• Adam R. Thibert

R v Huang, 2020 ONCA

Updated: Feb 20

In this case, the issue concerns whether the judge in this case properly gave Zi-Yue Huang – the appellant – credit for his time served in custody when the judge handed down his sentence.

Zi-Yue Huang, a 28-year old man with serious mental health issues, was charged with three counts of robbery. He plead guilty and was sentenced to 12 months in prison (followed by three months of probation).[1] He appealed against this sentence[2] for two reasons: (1) because the judge did not appropriately give him credit for time he served in custody while awaiting trial, and (2) because the judge improperly used Huang’s mental health condition as a reason for imposing a tougher sentence. Huang claimed these were both errors which resulted in a stiffer sentence, and that 6 months minus 113 days for pre-sentence custody would be an appropriate sentence instead.[3] The Court of Appeals for Ontario in this case agreed with Huang’s first reason, but not his second reason, and corrected the sentence.[4]

So, what mistakes exactly did the judge make? The judge did not properly apply sections 719(3.2) and 719(3.3) of the Criminal Code.[5]

At sentencing, the judge handed down a sentence of 12 months onto Huang. Huang’s lawyer then asked the judge to consider credit for time served, to which the Court’s clerk registrar also asked the judge whether there was time served to be considered. The judge responded saying, “…I am not addressing the issue of pre-trial custody, Madam Registrar.”[6] Huang and his lawyer said this proves the judge did not consider credit for time served.

Section 719(3.2) requires that judges give reasons when they either decide to give or not give credit for pre-sentence custody. Section 719(3.3) requires judges say how much time the defendant served in pre-sentencing custody before sentencing them. But because the judge did not consider pre-sentence custody, and therefore did not give reasons for denying Huang credit or state the time Huang spent in pre-sentencing custody, the judge made a mistake in sentencing.[7]

To correct Huang’s sentence, the Court of Appeals gave Huang credit for the 75 days he spent in custody at a rate of 1.5 days for every 1 day he spent in custody, working out to 113 days credit. As a result, they replaced Huang’s 12-month sentence (365 days) with a sentence of 252 days – 365 days minus 113 days.[8] Read Full Case HERE

Listen to Full Case HERE

Adam is a 2L J.D. candidate at the University of Windsor, Faculty of Law. Reach him by email at thibe119@uwindsor.ca.

[1] R v Huang, 2020 ONCA 341 at para 1 [Huang]. [2] Ibid. [3] Ibid at para 2. [4] Ibid at para 3. [5] R.S.C. 1985, c C-46. [6] Ibid at para 5. [7] Ibid at paras 9-10. [8] Ibid.

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