R v Maung, 2021 SKCA 45

Court of Appeal for Saskatchewan Docket: CACR3334 Citation: R v Maung , 2021 SKCA 45 Date: 2021-03-25 Between: Khin Myo Maung Appellant And Her Majesty the Queen Respondent Before: Caldwell, Leurer and Tholl JJ.A. Disposition: Sentence appeal dismissed Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Mr. Justice Leurer The Honourable Mr.

Justice Tholl On appeal from: 2019 SKPC 71 , Saskatoon Appeal heard: March 1, 2021 Counsel: Khin Myo Maung appearing on his own behalf Kelly Kaip for the Respondent Caldwell J.A. [ 1 ] Khin Myo Maung appealed against his December 23, 2019 conviction, on a charge of aggravated assault [first assault] under s. 268(1) of the Criminal Code , RSC 1985, c C-46 , and against his global sentence for that conviction and for breach of an undertaking contrary to s. 145(3) . In the hearing before us, Mr. Maung abandoned his conviction appeal.

He also abandoned the grounds for appealing against his global sentence as set forth in his notice of appeal; however, he orally advanced three new arguments in appeal of that sentence. [ 2 ] To understand these new arguments, it is important to know that the first assault and breach occurred on May 1, 2019 [May breach]. After he was sentenced for those offences, another judge convicted Mr. Maung of an earlier breach of an undertaking given to a peace officer ( Criminal Code , s. 145(5.1) ), which he had committed by communicating with the victim of the first assault, on April 11, 2019 [April breach].

That judge sentenced him to 15 days of concurrent imprisonment for the April breach. On December 7, 2020, that same judge convicted Mr. Maung of assaulting the victim a second time [second assault] and of breaching an undertaking given to a peace officer by communicating with the victim on October 4, 2019 [October breach]. For these offences, the judge sentenced Mr. Maung to a 4- month term of imprisonment consecutive to the sentence imposed for the first assault. [ 3 ] Mr. Maung now asks the Court to intervene in his global sentence for the first assault and the May breach on the grounds that: (

a) an arithmetic error has occurred in the calculation of remand credit due to him, which will result in him serving more time in jail than intended; (

b) he has been sentenced twice for the first breach; and (

c) the correctional centre where he is being held has not adequately addressed health concerns that have arisen since his incarceration. [ 4 ] The Crown properly took no objection to Mr. Maung raising grounds (

a) and (

b) for the first time in the hearing as they are readily addressed from the transcript and the warrants of committal on record. However, the third ground does not engage with the Court’s jurisdiction to hear appeals from convictions or sentences.

It must be addressed pursuant to the process for inmate complaint resolution adopted by the Minister of Corrections and Policing under The Correctional Services Act, 2012 , SS 2012, c C-39.2, s. 67 , and The Correctional Services Regulations, 2013 , RRS c C-39.2 Reg 1, s. 48 , which applies to the healthcare complaints of inmates held in adult correctional facilities. [ 5 ] Turning to ground (a), Mr. Maung submitted his own calculation of remand credit, arguing it shows error in the judge’s calculation.

He says the judge’s error lies in the way his calculation fails to follow the order of arithmetic operations that has been agreed upon by mathematicians. This, it is alleged, results in a loss of remand credit. [ 6 ] I have reviewed the three warrants that commit Mr. Maung for his offences as well as the oral decision of the judge who sentenced him for the first assault and the May breach. The judge sentenced Mr. Maung to a global term of imprisonment of two year less a day (or 730 days) for those two offences. The judge then credited 100 days against that sentence for the 67 days Mr.

Maung had spent in remand, using the maximum permitted ratio of 1.5:1 under s. 719(3.1) of the Criminal Code . This left 630 days to serve at the time of sentencing. There is no error in principle or otherwise in this calculation and, of course, it did not take into account the sentences later imposed on Mr. Maung. [ 7 ] The error lies in Mr. Maung’s own calculation. He errs because he has factored earned remission into the equation, and has done so at the wrong stage of the calculation, in order to determine his early release date.

A remission of sentence is available under s. 99 of The Correctional Services Act, 2012 and s. 6(1) of the Prison and Reformatories Act , RSC 1985, c P-20 , but it is not calculated by a sentencing court. It is determined by the correctional facility to which the offender has been committed by the sentencing court. Under the Prison and Reformatories Act , each serving inmate earns 15 days of credit against their sentence for each month they serve under their sentence (and a pro rata number of days for each incomplete month served), provided the inmate has obeyed prison rules.

The correctional facility credits earned remission against an inmate’s sentence monthly or at intervals of not more than three months (s. 6(2)). If it is earned and not forfeited, the total remission of sentence credit will equal one-third of the sentence imposed by the sentencing court. The absence of earned remission for time spent on remand is one reason why remand time is often credited at a ratio of 1.5:1 under s. 719(3.1) of the

Criminal Code (see R v Summers , 2014 SCC 26 , [2014] 1 SCR 575). [ 8 ] In his calculation, however, Mr. Maung starts with his 730-day sentence and then multiplies it by two-thirds to deduct the full amount of remission potentially available to him, even though he has not yet earned it all. He then subtracts the 100 days of remand credit granted by the judge. This, of course, incorrectly results in an earlier release date than that calculated by the correctional facility in accordance with the Prison and Reformatories Act .

Mathematically, the formula he uses is (730 x 2/3) – 100; whereas, the correct order of operations is (730-100) x 2/3 – again, not taking into account his consecutive sentence for the second assault and the October breach. [ 9 ] On ground (b), having reviewed the warrants of committal, I find there is no support for Mr. Maung’s contention that he has been sentenced twice for the May breach. It is plain that he was sentenced once for the May breach, once for the April breach and once for the October breach.

For the May breach, he received a sentence of 30 days concurrent to the sentence imposed for the first assault. For the April breach, he received a sentence of 15 days concurrent to the sentence he was then serving for the first assault. For the October breach, he received four months concurrent to the sentence for the second assault, but consecutive to his sentence for the first assault. The confusion may lie in the fact that all three breaches involve failures by Mr.

Maung to comply with his undertakings to have no contact with the same victim, but he has not been sentenced twice for the same breach. [ 10 ] In the result, I would dismiss Mr. Maung’s appeal against sentence. “Caldwell J.A.” Caldwell J.A. I concur. “Leurer J.A.” Leurer J.A. I concur. “Tholl J.A.” Tholl J.A.