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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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. L.B., 2008 ONCA 333
DATE: 20080501
DOCKET: C47774
COURT OF APPEAL FOR ONTARIO
FELDMAN, JURIANSZ and ROULEAU JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
L. B. (a Young Person)
Appellant
Brian Snell for the appellant
Andreea Baiasu for the respondent
Heard: April 11, 2008
On appeal from sentence imposed by Justice John P. Kerr of the Ontario Court of Justice dated September 4, 2007.
ENDORSEMENT
[1] The appellant, a youthful first offender of sixteen at the time of the offence, appeals his sentence of eighteen months, the first twelve in secure custody and the last six in the community, plus one-year probation, for robbery of a convenience store at 4:00 a.m. with two other boys, including threatening with an imitation firearm.
[2] The appellant was released on restrictive bail which he served for eighteen months. He then pled guilty to the offence. After serving fifteen weeks and one day in secure custody, he was released on bail pending appeal in January of this year.
[3] The Crown concedes that the trial judge erred in law by failing to comply with s. 24.1(2) of the Young Offenders Act, which is made applicable by Order-in-Council 498/2004, in accordance with s. 88 of the Youth Criminal Justice Act. Sections 24.1(2) and (4) provide:
24.1(2) Subject to subsection (3), where the youth court commits a young person to custody under paragraph 20(1)(k) or (k.1) or makes an order under subsection 26.1(1) or paragraph 26.6(2)(b), it shall specify in the order whether the custody is to be open custody or secure custody.
(4) In deciding whether a young person shall be placed in open custody or secure custody, the youth court or the provincial director shall take into account the following factors:
(a) that a young person should be placed in a level of custody involving the least degree of containment and restraint, having regard to
(i) the seriousness of the offence in respect of which the young person was committed to custody and the circumstances in which that offence was committed,
(ii) the needs and circumstances of the young person, including proximity to family, school, employment and support services,
(iii) the safety of other young persons in custody, and
(iv) the interests of society;
(b) that the level of custody should allow for the best possible match of programs to the young person’s needs and behaviour, having regard to the findings of any assessment in respect of the young person;
(c) the likelihood of escape if the young person is placed in open custody; and
(d) the recommendations, if any, of the youth court or the provincial director, as the case may be.
[4] The trial judge imposed twelve months of closed custody without considering whether any part of the custody portion of the sentence should be served in open custody. Although the trial judge was cognizant of the appellant’s need and desire to obtain an education while serving his sentence, he focused on the quality of the educational offering in the secure custody facility without considering whether the secure facility provided “the least degree of containment and restraint”, having regard to the legislated criteria in accordance with s. 24.1(4) or whether the sentence accords with s. 38(2)(e)(i) of the YCJA, that is “the least restrictive sentence” that is capable of achieving the purpose of sentencing under the Act set out in s. 38(1).
[5] The Crown submits that when such an error is made, the court of appeal may not set aside the sentence and impose the appropriate sentence as it does with adult offenders. Rather, the Crown says the court is limited to determining what portion of the custodial sentence is to be served in secure custody and what portion in open custody.
[6] We reject this submission. We were referred to no section of the YCJA that restricts the ordinary role of a court on a sentence appeal to impose the appropriate sentence, based on the record and any admitted fresh evidence, once the sentence originally imposed has been set aside for error of law. In determining the appropriate sentence, the court must have regard to s. 38(1) of the YCJA, which provides:
- (1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.
[7] This was a serious crime requiring a sentence that adequately reflects the twin principles of youth sentencing of accountability and rehabilitation. The record shows that since his arrest and while on bail pending his plea and sentencing as well as after, the appellant has effectively turned his life around. He has shown sincere remorse, he has excelled at his studies and is continuing to do so, and he has shown positive leadership characteristics both while serving his custodial sentence as well as while in school when on bail. He is also the father of a child and is acting responsibly toward the child.
[8] In our view, at this point in time it would not serve the purposes of sentencing for the appellant to be returned to a custodial setting. We would therefore vary the custodial portion of the sentence imposed by the trial judge to time served in custody of fifteen weeks and one day, followed by six months community supervision, followed by one-year probation.
[9] The appellant also appeals the DNA order made by the trial judge. In our view, the reasons of the trial judge were sufficient to explain why the commission of this serious offence warranted a DNA order. We see no error in his conclusion. We would dismiss that portion of the appeal.
Signature: “K. Feldman J.A.”
“R. G. Juriansz J.A.”
“Paul Rouleau J.A.”