R. v. K.(C.), 2014 ONCJ 512

Citation: R. v. K.(C.) , 2014 ONCJ 512 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario B E T W E E N : HER MAJESTY THE QUEEN -and- C.K.1 and C.K.2 REASONS FOR JUDGMENT Duncan J. 1 . These are applications pursuant to section 94(1) of the YCJA for the annual review of youth sentences imposed on June 30 2006 for the offence of first degree murder. At that time the defendants were sentenced to the maximum youth sentence of 10 years comprised of 6 years custody followed by 4 years conditional supervision as provided in section 42(2)q. That sentence expires in June 2016. 2 .

The defendants have been before me annually for review since 2007. While in custody they both made remarkable positive strides towards rehabilitation. After release from custody [1] they continued to return for annual reviews under 94(1). Their continued outstanding progress was reported to the court and the conditions of supervision were modified usually to reflect any change in circumstances and the decreasing need for restraints and supervision. The present Orders are not onerous and contain only the following conditions: 1.

Attend and participate in therapeutic counselling or treatment as recommended by the youth probation officer on an “as needed” basis 2. Not to possess, inject or consume any substance controlled or prohibited under the Controlled Drugs and Substances Act except with a valid prescription from a medical doctor or other authorized professional 3 . Not to have contact directly or indirectly with JF. 3. The defendants now seek to have the conditional supervision order - and therefore the sentence itself – terminated, some two years short of its present expiry date. Jurisdiction: 4 .

An initial question of jurisdiction to make such an order must be addressed. The relevant provisions of the YCJA are as follows:

(1) When a young person is committed to custody pursuant to a youth sentence under paragraph 42(2)( n ), ( o ), (

q) or (

r) for a period exceeding one year, the provincial director of the province in which the young person is held in custody shall cause the young person to be brought before the youth justice court without delay at the end of one year from the date of the most recent youth sentence imposed in respect of the offence — and at the end of every subsequent year from that date — and the youth justice court shall review the youth sentence. …….

(19) When a youth justice court reviews under this

section a youth sentence imposed in respect of a young person, it may, after giving the young person, a parent of the young person, the Attorney General and the provincial director an opportunity to be heard, 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 procedure set out in

section 105, with any modifications that the circumstances require, for a period not exceeding the remainder of the youth sentence that 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. 5 . Even after the defendants’ release from custody, the reviews have been brought under this section, the thinking being that because the defendants had been committed to custody with a youth custody sentence under section 42(2)q, they fell within the terms of subsection (1). No other

section was applicable. Review of a non-custodial sentence under s59 plainly did not apply and the Act has no specific provision for review and variation of the terms of conditional supervision except when there has been a breach: s 109(2). 6 . On the review hearing of CK1 in 2009, the question of jurisdiction to vary terms of conditional supervision was raised. It was unnecessary to finally determine the issue because at that time the court was not dealing with such a variation but rather a release from actual custody.

However by way of a preliminary view on the issue I wrote in unreported reasons dated June 22 2009: 18. The Crown submits that there is no mechanism under the YCJA to alter or vary the terms of a conditional supervision order, once made, aside from proceedings following an allegation of breach……. 19. The Crown appears to be correct in the submission that there is no explicit power in the YCJA to vary the terms of conditional supervision, except on breach proceedings : s.109(2)(

a) YCJA . Once again, as discussed in my earlier judgment with respect to the availability of reviews, the YCJA , for all its verbosity, has omitted or left to implication an important aspect of post sentence procedure. It is unimaginable that the omission was intentional and that there was a considered decision to provide for no power to vary. 20. My preliminary view is that such power is either inherent in the nature of the Order or to be implied from the rest of the statute.

As for being inherent, such power is commonly if not universally found in statutes providing for court orders that govern ongoing, potentially changing situations, such as probation orders, bail orders or support orders. Arguably, even absent express statutory authority to vary, it is inherent in the nature of such orders that they can be varied by the court that made them on cause being shown and procedural requirements being met. 21. Apart from inherent authority, the YCJA by implication supports a power to vary. It is a mandatory condition of a conditional supervision Order under

section 105 that the youth appear before the court when required to do so: s.105(2)(b). This dispels any notion of functus and confirms the court’s ongoing supervision of the youth. By implication, if the youth is required to appear, the court must be empowered to then do something with her and in particular the order made in relation to her. Further, and perhaps most directly, the YCJA

section 95 deems a conditional supervision order under

section 105 to be a “youth sentence” for the purpose of

section 94 reviews. Accordingly a conditional supervision Order made either at the end of the custodial portion of a sentence or made following a review under

section 94 appears to get recycled through

section 94 again and may later be reviewed by the court that made the Order. [2] 7 . On subsequent reviews, when variation of conditional supervision was central to the proceeding, the Crown did not take any further issue with this preliminary view. Accordingly, I see no reason to depart from it now and affirm my view that the jurisdiction to vary the terms of a conditional supervision order can be found by implication from the words of the statute or by virtue of the inherent jurisdiction of a court that is not functus, to vary the terms of its own order. 8 .

But on this hearing, while the Crown concedes that there is jurisdiction to vary, it does not concede authority to go so far as to terminate. It is pointed out that when Parliament has intended to give a power to decrease the duration of an order or to outright terminate, it has said so in no uncertain terms, as with probation orders: s 732.2(3)(

c) Criminal Code ; and non-custodial youth dispositions: S 59(4)

(7) YCJA. I cannot agree. It seems to me that the underlined phrase from subparagraph b above – “ for a period not

exceeding the remainder of the youth sentence that the young person is then serving” - clearly implies a discretion in the reviewing court to set not just the conditions but also the period of supervision and that such period can be less than the remainder of the youth sentence. If such a lesser period could have been set at the first successful review and if, as is conceded, there is power to vary a supervision order, then I think that it follows that there is jurisdiction now to reduce the period of the supervision.

While the clear words granting power to terminate used elsewhere in the Code and the YCJA are not present, that is hardly surprising since the Act does not provide for variation at all. Once it is accepted that a power of variation is implicit, then I think it follows that a power to terminate is included. 9 . As a bit of an aside, I think there is another way of looking at this. With the benefit of the experience gained in this case, I am inclined to think that we have been wrong in treating these post-custody applications as reviews under section 94(1) at all.

On this view, the words “is committed to custody” do not refer to the original sentence but to the state of affairs at the time of review. Once out of custody, the

section no longer applies. Certainly this

interpretation fits better with the rest of the section, particularly subsection 19. Applications thereafter to vary the terms or duration of conditional supervision should be seen as invoking the court’s inherent authority to adjust its own order in accordance with changed circumstances, including decreasing it’s duration, as discussed above. The result is pretty much the same; the only difference is that there is no absolute right to an annual review. Rather it is an application brought, if at all, at the option of the defendant, the Provincial Director or the Crown. [3] 10 . On either view, I conclude that I have jurisdiction to make the order requested. Should the Supervision order(

s) be terminated? 11 . The defendants acknowledge that the Orders are not onerous. They seek termination in order to have the record access period begin to run its five year course: s 119 (2)(

h) YCJA . Both have done exceptionally well in their rehabilitation. CK1 is doing post-graduate work in science and will be required to travel outside of Canada for seminars, conferences and possibly employment. CK2 is married, has a child and is in second year of law school. Both want to be over the record access period as soon as possible so they can pursue their careers and complete their rehabilitation. Their counsel submit that they have done so exceptionally well that they have earned and deserve this small accommodation. 12 .

The Crown does not dispute that the defendants have done well but cautions against placing too much emphasis on their performance arguing that they have simply done what they were supposed to do. Further, he submits that early termination will detract from the accountability that is the core principle in sentencing of youth and was the touchstone of the original sentence imposed. 13 . There is something to be said for both positions.

On balance, however, I think that the defendants’ rehabilitative efforts have been more than just what is expected of all offenders – in both cases those efforts have been exceptional. Further, emphasis on rehabilitation and re-integration is a central principle of the Act and the sentencing and review scheme in particular is designed to reward rehabilitation and promote that re-integration by ameliorating punishments which were appropriate when given. 14 .

Balancing the competing principles under the Act, I think that although some measure of accountability is maintained by holding the defendants to the original sentence length, it is a measure that is rather minimal and largely symbolic. On the other hand, the impediment to re-integration that will persist during the unalterable access period is very real and potentially significant. To put it simply, denial of these applications would do more harm to one principle than good for the other. 15 .

Accordingly, giving some additional weight to accountability, I direct that the defendants remain on conditional supervision until December 15 2014 exactly 9 years from the finding of guilt, the cancellation of their judicial interim release and the effective start of their punishment for their offence. If there has been no breach, the community supervision will end on that date. September 30 2014 B Duncan J

M Cantelon for the Crown R MacDonald for CK1 B Davies for CK2