Jan 29, 2016

Toews Counting: one day for one day

R v Toews, 2015 ABCA 167 (CanLII)

Trevor Toews was convicted of second-degree murder. With respect to sentence, the Crown and defence were ad idem regarding the appropriate period of parole ineligibility - 10 years. The sentencing judge accepted this position. The judge, however, reduced the 10 years to 6 years and 8 months to "reflect an enhanced credit for pre-trial custody" [para 1]. The Crown appealed that ruling. The Court of Appeal allowed the Crown's appeal: 2015 ABCA 167.

Enhanced credit may be given where a court imposes a jail sentence, pursuant to section 719(3.1). The discretion to do so, provided in that section, has no application to life sentences for murder; that sentence is prescribed by 745(c). Time spent in custody prior to sentencing for murder is included in the calculation of the period of parole ineligibility but enhanced credit cannot be given in relation to that time [paras 3-4].

There is nothing in the statutory scheme that expressly supports a discretion to reduce the period of parole ineligibility below the statutory minimum. The absence of a specific provision precluding the discretion cannot support the existence of a residual discretion contrary to the statutory scheme. These conclusions are consistent with decisions of this Court and other appellate courts: R v Stephen, 1999 ABCA 190 (CanLII); R v Tsyganov,1998 NSCA 227; R v Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 161 OAC 169 (CA).
The respondent argues that had he known there was an issue as to the availability of an enhanced credit, he may have led evidence to justify the credit. This argument cannot succeed. No amount of evidence can overcome a lack of jurisdiction. [Paras 4-5]