R. v. B.W.P., 2018 QCCA 1910
Opinion
LSJPA — 1833 2018 QCCA 1910COURT OF APPEAL CANADAPROVINCE OF QUEBECREGISTRY OFMONTREAL No: 500-08-000520-181(760-03-013624-187) DATE: November 13, 2018 CORAM:THE HONOURABLE NICHOLAS KASIRER, J.A. MARTIN VAUCLAIR, J.A. MARK SCHRAGER, J.A. HER MAJESTY THE QUEENAPPELLANT – prosecutrixv. XRESPONDENT – accused JUDGMENT [1] The appellant seeks leave to appeal a sentence under the Youth Criminal Justice Act (“YCJA”) said to be illegal.
Indeed, theyouth justice court sentenced the young offender to a 135-day custody and supervision order involving 45 days of open custody, 45 daysof deferred custody and 45 days of community supervision. This was in addition to 45 days of pre-sentence custody already served. [2] Appellant argues, and respondent agrees, that section 42(13) YCJA does not authorize a deferred custody sentence to beconsecutive and, further, a custodial sentence under section 42(2)(
n) requires that two-thirds of the sentence be served in custody andone-third under supervision: see R. v. B.W.P.; R. v. B.V.N., 2006 SCC 27 , [2006] 1 S.C.R. 941, at para. 44. [3] Counsel requested a criminal facilitation conference and agreed to proceed with the appeal without a formal hearing. [4] The Court agrees that the sentence imposed is illegal. The sentence should have been a 135-day custody and supervision ordercomposed of 90 days of open custody and 45 days of community supervision.
Counsel also propose that the young offender, now onprobation and otherwise progressing positively in the rehabilitation process, should not return to custody. The Court agrees. FOR THESE REASONS, THE COURT: [5] GRANTS the motion to appeal the sentence; [6] ALLOWS the appeal in part; [7] VARIES the sentence under section 42(2)(
n) YCJA, in file 760-03-013624-187, to a period of custody and supervision of 135days consisting of a custodial portion of 90 days, to be served continuously in open custody, and 45 days of community supervision; [8] STAYS the execution of any remaining days of the period of custody and supervision; [9] MAINTAINS all other orders pronounced by the youth justice court in file 760-03-013624-187 NICHOLAS KASIRER, J.A. MARTIN VAUCLAIR, J.A. MARK SCHRAGER, J.A. Mtre Mario GirouxPROCUREUR DU DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALESFor the appellant
Mtre Marie-Josée Gingras CENTRE COMMUNAUTAIRE JURIDIQUE DE LA RIVE-SUD For the respondent
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