I Cite as: R. v. MacDonald, 1990 NSCA 97 ' l I IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION I Chipman, Hart and Freeman, JJ.A. I BETWEEN: I IAN LAYTON MacDONALD Appellant I - and - I HER MAJESTY THE QUEEN Respondent I I I I THE COURT: Application for leave to appeal refused, per reasons for judgment of Hart, J .A.; Chipman and Freeman, JJ .A. concurring. I I t I S.C.C. No. 02340 ) The A ppe llan t ) in person ) ) ) John D. Embree ) for the Respondent ) ) ) ) ) ) Appeal Heard: ) December 4, 1990 ) ) ) Judgment Delivered: ) December 10, 1990 ) ) ) )
l HART, J.A.: I This is an application for leave to appeal and, if granted, an appeal against a total sentence of two years made up of one year for assault with a weapon I and one year to be served consecutively for possession of a knife for a purpose I dangerous to the public peace. The appellant, who was not represented by counsel, stated in his notice I of appeal: "I am not appealing because of the duration of time handed down, but I rather the status of the sentence imposed. I was serving 39 months, received a two year concurrent sentence, plus a month consecutively. My understanding is that only a judge's order can move one warrant I expiry date of a sentence to a new date in the future with an order of consecutive sentencing. How can a concurrent order move a warrant expiry date, and if a concurrent order can move the warrant expiry I date, then technically it is a consecutive order set down by the judge is it not? And if it is not a consecutive order, then the judge's order is not being upheld by the standards of that order, therefore I am serving a consecutive sentence against the judge's order." ~ The appellant is obviously under a misunderstanding about how his past I and present sentences are to be treated. Since the final two year sentence was not stated to be consecutive to time already being served, it will expire two years I after the sentence was imposed, that is, on June 28, 1992. His release date will I not arrive until July 28, 1992, because he received a subsequent sentence of 30 days for another offence and it was made consecutive to the time already being served. I Unless a sentence is declared to be consecutive to time being served, I it commences on the date on which the sentence is imposed. See ss. 717(4)(a) and 721(1) of the Criminal Code of Canada. I It became apparent during the argument that the appellant bas been told that he will not be released on mandatory supervision after serving 21 months t of the two year sentence as he expected. Whether he should be released under the I provisions of the Parole Act or any other statute is not a matter that can be
- 2 - J considered by this Court. Our jurisdiction in a sentence appeal is merely to determine J whether the sentence imposed by the trial judge is a fit and proper one under all J of the circumstances. J I would refuse leave to appeal. I I J.A. Concurred in: J Chipman, J.A. PI f{!. , ] Freeman, J.A. ~ ] ] ] l ] J j I J
E L CANADA I PROVINCE OF NOVA SCOTIA 1990 I c. R. 11511 I I IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION I on appeal from the COUNTY COURT JUDGE'S CRIMINAL COURT I OF DISTRICT NUMBER ONE I BETWEEN: I HER MAJETY THE QUEEN -and- " IAN LAYTON MACDONALD I I Heard Before: The Honourable Judge N.R. Anderson Place Heacd: Halifax, Nova Scotia I Date Heacd: June 29, 1990 I Mc. John Scott, foe the Pcosecu ti on Ms. Ann Copeland, foe the Defence I I C A S E 0 N A P P E A L l E [
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