R v TJD, 2016 MBCA 67

Citation: R v TJD, 2016 MBCA 67 Date: 20160615 Docket: AY16-30-08535 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Madam Justice Holly C. Beard Mr. Justice Christopher J. Mainella BETWEEN : HER MAJESTY THE QUEEN ) J. F. Rogala ) for the Appellant ) Respondent ) C. T. St. Croix ) for the Respondent - and - ) ) T. J. D. ) Appeal heard and ) Decision pronounced: (Young Person) Appellant ) June 15, 2016 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)).

MAINELLA JA (for the Court): [ 1 ] The young person (age 16) pleaded guilty to two counts of motor vehicle theft (

section 333.1 of the Criminal Code (the Code )) and to failure to comply with a youth sentence (section 137 of the Youth Criminal Justice Act ( YCJA )). He was sentenced to 3 concurrent sentences of an 18-month custody and community supervision order (CCSO), followed by 12 months of supervised probation and a 2-year driving prohibition.

He seeks leave to appeal and, if granted, appeals his sentence on the basis that the sentence is illegal, in part; the judge also committed various errors in principle in determining the sentence; and the sentence was harsh and excessive in the circumstances. [ 2 ] The young person is an inveterate car thief with a long, related youth record of some 30 convictions over the last 4 years for various offences relating to motor vehicle theft.

That youth record has resulted in him previously receiving a lifetime disqualification from driving under The Highway Traffic Act , CCSM c H60. [ 3 ] The circumstances of the offences here are that, only 23 days following release into the community after serving the open-custody portion of a sentence for various offences, including motor vehicle theft, flight while pursued by a peace officer and various breaches of court orders to not be in a motor vehicle, the young person stole 2 trucks parked on Winnipeg streets within a 48- hour period, while wearing an electronic monitoring bracelet as required by a court order.

At the time, he was also subject to 2 probation orders restricting his ability to be in a motor vehicle. In the second incident, while driving the stolen vehicle, he took pictures and videos of himself wearing the bracelet to show off to his friends. Later in the same incident, he was chased by police before being arrested. [ 4 ] The Crown candidly concedes that aspects of the sentence are illegal, or that the judge otherwise erred in principle, namely:

i) that, because concurrent sentences were ordered for the 3 offences, the maximum length of any one of them would have been 2 years according to section 42(14) of the YCJA . Therefore, the combination of the sanctions of an 18-month CCSO to be followed by 12 months of supervised probation was illegal; ii) that the judge had no jurisdiction to make an order, as he purported to do under the Code , prohibiting the young person from driving for 2 years because the offences in question cannot be the subject of a driving prohibition order (see section 42(2)(

j) of the YCJA and

section 259 of the Code ); iii) that, despite the Crown Attorney’s invitation to give the young person credit for 26 days of pre-sentence detention, the judge failed to give him any credit or, alternatively, explain why credit was not being given. The judge’s failure to take into account pre-

sentence detention was an error in principle (see section 38(3)(

d) of the YCJA); and iv) that, although neither the young person’s counsel, nor the Crown Attorney (not Ms St. Croix), made any Gladue submissions(R v Gladue, (SCC), [1999] 1 SCR 688), the sentencing materials included a Gladue report clearly indicating that theyoung person is of either Métis or Cree ancestry and there were background factors such as his parents’ substance abuse problems, hislack of parental supervision (particularly in relation to him regularly taking his prescribed medication for Attention Deficit HyperactivityDisorder) and his dislocation from his heritage, which may have played a

part in bringing him into conflict with the law. The judge’sabdication of his statutory duty under section 38(2)(

d) of the YCJA to consider the relevant Gladue factors in imposing sentence was anerror in principle. [5] In light of these errors by the judge, which clearly impacted the sentence, no deference is owed to the sentence heimposed. [6] In arriving at an appropriate sentence in this matter, we are mindful of the fact that there is good reason to haveconcern about the threat that the young person poses to the long-term protection of the public because of his obsession with auto theftand police chases.

Extensive interventions to date by the courts, police, correctional officials, probation services, counsellors, mentalhealth professionals, community groups and family members have been unsuccessful in addressing what the young person’s mother callshis “addiction”. On the other hand, there is evidence to indicate that the young person does best in a structured setting.

In thecircumstances here, in our opinion, the sentencing option under the YCJA which best meets the public’s needs for protection and theneeds of the young person, in fostering his rehabilitation and reintegration into society, is a lengthy period of secure custody followed bystrict terms of probation to give him the necessary structure he requires until he reaches the age of 18. [7] In our view, a 15-month CCSO (to be served two-thirds in secure custody and the remaining one-third undersupervision in the community), to be followed by 9 months of supervised probation, is a meaningful sanction that would properly holdthe young person accountable in relation to his conduct, and would properly satisfy the needs of the principles of restraint (in light of theGladue factors present), rehabilitation, reintegration, specific deterrence and denunciation.

We would adjust the proposed length of theCCSO to take into account the approximate one month of pre-sentence detention on the three offences that the young person served.

Wesee no reason to order enhanced credit in the circumstances. [8] In the result, leave to appeal is granted, the appeal is allowed and the young person’s sentence is varied to one of a14-month CCSO (9 and one-third months’ secure custody to be followed by 4 and two-third months’ community supervision) to run fromthe day the original sentence was imposed (December 21, 2015), to be followed by 9 months’ supervised probation, on the terms orderedby the judge, concurrent on all three offences. The driving prohibition under the Code that was imposed by the judge is also set aside. JA JA JA