R. v. M. (W.D.), 2000 CanLII 4530 (ON CA)

COURT OF APPEAL FOR ONTARIO

Court File and Parties

DATE: 20000404

DOCKET: C32318

RE: HER MAJESTY THE QUEEN (Respondent) v. W.D. M.

(a young person) (Appellant)

BEFORE: LASKIN, MOLDAVER and MacPHERSON JJ.A.

COUNSEL: David A. Holmes

For the appellant

Alex Alvaro

For the respondent

HEARD: March 30, 2000

E N D O R S E M E N T

1The appellant appeals from the order of Judge Matte, dated

May 21, 1999, transferring him to adult court to be tried on

numerous offences alleged to have been committed between May 6,

1998 and December 27, 1998. The offences in question involve

over twenty counts of breaking and entering, two counts of

mischief, three counts of breach of probation and one count each

of theft, unlawful confinement, using a disguise to commit a

indictable offence and robbery.

2Although all of the alleged offences are serious, the

offences of robbery, unlawful confinement and using a disguise,

said to have occurred on December 27, 1998, are by far the most

serious. Those offences relate to a single incident in which the

appellant, accompanied by another young offender and an adult,

broke into a gas station at night and violently assaulted and

robbed an older couple, age 67 and 70. By the time of the

appellant’s transfer hearing, the adult had entered pleas of

guilty to the robbery charge and six unrelated charges of

breaking and entering. He was sentenced to four years

imprisonment on the robbery and seven months concurrent on the

break and enter charges.

3The appellant was 17 years old at the time of the alleged

offences and 18 at the time of the transfer hearing. He had

already accumulated a substantial youth court record for property

offences. Indeed, at the time of the transfer hearing, he was

serving a sentence of four months secure custody plus 18 months

probation, imposed February 24, 1999, for two counts of forgery,

one count of possession of stolen property and one count of

breach of probation. We note, however, that none of the previous

offences involved violence and the sentence on February 24, 1999

was the first one imposing secure custody.

4The pre-disposition report filed before the youth court

judge on the transfer hearing indicated that the appellant was

doing very well in secure custody. He was enrolled in a number

of courses to upgrade his education and he received glowing

reports from his teachers. As well, the appellant’s correctional

officer stated that the appellant was relating very well to the

staff and his peers. He was described as being very

co-operative, eager to do extra work, and active in both cottage

and recreational activities. An updated report prepared March

30, 2000 was filed on consent. It confirms that the appellant is

continuing to do extremely well in his present secure setting.

He is described as a polite, mature youth who is helpful towards

his peers and a positive role model. As well, he has now

successfully completed the requirements for his grade 12 high

school diploma. Moreover, the report indicates that he continues

to benefit from strong family support.

5On behalf of the Crown Mr. Alvaro advises that at the time

of the transfer hearing, the appellant could have been sentenced

to a further period of 32 months secure custody on the

outstanding charges. Today Mr. Alvaro indicates that the maximum

period of additional secure custody is 23 months. However, we

note that the appellant has remained in secure custody since the

date of the transfer hearing.

6In concluding that the appellant should be transferred to

adult court the youth court judge canvassed the various factors

set out in s. 16(2) of the Young Offenders Act, R.S.C. 1985, c.

Y-1 as amended, and concluded that the objectives of protection

of the public and the rehabilitation of the offender could not be

reconciled by keeping the appellant in the youth court system.

In coming to this conclusion, he stressed that in his view, the

maximum sentence available under the youth court regime was

inadequate to provide sufficient protection to the public. With

respect, we disagree.

7Bearing in mind the four year sentence imposed on the adult

co-accused and taking into account the fact that if transferred,

the appellant would not likely receive any greater penalty, we

are of the view that the 32 month secure custody sentence, which

could have been imposed at the time of the transfer hearing,

would have been adequate to protect the interests of the public.

We are also of the view that in coming to the conclusion he did,

the youth court judge failed to give adequate consideration to

the excellent progress made by the appellant in the youth court

facilities.

8In the circumstances, we are satisfied that this was not an

appropriate case in which to transfer this young person to adult

court. Accordingly, the appeal is allowed and the Crown’s