R. v. B. (M.), 2011 MBCA 53

Citation: R. v. B. (M.), 2011 MBCA 53 Date: 20110620 Docket: AY11-30-07516 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Richard J. Chartier Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin BETWEEN: HER MAJESTY THE QUEEN ) D. D. Kreklewich ) for the Appellant Respondent ) ) R. P.

Toews- and - ) for the Respondent ) B. (M.) ) Appeal heard and ) Decision pronounced: (Young Person, Accused) Appellant ) June 20, 2011 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish any information that could identify a person as havingbeen dealt with under the Youth Criminal Justice Act, S.C. 2002, c. 1 (see s. 110(1)). CHARTIER J.A. (for the Court): 1 In all of the circumstances, we have not been persuaded that the sentencing judge erred with respect to the principlesof sentencing, including the parity principle found under s. 38(2)(

a) of the Youth Criminal Justice Act (the YCJA) or in the imposition of aperiod of secure, as opposed to open, custody in her determination of the sentence. The sentencing judge was certainly entitled to findthat “only a very structured setting” would assist in this youth’s rehabilitation. 2 On the issue of pre-sentence detention, although sentencing judges must take it into account (see s. 38(3)(

d) of theYCJA), they are left with a residual discretion to assess the quantum of credit to be given (see R. v. K.E.J.L., 2006 MBCA 120 at para. 39,208 Man.R. (2d) 185, and R. v.

B. (T.) (2006), (ON CA), 78 O.R. (3d) 721 at para. 34 (C.A.)). 3 In this case, while it is true that the sentencing judge did not specifically address the time spent in detention when shepronounced her sentence, it is clear that she was mindful that the youth had already spent 37 days in custody over and above the timeallocated to the deferred custody sentence and was troubled by the youth’s discreditable behaviour while in custody, stating: ....

And then, when you’re sitting in jail, your behaviour at the jail was terrible, including encouraging other people to fight with eachother in the jail. 4 While it would have been preferable for the sentencing judge to have both explained and given reasons for themanner in which she exercised her discretion regarding the youth’s pre-sentence detention, we are satisfied, after reviewing the record,that the sentencing judge did take that time into account prior to imposing the 18-month custody and supervision order.

She mentionedthe youth’s period of detention on no less than three different occasions in her reasons.

5 Moreover, had we concluded that the sentencing judge erred by failing to take into account the time spent in detention, the sentence we would have substituted would have been the same as the one imposed by the sentencing judge given the violent nature of the offence, the youth’s post-offence conduct, her record and her high risk to re-offend. 6 In the result, we have not been convinced that the sentencing judge erred in principle or that her sentence is unreasonable, let alone “clearly unreasonable.” 7 Leave to appeal sentence is granted, but the appeal is dismissed. J.A. J.A. J.A.