R. v. D.M.C.L., [2015] A.R. TBEd. DE.087

• Judge: Macklin, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 04, 2015
• Citations: [2015] A.R. TBEd. DE.087;2015 ABQB 781

R. v. D.M.C.L., [2015] A.R. TBEd. DE.087

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2015] A.R. TBEd. DE.087

Her Majesty the Queen (respondent/Crown) v. D.M.C.L. (applicant/accused)

(150896256X1; 2015 ABQB 781)

Indexed As: R. v. D.M.C.L.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Macklin, J.

December 9, 2015.

Summary:

On May 8, 2015, the applicant pled guilty to offences and was sentenced to a 45 day secure custody and supervision order pursuant to s. 42(2)(n) of the Youth Criminal Justice Act (YCJA). The court ordered that the sentence be served by 30 days of secure custody and 15 days of community supervision. He was also remanded on other more serious matters pending trial. The outstanding matters were brought forward to May 29, 2015, at which time the applicant entered guilty pleas to some of the outstanding charges. The court acceded to a joint submission and sentenced the applicant to a 201 day secure custody and supervision order, broken down into 134 days of secure custody and 67 days of community supervision. The applicant was given credit for 57 days already served as against the secure custody portion. Both counsel led the sentencing judge to believe that pre-sentence custody credit would result in the applicant serving a further 77 days of secure custody, followed by 67 days of community supervision. The sentencing judge told the applicant that he would serve a further 77 days in closed custody. Based on what he was told during the sentencing hearing, the applicant expected to serve the custody remaining under his first sentence concurrently with the second sentence, resulting in only a further 77 days in custody and release on community supervision on August 14, 2015 and until October 19, 2015. Sentence Administration at the Edmonton Young Offender Centre merged the applicant's sentences as mandated by ss. 43 and 44 of the YCJA. As a result, the anticipated release date on community supervision changed to August 25, 2015. His community supervision would still end on October 19, 2015. The applicant applied for habeas corpus. He raised the constitutionality of the youth sentence merger provisions in ss. 42 and 43 of the YCJA and the policies used to implement those provisions. He submitted that his ss. 7 and 9 Charter rights had been breached through the application of ss. 43 and 44. He also argued that the merger provisions had a discriminatory effect because the regime governing adult custody and release was different from the regime applicable to youth. He argued that this discrimination was contrary to s. 15 of the Charter.

The Alberta Court of Queen's Bench dismissed the application. If a problem arose in this context, it lay in the manner of sentencing and not in the Sentence Administrator's application of s. 44, nor any unconstitutionality inherent in s. 44. It was the joint submission, and in particular the application of pre-sentence custody, which resulted in the applicant's disappointed expectation in terms of his release to community supervision. The applicant's ss. 7 and 9 of the Charter rights were not breached. The applicant was not unlawfully detained, as his detention was authorized by law and the law was not arbitrary. It had not been established that the merger provisions violated s. 15. The applicant enjoyed a more lenient overall sentencing regime under the YCJA, compared to the regime applicable to adults.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 646

Liberty - Limitations on - Prisoners and imprisonment - See paragraphs 41 to 54.

Civil Rights - Topic 3151

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Sentencing (incl. mandatory minimum sentences) - See paragraphs 41 to 54.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - See paragraphs 41 to 54.

Civil Rights - Topic 5643

Equality and protection of the law - Particular cases - Young offenders - See paragraphs 55 to 61.

Criminal Law - Topic 8802

Young offender - Decisions (incl. punishments) - Credit for time served - See paragraphs 31 to 40.

Criminal Law - Topic 8817.3

Young offenders - Decisions (incl. punishments) - Custody and supervision order - See paragraphs 31 to 40.

Counsel:

Graham Johnson (Dawson Stevens Duckett & Shaigec), for the accused/applicant;

Wade Marke, for the Crown/respondent.

This application was heard on December 4, 2015, before Macklin, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on December 9, 2015.