R. v. J.E.O., (2013) 417 Sask.R. 244 (CA)

• Judge: Richards, C.J.S., Jackson and Herauf, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: June 06, 2013
• Jurisdiction: Saskatchewan
• Citations: (2013), 417 Sask.R. 244 (CA);2013 SKCA 82

R. v. J.E.O. (2013), 417 Sask.R. 244 (CA);

    580 W.A.C. 244

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. AU.001

Her Majesty the Queen (appellant) v. J.E.O. (respondent)

(CACR2263; 2013 SKCA 82)

Indexed As: R. v. J.E.O.

Saskatchewan Court of Appeal

Richards, C.J.S., Jackson and Herauf, JJ.A.

August 6, 2013.

Summary:

The accused young person was found guilty of aggravated assault. The trial judge awarded the accused double credit (10 months) for five months of remand time. After giving that 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 was apparent 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 agreed that, but for the pre-sentencing custody issue, the trial judge would have sentenced the accused to 16 months in custody and eight months of community supervision. The Crown appealed, arguing that the trial judge mishandled the issue of credit for pre-sentencing custody.

The Saskatchewan Court of Appeal allowed the appeal, holding that the trial judge's approach to the credit for pre-sentencing custody involved an error of principle. The court varied the accused's sentence to provide that the accused spend a total of 11 months in custody (three months secure and eight months open) and 5.5 months on community supervision.

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.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - [See all Criminal Law - Topic 8802 ].

Criminal Law - Topic 5938

Sentence - Aggravated assault - [See third Criminal Law - Topic 8802 ].

Criminal Law - Topic 8802

Young offender - Decisions (incl. punishments) - Credit for time served - The Saskatchewan Court of Appeal considered the question of how to factor pre-sentencing custody into a sentencing decision made under the Youth Criminal Justice Act (YCJA) - The court stated, inter alia, that "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" - See paragraphs 18 to 49.

Criminal Law - Topic 8802

Young offender - Decisions (incl. punishments) - Credit for time served - The Saskatchewan Court of Appeal considered the question of how to factor pre-sentencing custody into a sentencing decision made under the Youth Criminal Justice Act (YCJA) - The court stated, inter alia, "I am respectfully unable to see the logic of a general 2:1 approach in the YCJA context. ... in the adult context, the rationale for a 2:1 ratio is well understood. First, an adult offender on remand does not earn credits for parole eligibility or statutory release. Second, remand time for adults is generally seen as being more arduous than time served under sentence because there is typically no access to programming and living conditions are often more challenging. ... Neither of these two reasons has a fully persuasive parallel or analogue in the YCJA context ... counsel for [the accused] was quite right to acknowledge during oral argument that there is no principled basis for using 2:1 as a general or default ratio for calculating pre-sentencing credits for a young person ... As between the alternatives of calculating a credit for pre-sentencing custody at 1:1 or 1.5:1, it seems that the latter ratio represents the better approach. ... The second question which must be answered here concerns the point in the analysis at which a 'credit' generated by virtue of the 1.5:1 ratio should be introduced. ... 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 is preferable if a 1.5:1 credit is employed because it keeps the ultimate result more closely in line with the sentence that would have been imposed in the absence of remand time" - See paragraphs 42 to 49.

Criminal Law - Topic 8802

Young offender - Decisions (incl. punishments) - Credit for time served - The accused young person was found guilty of aggravated assault - The trial judge awarded the accused double credit (10 months) for five months of remand time - After giving that 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 was apparent 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 agreed that, but for the pre-sentencing custody issue, the trial judge would have sentenced the accused to 16 months in custody and eight months of community supervision - The Crown appealed, arguing that the trial judge mishandled the issue of credit for pre-sentencing custody - The Saskatchewan Court of Appeal allowed the appeal - The trial judge's approach to the credit for pre-sentencing custody involved an error of principle - Accordingly, it was necessary to address the sentence that should have been imposed - The court recognized the gravity of the offence (victim stabbed multiple times in the context of a gang confrontation) - The accused had a record involving 22 prior convictions - He had completed his term of secure custody and was in open custody - He was employed and said to be doing well at school - He had seen a counsellor who dealt with gang involvement issues - The court determined 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 and 5.5 months of supervision" - See paragraphs 50 to 54.

Cases Noticed:

R. v. C.C.B., 2010 SKPC 181, refd to. [para. 13].

R. v. N.B.L. (2012), 406 Sask.R. 230; 2012 SKPC 161, refd to. [para. 19].

R. v. S.T. (2010), 349 Sask.R. 29; 2010 SKPC 12, refd to. [para. 19].

R. v. Flaten - see R. v. B.C.F.

R. v. B.C.F., [2010] 5 W.W.R. 644; 343 Sask.R. 57; 472 W.A.C. 57; 2009 SKCA 136, refd to. [para. 19].

R. v. C.J.A., [2005] 10 W.W.R. 361; 262 Sask.R. 300; 347 W.A.C. 300; 2005 SKCA 85, refd to. [para. 20].

R. v. T.B. (2006), 207 O.A.C. 255; 78 O.R.(3d) 721 (C.A.), refd to. [para. 22].

R. v. D.S. (2008), 241 O.A.C. 369; 239 C.C.C.(3d) 426; 2008 ONCA 740, refd to. [para. 22].

R. v. E.L. (2006), 210 O.A.C. 124 (C.A.), refd to. [para. 22].

R. v. D.W., [2008] O.A.C. Uned. 179; 2008 ONCA 268, refd to. [para. 22].

R. v. N.W.P., [2008] 12 W.W.R. 591; 231 Man.R.(2d) 61; 437 W.A.C. 61; 2008 MBCA 101, refd to. [para. 23].

R. v. A.A.Z. (2013), 291 Man.R.(2d) 152; 570 W.A.C. 152; 2013 MBCA 33, refd to. [para. 24].

R. v. G.A.T. (2007), 214 Man.R.(2d) 272; 395 W.A.C. 272; 2007 MBCA 88, refd to. [para. 25].

R. v. J.R.L. (2007), 254 N.S.R.(2d) 344; 810 A.P.R. 344; 221 C.C.C.(3d) 278; 2007 NSCA 62, refd to. [para. 26].

R. v. D.D.V. (2005), 215 B.C.A.C. 1; 355 W.A.C. 1; 198 C.C.C.(3d) 484; 2005 BCCA 396, refd to. [para. 27].

R. v. R.R.J. (2009), 279 B.C.A.C. 1; 473 W.A.C. 1; 250 C.C.C.(3d) 3; 2009 BCCA 580, refd to. [para. 27].

R. v. D.D.T., [2011] 4 W.W.R. 455; 493 A.R. 167; 502 W.A.C. 167; 2010 ABCA 365, refd to. [para. 28].

R. v. D.M.T. (2012), 522 A.R. 180; 544 W.A.C. 180; 2012 ABCA 142, refd to. [para. 29].

R. v. Mathieu (P.), [2008] 1 S.C.R. 723; 373 N.R. 370; 2008 SCC 21, refd to. [para. 32].

R. v. A.W.H. (2006), 274 Sask.R. 250; 2006 SKPC 11, refd to. [para. 41].

R. v. H.R.F. (2007), 292 Sask.R. 52; 2007 SKPC 6, refd to. [para. 41].

R. v. Rezaie (M.) (1996), 96 O.A.C. 268; 112 C.C.C.(3d) 97 (C.A.), refd to. [para. 42].

Statutes Noticed:

Youth Criminal Justice Act, S.C. 2002, c. 1, sect. 38(3)(d) [para. 14]; sect. 42(2)(n) [para. 35]; sect. 42(12) [para. 31].

Authors and Works Noticed:

Bala, Nicholas, and Anand, Sanjeev, Youth Criminal Justice Law (2nd Ed. 2009), generally [para. 45].

Counsel:

Jerome Tholl, for the appellant;

Donald Mullord, Q.C., for the respondent.

This appeal was heard on June 6, 2013, before Richards, C.J.S., Jackson and Herauf, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Richards, C.J.S., on August 6, 2013.