R v Safaye, 2018 MBCA 121
Opinion
Citation: R v Safaye, 2018 MBCA 121 Date: 20181114 Docket: AR18-30-08992 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Diana M. Cameron Madam Justice Janice L. leMaistre BETWEEN : ) M. S. Bhangu HER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) J. S.
Kliewer ) for the Respondent - and - ) ) Joint written submissions filed: AYANSA SAFAYE ) November 8, 2018 ) (Accused) Appellant ) Judgment delivered: ) November 14, 2018 On appeal from 2017 MBQB 217 CHARTIER CJM ( for the Court): [ 1 ] The sole issue on this appeal is whether the sentencing judge failed to apply enhanced credit for all of the time the accused spent in pre-sentence custody.
This Court in R v Kovich (GW); R v Bittern (CN) , 2016 MBCA 19 , held that the exemptions to enhanced credit for pre-sentence custody in section 719(3.1) of the Criminal Code were unconstitutional. [ 2 ] As a result of Kovich; Bittern , the accused applies for leave to appeal and, if leave is granted, 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 he received for part of the time he spent in pre-sentence custody.
Had the sentencing judge given him enhanced credit at the rate of 1.5:1 for all of the 484 days he spent in custody awaiting sentence, he would have received a credit of 726 days as opposed to the 593 days given. That would have left him with a go-forward sentence of approximately two years. [ 3 ] The accused and the Crown have filed a joint factum.
The Crown consents to the appeal and both parties consent to conducting this appeal in writing, without an oral hearing. [ 4 ] We are all of the view that the accused should be given enhanced credit for all of the 484 days he spent in pre- sentence custody at the rate of 1.5:1, for a total credit of 726 days. Accordingly, leave to appeal sentence is granted and the appeal is allowed only to the extent that the sentence is varied to reflect pre-sentence custody credit of 726 days. All other aspects of the sentence remain the same. CJM JA JA
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