R. v. L., E.

R. v. L., E. Collection Decisions of the Court of Appeal Date 2006-04-19 Docket numbers C43038 Judges Simmons, Janet M.; Cronk, Eleanore Ann; Lang, Susan Elizabeth Subject Criminal Decision Content DATE: 20060419 DOCKET: C43038 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) – and – E.L. (A “Young Person” under the Youth Criminal Justice Act) (Appellant) BEFORE: SIMMONS, CRONK AND LANG JJ.A. COUNSEL: Joseph Wilkinson for the appellant David Lepofsky for the respondent HEARD & RELEASED ORALLY: April 11, 2006 On appeal from the sentences imposed by Justice Lise Maisonneuve of the Ontario Court of Justice on January 12, 2005. ENDORSEMENT [1] The appellant pleaded guilty to the first degree murder of his mother and to using a firearm during the commission of an indictable offence. He was 17 years old at the time of these offences. Based on a joint submission presented by counsel, the youth court judge sentenced the appellant to an intensive rehabilitative custody sentence of six years closed custody and two years community supervision on the murder charge, and to 14 months closed custody and 7 months community supervision on the weapons charge. [2] In imposing these sentences, the youth court judge gave the appellant three months credit for pre-sentence custody. However, in accordance with the terms of the joint submission, the youth court judge did not give credit for any of the additional time served prior to sentencing. The total pre-sentence custody was approximately 17.5 months. [3] Further, the youth court judge stated, “In order to avoid any confusion, I am ordering that the IRCS sentence be the first sentence to commence, and that the other sentence follow afterwards.” [4] The appellant raised two issues on appeal. [5] First, the appellant claimed that the youth court judge erred in invoking s. 42(12) of the YCJA and deferring the commencement of his sentence on the weapons offence until after the completion of his IRCS sentence, thereby requiring that he return to closed custody after serving a period of community supervision. [6] In oral argument, the appellant and the Crown both acknowledged, and we agree, that the youth court judge did not defer commencement of the weapons offence sentence. Rather, she merely made it clear that the appellant was to commence his IRCS sentence first. In our view, the reasons of the youth court judge indicate her intention that the custodial portions of both sentences imposed be served continuously. [7] Accordingly, we would not give effect to this ground of appeal. [8] Second, the appellant contends that the sentencing judge erred by failing to give the appellant credit for the balance of the pre-sentence custody, which he calculates as 16 months. In that regard, the appellant submits that the youth court judge contravened the mandatory provisions of s. 38(3)(d) of the YCJA and this court's interpretation of that provision in R. v. B.T., [2006] O.J. No. 584. [9] We disagree. In our view, properly read, this court's decision in B.T. confirms that s. 38(3)(d) obliges a youth justice court in all cases to take the time spent in detention by a young person as a result of the offence in issue into account in fashioning a sentence. This does not mean, however, that in taking such detention into account, the youth justice court does not have discretion to determine the appropriate credit to be given. B.T. recognizes that it is only in an exceptional case, such as this one, where a court should exercise that discretion to reduce the credit given below one to one. [10] In light of the joint submission in this case and the extensive negotiations concerning the rehabilitative needs of the appellant, we are satisfied that the youth court justice made no error and that the sentence imposed is fit. Accordingly, leave to appeal sentence is granted but the appeal is dismissed. “Janet Simmons J.A.” “E.A. Cronk J.A.” “S.E. Lang J.A.”