WARNING

THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO:

110(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.

111(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.

138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.W., 2015 ONCA 644

DATE: 20150923

DOCKET: M45196 (C59241 & C59382)

BEFORE: Tulloch J.A. (In Chambers)

BETWEEN

Her Majesty the Queen Respondent

and

M.W. and T. F. Appellants

COUNSEL: Peter Copeland and Erika Chozik, for the appellants Lorna Bolton, for the respondent

HEARD: June 24, 2015

ENDORSEMENT

[1] This is an application for directions by the appellants M.W. and T.F. regarding the scheduling of their sentencing appeal. They seek an order to have the sentence appeal heard prior to and separate from the conviction appeal.

FACTS

[2] On May 29, 2013, Nordheimer J. of the Superior Court of Justice found three young persons, M.W., T.F., and S.B., guilty of first degree murder in the death of 16-year-old Tyrone Bracken. A fourth accused was acquitted.

[3] Bracken was shot and killed on November 17, 2010, in the west stairwell at 135 Neptune Drive in Toronto. The judge found that T.F. played a central role in luring Bracken into the stairwell. S.B. then shot the victim. At the time of the killing, M.W. was on the way to the scene. The trial judge found that M.W. played an integral role in planning and carrying out the murder and an active role in the subsequent attempts to cover up the participation of the young men involved.

[4] The Crown applied to have adult sentences imposed. The appellants sought a youth sentence under s. 42(2)(r)(ii) of the Youth Criminal Justice Act, as both had been accepted for Intensive Rehabilitative Custody and Supervision (IRCS) orders. The sentence under s. 42(2)(r)(ii) provides for a maximum sentence of 10 years for first degree murder, including a committal to intensive rehabilitative custody for a maximum period of six years followed by placement under conditional supervision to be served in the community. In his decision dated June 10, 2014, Nordheimer J. imposed the adult sentence of life imprisonment with 10 years of parole ineligibility. M.W. and T.F. are currently serving their sentences in the federal penitentiary system.

[5] The appellants are appealing both their convictions and sentence. At a status court hearing on April 15, 2015, Watt J.A. ordered that the appellants’ appeals be heard together.

DISCUSSION

General Principles

[6] As a general rule, where an appellant appeals both his or her conviction and sentence, the conviction appeal should be heard first. It is preferable that the appeals be heard together. The advantages of this order of proceeding are clear. It enhances the efficient use of the court’s resources, avoids the possibility of contradictory outcomes, and ensures that the panel hearing the sentence appeal has the benefit of the full context for the appeal. Appeals from conviction and sentence should only be bifurcated where there are compelling reasons to do so.

[7] The British Columbia Court of Appeal’s comments on this issue in R. v. Freeman (1998), 101 B.C.A.C. 79, at para. 5, are instructive:

The usual practice in this Court is to hear appeals from conviction prior to appeals from sentence, where both appeals are set to be heard in this Court. This is for the obvious reason that a successful conviction appeal renders a sentence appeal redundant. There may be exceptions to the practice, as, for example, where there is a pressing interest on the part of either the appellant or the public to have the usual order of hearing reversed. Each case must, of course, be decided on its merits.

[8] These comments are equally applicable to the case at bar.

Application to this case

[9] In this case, there are compelling and pressing reasons for hearing the sentencing appeal before the conviction appeal. The delay in hearing the conviction appeal is expected to be lengthy. This delay negatively impacts the appellants, who are currently in the federal penitentiary system, and the strength of their appeal. Though it may cause some confusion for the court, the prejudice in hearing the sentence appeal first in this rare situation is not significant.

[10] First, the delay in hearing the conviction appeal is likely to be significant and will have a negative impact on the appellants. Submissions made in support of this motion indicate that there have been delays in completing the fairly lengthy transcripts required for the conviction appeals, in part because of difficulty locating exhibits. The transcripts required for the sentence appeal are complete.

[11] The impact of this delay on the appellants is important. Should the sentence appeal be granted, they have been in the wrong stream for more than a year. As the sentencing judge explained, an IRCS order provides the young person with a more intensive treatment and programming schedule during their sentence, both while in custody and under conditional supervision. If the sentence appeal is delayed until the conviction appeal is ready, the appellants remain in the federal penitentiary system for a greater period of time. A successful sentence appeal would lead to a transfer to the provincial custodial system.

[12] Second, the main issue in the sentence appeal is whether the appellants’ ought to have received a youth sentence involving an IRCS order. The appellants argued that delay in hearing the sentencing appeal may negatively affect the strength of their appeal, as the period of time during which they could participate in IRCS under a youth sentence becomes shorter with the passage of time.

[13] Simply put, less time in IRCS means less access to intensive rehabilitation for the appellants. Less rehabilitation may be seen as increasing, or at least not sufficiently diminishing, the danger to the public once they are released. The potential for rehabilitation and whether the sentence provides the necessary level of protection to society are, among other things, central considerations in determining the appropriateness of a youth sentence.

[14] Both M.W. and T.F. had made progress while in custody before sentencing. Their progress and rehabilitation were considered by the sentencing judge, and would again be at issue on appeal. Also at issue is the need for ongoing supervision once the custodial sentence is over in order to protect the public. In my view, less time in the program would weaken the appellants’ position on these points at the sentencing appeal.

[15] Finally, the conviction appeal as it stands now is set to raise complex issues of law and involves reviewing a substantial amount of trial evidence, in particular, voluminous text message evidence. On the other hand, the sentence appeal is based on discreet factual findings, and relies on the extensive reasons provided by the trial judge for conviction and sentence. The Crown raises concerns about the text message evidence that was crucial to both the conviction and sentence decisions, and which at least one of the appellants intends to argue was misapprehended by the trial judge. Despite this potential overlap, on balance, the issues on appeal are discreet enough to not raise serious concerns about duplication and confusion. An expedited sentence appeal would be practical in this context.

CONCLUSION

[16] In these rather exceptional circumstances, the appellants have demonstrated that there are pressing and compelling reasons to allow the sentence appeal to proceed separate from and in advance of the conviction appeal. Accordingly, the appellants’ request is granted and I hereby order that the sentence appeal proceed in advance of the conviction appeal.

“M. Tulloch J.A.”