R. v. Xavier
Because the sentencing judge was misinformed about the durations in presentence custody and on restrictive bail and the parties jointly identified the correct figures, the court granted an additional 37 days credit and ordered that the warrant of committal be amended to reflect that credit; the sentence was...
Source-derived case information.
- Citation
- 2021 ONCA 713
- Parties
- Respondent: Her Majesty the Queen; Appellant: Tiago Gomes Xavier
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 12 October 2021
- Procedural Posture
- Criminal / Sentence Appeal
- Outcome
- Appeal allowed in part; additional 37 days pre‑sentence credit granted.
- Legal Topics
- Pre‑sentence Custody Credit, Downes Credit, Restrictive Bail Conditions, Remedying Sentencing Error, Warrant of Committal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Her Majesty the Queen
Respondent
Tiago Gomes Xavier
Appellant
Procedural Posture
Criminal / Sentence Appeal
Legal Issues
- 1 Whether the sentencing judge erred in calculating presentence custody credit
- 2 Whether the Downes credit for restrictive bail conditions was miscalculated
- 3 Appropriate remedial measure for the combined sentencing error
Ratio Decidendi
Because the sentencing judge was misinformed about the durations in presentence custody and on restrictive bail and the parties jointly identified the correct figures, the court granted an additional 37 days credit and ordered that the warrant of committal be amended to reflect that credit; the sentence was otherwise affirmed.
Court Disposition
Appeal allowed in part; additional 37 days pre‑sentence credit granted.
Orders
- Grant an additional 37 days credit to the appellant to be reflected on the warrant of committal.
- All other aspects of the sentence are affirmed.
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Xavier Collection Decisions of the Court of Appeal Date 2021-10-12 Neutral citation 2021 ONCA 713 Docket numbers C69531 Judges Fairburn, J. Michal; Doherty, David H.; Watt, David Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Xavier, 2021 ONCA 713 DATE: 20211012 DOCKET: C69531 Fairburn A.C.J.O., Doherty and Watt JJ.A. BETWEEN Her Majesty the Queen Respondent and Tiago Gomes Xavier Appellant Nate Jackson, for the appellant Mark Luimes, for the respondent Heard: in writing On appeal from the sentence imposed by Justice Edward Prutschi of the Ontario Court of Justice on April 9, 2021. REASONS FOR DECISION [1] The appellant received a sentence of ten months imprisonment for one count of robbery. Counsel informed the sentencing judge that the appellant had served three days in presentence custody, meaning he should be credited 5 days in total. The sentencing judge agreed. [2] The sentencing judge also gave credit pursuant to R. v. Downes (2006), 79 O.R. (3d) 321 (“Downes credit”) for what he thought was 15 months spent on restrictive bail terms. The Downes and presentence custody credit came to a combined total of 2 months. [3] On appeal, the parties agree that the sentencing judge was misinformed about the amount of time spent in presentence custody and on restrictive bail conditions. The appellant actually spent 30 days (not 3 days) in presentence custody, meaning that he only spent 14 months (not 15 months) on restrictive bail conditions. [4] The parties agree that that this sentencing error can be remedied by decreasing the Downes credit by 4 days and increasing the presentence custody by 41 days. This results in an additional 37 days of credit. [5] We are prepared to accede to this joint position. An additional 37 days credit is granted and should be reflected on the warrant of committal. The sentence remains the same in all other respects. “Fairburn A.C.J.O.” “Doherty J.A.” “David Watt J.A.”