2015 QCCA 1242, 2015 QCCA 1242

Unofficial English Translation LSJPA — 1523 2015 QCCA 1242 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-08-000460-149 (700-03-018421-130) DATE: July 27, 2015 CORAM: THE HONOURABLE MARIE ST-PIERRE, J.A. MARTIN VAUCLAIR, J.A. ROBERT M. MAINVILLE, J.A. [INTERVENER 1], in his capacity as delegate of the provincial director of youth centres A APPELLANT - Applicant v. X RESPONDENT - Defendant JUDGMENT [ 1 ] The appellant appeals from a judgment rendered on April 9, 2014, by the Court of Quebec, Youth Division, District A (the Honourable Élaine Bolduc), which, in accordance with paragraph 109(2) (

c) of the Youth Criminal Justice Act , ordered the respondent to serve the remainder of the sentence imposed on February 12, 2014, as if it were a custody and supervision order. [ 2 ] For the reasons of Mainville, J.A., with which St-Pierre and Vauclair, JJ.A. agree, THE COURT : [ 3 ] ALLOWS the appeal; [ 4 ] SETS ASIDE in part the judgment of the Court of Quebec rendered with respect to the respondent on April 9, 2014, in case 700-03-018421-130; [ 5 ] REPLACES the Court of Quebec order made with respect to the respondent on April 9, 2014, with an order requiring the respondent to serve the remainder of the sentence as if it were a custody and supervision order under paragraph 42(2) (

n) of the Youth Criminal Justice Act , that is, 42 days in custody beginning April 9, 2014, and 22 subsequent days under supervision in the community. [ 6 ] STAYS the enforcement of the additional day of custody the respondent would have to serve as a result of this new order. MARIE ST-PIERRE, J.A. MARTIN VAUCLAIR, J.A. ROBERT M. MAINVILLE, J.A. Mtre Mélinda Lachance Mtre Justine Dubé-Simard Youth centre A legal department For the appellant Mtre Mélanie Martel For the respondent

Hearing date: June 15, 2015 REASONS OF MAINVILLE J.A. [ 7 ] In its paragraph 42(2) ( p ), the Youth Criminal Justice Act [1] (" YCJA ") provides that a court may impose a sanction on a young person in the form of a deferred custody and supervision order subject to certain conditions set forth in the Act. [2] If the concerned provincial director has reasonable grounds to believe that a young person has breached one of these conditions, he may order that the young person be remanded to custody and brought before the court. [3] Under paragraph 109(2)(

c) of the YCJA , the youth justice court may then order the young person to serve the remainder of the order as if it were a custody and supervision order under paragraph 42(2) (

n) of this Act . [ 8 ] When making such an order under paragraph 109(2)( c ), must the youth justice court take into account the period during which the young person was remanded to custody by the provincial director? That is the question raised by this appeal. The context [ 9 ] On February 12, 2014, Jean La Rue, J.C.Q. of the Youth Division of the Court of Quebec, imposed a 4-month custody and supervision order on the youth respondent, which was deferred in accordance with paragraph 42(2) (

p) of the YCJA , the whole subject to certain conditions set forth in subsections 105(2) and (3) of this Act . [ 10 ] Because the youth respondent breached some of the conditions, the provincial director proceeded to remand him into custody on April 4, 2014, in accordance with subsection 42(6) and

section 106 of the YCJA . On April 9, 2014, the case was referred to Élaine Bolduc J.C.Q., of the Youth Division. At the time, the youth respondent had served five days in custody following the provincial director’s decision. [ 11 ] Under paragraph 109(2)(

c) of the YCJA , the judge ordered the youth respondent to serve the remainder of his sentence as if it were a custody and supervision order under paragraph 42(2) (

n) of the YCJA . [ 12 ] Two thirds of such a custody and supervision order is served in custody and one third is served under supervision in the community. [4] In this regard, two separate calculation methods were submitted to the judge: (

a) According to the first method, the remainder of the order should be calculated from April 9, 2014 – the date of the decision under paragraph 109(2) (

c) of the YCJA – to June 11, 2014 – the date on which the original order ended. There are therefore 64 days remaining to be served, two thirds (or 42 days) in custody and one third (or 22 days) under supervision in the community. [5] According to this method, the youth respondent's time in custody under

section 106 of the YCJA should not be taken into account. This is the method supported by the appellant. (

b) According to the second method, the remainder of the order should be calculated from April 4, 2014 – the date on which the respondent was remanded into custody under

section 106 of the YCJA – to June 11, 2014 – the date on which the original order ended. There are therefore 69 days remaining to be served, two thirds (or 46 days) in custody and one third (or 23 days) under supervision in the community. Since the order is to be calculated from April 4, 2014, the five days in custody under

section 106 of the YCJA are taken into account, which reduces by one day the actual period spent in custody compared with the first proposed method. This was the method then supported by the youth respondent. [ 13 ] The judge decided to apply the second method, that is, [TRANSLATION] "forty-six (46) days in secure custody and twenty- three (23) days under supervision, beginning April fourth, two thousand and fourteen (April 4, 2014)". [6] The judge relied on

section 107 of the YCJA , which provides that "until the young person is apprehended, the young person is deemed not to be continuing to serve the youth sentence the young person is then serving". Applying a contrario reasoning, the judge concluded that in light of

section 107, the young person started to serve his youth sentence from the time he was taken into custody by the provincial director. [7] The positions of the parties [ 14 ] The appellant relies primarily on (

a) the judgments of our Court stating that a judge acting under paragraph 109(2) (

c) of the YCJA must order a young person to serve the remainder of his or her sentence from the time of the order ; [8] and (

b) the wording of subsection 42(12) of the YCJA which provides that a "youth sentence or any part of it comes into force on the date on which it is imposed or on any later date that the youth justice court specifies", which, in this case, is April 9, 2014. [ 15 ] The youth respondent invokes the general principles of rehabilitation and reintegration underlying the YCJA and concludes that Parliament's intention could not have been to have a young person serve additional days in custody because of administrative and judicial delays in processing the case. [ 16 ] While recognizing that the trial judge committed an error of law by making an order that came into force before the date of her judgment, contrary to subsection 42(12) of the YCJA , the youth respondent submits that the order could nevertheless take into account the time spent in custody under

section 106 of the YCJA . This would be a form of "pre-sentence detention" which a court must consider in sentencing a young person under paragraph 38(3) (

d) of the YCJA . Relevant legislative provisions [ 17 ] The relevant provisions of the YCJA for the purposes of this appeal are sections, subsections and paragraphs 38(3) ( d ), 39(8) , 42(2) (

n) and ( p ), 42(6) , 42(12) , 106 , 107(1) , 108 , 109(1) , 109(2) (

c) and 109(3) , which are reproduced in the appendix to these reasons.

Analysis [ 18 ] I note that the question raised by this appeal has not been dealt with to date by our Court, nor does it seem to have been ruled on by other appellate courts in Canada. [ 19 ] At most, our Court raised the question without answering it in St-Denis, ès qualités v. B.(K.) . [9] In that case, our Court decided that under paragraph 109(2) (

c) of the YCJA , it is the entire remainder of a deferred custody and supervision order (and not a part) that must be served by a young person. The Court also decided that the proportion of two thirds in custody and one third under supervision in the community applies to this remainder and not to the original order. [10] [ 20 ] However, and contrary to the appellant's claims, by ruling in this manner, our Court did not exclude the possibility of deducting from this order the time spent in custody under

section 106 of the Act : [11] [TRANSLATION] Lastly, the Court examined, during the hearing, the need to reduce the period in custody by the four days during which the respondent was detained following the decision of the provincial director [under

section 106 of the YCJA ] pending the decision of the court [under paragraph 109(2) ( c )]. In light of the explanations given on the circumstances of this detention, however, the court is of the view that this appeal is not an appropriate case to determine this question. [ 21 ] We must, however, now answer this question. [ 22 ] The appellant rightly maintains that an order under paragraph 109(2)(

c) requiring a young person to serve the remainder of the order as if it were a custody and supervision order under paragraph 42(2) (

n) of the YCJA cannot be made retroactive. This flows from subsection 42(12) of the Act which clearly establishes that a youth sentence or any part of it comes into force on the date on which it is imposed or on any later date that the youth justice court specifies. The judge could not, therefore, make her April 9, 2014, order retroactive to April 4, 2014. [ 23 ] This conclusion does not, however, entirely settle the main question that concerns us. [ 24 ] Subsection 109(3) specifically provides that all provisions of the YCJA governing orders under paragraph 42(2) (

n) apply in respect of a deferred order. Of course, this includes the provisions of paragraph 42(2)(

n) whereby an order is apportioned between a custody period (two thirds) and a period of supervision in the community (one third). [ 25 ] However, subsection 109(3) has a broader scope since it provides that all the provisions of the Act governing such orders also apply in such circumstances. Subsection 38(3) (

d) of the YCJA stipulates that in determining a youth sentence, the court must take into account the time spent in detention as a result of the offence. [ 26 ] Do these provisions authorize a court that makes an order under subsection 109(2) (

c) to take into account the time spent in custody by a young person under

section 106 in order to reduce the custody period? This question must be answered in the negative for the following reasons. [ 27 ] Remand to custody, by the combined effect of subsection 42(6) and

section 106 of the YCJA , results from the provincial director's belief that a young person has breached a condition of the young person's deferred sentence. Moreover, the very purpose of this remand to custody is to allow for a review of the case by the provincial director under

section 108 of the Act and, if necessary, by the court under

section 109. [ 28 ] Nevertheless, the period during which the young person is in custody under

section 106 of the YCJA is part of the sentence.

Section 107 of the YCJA provides that a young person is deemed not to be continuing to serve his or her youth sentence during the period between the issuance of a warrant for the young person's apprehension and the time when he or she is actually apprehended. However, as soon as the young person is apprehended, the youth sentence continues to be served, including for any period during which the young person is remanded to custody under

section 106 of the Act . [ 29 ] The time spent in custody pursuant to

section 106 of the YCJA is therefore conceptually distinct from the time spent in detention contemplated by paragraph 38(3)

d) of the YCJA . The period of pre-sentence detention mentioned in paragraph 38(3)

d) is not part of the sentence following the teachings of the Supreme Court of Canada in R. v. Mathieu . [12] To the contrary, the young person continues to serve his or her sentence when remanded to custody under

section 106, even if the manner in which this sentence is served is, in fact, altered by this remand. [ 30 ] The court cannot therefore take into account, within the meaning of paragraph 38(3) (

d) of the YCJA , the time spent in custody because this is a period during which the young person is actually serving his or her sentence. [ 31 ] In addition to this conceptual distinction, specific legislative constraints prevent a court making an order under subsection 109(2) (

c) of the YCJA from taking into account the time spent in custody under

section 106 . [ 32 ] First, paragraph 109(2)(

c) expressly provides that it is "the remainder of the order" that must be served "as if it were a custody and supervision order under paragraph 42(2) ( n )". The court cannot therefore reduce "the remainder of the order" by taking into account time spent in custody under

section 106 without violating this legislative provision. [ 33 ] Second, the court also could not convert days of custody to days under supervision to take into account the time spent in custody without violating subsection 39(8) of the YCJA . This subsection provides that the court determines the length of a youth sentence that includes a custodial portion without taking into consideration the fact that the supervision portion of the sentence may not be served in custody.

In light of this principle, the apportioning of the "remainder of the order" – two thirds in custody and one third under supervision – must be complied with. This principle therefore does not allow a judge making an order under paragraph 109(2)(

c) to

take into account the time spent in custody under

section 106 to change the apportioning of the days in custody and under supervision included in the "remainder of the order". [ 34 ] In the case at bar, the order made with respect to the respondent under paragraph 109(2)(

c) is erroneous in law and should be set aside. [ 35 ] Although this is not the factual framework here, it is nevertheless useful to point out that if a warrant authorizing the apprehension is issued under subsection 107(1) of the YCJA and the young person is apprehended later, that young person, until his or her apprehension, is deemed not to be serving the youth sentence. The "remainder of the order" under paragraph 109(2) (

c) of the YCJA will then be calculated without considering the period between the written warrant of apprehension being issued and the actual apprehension of the young person. [ 36 ] In light of these findings of law, the issue now is to determine the judgment that our Court should render, considering the circumstances of this case. [ 37 ] The youth respondent has already served his sentence and there would remain to be served only one day in custody if the appeal is allowed as I propose.

During the hearing of this appeal, counsel for the appellant indicated that the purpose of this appeal was not to obtain an additional penalty against the respondent, but rather to have a legal principle determined with regard to the application of the law. [ 38 ] In R. v. Proulx , [13] R. v. R.N.S. [14] and R. v.

R.A.R. , [15] the Supreme Court of Canada stayed the enforcement of a sentence of incarceration imposed following an appeal because the concerned individuals had served the sentences imposed by the lower courts and the Crown had conceded during closing argument that it was not seeking any additional penalty.

In fact, the power of an appellate court to stay the enforcement of an additional sentence of incarceration imposed following an appeal is well established, [16] including under the YCJA . [17] [ 39 ] Considering the particular circumstances of this case, the appellant's concessions, and the fact that only one additional day in custody is at issue, I would stay the enforcement of the additional day in custody. [ 40 ] I would therefore allow the appeal, I would set aside the order of Élaine Bolduc J. of the Court of Quebec made with respect to the respondent on April 9, 2014, and I would replace it with an order requiring the respondent to serve the remainder of the order as if it were a custody and supervision order under paragraph 42(2)

n) of the YCJA , i.e. 42 days in custody beginning April 9, 2014 and 22 subsequent days under supervision in the community. However, I would stay the enforcement of the additional day in custody resulting from this order. ROBERT M. MAINVILLE, J.A. APPENDIX RELEVANT PROVISIONS OF THE YCJA 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; 38.

(3) Le tribunal détermine la peine spécifique à imposer en tenant également compte: […]

d) du temps passé en détention par suite de l’infraction;

(8) In determining the length of a youth sentence that includes a custodial portion, a youth justice court shall be guided by the purpose and principles set out in

section 38, and shall not take into consideration the fact that the supervision portion of the sentence may not be served in custody and that the sentence may be reviewed by the court under

section 94. 39.

(8) Il fixe la durée de la peine spécifique comportant une période de garde en tenant compte des principes et objectif énoncés à l’article 38, mais sans tenir compte du fait que la période de surveillance de la peine peut ne pas être purgée sous garde et que la peine peut faire l’objet de l’examen prévu à l’article 94. 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 (…): 42.

(2) Sous réserve des autres dispositions de la présente loi, dans le cas où il déclare un adolescent coupable d’une infraction et lui impose une peine spécifique, le tribunal lui impose l’une des sanctions ci-après en la combinant éventuellement avec une ou plusieurs autres compatibles entre elles […]: (

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 or, if the young person is found guilty of an offence for which the punishment provided by the Criminal Code or any other Act of Parliament is imprisonment for life, three years from the date of coming into force of the order; …

n) l’imposition, par une ordonnance de placement et de surveillance, d’une peine maximale de deux ans à compter de sa mise à exécution ou, dans le cas où l’adolescent est déclaré coupable d’une infraction passible de l’emprisonnement à vie prévue par le Code criminel ou par toute autre loi fédérale, d’une peine maximale de trois ans à compter de sa mise à exécution, dont une période est purgée sous garde, laquelle est suivie d’une autre — dont la durée est la moitié de la première — à purger, sous réserve des articles 97 (conditions obligatoires) et 98 (maintien sous garde), sous surveillance au sein de la collectivité; […] (

p) subject to subsection (5), make a deferred custody and supervision order that is for a specified period not exceeding six months, subject to the conditions set out in subsection 105(2), and to any conditions set out in subsection 105(3) that the court considers appropriate;

p) sous réserve du paragraphe (5), l’assujettissement de l’adolescent à une ordonnance de placement et de surveillance d’une période d’au plus six mois, dont l’application est différée, sous réserve des conditions mentionnées au paragraphe 105(2), et de celles mentionnées au paragraphe 105(3) que le tribunal estime indiquées; 42.

(6) Sections 106 to 109 (suspension of conditional supervision) apply to a breach of a deferred custody and supervision order made under paragraph (2)(

p) as if the breach were a breach of an order for conditional supervision made under subsection 105(1) and, for the purposes of sections 106 to 109, supervision under a deferred custody and supervision order is deemed to be conditional supervision. 42.

(6) Les articles 106 à 109 (suspension de la liberté sous condition) s’appliquent à la violation d’une condition d’une ordonnance rendue en vertu de l’alinéa

(2) p) comme s’il s’agissait de la violation d’une condition d’une ordonnance rendue en vertu du paragraphe 105(1), la liberté au

titre de l’ordonnance différée de placement et de surveillance étant assimilée à la liberté sous condition. 42.

(12) A youth sentence or any part of it comes into force on the date on which it is imposed or on any later date that the youth justice court specifies. 42.

(12) La peine spécifique, ou toute

partie de celle-ci, est exécutoire à compter de la date de son prononcé ou de la date ultérieure fixée par le tribunal.

106. If the provincial director has reasonable grounds to believe that a young person has breached or is about to breach a condition of an order made under subsection 105(1), the provincial director may, in writing, (

a) suspend the conditional supervision; and (

b) order that the young person be remanded to any youth custody facility that the provincial director considers appropriate until a review is conducted under

section 108 and, if applicable,

section 109. 106. S’il a des motifs raisonnables de croire qu’un adolescent enfreint — ou est sur le point d’enfreindre — une condition de l’ordonnance rendue en vertu du paragraphe 105(1), le directeur provincial peut, par écrit:

a) suspendre la liberté sous condition;

b) ordonner la mise sous garde de l’adolescent au lieu de garde que le directeur estime indiqué jusqu’à ce que soit effectué l’examen visé à l’article 108 et, le cas échéant, à l’article 109. 107.

(1) If the conditional supervision of a young person is suspended under

section 106 , the provincial director may issue a warrant in writing, authorizing the apprehension of the young person and, until the young person is apprehended, the young person is deemed not to be continuing to serve the youth sentence the young person is then serving. 107.

(1) Le directeur provincial peut, par mandat écrit, autoriser l’arrestation de l’adolescent dont la liberté sous condition est suspendue conformément à

article 106; l’adolescent est réputé, jusqu’à son arrestation, ne pas être en train de purger sa peine spécifique. 108. Without delay after the remand to custody of a young person whose conditional supervision has been suspended under

section 106 , or without delay after being informed of the arrest of such a young person, the provincial director shall review the case and, within forty-eight hours, cancel the suspension of the conditional supervision or refer the case to the youth justice court for a review under

section 109. 108. Aussitôt après la mise sous garde de l’adolescent dont la liberté sous condition a été suspendue conformément à l'

article 106 ou aussitôt après avoir été informé de l’arrestation de l’adolescent, le directeur provincial réexamine le cas et, dans les quarante-huit heures, soit annule la suspension, soit renvoie l’affaire devant le tribunal pour adolescents pour examen au

titre de l’article 109.

(1) If the case of a young person is referred to the youth justice court under

section 108, the provincial director shall, without delay, cause the young person to be brought before the youth justice court, and the youth justice court shall, after giving the young person an opportunity to be heard, (

a) if the court is not satisfied on reasonable grounds that the young person has breached or was about to breach a condition of the conditional supervision, cancel the suspension of the conditional supervision; or (

b) if the court is satisfied on reasonable grounds that the young person has breached or was about to breach a condition of the conditional supervision, review the decision of the provincial director to suspend the conditional supervision and make an order under subsection (2). 109.

(1) S’il y a renvoi de l’affaire conformément à l'article 108, le directeur doit sans délai faire amener l’adolescent devant le tribunal; celui-ci, après avoir donné à l’adolescent l’occasion de se faire entendre, doit:

a) soit annuler la suspension de la liberté sous condition s’il n’est pas convaincu qu’il existe des motifs raisonnables de croire que l’adolescent en a enfreint - ou était sur le point d’en enfreindre - une condition;

b) soit examiner la décision du directeur provincial de suspendre la liberté sous condition et rendre une ordonnance en vertu du paragraphe (2) s’il est convaincu qu’il existe des motifs raisonnables de croire que l’adolescent a enfreint - ou était sur le point d’enfreindre - une condition de sa mise en liberté. 109.

(2) On completion of a review under subsection (1), the youth justice court shall order … (

c) in the case of a deferred custody and supervision order made under paragraph 42(2)(p), that the young person serve the remainder of the order as if it were a custody and supervision order under paragraph 42(2) (n).

(3) After a court has made a direction under paragraph (2)(c), the provisions of this Act applicable to orders under paragraph 42(2) (

n) apply in respect of the deferred custody and supervision order. 109.

(2) Au terme de son examen, le tribunal pour adolescents doit, par ordonnance: […]

c) soit, dans le cas d’un adolescent assujetti à une ordonnance différée de placement et de surveillance prévue à l’alinéa 42(2)p), lui enjoindre de purger le reste de sa peine comme si celle-ci était une ordonnance de placement sous garde et de surveillance prévue à l’alinéa 42(2)n).

(3) En cas de prononcé de l’ordonnance visée à l’alinéa (2)c), l’ordonnance différée de placement sous garde et de surveillance est régie par les dispositions de la présente loi régissant les ordonnances rendues en vertu de l’ alinéa 42(2) n).