Her Majesty the Queen v. Able

[Indexed as: R. v. Able]

Ontario Reports

Court of Appeal for Ontario,

Doherty, Simmons and Tulloch JJ.A.

June 11, 2013

116 O.R. (3d) 500 | 2013 ONCA 385

Case Summary

Criminal law — Sentencing — Firearms offences — Accused found guilty in youth court of possession of restricted firearm with ammunition — Accused pleading guilty as adult to possession of restricted firearm with ammunition less than two years later — That offence being "second or subsequent offence" for purpose of determining applicable minimum penalty — Accused losing protection of s. 82(4) of Youth Criminal Justice Act by operation of s. 119(9)(a) of Youth Criminal Justice Act — Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 82(4), 119(9)(a). [page501]

Criminal law — Sentencing — Mandatory minimum sentences — Firearms — Adult accused pleading guilty to possession of restricted firearm with ammunition less than two years after found guilty of same offence as youth — Adult offence being "second or subsequent offence" for purpose of determining applicable minimum penalty as result of s. 119(9)(a) of Youth Criminal Justice Act — Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 82(4), 119(9)(a).

In 2007, the accused was found guilty in youth court of possession of a restricted firearm with ammunition, contrary to s. 95(1) of the Criminal Code. Less than two years later, he pleaded guilty to possession of a restricted firearm with ammunition and four other firearms-related offences and was sentenced to nine and one-half years' imprisonment. He appealed, arguing that under the Youth Criminal Justice Act ("YCJA") he should not have been treated as a second or subsequent offender for the purpose of determining the applicable mandatory minimum penalty under s. 95(2) of the Code.

Held, the appeal should be dismissed.

The accused lost the protection of s. 82(4) of the YCJA by operation of s. 119(9)(a) of the YCJA as he was convicted of the second s. 95(1) offence within the period of access applicable to his youth record. The application of s. 119(9)(a) is not restricted to s. 82(1) of the YCJA. The finding of guilt against the accused as a young person was an "earlier offence" within the meaning of s. 84(5) of the Code, and the applicable statutory minimum for the s. 95(1) offence was five years.

R. v. Elliston, [2010] O.J. No. 5152, 2010 ONSC 6492, 225 C.R.R. (2d) 109 (S.C.J.), consd

Other cases referred to

R. v. S. (I.), [2011] O.J. No. 3052, 2011 ONSC 3303 (S.C.J.); Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 CanLII 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 154 D.L.R. (4th) 193, 221 N.R. 241, J.E. 98-201, 106 O.A.C. 1, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 CLLC Â210-006, 76 A.C.W.S. (3d) 894

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 84(5), 95(1) [as am.], (a) [as am.], (2) [as am.]

Criminal Records Act, R.S.C. 1985, c. C-47 [as am.]

Youth Criminal Justice Act, S.C. 2002, c. 1 [as am.], ss. 2 [as am.], (3), 82 [as am.], (1), (4) [as am.], (b), 119(2), (h), (9)(a), (c)

Authorities referred to

Bala, Nicholas, and Sanjeev Anand, Youth Criminal Justice Law, 3rd ed. (Toronto: Irwin Law, 2012)

APPEAL by the accused from the sentence imposed by J.C. Moore J. of the Ontario Court of Justice dated January 29, 2010.

Christopher Hicks and Kristin Bailey, for appellant.

Michael Perlin, for respondent. [page502]

The judgment of the court was delivered by

TULLOCH J.A.: —

A. Overview

[1] The appellant pleaded guilty to five firearms-related offences, including possession of a restricted firearm with ammunition, contrary to s. 95(1) of the Criminal Code, R.S.C. 1985, c. C-46 and breach of a firearms prohibition order. He received a global sentence of nine and one-half years.

[2] The appellant sought leave to appeal his sentence. He argued that under the applicable provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1 ("YCJA"), he should not have been treated as a second or subsequent offender for the purpose of determining the applicable mandatory minimum penalty under s. 95(2) of the Criminal Code.

[3] At the end of oral argument, the court dismissed the appeal, indicating:

The sentence, while lengthy, regardless of whether this conviction triggered the mandatory minimum sentence for subsequent convictions, was not "demonstrably unfit".

We cannot interfere. We will release reasons at a later date addressing the proper interpretation of the relevant provisions of the YCJA.

B. The Relevant Facts

[4] In November 2007, the appellant was found guilty of a number of offences, including possession of a restricted firearm with ammunition contrary to s. 95(1) of the Criminal Code. He was sentenced as a youth under the YCJA and received a short custodial sentence, a period of probation and a firearms prohibition.

[5] In February 2009, police received information that a small group of men in a vehicle parked in the Regent Park neighbourhood of Toronto were in possession of a restricted firearm. Officers approached the vehicle to investigate. Suddenly, a door to the car flung open and the appellant exited the vehicle and fled.

[6] The officers gave chase and observed the appellant throw an object into a nearby dumpster as he ran. After a brief search of the dumpster, police discovered that the object was in fact a .45-calibre semi-automatic firearm with capacity for 12 rounds. Eleven out of the 12 rounds in the handgun were chambered and ready to fire. The serial number on the firearm had been scratched out and it was later found to have been stolen in the United States and illegally brought to Canada. [page503]

[7] Shortly after the discovery of the handgun, police dogs located the appellant nearby. The appellant was taken to the police station, where he provided a statement and admitted possession of the handgun recovered from the dumpster. He was charged with, inter alia, possession of a restricted firearm with ammunition.

[8] In October 2009, the appellant pleaded guilty to the offences charged and was remanded for sentencing.

[9] In January 2010, the sentencing judge imposed a global sentence of nine and one-half years. At the sentencing hearing, Crown counsel, defence counsel and the sentencing judge agreed that the appellant's finding of guilt under the YCJA in 2007 on a charge under s. 95(1) made this conviction under s. 95(1)(a) a "second or subsequent offence" for the purposes of determining the applicable mandatory minimum under s. 95(2).

C. Analysis

(1) The operation of the Criminal Code provisions

[10] Persons, like the appellant, convicted under s. 95(1) are subject to minimum penalties. In the case of a first offence, the minimum penalty is three years, and in the case of second or subsequent offences, the minimum penalty is five years: s. 95(2) of the Criminal Code. An offence is a "second or subsequent offence" if within the ten years prior to the conviction for which the accused is being sentenced, he or she was convicted of any of the offences enumerated in s. 84(5). Section 95(1) is one of the enumerated offences. Consequently, and setting aside the YCJA provisions for the moment, the appellant's conviction under s. 95(1) in November 2007 made this conviction on a s. 95(1) charge a "second or subsequent offence" and triggered the five-year minimum penalty in s. 95(2).

(2) The applicable YCJA provisions

[11] The appellant submits that because he was found guilty under the YCJA for his previous s. 95(1) offence, this s. 95(1) conviction does not constitute a "second or subsequent offence" for the purpose of determining the applicable minimum penalty. The appellant relies on s. 82(4) of the YCJA:

Finding of guilt not a previous conviction

82(4) A finding of guilt under this Act is not a previous conviction for the purposes of any offence under any Act of Parliament for which a greater punishment is prescribed by reason of previous convictions, except for

(a) [Repealed]

(b) the purpose of determining the adult sentence to be imposed. [page504]

[12] Standing alone, s. 82(4) supports the appellant's position. However, that subsection is subject to s. 119(9) (a):

Application of usual rules

119(9) If, during the period of access to a record under any of paragraphs (2)(g) to (j), the young person is convicted of an offence committed when he or she is an adult,

(a) section 82 (effect of absolute discharge or termination of youth sentence) does not apply to the young person in respect of the offence for which the record is kept under sections 114 to 116[.]

[13] The term "period of access" is defined in s. 119(2). For the appellant's purposes, the relevant definition appears in s. 119(2)(h):

Period of access

119(2) The period of access referred to in subsection (1) is

(h) subject to paragraphs (i) and (j) and subsection (9), if the young person is found guilty of the offence and it is an indictable offence, the period ending five years after the youth sentence imposed in respect of the offence has been completed[.]

[14] The appellant was convicted of an indictable offence under the YCJA in November 2007. Consequently, under s. 119(2)(h), the period of access ended five years after the conviction in November 2007. The appellant's subsequent convictions, which are the subject of this appeal, were entered in February 2009, well within the access period.

(3) Resolving the interpretation issue

[15] The appellant submits that s. 119(9)(a) applies only to s. 82(1) [of the YCJA]. Therefore, regardless of the fact that this s. 95(1) [Criminal Code] conviction was well within the five-year access period, s. 82(4) [of the YCJA] applies and the appellant's finding of guilt as a youth under s. 95(1) is not a previous conviction. Accordingly, this s. 95(1) conviction is the appellant's first such offence and he is subject to the three-year mandatory minimum sentence in s. 95(2) [of the Criminal Code].

[16] The respondent, on the other hand, contends that the application of s. 82(4) is also limited by the operation of s. 119(9)(a). Accordingly, the appellant is well within the "period of access" defined in s. 119(2) and the enhanced five-year mandatory minimum in s. 95(2) [of the Criminal Code] for second or subsequent offenders should apply.

[17] I agree with the respondent. In Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 CanLII 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, at para. 21, the Supreme Court of Canada held that [page505] statutory interpretation must begin with the words of the relevant statutory provisions, read in their entire context and in their grammatical and ordinary sense and interpreted harmoniously with the scheme and the object of the legislation and with Parliament's intention.

[18] The relevant portion of s. 119(9)(a) provides that "[s]ection 82 (effect of absolute discharge or termination of youth sentence) does not apply". On a plain reading, this can only mean that the protection of s. 82, and that of each of its subsections, is extinguished in the event that an adult is convicted of an offence within the period of access applicable to his or her youth record. There is no indication on the face of the legislation why the application of s. 119(9)(a) would be restricted to s. 82(1).

[19] The appellant points to the words "effect of absolute discharge or termination of youth sentence" in parentheses in s. 119(9)(a) as evidence that it should only apply to s. 82(1). However, s. 2(3) of the YCJA demonstrates that the words in parentheses are merely a matter of convenience and are to hold no interpretive weight:

Descriptive cross-references

2(3) If, in any provision of this Act, a reference to another provision of this Act or a provision of any other Act is followed by words in parentheses that are or purport to be descriptive of the subject-matter of the provision referred to, those words form no part of the provision in which they occur but are inserted for convenience of reference only.

(Emphasis added)

[20] The appellant also referred the court to s. 119(9) (c), which deems the finding of guilt as a young person to be a conviction for the purposes of Criminal Records Act, R.S.C. 1985, c. C-47 if a person with a youth record is convicted of an offence during the access period as an adult. He submits that, had Parliament intended all findings of guilt to be treated as previous convictions for all statutes, it would not have included the reference to the Criminal Records Act.

[21] I disagree. As a whole, s. 119(9) concerns the consequences that flow from an individual having been convicted of an offence as an adult during the relevant period of access. Section 119(9)(c) addresses the ramifications of the Criminal Records Act where an offence is committed during the access period. Section 119(9)(c) does not purport to speak to the effects of s. 82 and the impact on those effects of a conviction during the access period. Regardless of whether the language in s. 119(9)(c) was general enough to encompass the effect of a conviction within the access period for all purposes, s. 119(9)(a) would still be necessary to nullify the operation of the general rule in s. 82(4). [page506] Therefore, the specific reference to the Criminal Records Act in s. 119(9)(c) is necessary.

[22] Furthermore, the interpretation of ss. 82 and 119(9) (a) that I accept accords with the objectives of the YCJA. These objectives can be found in the preamble to the YCJA. While the preamble has a broad and general compass, it also "fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation and reintegration". Effective rehabilitation and reintegration require that young persons are given an opportunity to move on with their life and put their interaction with the criminal justice system behind them. However, a balance must be struck: strings must be attached when providing young persons with such an opportunity.

[23] This interpretation has also been discussed in the academic literature. In Nicholas Bala and Sanjeev Anand's Youth Criminal Justice Law, 3rd ed. (Toronto: Irwin Law, 2012), at pp. 482-83, the authors comment on the general treatment of youth records under the YCJA:

The [YCJA] defines a period during which there can be access to a record by specified persons. After that statutory period, in general there can be no access to the record, and no use should be made of the fact that the youth was convicted of that offence. This general rule is subject to some statutory exceptions whose exact scope has been the subject of judicial controversy.[^1]

If the youth commits a further offence within the statutory periods, records of earlier offences can be retained and accessed for a further period of three years for a later summary offence and a further five years for a later indictable offence.

(Footnote added)

[24] There is also support for this interpretation at the trial level in Ontario. In Elliston, Aston J. pronounced on the very issue of using prior findings of guilt to support the imposition of an enhanced mandatory minimum sentence within the statutory access period. Aston J. described it as "a reasonable and nuanced approach by Parliament in balancing the need to punish recidivists without allowing offences committed when one is very young to haunt an individual in perpetuity". Elliston has since been followed in the Superior Court: see, e.g., R. v. S. (I.), [2011] O.J. No. 3052, 2011 ONSC 3303 (S.C.J.). [page507]

[25] In my view, such an interpretation of the scheme fulfill's Parliament's purpose and realizes the YCJA's objective of fostering "responsibility and ensur[ing] accountability through meaningful consequences and effective rehabilitation and reintegration".

[26] In addition, and although it is not required to dispose of this ground of appeal, I wish to comment on the role of s. 82(4)(b). Section 82(4)(b) provides that:

Finding of guilt not a previous conviction

82(4) A finding of guilt under this Act is not a previous conviction for the purposes of any offence under any Act of Parliament for which a greater punishment is prescribed by reason of previous convictions, except for

(b) the purpose of determining the adult sentence to be imposed.

(Emphasis added)

[27] The term "adult sentence" is defined in s. 2 of the YCJA. Section 2 provides that an

"adult sentence" in the case of a young person who is found guilty of an offence, means any sentence that could be imposed on an adult who has been convicted of the same offence.

(Emphasis added)

[28] Therefore, the reference in s. 82(4)(b) to an "adult sentence" applies only to an adult sentence imposed on a young person under the YCJA. Practically, s. 82(4) (b) would arise in cases where a court concludes that a young person should be sentenced as an adult and where the young person has an earlier finding of guilt that would give rise to a greater punishment on sentencing.

[29] That is not this case. The appellant was an adult at the time of his second offence under s. 95(1). As an adult, the earlier finding of guilt he received as a youth became an "earlier offence" within the meaning of s. 84(5) of the Criminal Code by virtue of the interaction between ss. 119(9)(a) and 82 of the YCJA.

D. Disposition

[30] Since the appellant was found guilty for the earlier s. 95(1) offence in November of 2007, less than two years before his convictions for the charges in the case at bar, he lost the protection of s. 82(4) by operation of s. 119(9)(a) within the scheme set out in the YCJA and interpreted in the foregoing reasons. Therefore, the finding of guilt against the appellant as a young person was an "earlier offence" within the meaning of s. 84(5) of [page508] the Criminal Code and the applicable mandatory minimum -- on which counsel and the judge at the sentencing hearing had agreed -- was five years.

[31] As indicated at the end of oral argument, leave to appeal the sentence is granted. However, the appeal is dismissed.

Appeal dismissed.

Notes

[^1] There are numerous exceptions in the YCJA to this general rule. However, the authors do not elaborate on this point. Nevertheless, I note that the authorities placed before this court on the appeal support the interpretation I have set out above: see, e.g., R. v. Elliston, [2010] O.J. No. 5152, 2010 ONSC 6492, 225 C.R.R. (2d) 109 (S.C.J.), at para. 24. In addition, I have been unable to find any authorities that would support the appellant's position.

End of Document