R v JLD, 2015 MBCA 92

Citation: R v JLD, 2015 MBCA 92 Date: 20150929 Docket: AY15-30-08328 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin Mr. Justice Christopher J. Mainella BETWEEN : HER MAJESTY THE QUEEN ) C. T. St. Croix ) for the Appellant Appellant ) ) Z. M. Jones - and - ) for the Respondent ) J. L. D. ) Appeal heard and ) Decision pronounced: (Young Person) Respondent ) September 29, 2015 NOTICE OF RESTRICTION ON PUBLICATION : No one may publish any information that could identify a person as having been dealt with under the Youth Criminal Justice Act (see section 110(1)).

NOTICE OF RESTRICTION ON PUBLICATION: No one may publish any information that could identify any child victim or child witness that is connected with an offence committed by a young person that is being dealt with under the Youth Criminal Justice Act (see section 111(1)). BEARD JA (for the Court): [ 1 ] This matter proceeded as a consent appeal to correct technical legal errors in the sentence that was imposed in this matter, while respecting the essence of the sentence imposed by the youth justice court judge.

This is our decision, which was pronounced in court. [ 2 ] Briefly, the young person pled guilty to one youth charge of sexual assault and two adult charges of failing to comply with a recognizance. There was a contested sentencing hearing, following which the youth justice court judge sentenced the young person to a 15-month youth custodial sentence on the sexual assault, with 10 months to be served in secure custody and five months in open custody. This was to be followed by two years of supervised probation with certain protective conditions.

She then gave him credit for 10 months spent in pre-sentence custody, leaving him to serve five months in open custody from the date of sentencing. She also sentenced him, as an adult, to a fine of $50 on each of the breach of a recognizance charges for a total of $100. [ 3 ] The parties agree that there were two errors in the youth sentence. First, a custody and supervision order under the Youth Criminal Justice Act (the YCJA ) must, from the date of imposition, be divided into two-thirds custody and one-third under supervision in the community subject to conditions. (See section 42(2)(

n) of the YCJA .) By imposing a sentence of five months’ open custody from the date of sentencing, she failed to follow this requirement.

Second, section 42(14) of the YCJA states that, where there is more than one sanction imposed, the combined duration of the sanctions shall not exceed two years. (There are some exceptions that do not apply in this case.) By imposing a total youth sentence of 29 months on a go-forward basis, she failed to comply with this provision. [ 4 ] The parties have agreed, as does this Court, that the Crown’s appeal should be allowed, the original sentence set aside, and the following substituted: - On the youth conviction for sexual assault, after taking into consideration the 10 months of pre-sentence custody already served by the young person, there should be a custody and supervision order of 150 days, allocated as 100 days in open custody and 50 days of community supervision.

This is to be followed by a 19-month supervised probation order on the conditions imposed by the youth justice court judge. The DNA order imposed by the youth justice court judge should remain in effect.

- On the two adult convictions for breach of recognizance, the accused will receive a suspended sentence with a 19-month unsupervised probation order containing only the statutory conditions on each conviction. [ 5 ] As noted earlier, this sentence respects the intentions of the youth justice court judge and, at the same time, complies with the technical requirements of the YCJA . JA JA JA