R. v. Mielke
The conviction was upheld because the municipal address was not an essential element and the evidence supported the finding of guilt; the sentence was reduced by 300 days because pre-disposition custody credit must be calculated at a 1.5:1 ratio under Summers and this court's authority.
Source-derived case information.
- Citation
- 2016 ONCA 80
- Parties
- Respondent: Her Majesty the Queen; Appellant: Bradley Mielke
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 1 January 2016
- Procedural Posture
- Criminal / Appeal From Conviction and Sentence
- Outcome
- Appeal from conviction dismissed; leave to appeal sentence granted; appeal from sentence allowed; sentence reduced by 300 days.
- Legal Topics
- Dangerous Operation of a Motor Vehicle, Pre Disposition Custody Credit, Leave to Appeal Sentence, Particularization of Information, Conviction Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Her Majesty the Queen
Respondent
Bradley Mielke
Appellant
Procedural Posture
Criminal / Appeal From Conviction and Sentence
Legal Issues
- 1 Whether the conviction for dangerous operation was unreasonable due to the particularization of the offence in the information
- 2 Whether pre-disposition custody credit should be calculated at 1.5:1
Ratio Decidendi
The conviction was upheld because the municipal address was not an essential element and the evidence supported the finding of guilt; the sentence was reduced by 300 days because pre-disposition custody credit must be calculated at a 1.5:1 ratio under Summers and this court's authority.
Court Disposition
Appeal from conviction dismissed; leave to appeal sentence granted; appeal from sentence allowed; sentence reduced by 300 days.
Orders
- Appeal from conviction dismissed.
- Leave to appeal sentence granted.
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Mielke Collection Decisions of the Court of Appeal Date 2016-01-01 Neutral citation 2016 ONCA 80 Docket numbers C59515 Judges Watt, David; Lauwers, Peter D.; Hourigan, C. William Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Mielke, 2016 ONCA 80 DATE: 20160126 DOCKET: C59515 Watt, Lauwers and Hourigan JJ.A. BETWEEN Her Majesty the Queen Respondent and Bradley Mielke Appellant David W. Russell, for the appellant Dayna Arron, for the respondent Heard: January 25, 2016 On appeal from the conviction entered on April 11, 2014 and the sentence imposed on June 5, 2014 by Justice Robert S. Gee of the Ontario Court of Justice. APPEAL BOOK ENDORSEMENT [1] The appellant appeals his conviction of dangerous operation of a motor vehicle and seeks leave to appeal his sentence on the basis that he was not accorded proper credit for time spent in pre-disposition custody. [2] On the appeal from conviction, the appellant contended in his factum that the conviction was unreasonable in light of the particularization of the offence in the information. In oral argument, the appellant made no submissions in support of the appeal from conviction. We are satisfied that the conviction recorded on the dangerous operation count is not unreasonable. We do not consider the municipal address of the place of the offence was an essential element of the offence in these circumstances. Further, we are satisfied that the evidence fully supports the finding of guilt on the count as drafted. [3] The appeal from conviction is dismissed. [4] On the appeal from sentence, we are satisfied that the discussion in Summers and in decisions of this court that consider the same issue with which we are concerned mandate calculation of the credit for pre-disposition custody at the rate of 1.5:1. [5] In the result, leave to appeal sentence is granted, the appeal from sentence is allowed and the sentence imposed at trial is reduced by a further 300 days.