R. v. Davis, 2012 MBCA 98

Citation: R. v. Davis, 2012 MBCA 98 Date: 20121017 Docket: AR 12-30-07754 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Marc M. Monnin Mr. Justice Alan D. MacInnes BETWEEN : HER MAJESTY THE QUEEN ) J. L. Ostapiw ) for the Appellant Respondent ) ) D. A. Mann and - and - ) K.

Sharma ) for the Respondent ) JOSEPH ROBERT DAVIS ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) October 17, 2012 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(s) (see s. 486.4 of the Criminal Code ).

HAMILTON J.A. (for the Court): 1 The narrow issue raised on this sentence appeal is whether the trial judge erred in giving the appellant a credit at the rate of 1:1 for his four years of pre-trial custody. 2 After a trial in which the appellant testified, the judge found him guilty of sexual assault. In his reasons for conviction, the judge described the appellant’s evidence as “mind boggling.” 3 The appellant is an habitual criminal. He has a criminal record which started in 1988 at the age of 17. He is now 41. His record has over 90 convictions arising from approximately 30 different sentencings.

In the last 23 years, the appellant has been in jail for all but six years or so. 4 After the conviction, the Crown sought a dangerous offender designation for the appellant. The appellant contested that designation, but not one as a long-term offender. The judge was not satisfied beyond a reasonable doubt that the appellant met the criteria of a dangerous offender and declared the appellant a long-term offender.

The judge concluded that a period of eight years’ incarceration was a fit sentence for the sexual assault, before any credit for pre-trial custody. 5 Before the judge, the appellant sought a credit of 2:1, as he does on appeal. The law applicable to this issue pre-dates the amendments in the Criminal Code limiting credit for pre-trial custody, as set out in the Truth in Sentencing Act , S.C. 2009, c. 29 s. 3. This 2:1 credit would mean that the appellant would be released from custody immediately under the long-term offender conditions applicable to him. 6 The judge considered the applicable law (see R. v.

Roulette (P.) , 2005 MBCA 149 , 201 Man.R. (2d) 148) and

concluded that a credit of 1:1 was appropriate based on three factors (at para. 74): ….

I do so in part because of [the appellant]’s attempt to deceive me with his testimony some 28 months after his arrest, for which he should not be rewarded by receiving multiple-time credit. [factor 1] Further, [the appellant] has been in remand at a facility where sentenced prisoners are housed and has had at least some of the advantages of that including working in the tailor shop and, as he submitted, access to about 10 programs or workshops. [factor 2] More important though, I have no doubt that he and Corrections Canada will require four years of custody to design and implement a program aimed at rehabilitation and simultaneously enhancing his prospects for a successful period of long-term supervision.

After all, that is in his best interests and dovetails with protection of the public, which of course is the paramount goal. [factor 3] 7 The appellant acknowledges that a decision with respect to credit for pre-trial custody is a discretionary one and is entitled to deference unless the judge made a reversible error of fact or law or the decision is so clearly wrong as to amount to an injustice. See R. v. Farrah (D.) , 2011 MBCA 49 , 268 Man.R. (2d) 112.

However, he says that the judge erred in principle by taking into account the fact that he did not accept the appellant’s evidence at trial (factor 1) and because the appellant’s work while in custody on remand and the programs and workshops that he participated in were not the full range of educational, vocational or rehabilitation programs contemplated by the jurisprudence (factor 2). 8 He seeks a credit of 2:1, or alternatively a credit of 1.5:1, for his pre-trial custody. 9 The Crown acknowledges that the judge’s words to explain factor 1 were not chosen well, but that they go to the issue of rehabilitation of the appellant.

We do not see that linkage. In our view, the judge simply took into account a consideration that was irrelevant and inappropriate. The judge stated that the appellant should not be rewarded by receiving multiple-time credit, in part, because of his attempt to deceive him with his testimony. In our view that is a wholly inappropriate consideration, as fairly conceded by the Crown. 10 Therefore, we agree with the appellant that the judge erred in principle in relying on factor 1.

For that reason, we grant him leave to appeal and we do not owe deference to the judge’s decision to award the pre-trial custody credit on the basis of 1:1. 11 However, we dismiss the appeal. In our view, the most important consideration noted by the judge was his conclusion that the appellant and Corrections Canada will require four years of custody to design and implement a program aimed at rehabilitation and the enhancement of his prospects for a successful period of long-term supervision.

Given all of the evidence that was before the judge at the lengthy sentencing hearing, including that Corrections Canada prefers to have sufficient time to implement its intake assessment, correctional plan and programming, and given the appellant’s history, which was described in the evidence as unmanageable and very high risk, we are of the view that the judge had evidence before him upon which he was entitled to reach the conclusion that he did.

We would not interfere with that conclusion. 12 For that reason alone, we are of the view that the credit on the basis of 1:1 is justified and does not render the sentence unfit. 13 Therefore, it is unnecessary to comment on the alleged error with respect to factor 2 concerning the judge’s consideration of the programming available and used by the appellant while on remand at Headingley Correctional Centre. 14 Leave to appeal is granted and the appeal is dismissed. J.A. J.A. J.A.