R. v. C.O. [Indexed as: R. v. O. (C.)]
91 O.R. (3d) 528
Court of Appeal for Ontario,
MacFarland, Rouleau and Epstein JJ.A.
June 26, 2008
Criminal law -- Young offenders -- Sentencing -- "Serious violent offence" pursuant to Youth Criminal Justice Act -- Trial judge erring in finding on her own motion that accused had committed "serious violent offences" that judge then found precluded an order of deferred custody and supervision due to s. 42(5)(a) of the Act -- Application by Crown required before judge may determine whether accused's offences amounting to "serious violent offences" per s. 42(9) of Act -- Accused pleading guilty to assault with a weapon and using an imitation firearm to commit an indictable offence -- Trial judge correctly rejecting first joint submission that probation appropriate -- Counsel then suggesting judge should make an order of deterred custody and supervision if concluding that custody required -- Trial judge failing to impose this appropriate sentence as result of having erroneously held that accused being convicted of "serious violent offence" in absence of application by Attorney General under s. 42(9) of Act -- Accused's appeal allowed and order of 144 days' deferred custody and 18 months' supervision imposed -- Youth Criminal Justice Act, S.C. 2002, c. 1, s. 42(5)(a), (9).
The youth pleaded guilty to assault with a weapon and using an imitation firearm to commit an indictable offence. The sentencing judge expressed concerns [page529] about the appropriateness of a joint submission for two years' probation and gave counsel an opportunity to make further submissions. To address her concerns, counsel agreed to a new submission that, should the sentencing judge find that a custodial disposition was appropriate, a deferred custody and supervision order should be imposed pursuant to s. 42(2)(p) of the Youth Criminal Justice Act (the "YCJA"). She designated the youth's conduct as a "serious violent offence" under s. 42(9) and that, as a result, s. 42(5)(a) of the YCJA prevented her from making a deferred custody and supervision order. The sentencing judge rejected the new submission of counsel and sentenced the youth to 116 days in custody followed by 58 days of supervision and 18 months' probation. The youth appealed.
Held, the appeal should be allowed.
The sentencing judge did not err in rejecting the original joint submission. In any event, by the end of the sentencing hearing the parties had all but abandoned the original joint submission.
An application by the Attorney General is required before an offence can be designated a "serious violent offence" pursuant to s. 42(9) of the YCJA. As no such application had been made the sentencing judge had no jurisdiction to find that the accused committed a "serious violent offence" and the judge erred in holding that she could not impose a deferred custody and supervision order. The most appropriate disposition was 144 days' deferred custody and supervision followed by 18 months' probation and the sentence is varied accordingly.
APPEAL by the accused from the sentence of Hackett J. of the Ontario Court of Justice, dated April 30, 2007.
Cases referred to R. v. A. (C.J.), [2005] S.J. No. 410, 2005 SKCA 85, [2005] 10 W.W.R. 361, 262 Sask. R. 300, 200 C.C.C. (3d) 233, 66 W.C.B. (2d) 74; R. v. D. (C.); R. v. K. (C.D.), [2005] 3 S.C.R. 668, [2005] S.C.J. No. 79, 2005 SCC 78, 261 D.L.R. (4th) 257, 343 N.R. 1, [2006] 5 W.W.R. 195, J.E. 2006-64, 54 Alta. L.R. (4th) 67, 376 A.R. 258, 203 C.C.C. (3d) 449, 34 C.R. (6th) 323, consd Other cases referred to R. v. K. (D.A.), [2006] A.J. No. 1386, 2006 ABPC 247; R. v. M. (H.A.), 2003 MBPC 2477, [2003] M.J. No. 147, [2003] 9 W.W.R. 533, 174 Man. R. (2d) 119, 57 W.C.B. (2d) 380 (Prov. Ct.); R. v. Rosenberg, [1993] O.J. No. 3260 (Gen. Div.); R. v. W. (V.) (2008), 89 O.R. (3d) 323, [2008] O.J. No. 234, 229 C.C.C. (3d) 344, 53 C.R. (6th) 355, 232 O.A.C. 332, 2008 ONCA 55, 76 W.C.B. (2d) 738 Statutes referred to Canadian Charter of Rights and Freedoms Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 2, 39(3), 42 105 Authorities referred to Tuck-Jackson, Andrea, ed., Annotated Youth Criminal Justice Act Service, looseleaf (Markham, Ont.: LexisNexis Canada, 2003) Sullivan, Ruth, Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994)
Theodore Sarantis, for appellant. Megan Stephens, for respondent. [page530]
The judgment of the court was delivered by
ROULEAU J.A.: -- Introduction
[1] The appellant pleaded guilty to assault with a weapon and use of an imitation firearm to commit an indictable offence. The sentencing judge rejected a joint submission presented by counsel and sentenced the appellant, a young offender, to 116 days in custody followed by 58 days of supervision and 18 months' probation. Her reasons state that she also designated the offence as a "serious violent offence" although the information does not appear to have been endorsed to that effect.
[2] The central issue in this appeal is the correct interpretation of ss. 42(5) and 42(9) of the Youth Criminal Justice Act, S.C. 2002, c. 1 (the "YCJA"). Specifically, the issue is whether, absent an application by the Attorney General under s. 42(9), the sentencing judge's finding that the offence is a "serious violent offence" precludes the imposition of a deferred custody and supervision order under s. 42(5). For the reasons that follow, I am of the view that the sentencing judge erred in principle in concluding that she was precluded. I would therefore allow the sentence appeal. Facts
[3] The facts admitted by the appellant were that on April 28, 2006, at about 6:00 p.m., the complainant and some friends were playing in a park when the appellant and two others came up to them. The appellant had a bandana covering his face at the time. The complainant was accosted by the appellant and a co-accused. The appellant pointed a pellet gun to the back and neck of the complainant. The pellet gun did not have any pellets inside it. Eventually, the appellant and his friends left the complainant alone.
[4] The joint submission suggested by Crown counsel and defence counsel was for two years' probation subject to a number of terms, including 60 hours of community service, counselling, a no-contact order with the complainant and a letter of apology.
[5] After hearing the proposed sentence, the sentencing judge expressed concerns about its appropriateness. She adjourned sentencing to allow for the preparation of a pre-sentence report and for counsel to provide her with case law setting out the appropriate sentencing range. She commented that "[i]f it is in the range and you can persuade me, you know, fine, but it just, it offends what I think the range is". One of the sentencing judge's concerns was that the offence involved the use of an imitation firearm in a jurisdiction where firearms are a significant problem. [page531]
[6] The parties returned before the sentencing judge approximately three months later. A victim impact statement and a pre-sentence report were filed and evidence was called. The sentencing judge expressed continuing concerns with respect to the joint submission. She was concerned that a community disposition would not adequately address the appellant's rehabilitation and reintegration needs. She was also concerned over whether the appellant would or could comply with the proposed terms of probation. To address these concerns, the parties modified the original proposed terms of probation and both agreed that, should the judge find that a custodial disposition was appropriate, a deferred custody and supervision order should be imposed pursuant to s. 42(2)(p) of the YCJA. [See Note 1 below]
[7] The sentencing judge, in thoughtful and thorough reasons, explained why she rejected the original joint submission. Particular emphasis was placed on the pre-sentence report, which revealed concerns about the appellant's ability to comply with a community disposition. She also noted that the case law put before her failed to establish a range of sentencing for these particular offences.
[8] The sentencing judge then addressed the proposal for a deferred custody and supervision order. She began by reviewing the application of s. 42(5), which provides in part as follows:
The court may make a deferred custody and supervision order under paragraph (2)(p) if (a) the young person is found guilty of an offence that is not a serious violent offence . . .
[9] The sentencing judge found that the appellant's conduct, in putting an imitation firearm to the head of an individual, constituted a "serious violent offence" and concluded that s. 42(5)(a) prevented her from making a deferred custody and supervision order. Ultimately, she found that the proposed joint submission would be contrary to the public interest and would bring the administration of justice into disrepute, bearing in mind the principles of sentencing set out in the YCJA.
[10] The sentencing judge subsequently imposed the sentence now under appeal. In so doing, she designated the offence as a "serious violent offence" under s. 42(9) of the YCJA, which provides as follows: [page532]
42(9) On application of the Attorney General after a young person is found guilty of an offence, and after giving both parties an opportunity to be heard, the youth justice court may make a judicial determination that the offence is a serious violent offence and endorse the information or indictment accordingly. [See Note 2 below] Grounds of Appeal
[11] The appellant argues that the sentencing judge erred in that she:
(1) focused on deterrence and denunciation rather than focusing on rehabilitation of the youthful offender, thus misapprehending the principles in the YCJA;
(2) improperly rejected a joint submission that was not contrary to the public interest and that would not have brought the administration of justice into disrepute;
(3) failed to give sufficient weight to the guilty plea entered by the appellant; and
(4) designated the offence as a "serious violent offence" for the purposes of s. 42 of the YCJA in the absence of a Crown application required by s. 42(9). Analysis (1) Did the motion judge misapprehend the principles in the YCJA?
[12] The sentencing judge's reasons indicate that she had concerns about the gravity of the offence and the fact that gun crime is a particularly pernicious problem in Scarborough, the community in which the offence occurred. The appellant argues that this concern for deterrence and denunciation dominated the reasoning for the sentence imposed and, as a result, the sentencing judge gave inadequate weight to the other sentencing principles in the YCJA.
[13] I would not give effect to this ground of appeal. Although the sentencing judge did express concerns about the gravity of the offence, these were not the only factors considered. In her reasons, she also considered the need to rehabilitate and integrate this offender into the community. She specifically considered the types of alternative programs that would be available to [page533] address the appellant's needs in the community and considered the likelihood that he would comply with the conditions of a community disposition as required by s. 39(3) of the YCJA. Her reasons reflect no error in this regard. (2) The rejection of the joint submission
[14] The sentencing judge did not err in rejecting the original joint submission. When that joint submission was presented, the sentencing judge informed counsel that she was disinclined to accept the proposal and she afforded the parties an opportunity to make submissions on the matter. The sentencing judge acknowledged the high threshold for rejecting a joint submission and adjourned the sentencing hearing to obtain further information and allow counsel time to address her concerns. In her reasons, the sentencing judge fully explained and justified her rejection of the original joint submission. In those reasons, it was apparent that she had fully considered the circumstances of the offence and of the offender.
[15] In any event, by the end of the sentencing hearing the parties had all but abandoned the original joint submission. They proposed that, should the sentencing judge determine that a custodial sentence was appropriate, a deferred custody and supervision order should be imposed. I will address the sentencing judge's rejection of this modified joint submission within the fourth ground of appeal. (3) Failure to give sufficient weight to the appellant's guilty plea
[16] The appellant argues that, because the sentencing judge drew a contrast between him and his co-accused who had pled guilty on an earlier date, the sentencing judge was improperly treating the appellant's later guilty plea as an aggravating factor. In my view, there is no merit in this submission.
[17] The reference in the sentencing judge's reasons to the different timing of the pleas was made in the context of explaining, in part, why she did not think the principle of parity was as significant as had been argued by counsel. The timing of a guilty plea affects its impact in mitigation. See R. v. Rosenberg, [1993] O.J. No. 3260 (Gen. Div.). The sentencing judge's reference to timing as a distinguishing feature between the co-accused was therefore entirely appropriate here. She did not, in my view, treat the appellant's late guilty plea as an aggravating factor; rather, she properly accounted for the guilty plea as a mitigating factor in assessing the appropriate sentence in this case. [page534] (4) The designation of the offence as a "serious violent offence" in the absence of a Crown application to that effect
[18] Section 2(1) of the YCJA defines "serious violent offence" as follows:
"serious violent offence" means an offence in the commission of which a young person causes or attempts to cause serious bodily harm.
[19] Youth sentencing alternatives are outlined in s. 42 of the YCJA. As noted, s. 42(2)(p) provides for the deferred custody and supervision order, which is available, as set out in s. 42(5)(a), where "the young person is found guilty of an offence that is not a serious violent offence". Section 42(9) provides the youth justice court with the authority to make a judicial determination that the offence is a "serious violent offence" on application of the Attorney General and after both parties have been provided with the opportunity to be heard on the issue.
[20] As set out earlier, the sentencing judge concluded that the offence was serious and violent and that she was, therefore, precluded from considering a deferred custody and supervision order. She also determined that the offence would be designated as a serious violent offence pursuant to s. 42(9). In my view, she erred in so concluding.
[21] The proper approach to interpreting s. 42 of the YCJA involves an exercise in statutory construction. In Ruth Sullivan, Dreidger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994), at pp. 245-46 and 249, the proper approach to statutory construction is described as follows:
Each provision or part of a provision must be read both in its immediate context and in the context of the Act as a whole. When words are read in their immediate context, the reader forms an impression of their meaning. This meaning may be vague or precise, clear or ambiguous. Any impressions based on immediate context must be supplemented by considering the rest of the Act, including both other provisions of the Act and its various structural components. . . . . .
The court seeks an interpretation that fits the basic plan implicit in the legislation.
[22] In R. v. D. (C.); R. v. K. (C.D.), 2005 SCC 78, [2005] 3 S.C.R. 668, [2005] S.C.J. No. 79, the court was called upon to address the meaning of "violent offence" as that expression is used in the YCJA. In doing so, the court considered both the object and scheme of the Act as well as how the provisions in the Act should be interpreted. At para. 50 of the reasons, Bastarache J., writing for the majority, concluded: [page535]
[I]t is my conclusion that the object and scheme of the YCJA, as well as Parliament's intention in enacting it, all indicate that the YCJA was designed, in part, to reduce over- reliance on custodial sentences for young offenders, and, therefore, a narrow interpretation of the term "violent offence", which acts as a gateway to custody, is to be preferred. This conclusion also squares with the well-known principle of statutory interpretation that states that "where two interpretations of a provision which affects the liberty of a subject are available, one of which is more favourable to an accused, then the court should adopt this favourable interpretation": See R. v. McIntosh, 1995 SCC 124, [1995] 1 S.C.R. 686, at para. 29. Clearly, a narrow interpretation of "violent offence" is more favourable to an accused, since such an interpretation will limit the circumstances in which custody will be a sentencing option.
[23] The present case is concerned with a different section of the YCJA and a different expression, namely, s. 42 and the expression "serious violent offence". Nonetheless, the Supreme Court of Canada's comments respecting the object, scheme and interpretation of the YCJA remain relevant to the issue involved in this case.
[24] Dealing first with s. 42(9), it is apparent on a plain reading, that an application by the Attorney General is required before an offence can be designated a "serious violent offence" pursuant to that section. Because no application was brought by the Attorney General in this case, the sentencing judge was precluded from making such a designation.
[25] I turn now to the question of whether, in the absence of a s. 42(9) designation, s. 42(5) contemplates the sentencing judge making her own assessment of the offence. If, as in this case, she concludes that it is a "serious violent offence", is she then precluded by s. 42(5) from imposing a deferred custody and supervision order?
[26] The interpretation adopted by the sentencing judge means that a court would be prevented from making a deferred custody and supervision order in all cases involving an offence considered by the sentencing judge to constitute a "serious violent offence", regardless of whether the Attorney General considered it appropriate to make an application for such a designation under s. 42(9). This would inevitably result in more frequent detention of young offenders, a result that operates in contrast to the objectives and scheme of the YCJA. [See Note 3 below] [page536]
[27] The interplay between ss. 42(5) and 42(9) was discussed by the Saskatchewan Court of Appeal in R. v. A. (C.J.), 2005 SKCA 85, [2005] S.J. No. 410, 200 C.C.C. (3d) 233 (C.A.), at paras. 24 and 25, as follows:
Although s. 42(5) could perhaps have been worded more clearly, it is nonetheless apparent that a determination as to whether an offence is a serious violent offence for purposes of s. 42(5) is not something which can be made independently of the procedure contemplated by s. 42(9). The most obvious and straightforward reading of s. 42 as a whole is that, before an offence can be treated as a serious violent offence for purposes of s. 42(5), it must have been determined to be such an offence pursuant to s. 42(9).
In my view, an interpretation of the YCJA which disconnects ss. 42(5) and 42(9) sets the stage for confusion and inconsistency.
[28] The Saskatchewan Court of Appeal explained that s. 42(9) has procedural safeguards that must be complied with before a designation of serious violent offence can be made and the YCJA specifically provides for the possibility of appealing such a designation. Similar procedural safeguards are not provided for under s. 42(5). If the use of the term "serious violent offence" in s. 42(5) is not tied to the designation contemplated in s. 42(9), a serious violent offence finding for the purposes of s. 42(5) could be made without the procedural safeguards set out in s. 42(9). While acknowledging that procedural requirements respecting the determination of serious violent offence could possibly be implied under s. 42(5) pursuant to the Charter or the common law, the Saskatchewan Court of Appeal observed, at para. 28:
[I]t seems most unlikely that Parliament would have set [safeguards] out expressly in s. 42(9) but omitted them from s. 42(5) if it had intended that a court could make an independent determination of serious violent offence status under the latter subsection. In other words, the fact that s. 42(5) makes no reference to an application by the Attorney General or to an opportunity for both sides to be heard is a clear indication that a serious violent offence determination is to be made only pursuant to s. 42(9). [See Note 4 below]
[29] The approach advanced by the Saskatchewan Court of Appeal has been the subject of criticism by academic commentators. For example, in Andrea Tuck-Jackson, ed., Annotated Youth Criminal Justice Act Service, looseleaf [page537] (Markham, Ont.: LexisNexis Canada, 2003), at p. 3691, the following comment is made in respect of the decision in R. v. A. (C.J.):
[T]his interpretation of s. 42(5)(a) is unduly narrow since there is no reference in that provision to s. 42(9), and there may be very serious cases, such as the one in H.A.M. [See Note 5 below], where a deferred custody and supervision order is not appropriate in light of the brutal assault and very extensive injuries suffered by the victim.
[30] Other courts across Canada have also approached the issue differently from the Saskatchewan Court of Appeal. In R. v. K. (D.A.), [2006] A.J. No. 1386, 2006 ABPC 247 (Prov. Ct), the Alberta Provincial Court determined that on a "plain reading" of s. 42(5), s. 42(9) did not have to be considered. At para. 41, the sentencing judge noted:
In cases where the Crown exercises its jurisdiction not to proceed to obtain a judicial determination, this does not detract from the essential character of the offence committed. In other words, it makes the offence no less serious, no less violent. The sentencing judge in that case also commented, at para. 42, that, if Parliament intended to remove the deferred custody and supervision option only where a serious violent offence determination under s. 42(9) had been made, it would have made this clear in the subsection.
[31] I quite agree that the seriousness and violence of an offence are not dependent on there having been a successful application by the Attorney General pursuant to s. 42(9). Even where no s. 42(9) application is brought by the Attorney General, a sentencing judge may well conclude that the seriousness and violence of the offence are such that a deferred custody and supervision order is not appropriate. This, however, is quite different from removing the option altogether. A sentencing judge, after having considered all of the relevant circumstances including the fact that it was a serious and violent offence may well conclude that a deferred custody and supervision order is appropriate and would best meet the objectives of the YCJA. The loss of the option is significant for the young offender, as it functions to restrict the sentencing options available and is more likely to result in a custodial sentence. In my view, the procedural safeguards of s. 42(9) have to be [page538] respected before s. 42(5) operates so as to preclude a sentencing judge from imposing a sentence the judge would otherwise consider appropriate.
[32] In conclusion, before the statutory consequences of a finding that an offence is serious and violent will flow into the various subsections of s. 42, an application by the Attorney General pursuant to s. 42(9) is necessary. [See Note 6 below] I interpret the reference in s. 42(5)(a) to "serious violent offence" as a reference to an offence for which a s. 42(9) application has been brought and a judicial determination has been made that the offence is a "serious violent offence" in accordance with s. 2(1) of the YCJA. Absent a s. 42(9) determination, a deferred custody and supervision order can be made by a sentencing judge whether or not the offence is viewed by the sentencing judge as meeting the definition of "serious violent offence" in the YCJA. The sentencing judge will, of course, take the seriousness and the violence of the offence into account when fashioning the appropriate sentence and, specifically, in deciding whether or not to make a deferred custody and supervision order. Conclusion
[33] In my view, therefore, the sentencing judge erred in concluding that, because she considered this to be a serious and violent offence, s. 42(5) operated to prevent her from making a deferred custody and supervision order. Although it is not clear whether the sentencing judge would have sentenced the appellant to deferred custody had she not made this error, the circumstances of this offender as well as the joint submission of the parties are such that I consider a deferred custody and supervision order as the most appropriate disposition.
[34] As a result, I would allow the sentence appeal, set aside the sentence imposed and substitute a deferred custody and supervision order of 144 days, in recognition of the four days served in pre-sentence custody and the 30 days served in custody following sentencing, to be followed by 18 months' probation. The terms of the deferred custody and supervision order are to be subject to the statutory terms set out in ss. 42(2)(p) and 105(2) of the YCJA, subsections (a) through (h), as well as the terms agreed to [page539] by the parties as set out in their response to the inquiry made by this court, attached as an appendix to this judgment. The terms of the probation order are to be in accordance with those originally described by the sentencing judge.
Appeal allowed. APPENDIX
Conditions of Deferred Custody and Supervision Order Mandatory Conditions The following mandatory conditions apply in accordance with s. 105(2) of the Youth Criminal Justice Act, S.C. 2002, c. 1: The young person must: (a) keep the peace and be of good behaviour; (b) appear before the youth justice court when required by the court to do so; (c) report to the provincial director immediately on release, and then be under the supervision of the provincial director or a person designated by the youth justice court; (d) inform the provincial director immediately on being arrested or questioned by the police; (e) report to the police, or any named individual, as instructed by the provincial director; (f) advise the provincial director of the young person's address of residence on release and after release report immediately to the clerk of the youth justice court or the provincial director any change (i) in that address, (ii) in the young person's normal occupation, including employment, vocational or educational training and volunteer work, (iii) in the young person's family or financial situation, and (iv) that may reasonably be expected to affect the young person's ability to comply with the conditions of the order; (g) not own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as authorized by the order; and (h) comply with any reasonable instructions that the provincial director considers necessary in respect of any condition of the conditional supervision in order to prevent a breach of that condition or to protect society. In addition, the following terms are also imposed under s. 105(3) of the YCJA: [page540]
Residency (1) Reside where directed by your Probation Officer and abide by the rules of the home. Do not change that address without written approval of your Probation Officer. Counselling (2) Attend and actively participate in counselling as directed by your Probation Officer, including day treatment with Operation Springboard. Do not discontinue counselling without the advance permission of your Probation Officer. Sign any releases necessary to confirm your participation and attendance in counselling. Employment/Education (3) When not attending day treatment counselling, seek and maintain gainful employment or attend school full time and attend each and every day and each and every class. -- If attending school, produce monthly attendance reports to your Probation Officer; -- If employed, provide proof of employment monthly to your Probation Officer; -- If seeking employment, complete any pre-employment programming required by your Probation Officer and provide proof, in writing, to your Probation Officer on a weekly basis about efforts made with respect to finding employment. Curfew (4) Abide by a curfew. Be in your place of residence every day between the hours of 9:00 p.m. and 6:00 a.m. unless -- Travelling directly to or from and to be at your place of employment for scheduled work; -- To attend any Toronto hospital for a medical emergency of your own or that of any immediate family member; or -- With the advance written approval of your Probation Officer, which must be carried on your person at all times when outside your residence. [page541] Others (5) Refrain from associating or communicating with Zackary Johnston. (6) Refrain from associating or communicating with anyone known to you to have a criminal or youth record except for immediate family or for the purposes of employment, education or residence. (7) Do not apply for a firearm acquisition certificate.
Notes
Note 1: This provision empowers the court to make a deferred custody and supervision order for a specified period not exceeding six months and subject to specific conditions set out in the YCJA.
Note 2: As noted, the information does not appear to have been endorsed in accordance with this designation under s. 42(9).
Note 3: The YCJA was designed to "send a clearer message to those involved in the youth criminal justice system about restricting the use of custody for young offenders": R. v. D. (C.); R. v. K. (C.D.). supra, at para. 48. As noted by the the Minister of Justice and Attorney General of Canada Anne McLellan, "The propsed youth criminal justive act is intended to reduce the unacceptably high level of youth incarceration that has occurred under the Young Offenders Act.:" House of Commons Debates (February 14, 2001) at p. 704.
Note 4: The "procedural code" established under s. 42(9) for "serious violent offence" designations was described more recently by this court in R. v. W.(V.) (2008), 2008 ONCA 55, 89 O.R. (3d) 323, [2008] O.J. No. 234, 232 O.A.C. (C.A.), in which Sharpe J.A. noted, at para. 24, that the procedural requirements established under s. 42(9) "make it clear that [a serious violent offence] designation is a discrete process that entails a judicial determination based on the evidence following a hearing at which the offender must be accorded procedural fairness".
Note 5: R. v. M.(H.A.), 2003 MBPC 2477, [2003] M.J. No. 147, [2003] 9 W.W.R. 533 (Prov. Ct.). In that case, the trial judge decided that, since the Crown had not made a formal application under s. 42(9) to have the offence designated a "serious violent offence", the court was not precluded from imposing a deferred custody and supervision order, even though it was apparent that the offence before the court would easily qualify under the amorphous definition of "serious violent offence" in s. 2 of the YCJA.
Note 6: This interpretation would extend as well to s. 42(7), which provides the youth court justice with the authority to make an intensive rehabilitative custody and supervision order in respect of a young person only if certain conditions are met, such as that the "young person has been found guilty of a serious violent offence".