau, JJ.A., of the Ontario Court of Appeal. The decision of the court was delivered on June 25, 2008, when the following opinions were filed:

Doherty, J.A. - see paragraphs 1 to 39;

Rosenberg, J.A. (Rouleau, J.A., concurring) - see paragraphs 40 to 51.