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138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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.B., 2016 ONCA 760

DATE: 20161017

DOCKET: C62052

MacPherson, Pepall and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.B.

Appellant

M.B., acting in person

Cate Martell, appearing as duty counsel

Chris Chorney, for the respondent

Heard: September 7, 2016

On appeal from the conviction entered on September 11, 2015 and the sentence imposed on January 22, 2016 by Justice John D. Takach of the Ontario Court of Justice.

Pardu J.A.:

[1] The appellant fired a volley of shots into a crowd. Although as many as 11 shots were fired, only three people suffered gunshot wounds, and they survived. The appellant was 17 years old at the time of the offence.

[2] The Crown brought an application to have the appellant sentenced as an adult under s. 72(1) of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”), which provides:

(1) The youth justice court shall order that an adult sentence be imposed if it is satisfied that

(a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and

(b) a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour.

[3] The appellant’s counsel opposed the Crown’s application. He urged the sentencing judge not to give the appellant credit for the approximate 15 months he spent in pre-sentence custody to buttress the submission that a youth sentence would be of sufficient length to hold the appellant accountable for his behaviour.

[4] The sentencing judge concluded that the Crown had not rebutted the presumption of diminished moral blameworthiness, and that the maximum sentence available under the YCJA, three years, would be of sufficient length to hold the appellant accountable for his actions.

[5] In addressing the appellant’s pre-sentence custody, the sentencing judge noted at para. 63, “I take into account his pre-sentence custody of approximately 15 months but do not give him pretrial custody credit for this time so that I may impose a fit sentence reflecting the statutory principles” set out in the YCJA.

[6] On appeal, the appellant submits that the sentencing judge erred by acceding to his counsel’s request and denying credit for pre-sentence custody. With the able assistance of duty counsel, the appellant submits that R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, and R. v. T.B. (2006), 2006 CanLII 4487 (ON CA), 78 O.R. (3d) 721 (C.A.), mandate credit for pre-sentence custody. The effect of the sentencing judge’s decision was to impose a sentence that exceeded the maximum custodial sentence of three years under the YCJA, when coupled with the approximate 15 months the appellant spent in pre-sentence custody at the time the sentence was imposed.

[7] In my view, the youth sentencing judge did not err. Summers does not change the discretion of youth sentencing judges to determine whether and how much credit should be given for pre-sentence custody when fashioning an appropriate sentence for a young person where the possibility of an adult sentence is on the table. I would dismiss the appeal.

[8] Section 38(3)(d) of the YCJA requires a sentencing judge to “take into account the time spent in detention by the young person as a result of the offence.” Because sentences under the YCJA are comprised of two-thirds custody and one-third community supervision, young persons are in a similar position to adult offenders in that time in pre-sentence custody delays their eligibility for community supervision, as Lang J.A. observed at para. 40 in T.B.

[9] This court has held several times that, while a youth court judge must consider pre-sentence custody in sentencing, the credit which will be given in a particular case is discretionary and is not a mechanical calculation. Gillese J.A. observed in R. v. D.S., 2008 ONCA 740, 93 O.R. (3d) 211, at para. 26, that there are many ways to “take into account” a youth’s pre-sentence custody.

[10] This court has recognized that a sentencing judge’s discretion includes the ability to award no credit for pre-sentence custody against a youth sentence, particularly in the context of an application made by the Crown to sentence a youth as an adult: R. v. E.L., 2006 CanLII 12290 (ON CA), [2006] O.J. No. 1517 (C.A.), at para. 9; R. v. D.W., 2008 ONCA 268, [2008] O.J. No. 1356, at para. 3. Other appellate courts have come to the same conclusion: R. v. P. (N.W.), 2008 MBCA 101, 231 Man. R. (2d) 61, at para. 23; R. v. R.R.J., 2009 BCCA 580, 250 C.C.C. (3d) 3, at para. 60; R. v. D.D.T., 2010 ABCA 365, 493 A.R. 167, at paras. 57, 59.

[11] The reasons why a sentencing judge might choose to exercise discretion in this manner are apparent, when considering the sentencing objectives under the YCJA. Youth sentencing judge are mandated under the YCJA to impose the least restrictive sentence capable of achieving the purposes expressed in the YCJA, and to impose the sentence most likely to rehabilitate the young person and reintegrate him or her into society (YCJA, s. 38(1), 38(2)(e)). Requiring youth court judges to give credit for pre-sentence custody could reduce their ability to meet these objectives because, in some instances, deducting pre-sentence custody could lead to a conclusion that the youth sentence would be of insufficient length to hold the youth accountable.

[12] If, for example, a youth court judge was required to deduct two years of pre-sentence custody, credited on a 1 to 1.5 basis, from the maximum three-year sentence under the YCJA, the end result is that no custodial sentence would be imposed. If the young person was given an adult sentence of six years for the same offence and credited the same amount of pre-sentence custody, the remaining sentence would be three years.

[13] Summers holds that loss of parole eligibility constitutes “circumstances” justifying enhanced credit for pre-sentence custody under s. 719(3.1) of the Criminal Code. The Supreme Court of Canada recognized in Summers that an interpretation of s. 719(3.1) which did not account for loss of eligibility for early release and parole during remand custody offends the principle of parity because, as observed at para. 60 of Summers, “offenders who do not receive bail will serve longer sentences than otherwise identical offenders who are granted bail.”

[14] Analogously, section 38(2)(b) of the YCJA requires that “the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances.” Accordingly, where two similarly situated young offenders are sentenced for the same offence, which would, for example, merit a sentence of 12 months, but one has been held in custody for six months prior to sentencing, it would be an error not to take into account the pre-sentence custody. Pursuant to s. 42(2)(n) of the YCJA, the youth who did not spend time in pre-sentence custody would serve eight months of the 12 month sentence in custody and four months under community supervision.

[15] By giving the other youth credit for six months of pre-sentence custody on a 1 to 1.5 ratio, the resulting credit of nine months, offset against a 12 month sentence, would leave a three month sentence, of which two months would be served in custody, and one month in the community. The total length of time in custody would be eight months. It is only by giving credit for pre-sentence custody that both young persons would serve eight months in custody, in total.

[16] Therefore, while the principle of parity in Summers applies in the context of youth sentencing (and is statutorily mandated under s. 38(2) of the YCJA), Summers did not impact on the discretion available to youth court judges to take pre-sentence custody into account in whatever manner the youth sentencing judge concludes will result in a sentence that will hold the young person accountable.

[17] In this case, the wisdom of the sentencing judge’s decision is borne out by the progress the appellant has made since sentencing. In contrast, the reports provided to the sentencing judge were not positive. The sentencing judge noted at para. 55 of his reasons:

The probation officer in her section 76 report, as stated above, noted that it would seem that the young offender had exhausted the resources of the youth system. She qualified this statement, however, feeling that as his last chance in the system and to make the most of the rehabilitative resources available within it might depend on psychiatric and psychological assessment to explore mental health issues. These issues indeed have been explored by both the psychologist and the psychiatrist.

[18] The sentencing judge also referred to the opinion of Dr. Kondra, who performed a psychiatric assessment of the appellant, at para. 56: “[G]enerally in Canada, prolonged incarceration leads to worse outcomes, solidifying of criminal identity and inability to switch to more adaptive functioning.” Despite the negative pre-sentence report, the sentencing judge decided that rehabilitation might still be possible. The sentence imposed here was manifestly more likely to promote the rehabilitation and reintegration of the offender than an adult sentence.

[19] The sentencing judge did not err in acceding to the submissions of defence counsel, sentencing the appellant as a young person and considering the pre-sentence custody, but opting not to give credit for pre-sentence custody. Accordingly, I would dismiss the appeal.

Released: “J.C.M.” October 17, 2016

“G. Pardu J.A.”

“I agree J.C. MacPherson J.A.”

“I agree S.E. Pepall J.A.”