Her Majesty the Queen v. T.B. [Indexed as: R. v. B. (T.)]

78 O.R. (3d) 721

[2006] O.J. No. 584

Docket: C43009

Court of Appeal for Ontario,

Doherty, Sharpe and Lang JJ.A.

February 16, 2006

*Vous trouverez la traduction française de la décision ci-dessous à la p. 731, post.

Criminal law -- Young offenders -- Maximum sentence -- Total sentence for two offences may not exceed three-year maximum in s. 42(15) of Youth Criminal Justice Act even where offences were separate and unrelated -- Youth Criminal Justice Act, S.C. 2002, c. 1, s. 42(15).

Criminal law -- Young offenders -- Sentencing -- Pre-trial custody -- Section 38(3) of Youth Criminal Justice Act requiring trial judge to deduct time served from sentence imposed on young person -- Pre-trial custody must be taken into account in determining whether total sentence imposed for several offences exceeds three-year maximum sentence in s. 42(15) of YCJA -- Sentence of 33 months in addition to six months of pre-trial custody exceeding maximum sentence in s. 42(15) -- Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 38(3), 42(15).

The youth, aged 15 at the time of the offences, was convicted of robbery, having his face masked while committing robbery, trafficking in cocaine, breach of bail conditions and failing to attend court. The robbery was serious. While on bail with respect to the trafficking offence, the youth robbed a doughnut shop. He was wearing a face mask and carrying a loaded, sawed- off .22 calibre rifle. The youth spent six months in pre- trial custody. The trial judge imposed a 33-month sentence for robbery; a concurrent 33-month sentence for disguise with intent; time served for trafficking (after credit for four months of pre-trial custody) and two years' probation, concurrent to the robbery sentence; one day for breach of recognizance (in addition to one month of pre-trial custody); and one day for failing to appear (in addition to one month of pre-trial custody. The youth appealed, arguing that the effective sentence of 39 months (including pre-trial custody) exceeded the 36-month maximum set out in s. 42(15) of the Youth Criminal Justice Act ("YCJA").

Held, the appeal should be allowed.

The maximum three-year sentence in s. 42(15) of the YCJA applied despite the fact that the trafficking and robbery offences were separate and unrelated. Parliament clearly intended to restrict the maximum total sentence to three years regardless of whether the offences arose from the same or different transactions. Since "more than one youth sentence" was imposed for "different offences", s. 42(15) applied.

Section 38(3) of the YCJA, which provides that the court "shall take into account" the time spent by a young person in detention "as a result of the offence", requires a trial judge to deduct time served from the sentence of a young person. Presumably, Parliament intended "take into account" to be interpreted consistently in both the YCJA and the Criminal Code, R.S.C. 1985, c. C-46. Under the Code, adult offenders are presumptively credited with time served because time served is part of the punishment imposed. [page722]

The sentence in this case exceeded the maximum sentence available under s. 42(15) of the YCJA. Since a sentence includes the punishment served both before and after sentencing, time served is a component of the offender's overall custodial sentence. The sentence "imposed" on the youth was not restricted to 33 months, but included his six months of pre-trial custody. The sentence for the robbery offences should therefore be reduced to 30 months.

Under the Young Offenders Act, R.S.C. 1985, c. Y-1, trial judges often gave youths 1:1 credit for pre-trial custody as sentences for youth were not then subject to either parole or statutory release. Under the YCJA, sentences for youth are now comprised of two-thirds custody and one-third community supervision so now young persons are in similar positions to adults. Thus, now, while a 1.5:1 credit for pre-trial custody may be the starting point for young offenders, other considerations may affect the appropriate credit. Such factors may include the conditions of the youth's pre-trial custody, the reasons for that detention, the length of the detention, the reasons for any delay in reaching trial or sentencing, and the youth's need for further custody or community service to meet the purposes of the YCJA. The experienced trial judge in this case considered and rejected giving the youth credit for his pre-trial custody on a 1.5:1 basis. It was within the discretion of the trial j udge to credit the youth's sentence for pre-trial custody on a 1:1 basis. In all the circumstances, the maximum three-year sentence was a fit sentence for the robbery offences.

The trial judge erred in ordering the youth's probation on the trafficking charge to run concurrent to his sentence for robbery. Section 56(5) of the YCJA specifically provides that where "a young person receives a sentence that includes a period of continuous custody and supervision" probation begins "at the end of the period of supervision". It followed that the youth's probation could not begin until the completion of the robbery sentence. A "youth sentence" is defined in s. 2 to include a sentence imposed under s. 42. Section 42(2)(k) allows for the imposition of probation. Probation is, therefore, part of the sentence. As the robbery sentence was already at the three-year maximum, probation was precluded by s. 42(15).

APPEAL by a youth from a sentence imposed by McGrath J. of the Ontario Court of Justice, dated January 7, 2005.

R. v. Fice, [2005] 1 S.C.R. 742, [2005] S.C.J. No. 30, 198 O.A.C. 146, 333 N.R. 243, 196 C.C.C. (3d) 97, 2005 SCC 32, 28 C.R. (6th) 201, R. v. Wust, [2000] 1 S.C.R. 455, [2000] S.C.J. No. 19, 2000 SCC 18, 184 D.L.R. (4th) 385, 252 N.R. 332, 143 C.C.C. (3d) 129, 32 C.R. (5th) 58 (sub nom. R. v. W. (L.W.)), apld Other cases referred to R. v. K. (C.J.), 1994 16783 (MB CA), [1994] M.J. No. 512, 97 Man. R. (2d) 31, 79 W.A.C. 31 (C.A.); R. v. K. (M.) (1996), 1996 1159 (ON CA), 28 O.R. (3d) 593, [1996] O.J. No. 1587, 107 C.C.C. (3d) 149 (C.A.); R. v. McDonald (1998), 1998 13327 (ON CA), 40 O.R. (3d) 641, [1998] O.J. No. 2990, 54 C.R.R. (2d) 189, 127 C.C.C. (3d) 57, 17 C.R. (5th) 1 (C.A.); R. v. Rezaie (1996), 1996 1241 (ON CA), 31 O.R. (3d) 713,[1996] O.J. No. 4468, 112 C.C.C. (3d) 97, 3 C.R. (5th) 175 (C.A.); R. v. S.J.L., [2005] B.C.J. No. 273, 2005 BCSC 177, 64 W.C.B. (2d) 175 (S.C.); R. v. T. (M.N.), [1991] O.J. No. 946, 51 O.A.C. 37, 13 W.C.B. (2d) 358 (C.A.) Statutes referred to Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 127 Criminal Code, R.S.C. 1985, c. C-46, s. 719(3) Prisons and Reformatories Act, R.S.C. 1985, c. P-20, s. 6 Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 2(1) "youth sentence", (2), (21), 38(3), 42, 56(5), 94 [page723]

Alexander Hrybinsky, for appellant. Robert C. Sheppard, for respondent.

The judgment of the court was delivered by

LANG J.A.:--

I. Overview

[1] This court is asked to determine whether the credit given by the trial judge to the appellant for pre-sentence custody resulted in a sentence that exceeded the maximum sentence allowed under s. 42(15) of the Youth Criminal Justice Act, S.C. 2002, c. 1 ("YCJA").

[2] In this case, the trial judge imposed a sentence of 33 months on T.B., the appellant, for convictions on charges of robbery, robbery while wearing a mask, trafficking in cocaine, breach of bail conditions, and fail to attend. This sentence was in addition to the six months that the appellant had already served in pre-sentence custody.

[3] The appellant argues that this effective sentence of 39 months exceeded the 36-month maximum set out in s. 42(15) of the YCJA. He also raises the quantum of the credit to be given to a youth for pre-sentence custody. Finally, the appellant argues that the sentence was excessive having regard to his pre-sentence custody.

[4] In my view, for the reasons that follow, while the circumstances of this youth and these offences mandate a maximum sentence of three years, the trial judge erred by failing to credit the appellant with the full six months of pre-sentence custody. Accordingly, I would allow the appeal and vary the appellant's sentence to 30 months.

[5] The Crown raises a separate issue and queries the trial judge's jurisdiction on the trafficking offence to impose two years' probation concurrent to the sentence imposed for the robbery-related charges. I agree with the Crown that the trial judge lacked jurisdiction to impose the probation and I would vary the sentence to delete the term of probation.

II. Background

The offences

[6] The appellant was arrested on May 20, 2004 and charged with trafficking in cocaine and possession of the proceeds of crime. He was released on bail on May 25. On May 28, the appellant [page724] failed to attend court. A bench warrant was issued for his arrest. He was apprehended on July 13. He was further charged with a June 30 robbery, breach of recognizance, and failure to attend. In December, the appellant pleaded guilty to all the charges.

[7] The circumstances surrounding the robbery are serious. While on bail, the appellant robbed a Tim Hortons store. He was wearing a facemask and carrying a loaded, sawed-off 22-calibre rifle. He pointed the rifle at the Tim Hortons' employee and worked the bolt-action on the rifle to demonstrate his serious intent. After taking about $70, the appellant fled the store.

The appellant

[8] The appellant, who was 15 years old at the time of the offences and 16 at the time of sentencing, had a difficult childhood. He had a youth court record consisting of three convictions. In December 2002, he was sentenced to six months' secure custody (in addition to four months of pre-sentence custody), plus 12 months' probation for robbery and escaping lawful custody. In September 2003, he was sentenced to 80 hours of community service for assault. In April 2004, he was given 18 months' probation for breach of probation, escaping custody, and breaching an undertaking.

[9] At the time of the offences, the appellant suffered from learning deficits, exhibited a defiant and unmotivated attitude and kept company with a negative peer group. At the time of sentence, he had demonstrated behavioural improvements while in the structured environment of pre-sentence custody, had developed positive relationships and had achieved 4.5 high school credits.

Submissions on sentence

[10] On the trafficking charge, the federal prosecutor and the appellant's counsel were in general agreement that the appellant should receive a six-month sentence. However, there was an issue about the appropriate allocation of the six months' pre-sentence custody.

[11] The provincial Crown took the position that the fact that the trafficking and robbery charges had been heard together should not operate to reduce the sentence for the robbery. They were different offences committed at different times. He argued that the appellant's pre-sentence custody therefore should be attributed exclusively to the trafficking conviction. It was his position on the robbery-related charges that the appellant should be sentenced to a further three years.

[12] In response, the appellant's counsel urged a total custodial sentence of two years for the robbery-related charges given the [page725] youth's age, the absence of physical harm to the victim, his progress in custody, and his guilty plea.

The sentence

[13] The trial judge imposed a 33-month sentence for robbery, a concurrent 33-month sentence for being disguised during the robbery, time served for trafficking (after credit for four months of pre-sentence custody), one day for breach of recognizance (in addition to one month pre-sentence custody), and one day for the fail to appear (in addition to one month of pre-sentence custody). The trial judge also imposed a three- year firearms prohibition and two years' probation concurrent with the robbery sentence.

III. Statutory Provisions

[14] The following provisions of the YCJA are relevant:

Factors to be considered

38(3) In determining a youth sentence, the youth justice court shall take into account

(d) the time spent in detention by the young person as a result of the offence;

Duration of youth sentence for different offences

42(15) Subject to subsection (16), if more than one youth sentence is imposed under this section in respect of a young person with respect to different offences, the continuous combined duration of those youth sentences shall not exceed three years, except if one of the offences is first degree murder or second degree murder within the meaning of section 231 of the Criminal Code, in which case the continuous combined duration of those youth sentences shall not exceed ten years in the case of first degree murder, or seven years in the case of second degree murder.

(Emphasis added)

IV. Analysis

[15] This appeal raises issues about the applicability of a maximum sentence imposed under s. 42(15), the s. 38(3) requirement on a trial judge to take pre-sentence custody into account, the quantum of the credit to be given for pre-sentence custody, the fitness of the sentence, and the jurisdiction to make the probation order. I will consider the issues in that sequence.

1. Does s. 42(15) apply?

[16] The Crown took the position at the appellant's sentencing that, since the trafficking and the robbery offences were unrelated, [page726] separate sentences could be imposed for each offence, even if the resulting total sentence exceeded the s. 42(15) three-year maximum. I disagree.

[17] The plain language of s. 42(15) demonstrates that Parliament decided otherwise. Section 42(15) specifically provides for a maximum three-year sentence where the youth is sentenced "with respect to different offences". If Parliament meant to constrain a youth sentence only for those offences arising out of the same or related transactions, it could easily have done so. It did not. Accordingly, I conclude that Parliament intended to restrict the maximum total sentence to three years regardless of whether the offences arose from the same or different transactions.

[18] Since "more than one youth sentence" was imposed on the appellant for "different offences", s. 42(15) applies.

2. Does s. 38(3) require the trial judge to take pre- sentence custody into account?

[19] In my view, s. 38(3) does require a trial judge to deduct time served from the sentence of a young person. I say this for two reasons.

[20] First, this interpretation is consistent with the Criminal Code, R.S.C. 1985, c. C-46, which requires that pre- sentence custody be taken into account in determining an appropriate sentence.

[21] Although "take into account" is not defined in the YCJA, s. 2(2) provides that "[u]nless otherwise provided, words and expressions used in this Act have the same meaning as in the Criminal Code." Under the Code, in sentencing an adult offender, the trial judge may "take into account" time spent in pre-sentence custody:

719(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence.

(Emphasis added)

Presumably, Parliament intended "take into account" to be interpreted consistently in both the YCJA and in the Code. Under the Code, adult offenders are presumptively credited with time served because time served is part of the punishment imposed.

[22] This was recognized in R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, [2000] S.C.J. No. 19, 143 C.C.C. (3d) 129. That case considered whether a trial judge had the discretion under s. 719(3) to deduct time served from a mandatory minimum sentence when such a deduction would reduce the sentence pronounced to one that was less than the mandatory minimum. After considering the harsh nature of pre-sentence custody, Arbour J. concluded at para. 41 that pre-sentence custody is "deemed part of the punishment [page727] following the offender's conviction, by the operation of s. 719(3)". Wust also approved R. v. McDonald (1998), 1998 13327 (ON CA), 40 O.R. (3d) 641, [1998] O.J. No. 2990, 127 C.C.C. (3d) 57 (C.A.), which held that the intention of Parliament was met where time served together with the additional sentence would equal the minimum sentence.

[23] Wust was revisited in R. v. Fice, 2005 SCC 32, [2005] 1 S.C.R. 742, [2005] S.C.J. No. 30, 196 C.C.C. (3d) 97, this time in the context of considering a conditional sentence. A conditional sentence is only available if the sentence imposed is less than two years. The court held that, in determining whether the sentence imposed was less tha[n] two years, the trial judge ought to include time spent in pre-sentence custody. In so concluding, the court said, at para. 21, that "the time credited to an offender for time served before sentence ought to be considered part of his or her total punishment rather than as a mitigating factor that can affect the range of sentence".

[24] Second, differences in the language of the YCJA and the Code require the inclusion of pre-sentence custody in a youth sentence. While a judge sentencing an adult offender has some discretion in giving credit for time served, it is mandatory for a judge sentencing a young person because the YCJA uses the mandatory "shall take into account" in s. 38(3)(d) as contrasted with the "may take into account" in s. 719(3) of the Code.

[25] For these two reasons, a sentence under s. 38 includes pre-sentence custody and a trial judge must deduct a young person's pre-sentence custody from the sentence that otherwise would have been pronounced.

[26] In this case, the trial judge recognized the need to give credit for pre-sentence custody and did so in the manner I reviewed earlier. This resulted in an effective sentence of 39 months.

3. Does a 39-month sentence exceed that permitted under [s. 42(15)](https://www.canlii.org/en/ca/laws/stat/sc-2002-c-1/latest/sc-2002-c-1.html) of the [YCJA](https://www.canlii.org/en/ca/laws/stat/sc-2002-c-1/latest/sc-2002-c-1.html)?

[27] On its face, this sentence exceeds the maximum sentence available under s. 42(15) by three months.

[28] The Crown argues, however, that the sentence "imposed" on the appellant was only 33 months and that pre-sentence custody cannot be included as part of the sentence "imposed". I do not agree.

[29] Since a sentence includes the punishment served both before and after sentencing, time served is a component of the offender's overall custodial sentence. This is consistent with Fice, supra, which said at para. 21:

Treating pre-sentence custody as part of the total punishment imposed also accords with the fact that, for purposes of precedent, the respondent's "sentence" for the offence she committed will generally be understood to be the global sum of 50 months, rather than the 14 months actually imposed by the trial judge. [page728]

[30] Similarly, in considering young offender sentences, the Manitoba Court of Appeal looked at sentences for adult offenders, noting "an adult will not, barring unusual circumstances, receive the maximum penalty set out in the Criminal Code if he or she has spent a substantial time in pretrial custody": R. v. K. (C.J.), 1994 16783 (MB CA), [1994] M.J. No. 512, 97 Man. R. (2d) 31 (C.A.), at para. 11.

[31] Accordingly, I cannot accept the argument that time served must be taken into account in determining an appropriate sentence, but must not be taken into account in determining a maximum sentence. To hold otherwise would create an illogical anomaly in the interpretation of the two provisions. Any ambiguity in the meaning of s. 42(15) is resolved by considering it in the context of s. 38(3)(d). This section clearly requires that pre-sentence custody be taken into account.

[32] Pre-sentence custody must be deducted from a maximum sentence under s. 42(15).

4. On what basis should pre-sentence custody be credited?

[33] In this case, the appellant argues that, for every day spent in pre-sentence custody, the trial judge should give a youth a credit of either two days or 1.5 days. Alternatively, the appellant argues that the credit given should have been deducted from the custodial portion of his sentence.

[34] While the trial judge was required to give credit to the appellant for pre-sentence custody, the trial judge has a residuary discretion, within a certain range, to assess the quantum of credit to be given. The amount of the credit will depend on a number of factors. Unless the overall sentence is demonstrably unfit, this court will not interfere with the credit given for pre-sentence custody absent an error in principle, a failure to consider a relevant factor, or an over- emphasis of the appropriate factors.

[35] I note that there is an exception to the requirement of one-for-one credit for pre-sentence custody. A trial judge may decline to give full credit where to do so would virtually exhaust the custodial term available and result in a sentence contrary to the purposes of the YCJA. See R. v. K. (M.) (1996), 1996 1159 (ON CA), 28 O.R. (3d) 593, [1996] O.J. No. 1587, 107 C.C.C. (3d) 149 (C.A.). This, however, is not such a case.

[36] Under s. 719(3) of the Code, absent unusual circumstances, trial judges often credit an adult with more than one day for every day of pre-sentence custody. Indeed, an adult will regularly receive credit of one and a half or two days for every day of pre-sentence detention. This is so for two reasons.

[37] First, adult detention facilities lack the resources of correctional facilities and conditions in detention facilities are [page729] generally more onerous than those in correctional facilities. See Wust, paras. 30, 40.

[38] Second, unlike young offenders, adult offenders are eligible for statutory release and parole, but in determining the eligibility the legislative provisions do not take pre- sentence custody into account.1 Accordingly, adult sentences are adjusted to take into consideration that time served in pre-sentence custody is not taken into account in calculating the adult's eligibility for parole or release.2

[39] On the other hand historically, and absent unusual circumstances, young offenders received a credit only for time served.3 This was, in part, because young persons were not entitled to statutory remission and because young persons did not suffer the harsh conditions suffered by adults in detention centres.

[40] However, under the YCJA, youth sentences are now comprised of two-thirds custody and one-third community supervision. Thus, young persons are now in a similar position to adult offenders in that time in pre-sentence custody delays their eligibility for community supervision. For example, a youth sentenced to nine months would serve six of those months in custody, the same amount of time served by T.B. in this case. It is for this reason that, under the YCJA, trial judges have credited a youth with 1.5 days for every day spent in pre- sentence custody. On a 1.5-for-one basis, the appellant would receive credit for nine months of pre-sentence custody.

[41] Whether such a credit will be given in a particular case will depend on more than the application of an arithmetical formula. Section 38(3) lists a number of factors to be taken into account in determining the appropriate sentence, only one of which is pre-sentence custody. The s. 38(3) factors do not attract a determination on a formulaic basis.

[42] Thus, while a 1.5 credit may be the starting point for crediting pre-sentence custody, other considerations may affect the appropriate credit. Such factors may include the conditions of the youth's pre-sentence custody, the reasons for that detention, the length of the detention, the reasons for any delay in reaching trial or sentencing, and the youth's need for further custody or community service to meet the purposes of the YCJA.4 [page730]

[43] In this case, the experienced trial judge expressed his concern about a 1.5 credit, which would credit "dead time for community based supervision he's never done". In determining the appropriate sentence, the trial judge took into consideration the circumstances of the offence and the offender, including the offender's record and his prospects for rehabilitation in arriving at a one-for-one credit. He also took into consideration the impact of the offences on the victim as well as the relatively compressed duration of the maximum sentence available.

[44] In my view, it was within the discretion of the trial judge to credit this youth's sentence for pre-sentence custody on a one-for-one basis.

[45] On such a credit, s. 42(2)(n) mandates that the allocation of time for a custody and supervision order be two- thirds custodial and one-third community supervision. Accordingly in this case, the 33-month sentence would be served as 20 months in continued custody and ten months under community supervision. The appellant argues that the six months of pre-sentence custody should have been credited against the appellant's custodial term to render his sentence one of 18 months in custody and 12 months of community supervision.

[46] Whether the sentence imposed will be served in custody or out of custody is not an issue either for the sentencing court or for this court. Once the trial judge decided to impose a custodial term having regard to all the relevant factors, including pre-sentence custody, s. 41(2)(n) determines what part of that sentence is served in custody and what part is served out of custody.

[47] This does not leave the youth without recourse. The trial judge was alive to the fact that s. 94 of the YCJA provides for a mandatory review of a youth sentence one year after sentencing and after six months at the request of the youth. On such a review, the court has the discretion to vary the amount of time the youth will spend in closed custody, open custody, and community supervision.

5. Was the sentence imposed excessive?

[48] The appellant takes issue with the trial judge's decision to impose a sentence at or near the maximum. As I have said, this robbery was a serious offence. In all the circumstances of the offence, the offender, and the constrictions posed by the three-year maximum, the maximum penalty was a fit sentence.

6. Did the trial judge err in ordering probation on the trafficking charge concurrent to the robbery sentence?

[49] The Crown concedes that the trial judge erred in ordering the appellant's probation on the trafficking charge to run concurrent to [page731] his sentence on the robbery. Section 56(5) specifically provides that where"a young person receives a sentence that includes a period of continuous custody and supervision" probation begins "at the end of the period of supervision". It follows that T.B.'s probation could not begin until the completion of the robbery sentence.

[50] The Crown was right to make this concession. Probation following the robbery sentence is not an option. A "youth sentence" is defined in s. 2 to include a sentence imposed under s. 42. Section 42(2)(k) allows for the imposition of probation. Probation is, therefore, part of the sentence. As the robbery sentence was already at the three-year maximum, probation was precluded by s. 42(15).

V. Disposition

[51] In the result, the appeal is allowed, the period of probation is deleted, and the sentence below is varied to a total of 30 months, being a sentence of 36 months less credit for pre-sentence custody.

Appeal allowed.