R. v. Wagemans

2014 BCCA 402 R. v. Wagemans

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Wagemans, 2014 BCCA 402 Date: 20141016 Docket: CA042078 Between: Regina Respondent And Daniel Wagemans Appellant Before: The Honourable Mr. Justice Tysoe The Honourable Madam Justice Garson The Honourable Mr. Justice Willcock On appeal from: An order of the Provincial Court of British Columbia, dated January 22, 2013 (R. v. Wagemans, Surrey Docket 194878-2C). Oral Reasons for Judgment Counsel for the Appellant: E. Purtzki Counsel for the Respondent: E. Campbell Place and Date of Hearing: Vancouver, British Columbia October 16, 2014 Place and Date of Judgment: Vancouver, British Columbia October 16, 2014 Summary: Sentence appeal. The appeal is allowed to give credit for pre-sentence custody on a 1.5:1 basis in accordance with R. v. Summers, 2014 SCC 26. [1] TYSOE J.A.: Mr. Wagemans applies for an extension of time to appeal and leave to appeal his sentence of 29 months' imprisonment imposed upon his guilty plea to the offence of breaking and entering a residence and committing a robbery in the residence. If these applications are granted, he appeals from the sentence. [2] The sentencing judge stated that the appropriate sentence prior to giving credit for the seven month period Mr. Wagemans spent in custody prior to the sentencing was 36 months. He gave a 1:1 credit for the pre‑sentence custody and imposed the 29 month

sentence. [3] At the time of the sentencing, the governing authority in this Province with respect to the credit to be given for pre‑sentence custody was R. v. Bradbury, 2013 BCCA 280, which held that sections 719(3) and 719(3.1) of the Criminal Code established a general rule of a 1:1 credit. Bradbury has since been overtaken by the decision of the Supreme Court of Canada in R. v. Summers, 2014 SCC 26, which held that the enhanced credit of 1.5:1 under s. 719(3.1) is justified in all cases where there is a loss of eligibility for early release and parole, unless the circumstances justify denial of the enhanced credit. [4] The Crown does not allege any circumstances justifying a denial of the enhanced credit and is not opposed to the granting of a credit on a 1.5:1 basis. [5] I would grant the extension of time for the filing of the notice of application for leave to appeal until August 15, 2014, and I would grant leave to appeal. I would allow the appeal by giving a further credit of 3.5 months such that the sentence would be reduced from 29 months to 25.5 months. [6] GARSON J.A.: I agree. [7] WILLCOCK J.A.: I agree. [8] TYSOE J.A.: The extension of time is granted until August 15, 2014, leave to appeal is granted, and the appeal is allowed by giving a further credit of 3.5 months so that the sentence is reduced to 25.5 months. "The Honourable Mr. Justice Tysoe"