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SENTENCE-PRE-SENTENCE CUSTODY CREDIT-IMPACT OF CONDITIONAL SENTENCE ORDER BEING SERVED

R. v. MENEZES, 2023 ONCA 838, DECEMBER 19, 2023.

FACTS: The accused was sentenced to a conditional sentence order. He was subsequently convicted of another offence and found to have breached the conditional sentence order. He was held in custody for six months before the conditional sentence breach hearing was completed.  At that time, it was ordered that the conditional sentence order was “suspended” for a period of one month and would resume “on [the appellant’s] release from custody.” A few days later, a period of three years of incarceration was imposed for the new offence (criminal harassment).

The Ontario Court of Appeal noted that at the sentence hearing for this offence, the sentencing judge “declined to give the appellant credit for the time the appellant had spent detained in pre-sentence custody (‘PSC’). The trial judge reasoned that the appellant’s CSO had continued to run while he was detained and, therefore, to credit the appellant with any pre-sentence custody would amount to impermissible double counting” (at paragraph 3). 

The accused appealed from sentence.  The Court of Appeal described the issue raised in the following manner (at paragraph 4):

This appeal is strictly focussed upon whether the trial judge erred by refusing to grant the appellant credit for PSC in sentencing him for criminal harassment. The appellant maintains that he was erroneously denied what amounts to eight months of PSC, which, properly enhanced, should constitute a credit of one-year toward his custodial term. He asks that we grant him that credit now.

HELD:  The appeal was allowed, in part.  The Court of Appeal agreed that the sentencing judge “erred in denying the appellant credit for PSC, but only with respect to the period of approximately two months following the custodial term imposed for the breach of the CSO” (at paragraph 5).

The Court of Appeal held “that the appellant was, in effect, ordered detained under s. 515(6).  Coming back to the wording of s. 742.6(12), then, the CSO was ‘running’ during the first period of detention. Of course, this is ‘unless s. 742.7 applied’. Did s. 742.7 apply?” (at paragraph 52).

Section 742.7(1) states that “[i]f an offender who is subject to a conditional sentence order is imprisoned as a result of a sentence imposed for another offence, whenever committed, the running of the conditional sentence order is suspended during the period of imprisonment for that other offence”.

The Court of Appeal held that the effect of this section is that if an “offender who is the subject of a CSO is imprisoned for another offence, the running of the CSO will be suspended at the time of the sentencing on a go-forward basis until the period of imprisonment comes to an end and the appellant is released from custody: Criminal Code, ss. 742.7(1), 742.7(4)” (at paragraph 59).