Cuong Luong pleaded guilty to possession of a loaded restricted firearm. The mandatory minimum sentence for this offence - as it was his second - was five years. A joint submission was put before the sentencing judge of five years. Luong had spent 16.5 months in jail prior to sentencing. After giving Loung credit - at 2 for 1 - the sentencing judge intended to impose a sentence that would equate to five years. However, in following the joint submission, the sentencing judge also followed the erroneous math of the Crown who said the remaining time would be 17 months. In fact it should have been 27 months [five years = 60 months; 60 - (16.5 X 2) = 27].

The Crown brought an application before the sentencing judge to correct the error; the sentencing judge held that he was funtus officio. (As an aside, it is not clear that the sentencing judge was in fact funcus officio; there is authority that a judge can clarify a sentence after it is imposed: R v Malicia, 2006 CarswellOnt 5539 (CA)). Given the judge's view that he was functus, the Crown brought an appeal: 2011 ONCA 780.

On appeal the Court of Appeal agreed that the sentence was illegal. The respondent argued, however, that he would be prejudiced by the addition of 10 months. Even if that were so, the court held the error must be corrected.

The Court of Appeal corrected the sentence and added 10 months.

DG Mack