Court of Appeal for Ontario

Date: 2025-06-16
Docket: COA-24-CR-0669
Panel: Michael Tulloch, L.B. Roberts, P.J. Monahan

Between:
His Majesty the King (Respondent/Appellant)
and
T.M. (a young person) (Applicant/Respondent)

Counsel:
Justin Reid, for the appellant
Lauren M. Wilhem, for the respondent

Heard: 2025-05-08

On appeal from the disposition imposed on June 5, 2024, by Justice Amanda J. Camara of the Ontario Court of Justice.

Reasons for Decision

[1] This appeal concerns the constitutionality of two sentencing provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”), relating to deferred custody and supervision orders (DCSOs): ss. 42(2)(p) and 42(5)(a). Section 42(5)(a) prohibits a DCSO sentence if the young person is found guilty of an offence in the commission of which the young person causes or attempts to cause serious bodily harm. Section 42(2)(p) limits the duration of a DCSO to six months.

[2] The respondent, T.M., pled guilty to the offence of dangerous driving causing death, thereby disentitling him from a DCSO sentence. He filed an application arguing that both provisions violated ss. 15 and 7 of the Canadian Charter of Rights and Freedoms and could not be saved by s. 1. In reasons reported at 2024 ONCJ 257, the sentencing judge agreed and declined to apply the provisions as unconstitutional (“the Charter ruling”).

[3] Following the Charter ruling, the sentencing judge accepted counsel’s joint submissions to sentence T.M. to a DCSO for a period of two years less a day – a sentence that was otherwise not available under the YCJA if ss. 42(5)(a) and 42(2)(p) remained operative. On appeal, the Crown challenged both the constitutional ruling and the sentence imposed as illegal given the sentencing judge’s failure to comply with the mandatory conditions associated with DCSOs per ss. 105(2) and 42(6) or perform her duties in sentencing as required by ss. 38(2)(b), 38(2)(d), 38(2)(e)(i), 39(2), 48, and 50(1).

[4] At the end of the hearing, this court reserved its disposition and sought submissions from counsel on the appropriate and fit sentence for T.M. in the event that the provisions were found to be constitutional and in light of the fact that T.M. has already served 11 months of a DCSO. Counsel both agreed that an appropriate and fit sentence would be a sentence of probation with specified conditions for a period of 18 months, in addition to a community service order.

[5] Given the necessity for a timely determination of T.M.’s sentence, we release an initial disposition varying the sentence, with additional reasons to follow.

[6] We have concluded that the sentencing judge erred in finding that ss. 42(5)(a) and 42(2)(p) of the YCJA violate ss. 7 and 15 of the Charter.

[7] We further accept the Crown’s submission that the sentence imposed was illegal as the sentencing judge did not apply the impugned provisions, nor did she consider other related provisions in the YCJA, like s. 38, that govern sentencing. This was a legal error necessitating appellate intervention. See R. v. Lacasse, 2015 SCC 64, paras. 43-44; R. v. B.S., 2017 MBCA 102, para. 7; R. v. M.C.P., 2013 ABCA 366, paras. 1-2, 33.

[8] In light of this legal error that impacted the sentence, it then falls to this court to “perform its own sentencing analysis to determine a fit sentence”. See R. v. Friesen, 2020 SCC 9, para. 27. This requires keeping in mind the effect of the 11 months of deferred custody already served by T.M., which is deemed to be a custodial sentence. See R. v. D.W., 2011 NLCA 21, para. 11; R. v. C.D.J., 2005 ABCA 293, paras. 13-14, 29.

[9] As indicated, both the Crown and the respondent submit that had the impugned provisions of the YCJA been found to be constitutional, a fit sentence would have been a period of probation, coupled with either a fine or a community service order. While we agree that a probationary period with specified conditions, coupled with a community service order, would be appropriate and fit, we do not agree that in the circumstances of this case the imposition of a fine would be appropriate, given that we have not heard or received any submissions on the respondent’s ability to pay, and it would not serve any rehabilitative purpose. See R. v. R.C.W.M., 2004 BCCA 502, para. 27.

[10] Accordingly, it is our view that the appropriate sentence should be one of 18 months’ probation, with credit for time served under the DCSO, coupled with a community service order of 100 hours.

[11] For these reasons and more detailed reasons to follow, we grant leave to appeal sentence and allow the sentence appeal.

[12] Having considered all the circumstances of this case, and the principles of sentence pertaining to the YCJA, the respondent, T.M., is hereby ordered to complete 100 hours of community service, and to serve the remaining period of his sentence as a probationary disposition under a probation order, and be subject to the following terms, as agreed upon by counsel:

• Appear before the youth justice court when required by the court to do so;
• Report to and be supervised by the provincial director or designate, and report as required;
• Notify the provincial director or designate of any change of address, or any change in the young person’s place of employment, education, or training; and
• Attend and actively participate in any counseling or rehabilitative programs as may be directed by your provincial director or designate.

“Michael Tulloch”
“L.B. Roberts”
“P.J. Monahan”

Publication Ban

[1] This appeal is subject to a publication ban and a restriction on disclosure of identifying information pursuant to ss. 110, 118 and 129 of the Youth Criminal Justice Act, S.C. 2002, c. 1.