Her Majesty the Queen - v. -, 2013 SKPC 21

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2013 SKPC 021 Date: February 11, 2013 Information: Y313789 Location: Melfort _____________________________________________________________________________ Between: Her Majesty the Queen - and - R.L. Appearing: Mr. Tom Healey For the Crown Mr.

Brian Pfefferle For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . _____________________________________________________________________________ MANDATORY REVIEW DECISION B. MORGAN , J _____________________________________________________________________________ INTRODUCTION

[1] By decision dated February 2, 2012 (2012 SKPC 22 , 2012 SKPC 022), R.L., a young person, was sentenced to twoyears in custody, followed by a year under supervision in the community, in addition to the time he had already spent in custody, undersection 42(2)(

n) of the Youth Criminal Justice Act (YCJA). [2] The young person committed the offences when he was 16 years old; however, he was sentenced when he was 22, andpursuant to s. 89(1) of the Youth Criminal Justice Act (YCJA), he was committed to a provincial correctional facility for adults to servethe youth sentence. [3] At the annual review mandated by s. 94 of the YCJA, the issue was raised whether or not the Court could, on such a review,deal with the issue of statutory remission. That is the sole issue in this decision. POSITION OF THE PARTIES [4] Mr.

Pfefferle, on behalf of the young person, has provided a detailed memorandum setting out his position, which was ofgreat assistance.

I am parsing his argument somewhat, to give context to the issue. [5] Section 89(3) of the YCJA states that a young person serving a youth sentence in a provincial correctional facility for adultsor a penitentiary under s. 89(1) or (2) of the Act is basically dealt with under the Prisons and Reformatories Act (PRA) and theCorrections and Conditional Release Act (CCRA), “and any other statute, regulation or rule applicable in respect of prisoners oroffenders within the meaning of those Acts, statutes, regulations and rules ...”. [6] On a reading of the Corrections and Conditional Release Act, it would appear that the definition of an “offender” isrestricted to someone in the federal system, and need not be considered further.

However, under the Prisons and Reformatories Act, a“prisoner” specifically includes a young person if an order has been made respecting that young person under (among others) s. 89 of theYCJA, as is the case here. [7] After reviewing the remission rules in the PRA, and based on other material, Mr. Pfefferle advances the argument that ayoung person serving a youth sentence in a provincial correctional centre is entitled to remission.

Whether or not remission applies to thecustodial portion (that is, the 2/3 of the sentence that is served in custody) of the youth sentence, or the entire youth sentence (that is,including the 1/3 portion that would be served under supervision in the community), is a matter of

interpretation. For the purposes of thisdecision, I need not address that issue further, other than to note, as Mr. Pfefferle does, that in certain cases, the “remission datecalculated under adult rules and the date set for community supervision [under the YCJA] may be similar...”. [8] Mr. Healey, on behalf of the Crown, does not really take issue with that argument of Mr. Pfefferle.

The Crown’s position isthat “...in this case, as with every prisoner who has been sentenced to custody, the specifics as to remission time should be determinedby the people in charge of the relevant correctional facility”. [9] The powers available to this Court in conducting a mandatory review are set out in s. 94(19) of the YCJA, the relevantportions which allow the Court to: ...having regard to the needs of the young person and the interests of society, (

a) confirm the youth sentence; (

b) release the young person from custody and place the young person under conditional supervision in accordance with the procedureset out in s. 105, with any modifications that the circumstances require, for a period not exceeding the remainder of the youth sentencethat the young person is then serving; or (

c) if the provincial director so recommends, convert a youth sentence under paragraph 42(2)(

r) to a youth sentence under paragraph

42(2)(

q) if the offence was murder or to a youth sentence under paragraph 42(2)(

n) or (o), as the case may be, if the offence was an offence other than murder. [ 10 ] In this case, the report prepared for the mandatory review process contained the following recommendation: ... At this time, the Provincial Director does not recommend a release to Community Supervision, which is an option open to the court at this time.

The court will note R.’s good progress, to date, which will further reflected ( sic ) by placement changes within the Adult Correctional system to less restrictive and more pro-social settings. [ 11 ] The report set out a “gradual rehabilitation and reintegration plan” which involved a transfer from the correctional facility to a work camp, with a potential placement at some point to a Community Training Centre, in order to allow the young person to both continue his rehabilitation and increase his employment prospects upon his release. [ 12 ] At the conclusion of that review, the Court endorsed that plan, and confirmed the sentence, as “having regard to the needs of the young person and the interests of society”, that was seen to be the proper order.

The Court did reserve on the other issue raised, in order to allow counsel an opportunity to make submissions on the issue of remission. DISCUSSION AND ANALYSIS [ 13 ] In my view, s. 94 of the YCJA clearly contemplates a “review”, with clear statutory guidelines for the Court to consider in undertaking that review. The importance of adhering to the statutory framework set out in that

section is reinforced in R. v. R.K.M. , 2009 SKQB 51 , a decision of Mr. Justice Mills of the Saskatchewan Court of Queen’s Bench, wherein he stated: ... the decision is to be made having regard to the needs of the young person and the interests of society. [ 14 ] But the fundamental purpose of that review remains, that is, it is a review of a sentence already made. The plain wording of “review” carries with it the idea of an “assessment of something with the intention of instituting change if necessary” ( The Concise Oxford Dictionary ”, 10 th ed. (New York: Oxford University Press, 1999)).

Nothing in the use of the word “review” would incorporate a consideration of the availability and/or calculation of statutory remission. [ 15 ] That

interpretation would seem to square with the purpose of a review under s. 28 of the Young Offenders Act , the precursor to the YCJA . (For a review of the similarities between a s. 94 YCJA review, and a s. 28 YOA review, see R. v. R.K.M. , supra. ) In setting out the purpose of a s. 28 YOA review, Kukurin J. held as follows in R. v. G. (A.) , 2002 CarswellOnt 2264 (Ont. C.J.) , @ para. 38:

Section 28 uses the word “ review ” in the sense of a re-examination of a decision in light of information that has become available only since that decision was made. In short, the review considers some change and has to decide whether that change is sufficient to change the disposition. [ 16 ] On a reading of the YCJA, I can find nothing in the wording or intent of that Act to vest this Court with authority to deal with the issue of remission, either by ordering the authorities to apply it, or in somehow calculating it myself, on a

section 94 review. It may be that Mr. Pfefferle’s argument is correct, and that remission should apply. However, that is specifically not a question I have to answer in this decision, and I decline to go further with that question other than to point out that, if statutory remission in fact is to be applied, and an aggrieved party feels that he or she has been deprived of the benefit of it, it would seem that the proper course of action would be to institute some form of action in the appropriate forum to compel the authorities to apply it. That was the route followed in J.P. v.

Green , 2009 BCSC 943 , an application for a declaration that a young offender in a case similar to this one was entitled to earn remission under the PRA , coupled with an application for an order directing the authorities to determine the number of days of remission and to credit it to him. But that is an entirely different matter than having a youth justice court address the issue on a

section 94 review.

[ 17 ] Therefore, with respect to the specific question that was raised as part of the review process, I conclude that, upon a mandatory review under s. 94 of the Youth Criminal Justice Act , this Court has no jurisdiction to deal with questions respecting remission, or how it should be calculated. Dated at Melfort, Saskatchewan this 11 th day of February, 2013. B. Morgan, J