Not so Endless Summer(s)

Mr Abdullahi was convicted after a trial of four offences relating to the possession of loaded restricted firearm. The only issue at trial was whether the accused was in possession of the firearm; he claimed he was not. The trial judge rejected the accused’s evidence and convicted him of the offences before the court. At the time Abdullahi was found to be in possession of the loaded restricted firearm he prohibited from doing so.

The trial judge imposed a global sentence of 6 years. The breakdown of the sentence was as follows:

  • Count 1:  Possession of a loaded restricted firearm (s. 95(1)):  4 years;
  • Count 3:  Possession of a firearm knowing its possession is unauthorized (s. 92(1)):  1 year consecutive to the s. 95(1) charge; and
  • Counts 4 and 5:  Possession of a firearm and possession of ammunition while prohibited:  1 year consecutive to the s. 95(1) and s. 92(1) sentences, but concurrent to each other.

Quigley J credited Abdullahi at a rate of 1.5:1 for 72 days of presentence custody as those days the offender was held in very crowded conditions. Abdullahi received no credit for the remaining 448 days of presentence custody.

Abdullahi appealed conviction and sentence.

The appellant’s main argument on the sentence appeal was that the trial judge erred in his assessment of the credit for pre-sentence custody. The Court of Appeal rejected that argument: 2015 ONCA 549.

In dealing with this argument the Court of Appeal noted first, that the sentencing judge did not have the benefit of the Supreme Court’s judgment in Summers, 2014 SCC 26.

The Court of Appeal briefly reviewed the principles in Summers and summarized them as follows:

First, the quantitative rationale for an enhanced credit is grounded in the loss of eligibility for early release and parole during pre-sentence custody.

Second, the qualitative rationale for an enhanced credit is to be applied to account for the relative harshness of the conditions in a detention center.

The Court of Appeal noted that the trial judge correctly applied the qualitative rationale in accounting for the harsh conditions during the 72 days where Mr Abdullahi shared a cell with two others.

The Court then noted that although loss of eligibility for early release is generally sufficient to grant enhanced credit it does not mean that such a credit is automatic. In fact, the specific circumstances of a particular offender may result in an adjustment or even denial of such a credit.

The Court held the following:

As observed in Summers, at para. 71, the quantitative rationale, that is loss of eligibility for early release and parole, will generally be a sufficient basis upon which to award credit at 1.5:1.  The credit is not, however, automatic.  If the circumstances of a specific offender render the possibility of early release or parole highly unlikely, then a trial judge can adjust, or even refuse enhanced credit:  Summers, at paras. 71, 79; R. v. Nelson, 2014 OJ. No. 5729, at para. 51-53. @para 18

In Mr Abdullahi’s case the Court noted that:

To assist in the proper application of Summers, this court received a report from the Ministry of the Solicitor General and Correctional Services outlining the appellant’s conduct since his incarceration of these charges.  His conduct could hardly be worse.  Unfortunately, his conduct since incarceration clearly demonstrates that he continues to engage in serious criminal and anti-social conduct even while in custody.  There is no realistic possibility that the appellant will be given any form of early release or parole.  Applying the quantitative rationale underlying enhanced credit for presentence custody, the appellant is not entitled to any credit beyond 1:1 credit. @para 19

As such even though the sentencing judge did not have the benefit of the decision in Summers, the Court of Appeal found no error in the allocation of the credit for pre-sentence custody.

This decision serves as an important reminder that the enhanced credit is not automatic but requires a quantitative and qualitative analysis, based on a sound evidentiary record, to be undertaken by the sentencing judge.