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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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.S., 2009 ONCA 762
DATE: 20091103
DOCKET: C50842
COURT OF APPEAL FOR ONTARIO
Laskin, Sharpe and Watt JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
And
L. S.
Applicant/Appellant
Esther Rosenberg, for the appellant
Grace Choi, for the respondent
Heard: October 8, 2009. (Written Argument)
On appeal from the sentence imposed by Justice J. A. DeFilippis of the Ontario Court of Justice at Oshawa, Ontario, dated July 30, 2009.
ENDORSEMENT
[1] The appellant pleaded guilty to counts of robbery and failure to comply with a sentence imposed on a prior occasion under the YCJA.
[2] About three months prior to entering his guilty plea, the appellant and two others, including an 11-year-old youth, approached two young brothers who were out selling chocolate bars for charity. The 11-year-old produced a BB gun and threatened the brothers with it. The trio took $18.00 worth of chocolate from the brothers and fled. This offence occurred at a time when the appellant was bound by and in violation of a curfew term of a sentence earlier imposed on him under the YCJA.
[3] The prosecutor and counsel for the appellant at trial proposed a joint submission on sentence. The joint submission had several components:
i. suspended sentence with 96 days of pre-disposition custody noted on the appellant’s record;
ii. probation for two years on specified terms;
iii. restitution of $18.00 to the named complainant;
iv. a DNA order; and
v. a prohibition under s. 109 banning possession of firearms for five years and prohibited weapons for life.
[4] Before entry of the pleas of guilty, counsel appeared before the sentencing judge in chambers. Defence counsel proposed one change in the joint submission that the sentencing judge considered appropriate. In order for the appellant to recover his belongings from the correctional centre in which he had been confined prior to plea, counsel for the appellant at trial proposed that the judge impose a sentence of imprisonment for one day. All the participants agreed with this modification.
[5] The sentencing judge gave effect to the revised joint submission and sentenced the appellant accordingly.
[6] It escaped the notice of all participants in the court below that at the time of sentence, the appellant remained subject to community supervision as a result of a sentence imposed nearly 15 months earlier. As a result, the imposition of the sentence of imprisonment for one day engaged s. 743.5(1) of the Criminal Code, which required that what remained of the earlier youth sentence be dealt with “as if it had been a sentence imposed under the Criminal Code”, rather than as a youth sentence. The appellant remained in custody until a judge of this court ordered his release.
[7] The parties agree that the original joint submission represented a fit disposition. On all sides, the expectation was that the appellant would return to the correctional centre, pick up his belongings and be released, his subsequent conduct being supervised by a probation officer and regulated by the DNA order, weapons prohibition and obligation to make restitution. The application of s. 743.5(1) dictated a different and unanticipated result.
[8] With the concurrence of the respondent, the appellant seeks a variance of the sentence imposed to give effect to the intention of the parties and overcome the effect of s. 743.5(1) of the Criminal Code that was not within their contemplation. We agree with this proposal.
[9] It also appears that the s. 109 prohibition imposed by the sentencing judge was in error. This was not the appellant’s first conviction of an offence that engaged the provisions of s. 109. In 2008, he had been convicted twice of robbery. The applicable provision in s. 109 was s. 109(3), which requires that the appellant be prohibited from possessing any “firearm, cross-bow, restricted weapon, ammunition and explosive substance for life”. The appellant agrees that we should vary the s. 109 order accordingly, despite the absence of any cross-appeal by the Crown. We are prepared to do so.
[10] In the result, leave to appeal is granted, the appeal against sentence allowed, the custodial sentence varied to one of time served, the prohibition under s. 109(2) set aside and, in its place, an order made under s. 109(3) prohibiting the appellant from having in his possession any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life. In all other respects, the appeal from sentence is dismissed.
“John Laskin J.A.”
“Robert J. Sharpe J.A.”
“David Watt J.A.”