Citation: R v GJM, 2016 MBCA 82 Date: 20160823 Docket: AR16-30-08629 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Mr. Justice Marc M. Monnin Mr. Justice William J. Burnett BETWEEN : ) R. T. Amy HER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) R. N. Malaviya ) for the Respondent - and - ) ) Written joint submission filed: G. J. M. ) July 18, 2016 ) (Accused) Appellant ) Judgment delivered: ) August 23, 2016 NOTICE OF RESTRICTION ON PUBLICATION : No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or witness(es) (see

section 486.4 of the Criminal Code ). PER CURIAM [ 1 ] The only issue on this appeal is the constitutionality of section 719(3.1) the Criminal Code . This Court, in R v Kovich (GW) , 2016 MBCA 19 , 326 ManR (2d) 101 , held that the exemptions to enhanced credit for pre-sentence custody in section 719(3.1) were unconstitutional. Since Kovich , the Supreme Court of Canada has reached the same conclusion (see R v Safarzadeh-Markhali , 2016 SCC 14 ). [ 2 ] The term of imprisonment that would have been imposed before any pre-sentence custody credit was granted was 87 months.

In this case, the sentencing judge applied section 719(3.1) and refused to give the accused enhanced credit for the time he served in pre-sentence custody. [ 3 ] As a result of Kovich and Safarzadeh-Markhali , the accused applies for leave to appeal, and if leave is granted, he appeals his sentence and seeks enhanced credit for pre-sentence custody at the rate of 1.5:1 as opposed to the rate of 1:1 that he received. Applying the 1.5:1 rate to the 696 days the accused spent in pre-sentence custody results in 1,044 days of credit.

This would have resulted in a go-forward sentence, at the time the sentencing judge imposed the sentence, of 4 years, 3 months and 15 days. [ 4 ] The Crown consents to the appeal and both parties consent to conducting this appeal in writing. [ 5 ] Accordingly, leave to appeal is granted and the appeal is allowed only to the extent that the sentence is varied to reflect pre-sentence custody credit of 1,044 days, for a go-forward sentence of 4 years, 3 months and 15 days at the time the sentencing judge imposed sentence. All other aspects of the sentence remain the same. CJM

JA JA