R v DMCL, 2015 ABQB 781

Court of Queen ’ s Bench of Alberta Citation: R v DMCL, 2015 ABQB 781 Date: 20151209 Docket: 150896256X1 Registry: Edmonton Between: Her Majesty the Queen Respondent/Crown - and - DMCL Applicant/Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ Introduction [ 1 ] The Applicant applies for habeas corpus .

He raises the constitutionality of the youth sentence merger provisions in ss 42 and 43 of the Youth Criminal Justice Act , SC 2002, c 1, and the policies used to implement those provisions. He argues that application of the provisions to his sentences has resulted in a breach of his Charter rights. Background [ 2 ] On May 8, 2015, the Applicant pleaded guilty to offences and was sentenced to a 45 day secure custody and supervision

order pursuant to s 42(2)(

n) of the Youth Criminal Justice Act , SC 2002, c 1 ( YCJA ). He was given no credit for time served before May 8. The Court ordered that the sentence be served by 30 days of secure custody and 15 days of community supervision. He was also remanded on other more serious matters pending trial. [ 3 ] The outstanding matters were brought forward to May 29, 2015, at which time the Applicant entered guilty pleas to some of the outstanding charges.

The Court acceded to a joint submission and sentenced the Applicant to a 201 day secure custody and supervision order, broken down into 134 days of secure custody and 67 days of community supervision. [ 4 ] The Applicant was given credit for 57 days already served as against the secure custody portion. Both counsel led the sentencing judge to believe that pre-sentence custody credit would result in the Applicant serving a further 77 days of secure custody, followed by 67 days of community supervision (Transcript, 9/7-8, 36-37).

The sentencing judge told the Applicant that he would serve a further 77 days in closed custody (Transcript, 12/15-19). [ 5 ] Although counsel and the judge were aware that the Applicant had received 90 days in custody on the last offence, there was no discussion of the fact that the two sentences would be merged under the provisions of the YCJA . [ 6 ] Based on what he was told during the sentencing hearing, the Applicant expected to serve the custody remaining under his first sentence concurrently with the second sentence, resulting in only a further 77 days in custody and release on community supervision on August 14, 2015 and until October 19, 2015. [ 7 ] Sentence Administration at the Edmonton Young Offender Centre merged the Applicant’s sentences as mandated by ss 43 and 44 of the YCJA .

As a result, the anticipated release date on community supervision changed to August 25, 2015. His community supervision would still end on October 19, 2015. [ 8 ] After filing a Notice of Constitutional Challenge to ss 43 and 44, the Court granted a stay of the order merging the sentences and released the Applicant on Community Supervision according to the terms of the May 29, 2015 Warrant of Committal. Legislation [ 9 ] The YCJA provides in part: 2...“custodial portion”, with respect to a youth sentence imposed on a young person under paragraph 42(2)(n), (o), (

q) or (r), means the period of time, or the portion of the young person’s youth sentence, that must be served in custody before he or she begins to serve the remainder under supervision in the community subject to conditions under paragraph 42(2)(

n) or under conditional supervision under paragraph 42(2)(o), (

q) or (r). 38(3) In determining a youth sentence, the youth justice court shall take into account ...(

d) the time spent in detention by the young person as a result of the offence... 42(2) When a youth justice court finds a young person guilty of an offence and is imposing a youth sentence, the court shall, subject to this section, impose any one of the following sanctions or any number of them that are not inconsistent with each other and, if the offence is first degree murder or second degree murder within the meaning of

section 231 of the Criminal Code , the court shall impose a sanction set out in paragraph (

q) or subparagraph (r)(ii) or (iii) and may impose any other of the sanctions set out in this subsection that the court considers appropriate: (

n) make a custody and supervision order with respect to the young person, ordering that a period be served in custody and that a second period — which is one half as long as the first — be served, subject to sections 97 (conditions to be included) and 98 (continuation of custody), under supervision in the community subject to conditions, the total of the periods not to exceed two years from the date of the coming into force of the order ... 43 Subject to subsection 42(15) (duration of youth sentences), if a young person who is subject to a custodial sentence imposed under paragraph 42(2)(n), (o), (

q) or (

r) that has not expired receives an additional youth sentence under one of those paragraphs, the young person is, for the purposes of the Corrections and Conditional Release Act , the Criminal Code , the Prisons and Reformatories Act and this Act, deemed to have been sentenced to one youth sentence commencing at the beginning of the first of those youth sentences to be served and ending on the expiry of the last of them to be served. 44 Subject to subsection 42(15) (duration of youth sentences) and

section 46 (exception when youth sentence in respect of earlier offence), if an additional youth sentence under paragraph 42(2)(n), (o), (

q) or (

r) is imposed on a young person on whom a youth sentence had already been imposed under one of those paragraphs that has not expired and the expiry date of the youth sentence that includes the additional youth sentence, as determined in accordance with

section 43, is later than the expiry date of the youth sentence that the young person was serving before the additional youth sentence was imposed, the custodial portion of the young person’s youth sentence is, from the date the additional sentence is imposed, the total of (

a) the unexpired portion of the custodial portion of the youth sentence before the additional youth sentence was imposed, and (

b) the relevant period set out in subparagraph (i), (ii) or (iii): (

i) if the additional youth sentence is imposed under paragraph 42(2)(n), the period that is two thirds of the period that constitutes the difference between the expiry of the youth sentence as determined in accordance with

section 43 and the expiry of the youth sentence that the young person was serving before the additional youth sentence was imposed...

Applying Credit for Pre-Trial Custody under the YCJA [ 10 ] Section 38(3) (

d) of the YCJA mandates that the sentencing judge in a youth matter take into account the time spent in detention by the young person as a result of the offence. [ 11 ] In R v DMT , 2012 ABCA 142 , 522 AR 180 the Court addressed how pre-sentence custody is to be credited to a youth under the YCJA . The sentencing judge had imposed a 3 month sentence consecutive to a 21 month sentence, and credited 9 months against the 21 month sentence to reflect pre-sentence custody. Without the credit, s 42(2)(

n) would have resulted in the 21 month sentence being served 14 months in secure custody and 7 months in the community. [ 12 ] The Court opined that pre-sentence custody could be applied by deducting it:

a) from the 21 months

b) from the 14 months in secure custody, with the community supervision portion to remain intact (as in R v BLP , 2011 ABCA 384 at para 35 )

c) in the discretion of the sentencing judge

d) from the custodial portion of the sentence, with time under supervision to be one-half the remnant of the custodial sentence. [ 13 ] The sentencing judge had applied option (

d) so as to make the sentence consistent with the ratio of custody to supervision in s 42(2)(n). The Court of Appeal found that the sentencing judge had erred in concluding that the remnant of the sentence, after applying credit for pre-sentencing custody, had to be consistent with the ratio in s 42(2)(n). [ 14 ] The Court concluded: 10 In giving a young offender credit for pre-sentencing custody, the youth justice court should normally use option (

b) outlined above. This approach best preserves the concept that the young offender should serve two-thirds of the sentence in secure custody. The pre- sentencing custody should be credited against the custodial portion of the sentence, with the community supervision portion of the sentence to remain intact. 11 The sentencing judge does exceptionally have the discretion to use option (

a) in appropriate cases, where that approach would be more consistent with the sentencing principles in the Act, given the circumstances of a particular young offender. Since the sentencing judge can, in exceptional circumstances, give no credit for pre-sentencing custody, it follows that there must remain a similarly wide discretion to decide how pre-sentencing credit should be recognized.

Secondly, while this global approach might result in the young offender serving a longer time in custody, that flexibility should be maintained to ensure that a sentence suitable for the particular circumstances of the young offender can be imposed. In some cases this might be necessary to ensure that the young offender has access to programming, which is important for rehabilitation.

Thirdly, the pre-sentencing custody may have resulted because the young offender was in custody on other charges, or for reasons unrelated to the offence presently before the court. [ 15 ] The Court did not address the issue of merger of sentences, nor did it mention ss 43 and 44. Sentence Administrator’s Calculations [ 16 ] In the present case, the sentencing judge applied “option (b)” as outlined in DMT . The Applicant’s 201 day sentence was broken down into 134 days of secure custody and 67 days of community supervision.

Credit for 57 days was then applied only to the 134 days, leaving 77 days secure custody, and 67 days of community supervision. This resulted in a sentence that was not in keeping with the 2/3 custody/1/3 supervision split contemplated by the YCJA . [ 17 ] It was anticipated that the Applicant would be released on August 14, 2015. [ 18 ] The Applicant was already serving a custodial sentence at the time of the second sentence of 30 days custody and 15 days supervision. [ 19 ] The Sentence Administrator applied ss 43 and 44 to merge the two sentences.

Those provisions exist in a statutory context which prescribes that the youth sentence in question will be served 2/3 in custody and 1/3 under community reintegration, except for the most serious offences. [ 20 ] If the sentencing judge had applied “option (a)” from DMT , the preliminary calculation would have been: 201 days - 57 days credit = 144 days 144 days x 2/3 = 96 days in custody 144 days x 1/3 = 48 days of supervision [ 21 ]

Section 44(

a) required in this case that the Sentence Administrator add the 9 days custody remaining under the first sentence to the applicable calculation under s 44(b)(i). [ 22 ]

Section 44(b)(

i) applies where an additional youth sentence is imposed under s 42(2)(n). It mandates that the custodial portion is, from the date the additional sentence is imposed, the total of two thirds of the period that constitutes the difference between the expiry

of the youth sentence as determined in accordance with s 43 and the expiry of the youth sentence that the young person was serving before the additional youth sentence was imposed.

June 22/15 (expiry of first sentence) to October 19/15 (expiry of second sentence) = 120 days 120 x 2/3 = 80 days [ 23 ] The Sentence Administrator added the custody remaining (s 44(a)) to the custody period calculated under s 44(b)(i). 9 days remaining + 80 days = 89 days in custody [ 24 ] In the result, the Applicant would serve 89 days in custody instead of 96 days. [ 25 ] However, the sentencing judge applied the 57 days of pre-trial custody directly to the custodial portion after calculating 2/3 of the total sentence: 201 x 2/3 = 134 days – 57 days credit = 77 days in custody 201 x 1/3 = 67 days supervision [ 26 ] Notwithstanding this calculation, the other variables relevant to s 44 remained the same, being 9 days custody remaining under the first sentence, and the dates of expiry of the first and second sentences: 120 x 2/3 = 80 days 80 days + 9 days remaining = 89 days in custody [ 27 ] The warrant expiry date of October 19, 2015 does not change as a result of the merger.

The Applicant’s total merged sentence from May 9, 2015 to October 19, 2015 is 163 days. Two thirds of that is approximately 108 days in custody. [ 28 ] He had already served 19 days under the first sentence and to that would be added the 89 days (calculated from May 29) pursuant to ss 43 and 44 for a total of 108 days. This illustrates that when the calculation is done under ss 43 and 44, it results in the Applicant being required to serve in custody 2/3 of the entire merged sentence.

This appears to be the purpose of these merger provisions in the YCJA . [ 29 ] Therefore, under the merged sentence, the Applicant would be released into community supervision later than he might otherwise have expected.

In other words, he would serve a further custodial period of around 89 days (May 29 to August 25) instead of around 77 days (May 29 to August 14), which was what he expected pursuant to the second sentence. [ 30 ] As demonstrated, the merger provisions would have worked to his benefit if the sentencing judge had applied “option (a)”, because 2/3 of the entire merged sentence occurs earlier than 2/3 of the second sentence. However, the earliest possible release date would still be August 25.

Analysis Application of ss 43 and 44 [ 31 ] The sentencing judge on the second sentence credited the pre-trial custody only against the custodial portion of that sentence as was encouraged in R v DMT .

However, ss 43 and 44 of the YCJA are based on the concept that 2/3 of the merged sentence will be served in custody, and 1/3 will be served under community supervision. [ 32 ] Where a sentencing judge has applied “option (b)”, the application of ss 43 and 44 can have unanticipated results if, as in this case, the youth is serving time in custody on a prior sentence. [ 33 ] The sentencing judge sentenced the Applicant in accordance with the joint submission of counsel.

They did not address the effect of ss 43 and 44 at the time of sentencing, nor did they know that it would have the unintended effect which occurred. [ 34 ] Had counsel addressed their minds to the operation of ss 43 and 44, they could have fashioned a joint submission which would have resulted in a release date no later than August 14, 2015. The merged sentence would run from the beginning of the first sentence to the end of the second. Pursuant to the merger provisions, the Applicant would be released into community supervision 2/3 of the way through the merged sentence.

May 8 (beginning of the first sentence) to August 14 (release date) = 98 days 98 / 2 = 49

49 days from August 14 - October 2 [35] Therefore, if counsel had proposed a sentence which, after deduction of the pre-sentence custody, resulted in a warrant expirydate of October 2, 2015 instead of October 19, 2015, the Applicant would have been released around August 14, 2015. [36] In fact, counsel indicated in oral argument that they had consulted the Sentence Administrator to determine the anticipatedrelease date for the proposed sentence, but neglected to inquire about the effect of the merger provisions.

Had they done so, they couldhave crafted a sentence to reflect exactly how long they wished the youth remain in secure custody without having to do any calculationsthemselves. [37] The Court of Appeal in R v DMT held that there is some flexibility in choosing how to approach deduction of pre-sentencingcustody. In order to avoid unanticipated results where the youth is already serving a sentence, sentencing judges should apply “option(a)” by deducting pre-trial custody from the entire sentence, and then determining the 2/3 custody portion and the 1/3 communitysupervision portion.

This would be more coherent with the scheme and operation of ss 43 and 44 of the YCJA. [38] If that option had been used by the sentencing judge, the application of ss 43 and 44 would have led to the Applicant beingreleased on supervision before he would otherwise have expected under the second sentence. [39] Clearly, the legislator did not foresee that pre-sentence custody would be applied to youth sentences so as to skew the ratiobetween custody and community reintegration. [40] I conclude that if a problem arises in this context, it lies in the manner of sentencing and not in the Sentence Administrator’sapplication of s 44, nor any unconstitutionality inherent in s 44.

If the ratio of custody to supervision is maintained, the merger provisionsactually result in an earlier release date by re-adjusting the ratio over the entire merged sentence. Charter arguments [41] In case I am wrong with respect to the foregoing, I will briefly address the Applicant’s Charter arguments. He first submitsthat his ss 7 and 9 Charter rights have been breached through the application of ss 43 and 44. [42] The Charter provides: 7.

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. 9. Everyone has the right not to be arbitrarily detained or imprisoned. [43] A lawful detention is not arbitrary within the meaning of s 9: R v Mann, 2004 SCC 52, [2004] 3 SCR 59. A detention is notarbitrary unless the law authorizing the detention is arbitrary: R v Tomlinson, 2009 BCCA 196, [2009] BCJ No 899. [44] The Applicant relies on R v TWO, 2013 NSSC 448, [2013] NSJ No 760.

In that case, the applicant breached his communitysupervision conditions after he turned 18. He pleaded guilty to adult charges of failure to comply with a sentence or disposition. Thesuperintendent converted the remaining supervision portion of his youth sentence into an adult sentence of incarceration pursuant to s743.5(1) of the Criminal Code, RSC 1985, c C-46.

The Court held that the superintendent did not have jurisdiction to apply s 743.5(1) soas to override the decision of a youth court judge and detain him beyond the terms of the committal order. [45] However, the decision in Erasmo v Canada (Attorney General), 2015 FCA 129, [2015] FCJ No 638, leave denied [2015]SCCA No 267 casts doubt on the conclusion in TWO. In Erasmo, the appellant served a youth sentence and a consecutive adultsentence.

Pursuant to the merger provisions in s 743.5(1) of the Criminal Code and s 139(1) of the Corrections and Conditional ReleaseAct, SC 1992, c 20, the remaining portion of the youth sentence merged into an adult sentence and merged the two sentences.

While hewould have been eligible for community supervision on August 16, 2015 under the youth sentence, as a result of the merger he waseligible for full parole on December 25, 2016 and statutory release on October 26, 2019. [46] The Attorney General conceded that the merger provisions deprived the appellant of his right to liberty as they affected theconditions under which he served the remainder of his youth sentence.

The only issue considered by the Court under s 7 was whether thedeprivation of liberty offended the principles of fundamental justice. [47] The Court held that the principles of fundamental justice did not require that a youth disposition be continued, even in the faceof the commission of a later crime as an adult and the imposition of an adult sentence. Although the remaining portion of the youthdisposition was treated as an adult sentence under the merger provisions, the duration of the youth sentence remained unchanged. Onlythe conditions of the sentence changed.

The objective of the merger provisions was to administer the sentences under a single, clear setof rules, to eliminate potential conflicts between the youth and adult regimes and to preserve the entirety of the youth sentence. [48] In the course of his reasoning, Stratas JA noted that the appellant had received a youth sentence of seven years under theYCJA and after the merger provisions were applied, the youth sentence remained unchanged.

He cited R v CAM, (SCC), [1996] 1 SCR 500, 46 CR (4th) 269 and Cunningham v Canada, (SCC), [1993] 2 SCR 143, 20 CR (4th) 57 forthe propositions that non-custodial portions of a sentence are merely conditions under which a sentence is to be served, not a change tothe overall sentence, and a change in the form in which a sentence is served, whether it be favourable or unfavourable to the prisoner, isnot, in itself, contrary to any principle of fundamental justice. [49] I find the decision in Erasmo to be persuasive.

The Applicant in the present case essentially argues that the conditions underwhich he is serving his sentence have changed. As noted, his warrant expiry date has not changed. Further, although the mergerprovisions may have had what appears to be an arbitrary effect in this case, the law which has resulted in his detention is not arbitrary; it

is in keeping with the underlying principle reflected in the YCJA of 2/3 custody to 1/3 community supervision. Further, it is entirely possible to sentence youth in such a way so as to anticipate the merger provisions. [ 50 ] The Applicant argues that his sentence was changed without a hearing. Stratas JA in Erasmo addressed a similar concern, concluding that the process was a basic calculation based on sentences established in previous hearings, which hearings had provided the appellant with adequate procedural fairness as required by the principles of fundamental justice.

The merger provisions applied automatically and contained no element of discretion that could be influenced by submissions. [ 51 ] The Applicant also relies on R v JRJ , 2007 YKYC 2 , 2007 YJ No 67. In that case, the judge was attempting to sentence two co-accused in an equal fashion. Both were subject to prior sentences, but one had completed her custodial portion and the other had not.

Because of the merger provisions, the judge was required to impose different sentences in order to equalize the time in custody for the two youth. [ 52 ] While JRJ underlines the difficulties that may arise in anticipating the calculations under the merger provisions, it also illustrates how a sentencing judge who is alive to the provisions can determine a fit sentence. In that case, the sentencing judge was able to achieve the desired result.

Again, from the information before the Court, it would be open to counsel to consult the Sentence Administrator for advice as to the application of the merger provisions and how they would impact on the custody portion of the sentences. [ 53 ] It was the joint submission and the choice to apply the pre-sentencing credit to only the custodial portion which raised the Applicant’s expectation of an earlier release.

It is not the application of ss 43 and 44, per se , which has resulted in the Applicant’s disappointed expectation of release. [ 54 ] I conclude that the Applicant’s rights under ss 7 and 9 of the Charter have not been breached. [ 55 ] The Applicant also argues that the merger provisions have a discriminatory effect because the regime governing adult custody and release is different from the regime applicable to youth.

He argues that this discrimination is contrary to s 15 of the Charter . [ 56 ] The Charter provides: 15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination ... based on ... age ... (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of ... groups including those that are disadvantaged because of ... age ... [ 57 ] The YCJA is clearly a law that has as its object the favorable treatment of young persons.

This is clear in the principles set out in s 3(1).

The YCJA espouses the principle of diminished moral blameworthiness or culpability of young persons, and is focused on promoting the rehabilitation and reintegration of young persons who have committed offences. [ 58 ] Section 38(1) of the YCJA provides that the purpose of sentencing under s 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. [ 59 ] Section 38(2) provides that a youth justice court imposing a youth sentence on a young person shall determine the sentence in accordance with the principles set out in s. 3 and further principles, including that the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances. [ 60 ] A similar argument was raised in Erasmo with respect to the differences between youth and adult release regimes.

Stratas JA held that to the extent that the principles of fundamental justice require that youth offenders be treated more benignly than adult offenders, the appellant was so treated. As an adult, he would have received a harsher sentence than he did under the YCJA . [ 61 ] As the Crown has pointed out in this case, the Applicant would have been subject to more severe sentences for his crimes if he had been an adult. To compare release regimes without considering the entire sentencing regime is unhelpful. I find that the Applicant has not established that the merger provisions breach s 15.

Remedy [ 62 ] During oral argument, defence counsel conceded that even if the Applicant was successful in his arguments, habeas corpus is not appropriate at this time. [ 63 ] Counsel in this case has not sought an appeal of the sentence by consent in order to correct the mistake in their joint submission as to the expected date of release. [ 64 ] In my view, any remedy on this application would have been premature prior to counsel exploring the possibility of the sentence being corrected to reflect the intent behind the joint submission.

Conclusion [ 65 ] It is the joint submission, and in particular the application of pre-sentence custody, which has resulted in the Applicant’s

disappointed expectation in terms of his release to community supervision. [ 66 ] The propriety of the second sentence imposed on the Applicant is not before this Court. Had counsel’s joint submission before the sentencing judge contemplated the effect of the merger provisions, the Applicant would not be before the Court on this application. [ 67 ] The Applicant is not unlawfully detained, as his detention is authorized by law and the law is not arbitrary. The merger provisions affect the manner in which he serves his sentence. It has not been established that the merger provisions violate s 15.

The Applicant enjoys a more lenient overall sentencing regime under the YCJA , compared to the regime applicable to adults. [ 68 ] The Application is dismissed. Heard on the 4 th day of December, 2015. Dated at the City of Edmonton, Alberta this 9 th day of December, 2015. Eric F. Macklin J.C.Q.B.A. Appearances: Graham Johnson Dawson Stevens Duckett & Shaigec for the Accused/Applicant Wade Marke for the Crown/Respondent