2013 SKCA 82 Date:, 2013 SKCA 82

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 82 Date: 2013-08-06 Between: Docket: CACR2263 Her Majesty the Queen Appellant - and - J.E.O. Respondent In accordance with s. 110 of the Youth Criminal Justice Act , the name of J.E.O. or any other information that would identify him shall not be published. Coram: Richards C.J.S., Jackson and Herauf JJ.A. Counsel: Jerome Tholl for the appellant Donald Mullord, Q.C. for the respondent Appeal: From: Provincial Court Heard: June 6, 2013

Disposition: Appeal allowed Written Reasons: August 6, 2013 By: The Honourable Chief Justice Richards In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Herauf Richards C.J.S. I. Introduction [ 1 ] This appeal raises basic questions about how time spent in pre-sentencing secure custody should be taken into account when imposing a sentence pursuant to the Youth Criminal Justice Act , S.C. 2002, c. 1 (the “ YCJA ”). [ 2 ] J.E.O. was charged with aggravated assault and spent several months in custody. He was ultimately convicted.

The judge imposed a sanction involving custodial time followed by community supervision. In so doing, he gave J.E.O. a 2:1 credit for the time he had already spent in custody. The Crown says the resulting sentence was unfit and advances its own proposal about how time in pre- sentencing custody should be handled by a youth court judge. [ 3 ] I conclude that, while a youth court judge must take pre-sentencing custody into account when imposing a sentence on a young person, he or she is not locked into giving any fixed ratio of credit for such time.

The judge’s obligation is to impose a sentence which comports with the purposes and principles of sentencing set out in the YCJA . In this respect, he or she enjoys a measure of flexibility concerning how to account for custodial time that has been incurred by the young person prior to sentencing. [ 4 ] In the context of this case, I would allow the appeal and extend J.E.O.’s term of open custody by an additional five months and extend his term of community supervision by an additional two and a half months. II. Background [ 5 ] J.E.O. was born in 1995 and has recently turned 18 years old.

In September of 2012, he was a member of the Terror Squad street gang in Saskatoon. [ 6 ] On September 15, 2012, police were dispatched to a house on 20 th Street West in Saskatoon. On arrival, they found Michael Apooch. He was a member of the Indian Posse street gang. Mr. Apooch was conscious but said he had been stabbed. Blood was soaking through his shirt and there was blood on the back of his head. Mr. Apooch’s shirt was red, a colour associated with the Indian Posse. [ 7 ] Mr. Apooch was hospitalized and remained there for six days.

He had received “multiple stabbings and lacerations to the chest, abdomen and head” which included “stab wounds to the right parasternal space, right posterior chest and left chest.” His injuries included a “grade II liver laceration.” [ 8 ] J.E.O. was located riding a bicycle in the neighbourhood where Mr. Apooch had been found. He was wearing black – a colour associated with the Terror Squad. There was blood on his jacket which was confirmed by way of DNA analysis to match Mr. Apooch’s blood.

J.E.O. had been drinking alcohol before he was arrested but did not appear to be drunk. [ 9 ] The stabbing was the result of gang-related activity. Numerous weapons (including fence boards, golf clubs and pieces of metal) were discovered near the crime scene. [ 10 ] At the time of the stabbing, J.E.O. was subject to a probation order which required him, among other things, to keep the peace and be of good behaviour and to refrain from the consumption of alcohol. III. The Sentencing Decision [ 11 ] J.E.O. was charged with aggravated assault and found guilty after a trial.

By that time, he had spent five months in custody. [ 12 ] The Crown asked for the maximum sentence available under the YCJA— two years—comprised of 16 months of closed custody followed by eight months of community supervision. The Crown suggested that J.E.O. be given 1:1 credit for his five months on remand, with that time coming off the proposed 16-month term of secure custody. Thus, in the end, the Crown requested a term of 11 months in secure custody followed by eight months of community supervision.

Defence counsel (who was not counsel on this appeal) did not make a specific recommendation with respect to sentence. He requested only that some portion of J.E.O.’s custodial sentence be served in open custody. [ 13 ] The trial judge referred to the decision of Baniak P.C.J. in R. v. B.(C.C.) , 2010 SKPC 181 and, in light of it, awarded J.E.O. double credit, or a total of ten months, for the remand time. After giving J.E.O. this credit, the trial judge imposed a sentence of six months in custody (three months closed and then three months open), followed by three months of community supervision.

It is apparent, therefore, that the judge deducted the remand credit from a notional 16-months in custody to arrive at a six-month custodial

term. He then imposed a period of supervision equal to half of that time. Counsel agree that, but for the pre-sentencing custody issue, the trial judge would have sentenced J.E.O. to 16 months in custody and eight months of community supervision. IV. Analysis [ 14 ] This appeal is rooted in s. 38(3) (

d) of the YCJA . It reads as follows:

(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; … [ 15 ] The Crown argues that the issue of credit for pre-sentencing custody was mishandled by the trial judge. It contends the sentence imposed on J.E.O. is demonstrably unfit and not proportionate to the seriousness of his offence. In a change from the position taken in youth court, it proposes an approach to sentencing in the sort of circumstance in issue here which would oblige a judge to proceed as follows: (

a) determine the appropriate custodial portion of the sentence; (

b) subtract, on a 1:1 basis, any time spent in pre-sentencing custody (with some room to move away from 1:1 if circumstances dictate); and, (

c) add a period of community supervision which, as mandated by s. 42(2) (

n) of the YCJA , is half as long as the custodial sentence actually imposed. [ 16 ] Accordingly, the Crown now contends that the trial judge should have started with a custodial term of 16 months and deducted five months from it to reflect the time J.E.O. had spent on remand. That would have yielded a custodial sentence of 11 months.

To this, the Crown submits that the judge should have added a community supervision order of 5.5 months. [ 17 ] In order to assess the merits of the Crown’s position, it is necessary to begin by exploring how, at the level of principle, a youth court judge should account for time spent in pre-sentencing custody. That done, I will go on to consider the appropriateness of the sentence imposed on J.E.O. A. Accounting for Pre-sentencing Custody [ 18 ] The question of how to factor pre-sentencing custody into a sentencing decision made under the YCJA has generated a considerable amount of case law.

Not all courts have approached the issue in the same way. [ 19 ] Let me begin with the situation in this Province. Youth court judges appear to be coming at the problem from more than one direction. While they broadly agree that credit must be given for such custody, there is considerable variation in how this notion is being implemented. We are told by counsel that Saskatoon-based judges typically consider themselves to be required to grant a 2:1 credit but that their methodology is not consistent.

For example, in this case, the judge deducted the credit from the amount of time he would otherwise have obliged J.E.O. to spend in custody but, in R. v. N.B.L. , 2012 SKPC 161 , 406 Sask. R. 230, the sentencing judge deducted a 2:1 credit from the total sentence she believed to be proper (custody plus community supervision) and then divided the remaining time between custody and supervision as required by s. 42(2) (

n) of the YCJA . On the other hand, in R. v. S.T. , 2010 SKPC 12 , 349 Sask. R. 29, a Regina-based youth court judge considered himself obliged, by virtue of R. v. Flaten , 2009 SKCA 136 , [2010] 5 W.W.R. 644, to give credit at the rate of 1.5:1 and deducted that time from what he would otherwise have imposed by way of a custodial sentence.

To make a somewhat involved story short, there is a lack of consistency in relation to how youth court judges in this Province are dealing with pre-sentencing custody. [ 20 ] It is useful, therefore, to consider the appellate-level jurisprudence which has developed across the country on this issue. I begin the survey with this Court’s decision in R. v. C.J.A. , 2005 SKCA 85 , [2005] 10 W.W.R. 361. It concerned the case of a young person who had spent ten weeks on remand. The sentencing judge directly considered the remand time.

She noted that it had been beneficial in beginning the process of rehabilitating C.J.A. and that it was a factor in comparing the circumstances of C.J.A. and a co- accused who had not served significant remand time. On appeal, this Court approved a six-month deferred custody order and, in so doing, wrote as follows: [41] Although I appreciate the Crown's concerns on this point, I do not agree that the sentence imposed was demonstrably unfit within the meaning of R. v. C.A.M., supra .

The key in this regard, and the apparent key for the sentencing judge, was that C.J.A. had spent ten weeks on remand prior to sentencing. As noted by the sentencing judge, on the standard two-for-one calculus this amounted to the equivalent of five months in custody. [42] The Crown paid little attention to the time C.J.A. spent on remand in either its written or oral submissions but that time is a significant factor in assessing the overall suitability of his sentence. In my view, the sentence here may well not have been fit in the absence of the remand time.

However, the reality is that C.J.A. did spend the equivalent of five months in custody and the sentencing judge, pursuant to s. 38(3) (

d) of the YCJA , properly took that reality into account.

[21] This Court also had occasion to refer to the pre-sentencing custody in the YCJA context in R. v. Flaten, supra. Notwithstandingwhat was said in R. v. S.T., supra, that decision is not particularly helpful in the present context. It concerned a situation where a youngperson was sentenced to nine years in custody, as an adult, on a charge of attempted murder. One of the issues on appeal was whether heshould have received enhanced credit for time spent in custody in advance of the sentencing. The Court said such credit was appropriateand granted it on a 1.5:1 basis.

However, its reasoning was based on the fact that the young person had been sentenced as an adult andhad not earned statutory remission under the Corrections and Conditional Release Act, S.C. 1992, c. 20 while he had been in custody. [22] In Ontario, the Court of Appeal encountered the issue of credit for remand time in R. v. T.B. (2006), (ONCA), 78 O.R. (3d) 721. The question there was how pre-sentencing custody should be treated in relation to determining maximumsentences under the YCJA. T.B. had committed numerous offences and spent six months in custody before he was sentenced.

The judgeimposed a 33-month aggregate sentence and the issue before the Court was whether s. 42(15) of the YCJA—which limits the continuouscombined duration of youth sentences to three years—had been offended. Lang J.A., writing for the Court, said that “[p]re-sentencecustody must be deducted from a maximum sentence under s. 42(15)” (para. 32). She endorsed the idea of giving credit at a ratio of1.5:1 on the theory that community supervision is delayed for young persons in pre-sentencing custody. But, that said, Lang J.A.characterized the 1.5:1 ratio as being a starting point only.

In this regard, she wrote as follows: [42] Thus, while a 1.5 credit may be the starting point for crediting pre-sentence custody, other considerations may affect the appropriatecredit. Such factors may include the conditions of the youth's pre-sentence custody, the reasons for that detention, the length of thedetention, the reasons for any delay in reaching trial or sentencing, and the youth's need for further custody or community service tomeet the purposes of the YCJA. See also: R. v. D.S., 2008 ONCA 740, 239 C.C.C. (3d) 426 at para. 26; R. v. E.L. (2006), (ON CA), 210 O.A.C.124; R. v.

D.W., 2008 ONCA 268. [23] A key decision on this subject in Manitoba is R. v. P.(N.W.), 2008 MBCA 101, [2008] 12 W.W.R. 591. In that case, a youngperson was charged with first degree murder and the judge accepted a joint recommendation that he not be transferred to adult court andthat he receive the maximum youth sentence. The judge acknowledged the 238 days that the young person had spent in custody butrefused to give any credit for such time on the basis that doing so was not warranted in light of the circumstances of the offence.

MonninJ.A. upheld the judge’s approach by writing as follows: [23] On the basis of the cases to which I have referred, I am unable to conclude that the sentencing judge erred when he declined togrant the accused any credit for the time he served in pre-sentence detention.

Those cases lead to the inescapable conclusion that asentencing judge must consider the time spent in detention in determining an appropriate sentence - which he did - but that he is notbound to, especially in cases where the maximum sentence or near maximum sentence is imposed, give any credit to an accused for thattime spent in detention - which is what the judge did in this case. [24] The most recent Manitoba contribution to the jurisprudence is R. v. A.A.Z., 2013 MBCA 33.

There, at para. 147, Scott C.J.M.said, “[T]he law is clear in Manitoba that, although a youth court judge must take pre-sentence detention ‘into account’ pursuant to s.38(3)(d), the youth court judge has the discretion to give no credit or reduced credit for the time spent in pre-sentence detention.” [25] I should note here as well that the Court of Appeal for Manitoba has rejected the notion that pre-sentencing custody caneffectively form part of a sentence under the YCJA and has insisted that a sentence involving a custodial element must respect theapportionment between custody and supervision mandated by s. 42(2)(

n) of the YCJA. Joyal J.A., speaking for that Court, wrote asfollows in R. v. G.A.T., 2007 MBCA 88, 214 Man. R. (2d) 272: [19] Even if time in custody cannot be a disposition under the Act, it is nonetheless a required consideration, as stipulated in s. 38(3)(

d) of the Act. Accordingly, whether the disposition to be pronounced is to be custodial or non-custodial (probation, etc.), any relevantpre-sentence detention must be considered by the sentencing judge. Where a sentence is to be custodial, the judge must first decide whatan appropriate sentence would be and then take into account the time served. A consideration of time in custody will mitigate and reducewhat would have been the higher quantum imposed on the day of the sentencing. See R. v. K.E.J.L., 2006 MBCA 120, 208 Man.R. (2d)185 at para. 38.

At a minimum, where a judge wishes to impose additional custody to the pre-sentence detention that has been alreadyconsidered, the sentence pronounced must include a custody and supervision order which is to be apportioned pursuant to s. 42(2)(

n) andwhich commences or takes effect on the date of the sentencing. [26] The situation in Nova Scotia is also instructive. R. v. L.(J.R.), 2007 NSCA 62, 221 C.C.C. (3d) 278 dealt with a circumstancewhere the young person had spent just over two weeks in custody before pleading guilty and being sentenced to six months deferredcustody and supervision followed by probation. The Crown appealed and argued that the sentence was illegal because, with the pre-sentencing custody included, the sentence exceeded the maximum allowed by s. 42(2)(

p) of the YCJA. The Court of Appeal for NovaScotia, speaking through Roscoe J.A. and referring to this Court’s decision in R. v. C.J.A., supra, said this: [47] I prefer this approach [the approach in C.J.A.]. In my view, the time spent in pre-sentence detention can be "taken into account"without expressly giving specific credit for time served by deducting the number of days or some ratio of that number from the numberof days of a custodial sentence.

When the sentence imposed is not a custodial sentence to be served in an institution, taking the remandtime into account does not necessarily have to result in a deduction in the length of sentence. It can be taken into account by reducing thetype or severity of the sentence. [27] In British Columbia, Finch C.J.B.C. observed as early as 2005 in R. v. V.(D.D.), 2005 BCCA 396, 198 C.C.C. (3d) 484 that the2:1 “rule of thumb” for crediting pre-sentencing custody for adults does not apply to young offenders who have the full benefit ofprogramming while in pre-sentencing custody. More recently, in R. v.

J.(R.R.), 2009 BCCA 580, 250 C.C.C. (3d) 3, Frankel J.A., onbehalf of the Court of Appeal, dealt with a situation where a young person had appealed an aggregate sentence composed of a one-yearcustody and supervision order followed by two years of probation. The young person contended that the sentence was illegal because,counting the time she had spent in pre-sentencing detention, her sentence exceeded the statutory “cap” of three years that applied in thecircumstances. Frankel J.A. carefully examined a number of authorities and concluded as follows:

[57] In my view, when the provisions of the YCJA are read together, they are to the same effect as those of the Criminal Code - pre-sentence detention is not part of the sentence imposed. When an offender appears before a youth court judge for sentencing, that judgehas available the applicable sanctions set out in s. 42(2), including the stipulated maximum periods of custody and supervision.

Althoughthe judge must take any time the offender has already spent in detention into account in determining what sentence to impose, he or shemay still, if it is appropriate, impose the maximum periods of custody and supervision available under the statute. [28] Some Court of Appeal for Alberta cases are also worthy of note. In R. v. T.(D.D.), 2010 ABCA 365, [2011] 4 W.W.R. 455, theCourt dealt with a situation where a judge had refused to sentence a young person convicted of second degree murder as an adult.

Thejudge did not give the young person any credit for four years of pre-sentencing custody on the ground that the pre-disposition creditwould effectively exhaust the custodial term available if the young person was sentenced as a youth. The Court of Appeal found no errorin this approach, saying that s. 38(3)(

d) of the YCJA must be read as permitting the judge to “‘take into account’ the period of pre-disposition custody in ways other than by granting a reduction in the custodial period to be served as a reflection of the period of pre-trialcustody.” [29] The leading Court of Appeal for Alberta case is R. v. D.M.T., 2012 ABCA 142, 522 A.R. 180. In it, Slatter J.A. examined thequestion of how credit for pre-sentencing custody should be applied in light of the requirements of s. 42(2)(

n) of the YCJA. In thisregard, he identified four options: [6] Credit for pre-sentencing custody could be applied to the custodial sentence in a number of ways: (

a) The pre-sentencing custody could be credited to the global sentence, and the remnant then divided into a two-thirds portion and aone-third portion. In this case the 21 month global sentence would be reduced to 12 months (21 - 9 = 12), which would be served 8months in custody, and 4 months in the community. This was the approach taken in R. v T.B. (2006), (ON CA), 78OR (3d) 721 at para. 51, 206 CCC (3d) 405 (C.A.), and R. v G.A.T., 2007 MBCA 88 at para. 19, 214 Man R (2d) 272. (

b) The pre-sentencing custody could be credited entirely against the custodial portion of the sentence, with the community supervisionportion of the sentence to remain intact. In this case the 14 month custodial portion of the sentence would be reduced to 5 months (14 - 9= 5), followed by 7 months of community supervision. This was the approach taken in R. v B.L.P., 2011 ABCA 384 at para. 35. (

c) Credit for the pre-sentencing custody could be entirely in the discretion of the sentencing judge. It could be credited any way thejudge saw fit: R. v S.J.L., 2005 BCSC 177 at para. 42. This approach would be consistent with the wide discretion sentencing judgeshave in giving credit for pre-sentencing custody: R. v D.D.T., 2010 ABCA 365 at para. 57, 493 AR 167, 265 CCC (3d) 49, leave refused,[2011] 2 SCR x. (

d) The pre-sentencing custody could be credited entirely against the custodial portion of the sentence. Then, regardless of what theinitial notional sentence was, the time to be served under supervision in the community would be one-half of the remnant of the custodialsentence. In this case the 14 month custodial portion of the sentence would be reduced to 5 months (14 - 9 = 5), followed by 2.5 months(one half of the custodial remnant) to be served under community supervision. This was the approach taken in R. v B.I.H., 2007 MBCA89, 214 Man R (2d) 241. [30] Without referring to R. v.

G.A.T., supra, Slatter J.A. went on to indicate that a youth court judge should normally use option(b), above, because it “best preserves the concept that the young offender should serve two-thirds of the sentence in secure custody.” That said, he went on to emphasize that this should not be seen as an inflexible rule: [11] The sentencing judge does exceptionally have the discretion to use option (

a) in appropriate cases, where that approach would bemore consistent with the sentencing principles in the Act, given the circumstances of a particular young offender. Since the sentencingjudge can, in exceptional circumstances, give no credit for pre-sentencing custody, it follows that there must remain a similarly widediscretion to decide how pre-sentencing credit should be recognized.

Secondly, while this global approach might result in the youngoffender serving a longer time in custody, that flexibility should be maintained to ensure that a sentence suitable for the particularcircumstances of the young offender can be imposed. In some cases this might be necessary to ensure that the young offender has accessto programming, which is important for rehabilitation.

Thirdly, the pre-sentencing custody may have resulted because the youngoffender was in custody on other charges, or for reasons unrelated to the offence presently before the court. [31] I should perhaps add, at this point in the narrative, that the Court of Appeal for Alberta’s endorsement of what it called “option(b)” appears to be problematic. As the Court of Appeal for Manitoba indicated in R. v. G.A.T., supra, it would seem that pre-sentencingcustody cannot be considered to be part of the custodial segment of an order made pursuant to s. 42(2)(

n) of the YCJA because of thewording of s. 42(12) of that Act. It reads as follows:

(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 justicecourt specifies. [32] R. v. Mathieu, 2008 SCC 21, [2008] 1 S.C.R. 723 is helpful here. It concerned situations where, after significant periods ofpre-trial detention, judges imposed custodial sentences of less than two years and probation of three years. But for the pre-sentencingdetention, penitentiary terms would have been given.

The issue before the Court concerned the validity of the probation orders which, ofcourse, were available only if the offenders’ terms of imprisonment did not exceed two years. This obliged the Court to consider theeffect of s. 719(1) of the Code (“[a] sentence commences when it is imposed”) and s. 719(3) (“[i]n determining the sentence…a court

may take into account any time spent in custody by the person as a result of the offence”). These, obviously, are the equivalents of ss. 42(12) and 38(3) (d), respectively, of the YCJA . Fish J., writing for the Court, held that the Code provisions meant precisely what they said: [17] I thus agree with Beauregard J.A. of the Court of Appeal in Monière that [TRANSLATION] "pre-sentence custody is not part of the sentence, but is only one factor taken into account by the judge in determining the sentence" ([2007] Q.J. No. 1539 (QL), 2007 QCCA 309 , at para. 18 ).

This means that a sentence of less than two years does not, for the purposes of s. 731(1)( b ), become a sentence of more than two years simply because the trial judge, in imposing the sentence of less than two years, took into account the time already spent in custody as a result of the offence. [18] Moreover, it is not solely because of the law and s. 719 of the Code that pre-sentence custody is taken into account as a factor in sentencing. This result can also be inferred from a conceptual

interpretation of pre-sentence custody. Pre-sentence custody generally refers to custody before the verdict is rendered, at a time when the accused is presumed innocent. In the context that concerns us here, this custody is, in principle, preventive rather than punitive. Pre-sentence custody cannot really be characterized as a "sentence": if the accused is convicted, the judge does take it into account as a relevant factor in sentencing, but what if the accused is acquitted ?

Whether the pre-sentence custody was part of a sentence for the purposes of the Code would thus fall to be determined retroactively in light of the verdict – a subsequent and separate event. [ 33 ] In my view, this line of thinking applies equally to the circumstances at hand. Under the YCJA , pre-sentencing detention is a factor that must be considered in sentencing but it is not part of the sentence. This seems particularly clear in relation to orders imposed pursuant to s. 42(2) (

n) of the YCJA . That provision is written so precisely and so prescriptively that it is difficult to imagine how pre- sentencing custody could be directly shoe-horned into it so as to be characterized as comprising some or all of the custodial aspect of an order. [ 34 ] That observation having been made, I return to the mainstream of my discussion of the jurisprudence.

Taking into account all of the very helpful analysis that has been generated with respect to the issue at hand, and having regard for the specific terms of the YCJA itself, it appears to me that the appropriate way of approaching pre-sentencing custody can be captured generally in five points. 1.

Basic approach [ 35 ] As in all sentencing exercises, a youth court judge acting in a situation where the young person has been in detention must attempt to craft a sentence which reflects the purposes and principles of sentencing set out in ss. 38(1) and (2) of the YCJA and which takes account of the factors listed in s. 38(3) of that Act. The sentence must also comply with the various other requirements of the YCJA . Section 42(2) (

n) is particularly relevant to the issues raised by this appeal. It provides as follows:

(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 … … (

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; [emphasis added] 2.

Duty to take account of detention [ 36 ] A youth court judge must take pre-sentencing custody relating to an offence into account when fashioning an appropriate sentence. That is mandatory. As noted above, this obligation flows from s. 38(3) (

d) of the YCJA :

(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; … 3. Pre-Sentencing custody not part of sentence [ 37 ] Time spent in pre-sentencing custody cannot be considered to be part of the sentence itself because such time stands outside of the sentence proper. As discussed, this is evident from the terms of the YCJA and the Supreme Court’s decision in R. v. Mathieu , supra . [ 38 ] The duty to “take into account” means that time spent in pre-sentencing custody must be a consideration in fashioning an

appropriate sentence. It will normally reduce the severity of what the sentence would have been in the absence of such custody. 4. How to “take into account” [39] As to the question of how pre-sentencing custody should be taken into account, it is apparent that a reasonable measure offlexibility must be afforded to youth court judges. A young person’s time on remand is not a mere number to be mechanically backed outof a sentencing equation.

The search for a proper sentence is necessarily more dynamic than what is permitted by a simple arithmeticcalculation. [40] This said, it may be useful for a judge dealing with this issue to proceed by first determining the sentence that would have beenimposed in the absence of pre-sentencing detention and then crediting the time spent in pre-sentencing detention against that sentence. (Iam dealing here only with the situation where the sentence to be imposed will involve a custody and supervision order under s. 42(2)(n)of the YCJA.) This, of course, raises some questions. [41] The initial question is whether, for purposes of this exercise, the time spent in secure pre-sentencing custody should be creditedat 1:1, 1.5:1 or 2:1.

As noted above, using the 2:1 approach seems to be the most common practice in youth court in Saskatchewan, atleast in Saskatoon. It was endorsed by Kolenick P.C.J. in R. v. A.W.H., 2006 SKPC 11, 274 Sask. R. 250 on the basis that “doubleremand credit for both adults and youths while they are on remand has been utilized for some time and should be maintained in order topromote consistency and predictability for everyone.” This line of thinking appears to have taken root, at least in Saskatoon. See: R. v.H.R.F., 2007 SKPC 6, 292 Sask.

R. 52 at para. 35. [42] For my part, I am respectfully unable to see the logic of a general 2:1 approach in the YCJA context. It appears to be no morethan something which seeped into youth sentencing from the adult domain without proper regard to its policy basis. This is importantbecause, in the adult context, the rationale for a 2:1 ratio is well understood. First, an adult offender on remand does not earn credits forparole eligibility or statutory release.

Second, remand time for adults is generally seen as being more arduous than time served undersentence because there is typically no access to programming and living conditions are often more challenging. See, for example: R. v.Rezaie (1996), (ON CA), 112 C.C.C. (3d) 97 at para. 25. [43] Neither of these two reasons has a fully persuasive parallel or analogue in the YCJA context. Although s. 42(2)(

n) of the YCJArequires that custody and supervision bear a 2:1 relationship to each other, young persons are not entitled to release in the same way asare adult offenders. Further, and perhaps more importantly, we are assured by counsel that the youth detention facilities in this Provincedo not distinguish between young persons on remand and young persons who are serving out a sentence. All such individuals areapparently entitled to the same educational, programming and other opportunities.

As a result, neither of the factors which are said toexplain the 2:1 policy in the adult context can be seen to operate in relation to young persons. [44] In the end, I believe that counsel for J.E.O. was quite right to acknowledge during oral argument that there is no principledbasis for using 2:1 as a general or default ratio for calculating pre-sentencing credits for a young person. [45] As between the alternatives of calculating a credit for pre-sentencing custody at 1:1 or 1.5:1, it seems that the latter ratiorepresents the better approach.

This is because it reflects the fact that youth sentences are comprised of two-thirds custody and one-thirdcommunity supervision. See: R. v. T.B., supra, at para. 40; Nicholas Bala & Sanjeev Anand, Youth Criminal Justice Law, 2nd ed.(Toronto: Irwin Law Inc., 2009). It is also arguably more consistent with the principle expressed in ss. 38(2)(

d) and (

e) of the YCJA tothe effect that reasonable sanctions other than custody should be considered when possible. See: R. v. A.W.H., supra, at para 11; R. v.A.W.H., supra, at para. 35. [46] The second question which must be answered here concerns the point in the analysis at which a “credit” generated by virtue ofthe 1.5:1 ratio should be introduced. As noted above, some youth court judges have been applying the credit to the global sentence(custody plus supervision) and others have been applying it to the custody part of the sentence.

In my view, the former approach ispreferable if a 1.5:1 credit is employed because it keeps the ultimate result more closely in line with the sentence that would have beenimposed in the absence of remand time.

Of course, that approach also generates the same result as does the one advocated by theCrown, i.e. applying a “credit” at the rate of 1.5:1 against the global sentence generates the same net sentence as does applying a credit atthe rate of 1:1 against the custodial part of the sentence and then setting the length of the supervision term at half of the resultingcustodial time. [47] All of this said, I emphasize again the same point that has been stressed by virtually all of the courts which have considered thisissue.

The credit actually given in any particular case must be context specific and will depend on a more complete assessment of theyoung person’s situation and circumstance than is afforded by the application of a mere number. 5. Factors to consider [48] A range of matters may be taken into account by a youth court judge considering whether to move away from giving credit forpre-sentencing custody at the rate of 1.5:1. In this regard, the non-exclusive list of factors identified by Scott C.J.M. in R. v.

A.A.Z.,supra, at para. 150, is helpful: - Will the young person be able to achieve desired rehabilitation objectives if pre-sentence detention is credited: B. (D.) at para. 24,affirmed by the Supreme Court of Canada in D.B.; R.R.J. at para. 63; and E.L. (2006) at para. 10? - Do the circumstances and consequences of the offence require the maximum sentence be imposed without giving credit for pre-

sentence detention: N.W.P. at para. 5; and R.R.J. at para. 57? - Will the youth sentence sufficiently hold the young person accountable (or be a "fit one") if credit for pre-sentence detention is given:D.W. at para. 2; K.E.J.L. at para. 40; R. v.

C.J.A., 2005 SKCA 85 at para. 42, 262 Sask.R. 300; and D.D.T. at para. 55? - Can the pre-sentence detention be taken into account by adjusting the type or severity of the sentence: J.R.L. at para. 47; Ferriman atpara. 8; and S. (D.) at para. 26? - How long was the pre-sentence detention, what were the reasons for the delay, and was the young person able to access programs andservices while in pre-sentence detention: K.E.J.L. at para. 40; and C.J.A. at paras. 38, 42? - Was there a joint submission and/or extensive negotiations concerning the rehabilitative needs of the young person: R. v.

B. (T.) (2006), (ON CA), 78 O.R. (3d) 721 at para. 10 (C.A.)? [49] In the end, the conscious and deliberate goal of every sentencing exercise must be the identification and imposition of sanctionswhich comport with the purpose and principles of sentencing identified in the Act. B. The Sentence in this Case [50] As indicated, the trial judge began his sentencing analysis by giving J.E.O. credit for pre-sentencing custody at a ratio of 2:1with the result that J.E.O. received ten months credit for five months in custody.

Rather than the total sentence of 24 months, whichwould have been imposed in the absence of pre-sentencing custody, the judge prescribed a total sentence of nine months. In effect,J.E.O. received triple credit for his remand time. This approach, as explained above, involved an error of principle. [51] Accordingly, it is necessary to address the question of the sentence that should have been imposed by the trial judge. In thisregard, it is important to recognize the gravity of the offence in issue. The assault committed by J.E.O. caused life-threatening injuries.

It took place in the context of a gang confrontation with both J.E.O. and his victim sporting gang colours. J.E.O. took no responsibilityfor the offence and expressed no remorse. In addition, he has a record involving some 22 previous convictions including two forcarrying a concealed weapon. J.E.O. was on probation at the time of the offence. All of these things considered, I believe the Crownwas justified in asking for a sentence at or near the available two year maximum. Indeed, counsel for J.E.O. does not resist this idea. See: R. v. B.(C.C.), supra; R. v. S.T., supra; R. v.

N.B.L., supra. [52] J.E.O. has completed his term of secure custody and is now in open custody. He has started employment as a roofer andappears to be making good progress. J.E.O. is said to be doing well at school and to like work. He has seen a counsellor who deals withgang involvement issues. [53] In effect, the Crown does not suggest that J.E.O.’s pre-sentencing custody should be credited at something other than 1.5:1. Iagree with that position. Accordingly, I would determine the appropriate sentence as follows.

Starting with a global term of 24 months,7.5 months should be deducted for time spent in pre-sentencing custody (5 x 1.5 = 7.5). The net time of 16.5 months (24 - 7.5 = 16.5)must then be divided on the basis of two-thirds custody and one-third supervision. This yields a sentence of 11 months in custody and5.5 months of supervision. In view of the progress which J.E.O. appears to be making, there is little to recommend sending him backinto secure custody and, as a result, the additional custodial time that he will be required to serve should be of the open variety. V. Conclusion [54] The Crown’s appeal is allowed.

J.E.O.’s sentence is varied so as to provide that he spend a total of 11 months in custody (threemonths secure and eight months open) and 5.5 months on community supervision. This means that, in order to complete his sentence,J.E.O. will need to spend roughly another five months in open custody and then 5.5 months on community supervision. The otheraspects of the sentencing decision remain in place. DATED at the City of Regina, in the Province of Saskatchewan, this 6th day of August, A.D. 2013. “Richards C.J.S.”__________________ Richards C.J.S. I concur “Jackson J.A.”______________________

Jackson J.A. I concur “Richards C.J.S.” ___________________ for Herauf J.A. (as per authorization)