WARNING
THIS IS AN APPEAL UNDER THE
YOUTH CRIMINAL JUSTICE ACT
AND IS SUBJECT TO:
(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act…
(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person…
(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
DATE: 20060419
DOCKET: C43038
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – E.L. (A “Young Person” under the Youth Criminal Justice Act) (Appellant)
BEFORE:
SIMMONS, CRONK AND LANG JJ.A.
COUNSEL:
Joseph Wilkinson
for the appellant
David Lepofsky
for the respondent
HEARD & RELEASED ORALLY:
April 11, 2006
On appeal from the sentences imposed by Justice Lise Maisonneuve of the Ontario Court of Justice on January 12, 2005.
E N D O R S E M E N T
[1] The appellant pleaded guilty to the first degree murder of his mother and to using a firearm during the commission of an indictable offence. He was 17 years old at the time of these offences. Based on a joint submission presented by counsel, the youth court judge sentenced the appellant to an intensive rehabilitative custody sentence of six years closed custody and two years community supervision on the murder charge, and to 14 months closed custody and 7 months community supervision on the weapons charge.
[2] In imposing these sentences, the youth court judge gave the appellant three months credit for pre-sentence custody. However, in accordance with the terms of the joint submission, the youth court judge did not give credit for any of the additional time served prior to sentencing. The total pre-sentence custody was approximately 17.5 months.
[3] Further, the youth court judge stated, “In order to avoid any confusion, I am ordering that the IRCS sentence be the first sentence to commence, and that the other sentence follow afterwards.”
[4] The appellant raised two issues on appeal.
[5] First, the appellant claimed that the youth court judge erred in invoking s. 42(12) of the YCJA and deferring the commencement of his sentence on the weapons offence until after the completion of his IRCS sentence, thereby requiring that he return to closed custody after serving a period of community supervision.
[6] In oral argument, the appellant and the Crown both acknowledged, and we agree, that the youth court judge did not defer commencement of the weapons offence sentence. Rather, she merely made it clear that the appellant was to commence his IRCS sentence first. In our view, the reasons of the youth court judge indicate her intention that the custodial portions of both sentences imposed be served continuously.
[7] Accordingly, we would not give effect to this ground of appeal.
[8] Second, the appellant contends that the sentencing judge erred by failing to give the appellant credit for the balance of the pre-sentence custody, which he calculates as 16 months. In that regard, the appellant submits that the youth court judge contravened the mandatory provisions of s. 38(3)(d) of the YCJA and this court's interpretation of that provision in R. v. B.T., 2006 4487 (ON CA), [2006] O.J. No. 584.
[9] We disagree. In our view, properly read, this court's decision in B.T. confirms that s. 38(3)(d) obliges a youth justice court in all cases to take the time spent in detention by a young person as a result of the offence in issue into account in fashioning a sentence. This does not mean, however, that in taking such detention into account, the youth justice court does not have discretion to determine the appropriate credit to be given. B.T. recognizes that it is only in an exceptional case, such as this one, where a court should exercise that discretion to reduce the credit given below one to one.
[10] In light of the joint submission in this case and the extensive negotiations concerning the rehabilitative needs of the appellant, we are satisfied that the youth court justice made no error and that the sentence imposed is fit. Accordingly, leave to appeal sentence is granted but the appeal is dismissed.
“Janet Simmons J.A.”
“E.A. Cronk J.A.”
“S.E. Lang J.A.”