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
[1] The 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.
[2] Although 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.
[3] The 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.
[4] The 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.
[5] On 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.
[6] In 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.
[7] Bearing 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.
[8] In 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
application is dismissed.
“J.I. Laskin J.A.”
“M.J. Moldaver J.A.”
“J.C. MacPherson J.A.”