Court of Appeal

Judge:

The Honourable Justice M. Jill Hamilton

Appeal Heard:

November 19, 2015, in Halifax, Nova Scotia

Subject:

Criminal Law; Assaults that occur outside the dates in the Information; Sentencing; 1.5:1 Remand Credit for time spent in pre-sentence custody

Summary:

The appellant appeals his convictions on a number of domestic assault charges which the judge found took place in the Spring of 2014, while the complainant and the appellant lived in the same house.  He also appeals his sentence.

Issues:

(1)        Are the convictions unreasonable or unsupported by the evidence?

(2)        Did the judge err in relying on the complainant’s testimony that the appellant caused his then girlfriend to go to Bryony House?

(3)        Did the judge err by improperly relying on propensity evidence?

(4)        Did the judge err by misunderstanding the evidence concerning the dates the complainant lived in the same house as the appellant?

(5)        Did the judge err in accepting the complainant’s evidence that a metal kettle thrown at her “smashed…into many pieces” on hitting a wall?

(6)        Did the judge err in imposing too high a sentence for the assault with the juice?

(7)        Did the judge err in principle by failing to give the appellant enhanced 1.5:1 credit, pursuant to s. 719(3) and (3.1) of the Criminal Code, for time spent in pre-sentence custody?

Result:

Convictions’ appeal dismissed.  Sentence appeal allowed in part.

The judge did not improperly rely on any evidence in reaching her decision.  She did not err by convicting the appellant of assaults that took place outside the dates in the Information, because an assault is a crime regardless of when it occurs and the dates of the assaults were not crucial to the appellant’s defence.  The convictions are not unreasonable or unsupported by the evidence.

The judge did not err in imposing a sentence of six months for the relatively low-level offence of assault with the juice, given the appellant’s demeaning, controlling, abusive and repetitive behaviour towards the complainant, both physically and psychologically.  She did, however, err in not granting the appellant 1.5:1 credit for the time he spent in pre-sentence custody.  As set out in R. v. Summers, 2014 SCC 26, pre-sentence custody alone will generally be a sufficient basis on which to award the enriched credit.