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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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.
CITATION: R. v. D.W., 2008 ONCA 268
DATE: 20080411
DOCKET: C46402
COURT OF APPEAL FOR ONTARIO
LASKIN, GILLESE JJ.A. and WHALEN J. (ad hoc)
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
D.W.
Appellant
Paul Calarco for the appellant
Alexander Alvaro for the respondent
Heard and released orally: April 10, 2008
On appeal from the sentence imposed on November 14, 2006, by Justice Bruce A. Glass of the Superior Court of Justice.
ENDORSEMENT
[1] The appellant appeals the trial judge’s determination that he be sentenced as an adult. He makes one submission in support of his appeal; that the trial judge erred in his treatment of pre-trial custody. We agree with this submission.
[2] In concluding that a youth sentence would not sufficiently hold the appellant accountable for his admittedly heinous offence, the trial judge determined that he was required to give the appellant full credit for the two and a half years he had already spent in pre-trial custody. The trial judge then concluded that a further eighteen months in custody would neither hold the appellant sufficiently accountable nor promote his rehabilitation.
[3] The trial judge’s approach was in error because although he was required to take pre-trial custody into account, he was not required to directly deduct the time spent in pre-trial custody. Instead, the trial judge had broad discretion to take pre-trial custody into account as a consideration in deciding whether the appellant would serve a youth or an adult sentence.
[4] In our view, the trial judge’s erroneous approach tainted his reasoning process. For that reason we do not think that the trial judge’s determination can stand. Indeed, although the trial judge recognized that the appellant needed treatment, the fresh evidence shows, regrettably, that he has not received adequate treatment in the penitentiary system nor is he likely to in the near future.
[5] We now turn to the appropriate disposition. The appellant’s counsel urges that we impose the maximum youth sentence. We accede to this request because this sentence will meet the very real concerns that the sentencing judge identified, concerns that the appellant’s counsel accepts. In our view, the appellant will receive better treatment for his underlying problems through a youth sentence.
[6] Thus, the appeal is allowed, the trial judge’s sentence is set aside and the maximum youth sentence for a conviction for second degree murder is imposed. The appellant shall be transferred to a provincial facility in accordance with s. 89 of the Youth Court Justice Act. Further, we direct the Provincial Director to design and provide an intensive rehabilitation, custody and supervision program for the appellant. This sentence shall take effect immediately.
“John Laskin J.A”
“E.E. Gillese J.A.”
“W.L. Whalen J.”