R v McBride – 2019 BCCA 305 (Fitch JA):

[40] A delayed parole eligibility order remains out of the ordinary and must be used in a manner that is fair to the offender: Zinck at para. 29. Section 743.6 contemplates a two-step process.

[41] At the first stage, the sentencing judge must determine the appropriate sentence for the offence, having regard to the circumstances of the offence and offender, aggravating and mitigating circumstances, the applicable objectives and principles of sentencing set out in ss. 718 and 718.2, and the fundamental principle of proportionality reflected in s. 718.1, to the end of determining the length of the jail sentence to be imposed. It is at the first stage of the analysis that credit for time spent in pre-sentence custody will be given to arrive at a sentence that is, in its quantum, just and appropriate.

[42] Having determined the quantum of the sentence to be imposed, the analysis shifts at the second stage to focus on whether an order delaying full parole eligibility should be made. At the second stage, consideration must once again be given to the applicable sentencing factors. At this stage, however, priority must be given to the objectives of deterrence and denunciation. The prosecution has the burden of demonstrating that a delayed parole eligibility order is required: Zinck at paras. 30-31. A sentencing judge must bear in mind that a delayed parole eligibility order is an additional form of punishment not routinely meted out.

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[51] I am also unable to accept the appellant’s position that the delayed parole eligibility order is illegal because it requires him to serve more than ten years in custody before he becomes eligible for full parole. Section 743.6 limits the portion of the sentence that must be served before the offender may be released on full parole to one half of the sentence or ten years, whichever is less. The section refers to the sentence itself, not to the sentence plus the period of time the offender serves in pre-sentence custody.

[52] In this respect, it is important to recall that a sentence commences when it is imposed: s. 719(1). Time spent in pre-sentence custody is taken into account by the judge in determining the sentence, but it is not itself part of the sentence: R. v. Mathieu, 2008 SCC 21 at paras. 6, 17-18. In Mathieu, the Court held that when determining whether a sentence of imprisonment is two years or more for the purposes of s. 743.6, time spent in pre-sentence custody is not to be considered: at paras. 23-27. Equally, time spent in pre-sentence custody should not be considered in calculating one half of the sentence.

[53] In the case at bar, the appellant was sentenced to a term of imprisonment of ten years. His five years, two months, and ten days in pre-sentence custody did not form part of the sentence. As a consequence of the delayed parole eligibility order, he is required to serve five years of that ten-year sentence before becoming eligible to apply for full parole. The sentence does not therefore violate s. 743.6(1).

V. Conclusion
[54] For the foregoing reasons, I would admit the new evidence and grant leave to appeal but dismiss the appeal from sentence.