r v. X, 2015 QCCA 1243

LSJPA — 1524 2015 QCCA 1243 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-08-000478-158 (525-03-056685-134) (525-03-056711-138) (525-03-056712-136) DATE: July 27, 2015 CORAM: THE HONOURABLE MARIE ST-PIERRE, J.A. MARTIN VAUCLAIR, J.A. ROBERT M. MAINVILLE, J.A. HER MAJESTY THE QUEEN APPELLANT - Prosecutor v.

X RESPONDENT - Accused JUDGMENT [ 1 ] The Crown appeals a sentence issued on January 16, 2015 by the Court of Quebec, District A (the Honorable Madam Justice Michèle Lefebvre) with respect to the respondent X in dockets 525-03-056685-134, 525-03-056711-138 and 525-03-056712-136; [ 2 ] For the reasons of Mainville J.A., with which St-Pierre J.A. and Vauclair J.A. agree, THE COURT: [ 3 ] ALLOWS the appeal; [ 4 ] SETS ASIDE the custody and supervision order made on January 16, 2015 by the Court of Quebec with respect to the respondent X; [ 5 ] IMPOSES , under paragraph 42(2) (

n) of the Youth Criminal Justice Act , a custody and supervision order with respect to the respondent X of 7 months custody and supervision, of which two thirds are to be served in custody and one third under supervision in the community subject to the same conditions as determined by the Court of Quebec on January 16, 2015; [ 6 ] LEAVES UNDISTURBED the other orders made on January 16, 2015 by the Court of Quebec with respect to the respondent X. MARIE ST-PIERRE, J.A. MARTIN VAUCLAIR, J.A. ROBERT M. MAINVILLE, J.A. Mtre Mario Giroux Criminal and Penal Prosecuting Attorney For the Appellant Mtre Antonio Perfetto For the Respondent Date of hearing: June 19, 2015

REASONS OF MAINVILLE, J.A. [ 7 ] The issue raised by this appeal is how time spent in pre-sentence custody may be taken into account when a judge makes a custody and supervision order under paragraph 42(2) (

n) of the Youth Criminal Justice Act , S.C. 2002, c. 1 (“ YCJA ”). [ 8 ] This appeal was heard at the same time as the appeal in R. v. X which raises the same issue. Reasons have been issued concurrently by this Court in both appeals. Context [ 9 ] The respondent in this appeal, X, was found guilty of sexual assault under paragraph 272(1) (

d) of the Criminal Code , and subsequently pleaded guilty to charges of robbery under paragraph 344(1) (

b) and of conspiring to commit a robbery under paragraph 465(1) (

c) of the Criminal Code . He also pleaded guilty to two offences of failing to comply with a youth sentence under

section 137 of the YCJA . [ 10 ] The respondent was sentenced on January 16, 2015 by Madam Justice Michèle Lefebvre of the Court of Québec. At the time of sentencing, and as a result of the offences, the respondent had already spent 14 months in custody prior to sentencing. The judge’s sentencing order reads as follows: IMPOSES on X, under paragraph 42(2) (

n) YCJA , a period of custody and supervision of 21 months consisting of a custodial portion of 14 months to be served continuously in secure custody already served, followed by a period of 7 months to be served under supervision in the community, from today in records 525-03-056685-134 [sexual assault], 525-03-056712-136 [robbery and conspiracy to commit robbery]; During that period of supervision, X must comply with the conditions set out in subsection 97(1) YCJA , appended to this order, and with the additional conditions that may be set by the provincial director (subs. 97(2)); IMPOSES on X, under paragraph 42(2) (

k) YCJA , a probation period of 6 months as of to ( sic ) date of expiry of the supervision period, on the conditions ordered at the hearing, a copy of which will be given to the young person (subs. 56(1)(2)

(3) YCJA); in the records 525-03-056685-134 [sexual assault], 525-03-056712-136 [robbery and conspiracy to commit robbery]; IMPOSES on X, under paragraph 42(2) (

k) YCJA , a probation period (sic) [1] of as today, on the conditions ordered at the hearing, a copy of which will be given to the young person (subs. 56(1)(2)

(3) YCJA); in the record 525-03-056711-138 [failing to comply with a youth sentence]; PROHIBITS as of today, under subsection 51(1) YCJA , X from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for the period ending 5 years in the records 525- 03-056685-134 [sexual assault], 525-03-056712-136 [robbery and conspiracy to commit robbery]; [ 11 ] The judge explained as follows how she took into account the 14 months spent in custody prior to sentencing: So I will order for both of you a period of custody and supervision of twenty-one (21) months, to be served in the following manner.

So fourteen (14) months of closed custody followed by seven (7) months of supervision in the community. I shall take into consideration the fourteen (14) months of detention that you have already served and I shall deduct that period from the custody portion of your sentence. So therefore you will start the seven (7) month supervision period today, subject to the conditions enumerated in

section 97 of the Youth Criminal Justice Act and also the specific conditions that were suggested by maître O’Hayon. [ 12 ] The Crown sought leave to appeal the sentence on the ground that the judge erred in law by deducting from the custodial part of the custody and supervision sentence the period spent in custody prior to sentencing. Leave to appeal was granted by a judge of this Court on February 19, 2015. An order suspending the sentence pending the result of the appeal was also issued on that day.

Pertinent provisions of the YCJA [ 13 ] The pertinent legislative provisions for the purposes of this appeal are paragraph 38(3) ( d ), subsection 39(8) , paragraph 42(2) ( k ), paragraph 42(2)(

n) and subsection 42(12) of the YCJA , which read as follows: 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 […]: (

k) place the young person on probation in accordance with sections 55 and 56 (conditions and other matters related to probation orders) for a specified period not exceeding two years; […] (

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; 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 […]:

k) une période déterminée de probation ne dépassant pas deux ans, en conformité avec les articles 55 (conditions de l’ordonnance) et 56 (autres matières relatives à l’ordonnance); […]

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; 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. Analysis [ 14 ] There have been many decisions by courts of appeal of other Canadian provinces concerning the trea tment of pre-sentence custody in a youth offender sentencing context . The following principles flow from these decisions: a. pre-sentence custody does not form part of the sentence, but is an element which is taken into account to determine the appropriate sentence [2] ; b. while a youth court judge must take pre-sentence custody into account as required under paragraph 38(3) (

d) of the YCJA when imposing a sentence on a young person, the judge has a wide discretion and enjoys a large measure of flexibility as to how to account for that custodial time [3] : it may result in reducing the type or severity of the sentence [4] , no credit or reduced credit may be given [5] , or alternatively, the time may be credited under a 1:1 ratio up to a 1.5:1 ratio [6] ; c. when a youth court judge determines that pre-sentence custody should not be credited against a custody and supervision sentence, the judge is required to articulate the reasons for this [7] ;

d. if a custodial sentence is still required after taking into account the pre-sentence custody time, then the appropriate procedure is to first decide what an appropriate sentence would be before determining any credit for pre-sentence custody [8] ; e. in circumstances where a custodial sentence is appropriate, then the apportionment between custody and supervision in the community mandated by paragraph 42(2) (

n) of the YCJA must be respected. i.e. pre-sentence custody is to be credited towards the global custody and supervision sentence rather than to the custodial portion of that sentence [9] . [ 15 ] There remains some controversy on this last point, i.e. whether the pre-sentence custody time must be credited to the custody and supervision sentence as a whole or to the custodial portion of that sentence. [ 16 ] In R. v. D.M.T. [10] , the Alberta Court of Appeal was of the view that pre-sentence custody should normally be credited entirely against the custodial portion of the sentence [11] .

This approach was subsequently criticized by the Saskatchewan Court of Appeal in R. v. J.E.O. [12] on the basis that pre-sentence custody cannot be considered to be part of the custodial segment of an order made pursuant to paragraph 42(2) (

n) of the YCJA because subsection 42(12) precludes it [13] . This was also the view of the Manitoba Court of Appeal in R. v. G.A.T [14] . [ 17 ] For the reasons which follow, I agree with the Manitoba and Saskatchewan appellate courts that when a custody and supervision order under paragraph 42(2) (

n) of the YCJA is a required appropriate sentence, then any credit resulting from pre-sentence custody must be applied to the sentence as a whole and not exclusively to the custodial portion of the sentence. The youth justice court establishes the duration of the custody and supervision sentence within the parameters indicated in the YCJA , but it has no discretion with respect to apportioning that sentence between the custodial portion and the supervision portion since the act itself determines this under set terms. [ 18 ] In R. v.

Mathieu [15] , Justice Fish, writing for a unanimous Supreme Court in an appeal dealing with similar provisions concerning the sentencing of adults under the Criminal Code [16] , found that the term of imprisonment in each case is the term imposed by the judge at the time of sentencing. As a result, pre-sentence custody is not part of the sentence, but is only one factor taken into account by the sentencing judge in determining the sentence [17] . Justice Fish thus concluded that a sentence of less than two years does not become a sentence of more than two years for the purposes of paragraph 731(1) (

b) of the Criminal Code [18] simply because the sentencing judge took into account pre-sentence custody time. [ 19 ] The principle set out in R. v. Mathieu that pre-sentence custody is not part of the sentence flows from the conceptual aspect of pre-sentence custody [19] .

This principle is difficult to reconcile with crediting pre-sentence custody time to only part of the sentence. [ 20 ] I find it particularly noteworthy that subsection 39(8) of the YCJA sets out that in determining the length of a youth sentence that includes a custodial portion, a youth justice court must not take into consideration the fact that the supervision portion of the sentence may not be served in custody. [ 21 ] This is a clear indication that any credit for pre-sentence custody time must be applied to the sentence as a whole, and not to part of the sentence.

Indeed, any apportioning of this credit between the custodial and supervision portions of the sentence ordered pursuant to paragraph 42(2) (

n) of the YCJA would run counter to the principle set out in subsection 39(8) . [ 22 ] In conclusion, I find that pre-sentence custody time is to be credited towards the global custody and supervision sentence ordered pursuant to paragraph 42(2) (

n) of the YCJA rather than to the custodial portion of that sentence. [ 23 ] As a result, the sentence ordered by the sentencing judge in this case was illegal and must be set aside. [ 24 ] Since the sentencing judge found that a custody and supervision period of 21 months was appropriate in this case, and since the judge was prepared to take into account the 14 months of pre-sentence custody time on a one for one basis, she should have made a custody and supervision order of 7 months under paragraph 42(2) (

n) of the YCJA , of which two thirds to be served in custody and one third under supervision in the community subject to conditions. [ 25 ] I would thus allow the appeal, set aside the custody and supervision order of the sentencing judge, make an order under paragraph 42(2) (

n) of the YCJA with respect to the respondent of 7 months custody and supervision, of which two thirds are to be served in custody and one third under supervision in the community subject to the same conditions as determined by the sentencing judge, and leave undisturbed the other orders issued by the sentencing judge. ROBERT M. MAINVILLE, J.A.