r v. X, 2015 QCCA 1283

LSJPA — 1528 2015 QCCA 1283 COURT OF APPEAL CANADA PROVINCE OF QUÉBEC REGISTRY OF MONTREAL No: 500-08-000477-150 (525-03-056685-134) (525-03-056690-134) (525-03-056708-134) (525-03-058374-141) 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 from 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, 525-03-056690-134, 525-03-056708-134 and 525-03-058374-141; [ 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 making child pornography under paragraph 163.1(2) (

a) and of distributing child pornography under paragraph 163.1(3) (

a) 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 and to a charge of assault under 266(

a) of the Criminal Code . [ 10 ] The respondent was sentenced on January 16, 2015 by Madam Justice Michèle Lefebvre of the Court of Quebec. 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 secure custody (already served) and a period of 7 months to be served under supervision in the community; from today in records 525-03-056685-134 [sexual assault], 525-03-056690-134 [making child pornography and distributing child pornography]; 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], 525-03-056690-134 [making child pornography and distributing child pornography]; IMPOSES on X, under paragraph 42(2) (

k) YCJA , a probation period of 6 months as of 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 525-03-056708-134 [failing to comply with a youth sentence] and 525-03-058374-141 [assault]; 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 record 525- 03-056685-134 [sexual assault]; [ 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 order 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. Analysis [ 13 ] For the reasons more fully set out in R. v.

X issued concurrently, 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. [ 14 ] In R. v. Mathieu [1] , Justice Fish, writing for a unanimous Supreme Court in an appeal dealing with similar provisions concerning the sentencing of adults under the Criminal Code [2] , 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 [3] . 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 [4] simply because the sentencing judge took into account pre-sentence custody time.

[ 15 ] 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 [5] . This principle is difficult to reconcile with crediting pre-sentence custody time to only part of the sentence. [ 16 ] When acting under paragraph 42(2) (

n) of the YCJA , a youth justice court establishes the duration of the custody and supervision sentence within the parameters set out in the act, 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 rules. This implies 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. [ 17 ] 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, the court must not take into consideration the fact that the supervision portion of the sentence may not be served in custody. [ 18 ] 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) . [ 19 ] As a result, the sentence ordered by the sentencing judge in this case was illegal and must be set aside. [ 20 ] 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. [ 21 ] 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.