R v Cameron, 2016 MBCA 89

Citation: R v Cameron, 2016 MBCA 89 Date: 20160921 Docket: AR16-30-08648 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Freda M. Steel Madam Justice Diana M. Cameron BETWEEN : ) T. L. Mariash HER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) J. A. Hyman ) for the Respondent - and - ) ) Written joint submission filed: KIRT MICHAEL CAMERON ) August 30, 2016 ) (Accused) Appellant ) Judgment delivered: ) September 21, 2016 PER CURIAM [ 1 ] The accused’s motion to extend the time to file his notice of appeal against sentence was granted on August 25, 2016.

The only issue on this appeal is the constitutionality of section 719(3.1) of 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 . [ 2 ] On the day of the sentencing hearing, the accused pleaded guilty to one count of trafficking cocaine and to one count of communicating for the purpose of prostitution. He had spent 15 months in pre-sentence custody.

The accused received a term of imprisonment of 15 months on the trafficking charge and 6 months concurrent on the communicating charge, followed by 2 years of supervised probation.

The sentencing judge refused to give the accused enhanced credit for the time he served in pre-sentence custody. [ 3 ] As a result of Kovich , 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. [ 4 ] The Crown consents to the appeal and both parties consent to conducting this appeal in writing. The Crown and the accused jointly submit that the sentence should be varied as follows:

a) For the trafficking count: the 15-month term of imprisonment will be served by crediting 10 months of pre-sentence custody at the rate of 1.5:1 plus one day of imprisonment for his court appearance on the day of sentencing;

b) For the communicating count: the 6-month term of imprisonment will be served by crediting 4 months of pre-sentence custody at the rate of 1.5:1 on a concurrent basis plus one day of imprisonment for his court appearance on the day of sentencing. [ 5 ] Accordingly, leave to appeal sentence is granted and the appeal is allowed as set out in para 4 above. All other aspects of the sentence remain the same. CJM JA JA