PUBLICATION BAN
Pursuant to s. 110(1) of the Youth Criminal Justice Act, no person shall publish the name of M.M., or any other information related to M.M., if it would identify M.M. as a young person who was dealt with under that Act.
Court Information
Court: Ontario Court of Justice
Date: July 13, 2018
Court File No.: 1911-998-17 0145 / 17 1541
Between:
Her Majesty the Queen
— AND —
M.M.
Before: Justice A. Wheeler
Heard on: February 2, 2018 and June 21, 2018
Reasons for Judgment released on: July 13, 2018
Counsel
For the Crown:
- Keith Schultz (February 2, 2018)
- John O'Halloran (June 21, 2018)
For the Defendant, M.M.:
- Steven Gougeon (duty counsel)
Overview
[1] M.M. asks that I impose a conditional discharge on charges of theft under $5000 and breach of a youth sentence order, both of which she committed as an adult. M.M. pleaded guilty to these offences.
[2] This request for a discharge is unusual, in that it is not based on M.M.'s previous good character, but on her history of offending as a youth, and on the impact that a conviction would have on that youth record under s. 119(9) of the Youth Criminal Justice Act. In making this request, M.M. has been ably assisted by duty counsel Stephen Gougeon.
[3] If M.M. were convicted, s.119(9) of the YCJA would cause M.M.'s fairly significant youth record to be treated as an adult criminal record. A conditional discharge would not trigger this collateral consequence. Mr. Gougeon argues that allowing M.M. to have a fresh start through the imposition of a discharge would be both in her best interest and not contrary to the public interest, pursuant to s. 730 of the Criminal Code. The Crown argues that M.M.'s past offending as a youth is precisely the reason why she should not be given a discharge.
[4] The guilty plea proceedings took place on February 2, 2018, and some sentencing submissions were made at that time. Given the unusual nature of the submission for a discharge, and since it appeared that a pre-sentence report had not previously been prepared in relation to M.M., or, if it had, it was not available, I ordered a pre-sentence report and adjourned the case for further submissions. Both parties filed case law and duty counsel also filed a factum. The further submissions were heard on June 21, 2018.
[5] I have concluded that it is appropriate to impose a conditional discharge. These are my reasons for that decision.
The Offences
[6] On January 26, 2017, M.M. and her slightly younger friend L.W. went to the Great Canadian Superstore in Brockville, and left without paying for $122 worth of merchandise. When approached by the loss prevention officer, they initially ran off but were apprehended. The stolen items were apparently recovered. At the time, M.M. was subject to a youth probation order that included a condition that she keep the peace and be of good behaviour.
[7] M.M. was born on November 7, 1998, so these offences took place less than three months after her 18th birthday. This is the first time M.M. has been found guilty of a criminal offence as an adult.
M.M.'s Background
[8] M.M. is now 19 years old. She has always lived in eastern Ontario. M.M. lived in Athens until Grade 3, then moved to Prescott with her mother and two older siblings when her parents separated. The family later moved to Brockville.
[9] M.M. told the presentence report author that she has a positive relationship with her mother, and that her mother has always provided for the family the best she could with what she had. M.M.'s mother was consistently present during the court proceedings before me.
[10] M.M. does not have a meaningful relationship with her father. She told the PSR author that she recalled her father not showing up for planned visits or camping trips, and that she found it difficult to grow up without her father in her life.
[11] M.M. has not yet finished high school. The pre-sentence report notes that she skipped school a lot, hung out with the wrong crowd and was suspended more than once. The PSR states:
The subject noted she was hanging out with a negative peer group. She explained she felt it was fun to have friends but those friends encouraged poor behaviour, such as stealing. She experienced a lot of bullying in high school and struggled with people yelling at her, creating nicknames for her, and throwing things at her.
[12] With respect to the current offence of theft, M.M. appears to blame the conduct on her involvement with L.W., the younger friend she was with. The PSR author observed that, M.M. "accepts some responsibility but noted the behaviour was driven by another youth."
[13] M.M. was supposed to be attending T.R. Leger, an adult education facility, over the past academic year, but it appears that this did not go particularly well. She rarely attended and, because of that, had to re-enroll three times. Through duty counsel, she advised that she is now enrolled to return to school at Thousand Island Secondary in September. She needs six and a half credits to get her high school diploma.
[14] The PSR notes that M.M. is currently looking for work (she did hold summer jobs in 2016 and 2017), and is supported under her mother's Ontario Works. At the hearing in June she advised that she had recently held a short-term job at a construction site.
[15] M.M. has used marijuana in the past and has at least experimented with crystal meth, cocaine and alcohol, but she advised the PSR writer that she is not currently using drugs.
[16] M.M. has experienced some mental health challenges. The PSR states:
The subject has struggled with self-image and bullying for much of her young life. She reported a past suicide attempt of taking an excessive amount of Tylenol and self-harm behaviour of cutting her arm with a razor while in open custody as a youth. The subject has attended some counselling and file information reports this appeared to be beneficial. She is not currently attending any counselling or taking any prescribed medication.
[17] M.M. has a lengthy youth record. The details are set out below.
[18] The PSR states that M.M. has not responded well to previous periods of supervision. M.M. has had difficulty following conditions, especially non-association conditions, and has failed to complete community service hours. (It is my understanding, based submissions of counsel and material provided to the court, that M.M. did complete at least a good portion of her community service hours, but only after the relevant probation order had expired. One of the letters filed, from the volunteer coordinator at M.M.'s community service placement, stated that M.M. has been "a great volunteer so far!")
[19] M.M. told the author of the PSR that she plans to finish high school and wants to attend college. She has concerns about how her criminal record will affect future employment.
[20] M.M. addressed the court twice in the sentencing process, once on February 2, 2018 and then again on June 21, 2018. She advised that she has been out of trouble since this shoplifting incident, and that she has plans to finish high school, go to college and perhaps move away from Brockville. She acknowledged that she had got into a lot of trouble previously with L.W., and that there was a lot of non-compliance throughout her history of charges. She said she has completely stopped hanging around with the friends who were a bad influence, explaining, "I've realized what I was and what I was becoming, and I didn't like what I saw." She indicated a willingness to do community service hours and said, "Whatever you decide to impose on me today, whether it's bad or good, I'll try to make the best of it."
M.M.'s Youth Record
[30] M.M. has a fairly significant youth record, which is as follows:
| Disposition Date | Offence | Youth Sentence |
|---|---|---|
| 2014.06.10 | Fail to comply with disposition x 2 (s. 137 YCJA) | 12 months' probation concurrent |
| 2015.02.10 | Mischief under $5000 (s. 430(4) Cr. C.) Theft under $5000 (s. 334(b) Cr. C.) Fail to comply with undertaking x 3 (s.145(5.1) Cr. C) Fail to comply with disposition x 4 (s. 137 YCJA) Fail to comply with recognizance (s. 145(3) Cr. C.) | 4 months' custody and 2 months' supervision (concurrent on all charges) |
| 2016.02.09 | Fail to comply with recognizance (s. 145(3) Cr. C) | 12 months' probation |
| 2016.04.12 | Mischief under $5000 (s. 430(4) Cr. C.) (indictable – guilty plea on charge as included offence to indictable offence) | 18 months' probation |
| 2016.10.11 | Unlawfully in dwelling house (s. 349(1), Cr. C) (indictable – guilty plea on charge as included offence to indictable offence) Assault (s. 266, Cr. C.) (summary election) Fail to comply with recognizance x 2 (s. 145(3) Cr. C.) (summary election) Fail to comply with disposition x 2 (s. 137 YCJA) (summary offence) | 70 days' custody & 35 days' supervision concurrent on all charges |
[31] The evidence filed at the sentencing hearing did not address how the Crown elected to proceed in every instance where the Crown had an election, although the Crown advised that it was likely summarily. Copies of the informations were obtained for the findings of guilt made on April 12, 2016 and October 11, 2016. I have concluded that nothing turns on the lack of information about the Crown election on earlier charges.
[32] Based on the record access periods set out in s. 119 of the YCJA, the access period in relation to most of the entries on this record is set to expire as of January 24, 2022. M.M.'s most recent finding of guilt, on October 11, 2016, in relation to an indictable offence, had the effect of extending or fixing the access period for her earlier offences to January 24, 2022, being the date five years after the sentence imposed for the indictable offence was completed, pursuant to s. 119(2)(j). In other words, but for the impact of an adult conviction under s. 119(9)(b), M.M.'s youth record will cease to be accessible as of January 24, 2022.
Relevant Provisions of the Youth Criminal Justice Act
[21] Section 119(2) of the Youth Criminal Justice Act sets out the applicable periods of access for records kept under that Act in paragraphs (a) through (j). The relevant subsections for M.M.'s situation are as follows:
(2) The period of access referred to in subsection (1) is
(f) if the young person is found guilty of the offence and the youth sentence is a conditional discharge, the period ending three years after the young person is found guilty;
(g) subject to paragraphs (i) and (j) and subsection (9), if the young person is found guilty of the offence and it is a summary conviction offence, the period ending three years after the youth sentence imposed in respect of the offence has been completed;
(h) subject to paragraphs (i) and (j) and subsection (9), if the young person is found guilty of the offence and it is an indictable offence, the period ending five years after the youth sentence imposed in respect of the offence has been completed;
(i) subject to subsection (9), if, during the period calculated in accordance with paragraph (g) or (h), the young person is found guilty of an offence punishable on summary conviction committed when he or she was a young person, the latest of
(i) the period calculated in accordance with paragraph (g) or (h), as the case may be, and
(ii) the period ending three years after the youth sentence imposed for that offence has been completed; and
(j) subject to subsection (9), if, during the period calculated in accordance with paragraph (g) or (h), the young person is found guilty of an indictable offence committed when he or she was a young person, the period ending five years after the sentence imposed for that indictable offence has been completed.
[22] In addition, s. 119(9) of the YCJA provides:
(9) If, during the period of access to a record under any of paragraphs (2)(g) to (j), the young person is convicted of an offence committed when he or she is an adult,
(a) section 82 (effect of absolute discharge or termination of youth sentence) does not apply to the young person in respect of the offence for which the record is kept under sections 114 to 116;
(b) this Part no longer applies to the record and the record shall be dealt with as a record of an adult; and
(c) for the purposes of the Criminal Records Act, the finding of guilt in respect of the offence for which the record is kept is deemed to be a conviction.
[23] The Crown referred to a number of cases which note that if the access period in relation to a youth disposition has ended, the youth finding of guilt is not to be considered a prior offence in sentencing the person as an adult. Conversely, if the access period of time has not ended, the youth finding of guilt can be considered in sentencing the person as an adult. However, none of those cases discuss the effect of s. 119(9)(b) in causing a youth record to "be dealt with as a record of an adult" once a person is convicted of an adult offence during the access period.
[24] In R. v. Able, 2013 ONCA 385, the Court of Appeal held that s. 119(9)(a) allows a prior offence committed as a youth to be treated as a prior conviction so as to attract an enhanced mandatory minimum sentence on an adult conviction that occurs within the access period. In that context, Tulloch J.A. stated:
[22] Furthermore, the interpretation of ss. 82 and 119(9)(a) that I accept accords with the objectives of the YCJA. These objectives can be found in the preamble to the YCJA. While the preamble has a broad and general compass, it also "fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation and reintegration". Effective rehabilitation and reintegration require that young persons are given an opportunity to move on with their life and put their interaction with the criminal justice system behind them. However, a balance must be struck: strings must be attached when providing young persons with such an opportunity. [emphasis added]
[25] Tulloch J.A. noted that the Superior Court has interpreted s. 119(9)(a) in the same way, approving R. v. Elliston, 2010 ONSC 6492, which held (at para.24):
[24] With respect to the five year gap between his predicate offence and the offence now before the Court, it is worth noting that the Youth Criminal Justice Act itself provides a mechanism by which YCJA findings of guilt are not taken into account for the purposes of adult sentencing. According to ss. 82 and 119 of that statute, if five years elapse from the completion of the youth sentence to the time of the adult offence, the YCJA offence is not considered a prior offence in adult sentencing. If Mr. Elliston had waited about three more years before committing this offence he would not be facing the increased mandatory minimum. I agree with the Crown's submission that this legislative scheme represents a reasonable and nuanced approach by Parliament in balancing the need to punish recidivists without allowing offences committed when one is very young to haunt an individual in perpetuity.
[26] Elliston is instructive with respect to the five years' elapsed rule for a youth record (for an indictable offence) to be considered in imposing sentence for an adult offence. However, the effect of s. 119(9)(b) was not directly at issue in that case, and that provision has received little attention in the case law.
[27] As I read s. 119(9)(b), once a young person is convicted of an adult offence during the access period for any youth offences with access periods set by any of paragraphs 119(2)(g) to (j), those youth offences would, in fact, haunt that individual in perpetuity, subject only to the relief available through the Criminal Records Act, R.S.C., 1987 c. C-47.
[28] In commenting on the differences between a probation order and a conditional discharge under the YCJA, the Nova Scotia Court of Appeal observed that further findings of guilt are immaterial to the length of the period of access where a conditional discharge is imposed, but that if probation is imposed, then access to the youth record is extended by a subsequent finding of guilt. See R. v. P.J.S., 2008 NSCA 111. Roscoe J.A. stated:
[15] … Of more importance is s. 119(9) which in effect converts a youth record to an adult record if an adult offence is committed during the period of access and the original sentence was not a discharge.
[29] In R. v. J.C., 2015 NLPC 1315, and R. v. S.A.R., 2013 ABPC 169, trial judges imposed discharges on first-time adult offenders based on submissions similar to that made by duty counsel on M.M.'s behalf.
Sentencing Objectives and Principles
[33] Section 718 of the Criminal Code states that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society, through the imposition of a sentence that has one or more of the objectives set out in that section. They are: denunciation, specific and general deterrence, separation of offenders from society where that is necessary, rehabilitation, reparation to victims, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done to the victim and to the community.
[34] When dealing with youthful adult offenders, the most important sentencing objectives are usually individual deterrence and rehabilitation. See: R. v. Priest (1996), 110 C.C.C. (3d) 289 (Ont. C.A.) at 294; R. v. Borde (2003), 172 C.C.C. (3d) 225 (Ont. C.A.) at para. 36; R. v. Denault (1981), 20 C.R (3d) 154 (Ont. C.A.). There is nothing in the circumstances of this case that would make this principle inapplicable.
[35] In R. v. Pham, 2013 SCC 15, the Supreme Court held that collateral consequences of a sentence on a particular offender may be taken into account as part of the offender's personal circumstances. Wagner J. stated:
[11] …[T]he collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender (s. 718.2(a) of the Criminal Code). Their relevance flows from the application of the principles of individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders (s. 718(d) of the Criminal Code). Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender's rehabilitation.
[36] Wagner J. also cautioned that, in taking collateral consequences into account, a trial judge must still impose a sentence that falls within the range of appropriate sentences:
[15] The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament's will.
Discharges Under Section 730 of the Criminal Code
[37] Section 730(1) of the Criminal Code allows a court to impose an absolute or conditional discharge as an alternative to a formal conviction, where the court "considers it to be in the best interests of the accused and not contrary to the public interest":
730 (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).
[38] Section 730(3) states that when a court directs that an offender be discharged, "the offender shall be deemed not to have been convicted of the offence," and s. 730(4) sets out the circumstances in which an offender can lose that benefit, as follows:
(4) Where an offender who is bound by the conditions of a probation order made at a time when the offender was directed to be discharged under this section is convicted of an offence, including an offence under section 733.1, the court that made the probation order may, in addition to or in lieu of exercising its authority under subsection 732.2(5), at any time when it may take action under that subsection, revoke the discharge, convict the offender of the offence to which the discharge relates and impose any sentence that could have been imposed if the offender had been convicted at the time of discharge, and no appeal lies from a conviction under this subsection where an appeal was taken from the order directing that the offender be discharged.
Would a Discharge Be in M.M.'s Best Interest?
[39] In R. v. Sanchez-Pino (1973), 11 C.C.C. (2d) 53 (Ont. C.A.), the court held that in determining whether a discharge is in the defendant's best interests, a court should consider whether a conviction is necessary for the defendant's specific deterrence or rehabilitation. Arnup J.A. held:
The granting of some form of discharge must be "in the best interests of the accused". I take this to mean that deterrence of the offender himself is not a relevant consideration in the circumstances, except to the extent required by conditions in a probation order. Nor is his rehabilitation through correctional or treatment centres, except to the same extent. Normally he will be a person of good character, or at least of such character that the entry of a conviction against him may have significant repercussions.
[40] The British Columbia Court of Appeal's decision in R. v. Fallofield, [1973] B.C.J. No. 559, is also often cited with respect to the principles applicable to the imposition of a discharge. With respect to the best interests of the accused, that court held:
Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions.
[41] Duty counsel argues that the impact of s. 119(9) of the YCJA on M.M.'s youth record should inform the determination of whether a discharge is in her best interests. The Crown argues that M.M.'s youth record should cause me to conclude that a conviction is warranted in order to deter her from further criminal conduct.
[42] Based on her youth record, M.M. has not behaved with good character, and I am alive to what might be described as the irony that M.M.'s request for a discharge is, in some sense, based on her prior bad conduct. However, it would trivialize the defence argument to say that it is based on M.M.'s prior bad character. Rather, it is based on the optimism that M.M. will become a person of genuine good character and a contributing adult, and on how this quest would be weighed down if the protections on access of the Youth Criminal Justice Act are removed, and her youth record becomes an adult criminal record because of two relatively minor offences committed shortly after her 18th birthday.
[43] The impact of s. 119(9) is a significant collateral consequence in the sentencing determination for M.M. In my view, the potential for M.M.'s youth court record being converted into an adult record means that M.M. meets the description of being someone who is "at least of such character that the entry of a conviction against [her] may have significant repercussions."
[44] I find that entering a conviction is not necessary in order to deter M.M. from further criminal misconduct. If the seriousness of committing criminal offences was not apparent to M.M. at the time she committed this theft and breached her youth sentence order, I have no doubt that the seriousness has by now been well and truly brought home to her by the spectre of having her youth record follow her into adulthood permanently. M.M. spoke on her own behalf at the sentencing hearing. Although this was a brief interaction, she strikes me as a serious person – nervous about speaking in public, yet resolved to do it. There was no hint that she thought the court process was trivial.
[45] I do find that there is a need for individual deterrence, and that further rehabilitation is required to ensure that M.M. makes a successful and constructive transition to adulthood, but I am satisfied that these objectives can be addressed through a term of probation.
[46] The Crown argued that there was an increased need for specific deterrence because M.M. committed the shoplifting with an associate who was at that point still a youth. However, counsel acknowledged that there was not a big age difference between the two. In view of that, I do not give this factor significant weight.
[47] M.M. still needs to gain some momentum on her quest to change her ways and live a productive adult life. For instance, despite her professed intentions to finish her high school education, M.M. had a poor attendance record at T.R. Leger, and did not make good progress there. (She advised that she is now enrolled to attend Thousand Island Secondary School in September.) This does not detract from a discharge being in M.M.'s best interests. The fact that M.M. has not evolved overnight into a model citizen is hardly surprising given her track record as an adolescent and as a teenager.
[48] The imposition of a discharge would, I hope, send a message to M.M. that there is indeed reason to continue with her efforts towards a more productive life, and that others believe she is capable of making that transition. In my view, the imposition of a conviction at this stage could send quite the opposite message, and could chip away, if not entirely undermine, M.M.'s resolve in the steps she must take.
[49] Considering all of this, I find that the imposition of a discharge would be in M.M.'s best interest.
Would a Discharge Be Contrary to the Public Interest?
[50] In Sanchez-Pino, Arnup J.A. held:
It must not be "contrary to the public interest" to grant some form of discharge. One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence – a standard part of the criteria for sentencing.
In R. v. C.(K.V.), [1976] O.J. No. 1032 (C.A.), the court set aside a conviction and suspended sentence, and imposed conditional discharges on two young men, aged 18 and 19, who were convicted of theft for stealing several items from a department store, with a total value of approximately $30. Dubin J.A. (as he then was), held (at para. 4):
This is a case of two young men alone in this country, in strange surroundings. Although they had access to a distant relative, they had no parental guidance. They made a serious mistake. The issue is whether a conviction and suspended sentence must stand as a deterrent to others of like mind, notwithstanding the apparent serious consequences that a criminal record will have on the future of these two young men. We do not think that a suspended sentence is a greater deterrent to youths that may be tempted to steal than a discharge, certainly not a conditional discharge with probation. The fact of speedy apprehension, arrest and trial with the public disgrace and jeopardy which is thereby occasioned should be a sufficient deterrent, and the future of these two young men need not be jeopardized by insisting that they bear a criminal record. The purpose of the introduction by Parliament of the provision for absolute and conditional discharges is to permit the court in appropriate cases to relieve a person of the burden of a criminal record, the serious consequences of which may far outweigh the gravity of the offence which the accused has committed.
[51] I have reached a similar conclusion in M.M.'s case. On the facts here, I find that conditions imposed through a probation order would meet the needs of both denunciation and general deterrence, whether the probation order were associated with a suspended sentence or with a conditional discharge. Furthermore, I find that the consequences of conviction would far outweigh the gravity of the offences which M.M. committed. This was an instance of shoplifting committed with a slightly younger associate, where the total value of goods taken was $122. M.M. committed this offence when barely past her 18th birthday. Although considered to be fully an adult as regards the application of the criminal law, she has not yet finished maturing.
[52] It is aggravating that M.M. committed the theft when subject to a condition of probation to keep the peace and be of good behaviour, but not to the point that a probation order imposed through a conditional discharge cannot meet the needs of general deterrence.
[53] There is a long term public interest in seeing that M.M. change her ways and make a successful transition into a constructive adult life. The effect of entering convictions, in that M.M.'s youth record would be "dealt with as a record of an adult," could significantly hamper, if not completely undermine, that process. On the other hand, a conditional discharge would offer M.M. the opportunity for a fresh start. I find that it is very much in the public interest that M.M. should be given that chance.
[54] The opportunity for a fresh start through the imposition of conditional discharge is just that, an opportunity. It is not a given. The discharge will be conditional. M.M. will have to comply with terms of probation that are intended to deter her from future misconduct, encourage her rehabilitation and also denounce her conduct and provide some reparation to the community. The conditions will include terms requiring M.M. to perform community service hours, and to attend and actively participate in assessment, counselling or rehabilitative programs as directed by the probation officer, as well as prohibiting her from associating with L.W. Furthermore, in order to avoid having her youth record be treated as an adult record, M.M. must not be convicted of any further offences during the remaining period of access to her youth record, which extends (for the most part) until January 24, 2022.
Conclusion
[55] The sentencing process is meant to convey the values of the criminal law (see R. v. M.(C.A.), [1996] 1 S.C.R. 500 at 558-559). In R. v. Khawaja, 2010 ONCA 862 at para. 247, (affirmed 2012 SCC 69 without specific comment on this point), the Court of Appeal stated that: "Our sentencing and correctional philosophy also places a premium on the notion of individual dignity and it accepts redemption and rehabilitation as desired and achievable goals." These goals are particularly important for young adults, who are still in the process of maturing.
[56] I have concluded that a conditional discharge achieves the fundamental purpose of sentencing, of contributing to "respect for the law and the maintenance of a just, peaceful and safe society" better than would a conviction and a suspended sentence. Given the nature of the offences, M.M.'s young age, and the effect of s. 119(9)(b) of the YCJA, it could be seen as heavy handed to enter a conviction.
[57] In all of the circumstances of this case, I find that it is appropriate that M.M. be given the opportunity to redeem herself by complying with the terms of a 12 month probation order as part of a conditional discharge. Of course, should M.M. be convicted of any criminal offence committed as an adult during the remaining period of access for offences on her youth record, this would cause those offences to be dealt with as the record of an adult. To avoid that, M.M. will have to stay out of trouble for several more years beyond the time frame of the probation order I am imposing as part of the conditional discharge.
Released: July 13, 2018
Signed: Justice Alison Wheeler
Footnote
[1] On September 24, 2013, M.M. received a conditional discharge. The access period for the conditional discharge has expired pursuant to s. 119(2)(f). Unlike other sentence dispositions, the access period in relation to a conditional discharge is not extended under s. 119(2)(i) or (j) as a result of a subsequent finding of guilt. It should therefore no longer appear on M.M.'s youth record. In addition, the access period in relation to the summary conviction offences on which M.M. was found guilty on October 10, 2016 will expire on January 24, 2020, i.e., three years following the completion of her sentence, pursuant to s. 119(2)(g).