R. v. Cook, 2015 MBCA 63

Citation: R. v. Cook, 2015 MBCA 63 Date: 20150626 Docket: AR14-30-08223 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron Mr. Justice William J. Burnett BETWEEN : HER MAJESTY THE QUEEN ) S. J. Soldier ) for the Appellant ) Respondent ) A. Y.

Kotler ) for the Respondent - and - ) ) Appeal heard: JUSTIN GEORGE COOK ) March 23, 2015 ) ) Judgment delivered: (Accused) Appellant ) June 26, 2015 CAMERON J.A. [ 1 ] This is an application for leave to appeal and, if successful, appeal of sentence on the ground that the sentencing judge refused to grant the accused enhanced credit of 1.5:1 for pre-sentence custody (PSC).

Rather, she found that he was detained pursuant to s. 524(8) of the Criminal Code (the Code ) and, by operation of s. 719(3.1) of the Code , he could not receive credit for PSC at a ratio greater than 1:1. [ 2 ] The accused was not present at the hearing of this appeal. At the appeal, counsel for the accused stated that, a few days before the scheduled hearing date, he had contacted her office indicating that he wanted to abandon the appeal. The accused had been released from custody on the matters which are the subject of the appeal and counsel was unable to obtain formal instructions from him in this regard.

In response to counsel’s request for guidance, the court directed that, if she was successful in obtaining instructions, she should file the appropriate court forms abandoning the appeal. In the interim, both counsel made submissions on the appeal. As of the time of these reasons, a notice of abandonment had not been filed by the accused. [ 3 ] This appeal was heard at the same time as the appeal in R. v.

Ibrahim , 2015 MBCA 62 , and for the reasons given in that case, while leave is granted, the appeal is dismissed. [ 4 ] Also, as stated in Ibrahim , this case does not deal with the constitutionality of s. 719(3.1) . [ 5 ] Briefly, the accused was charged with assault with a weapon and denied judicial interim release. On review, he was released subject to a recognizance with conditions. He was then charged with failing to comply with that recognizance and failing to appear in court, and two warrants issued for his arrest.

He was arrested and charged with subsequent counts of assault with a weapon and failing to comply with a recognizance. At that time, the outstanding warrants were also executed. [ 6 ] He appeared in the Provincial Court of Manitoba and consented to having his bail revoked pursuant to s. 524(8) . Later at his sentencing hearing, he argued that enhanced credit at a ratio of 1.5:1 should be granted for the PSC that he served after he consented to the s. 524(8) revocation.

He asserted that s. 719(3.1) , which limits PSC credit to a ratio of 1:1 where an accused has been detained pursuant to s. 524(8) , was not applicable to him. It was his position that an order of detention under s. 524(8) was only available upon an unsuccessful bail application after his previous order of release had been cancelled. [ 7 ] In Ibrahim , this court held that cancellation of a prior order of judicial interim release necessitates an order of detention.

Following an order of detention an accused may choose to show cause why his or her release is justified on a reverse onus basis. [ 8 ] The court also stated that, while revocation is a term that has developed to describe the process of cancellation of prior judicial interim release and detention pursuant to s. 524(8), the ensuing orders that should be made are orders cancelling prior judicial interim release and orders detaining the accused in order to comply with the language of both s. 524(8) and s. 719(3.1), and not simply

orders of revocation. [ 9 ] The accused having consented to revocation and the judge having ordered it, resulted in him being detained pursuant to s. 524(8) and he was only entitled to PSC credit at a ratio of 1:1 pursuant to s. 719(3.1) . [ 10 ] For the above reasons, while leave to appeal is granted, the appeal is dismissed. J.A. I agree: J.A. I agree: J.A.