R. v. K.C., (2011) 276 O.A.C. 267 (CA)

• Judge: O'Connor, A.C.J.O., Simmons and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 26, 2010
• Jurisdiction: Ontario
• Citations: (2011), 276 O.A.C. 267 (CA);2011 ONCA 257

R. v. K.C. (2011), 276 O.A.C. 267 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. AP.013

Her Majesty the Queen (appellant) v. K.C. (respondent)

(C50762; 2011 ONCA 257)

Indexed As: R. v. K.C.

Ontario Court of Appeal

O'Connor, A.C.J.O., Simmons and Blair, JJ.A.

April 4, 2011.

Summary:

The accused young person pled guilty to eight offences arising out of his involvement as a party to two armed robberies. In relation to the first armed robbery, he was found guilty of robbery with a firearm, unlawful confinement, possession of a prohibited weapon and possession of stolen property valued at over $5,000. In relation to the second armed robbery, he was found guilty of robbery with a firearm, unlawful confinement, uttering threats and failing to stop for police. The sentencing judge dismissed the Crown's application to have the offences designated as serious violent offences (SVOs). He said that he was not prepared to exercise his discretion to do so "given the party nature [of the accused's involvement and] given the greater removal of nexus between [the accused's] choices and actions" and the serious psychological harm the sentencing judge inferred was suffered by the victims. The sentencing judge imposed a global sentence of three months' deferred custody and supervision, in addition to three months' credit for 76 days of pre-sentence custody, together with 30 months' probation requiring 120 hours of community service. The Crown appealed, submitting that the sentencing judge failed to apply the proper legal test for determining whether the accused's offences should be designated as SVOs, that the sentencing judge's SVO ruling was unreasonable, and that, in any event, the global sentence imposed was unfit.

The Ontario Court of Appeal allowed the appeal. The court made an SVO designation in relation to the second set of offences, set aside the global sentence imposed by the sentencing judge and remitted the matter to the sentencing judge for sentencing.

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 8801.2

Young offenders - Decisions (incl. punishments) - "Serious violent offence" defined (incl. when designation made) - The accused young person pled guilty to eight offences arising out of his involvement as a party to two armed robberies - In relation to the first armed robbery, he was found guilty of robbery with a firearm, unlawful confinement, possession of a prohibited weapon and possession of stolen property valued at over $5,000 - In relation to the second armed robbery, he was found guilty of robbery with a firearm, unlawful confinement, uttering threats and failing to stop for police - The sentencing judge dismissed the Crown's application to have the offences designated as serious violent offences (SVOs) - He said that he was not prepared to exercise his discretion to do so "given the party nature [of the accused's involvement and] given the greater removal of nexus between [the accused's] choices and actions" and the serious psychological harm the sentencing judge inferred was suffered by the victims - The sentencing judge imposed a global sentence of three months' deferred custody and supervision, in addition to three months' credit for 76 days of pre-sentence custody, together with 30 months' probation - The Crown appealed - The Ontario Court of Appeal allowed the appeal - The sentencing judge erred in failing to make an SVO designation with respect to the second set of offences - Despite the sentencing judge's finding of an "insufficient nexus" between the accused's actions and the conduct that caused serious bodily harm, it was apparent from his reasons for sentence that, at least in relation to the second set of offences, the sentencing judge was satisfied that the accused's actions amounted to aiding his fellow assailant in committing offences that caused serious bodily harm - Accordingly, based on the sentencing judge's reasons for sentence, the threshold for making an SVO designation was clearly met in relation to the second set of offences - To the extent that his reasons might indicate that he declined to exercise his discretion because he was satisfied that a deferred custody sentence would satisfy the purposes of youth sentencing in the circumstances, and that an SVO designation was therefore unwarranted, that exercise of discretion was unreasonable - The court made an SVO designation in relation to the second set of offences, set aside the global sentence imposed by the sentencing judge and remitted the matter to the sentencing judge for sentencing - See paragraphs 81 to 95.

Criminal Law - Topic 8801.2

Young offenders - Decisions (incl. punishments) - "Serious violent offence" defined (incl. when designation made) - The Ontario Court of Appeal discussed the definition of "serious violent offence" (SVO) in the Youth Criminal Justice Act (YCJA) and the question of how it applied where a young person was found guilty as a party to an offence - The court stated, inter alia, "While I accept that the SVO designation has serious consequences for young persons and that a cautious approach should therefore be used in interpreting the SVO provisions ..., I see nothing in the SVO provisions or elsewhere in the YCJA that indicates a clear Parliamentary intention that s. 21 [of the Criminal Code] should not be available to support an SVO designation for offenders who are found to have committed offences as parties. On the contrary, where a young person is found guilty as a party to an offence that causes serious bodily harm, it seems entirely consistent with the objectives of the YCJA that the young person be eligible for an SVO designation. Although one of the purposes of youth sentencing is to reduce the overuse of custody for non-violent young offenders and although the scheme of the YCJA sentencing regime makes custody a last resort, the principles of youth sentencing, as expressed in ss. 3 and 38(2), also include: 'ensur[ing] that a young person is subject to meaningful consequences for his or her offence', and ensuring that a sentence is 'proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence'" - See paragraphs 51 to 59.

Criminal Law - Topic 8801.2

Young offenders - Decisions (incl. punishments) - "Serious violent offence" defined (incl. when designation made) - Section 2(1) of the Youth Criminal Justice Act (YCJA) defined "serious violent offence" (SVO) as meaning "an offence in the commission of which a young person causes or attempts to cause serious bodily harm" - The Ontario Court of Appeal considered the meaning of "cause" in the definition of an SVO - The court stated that "the proper meaning of cause is that set out in the Smithers/Nette formulation - significant contributing cause - meaning a contributing cause beyond de minimis or a contributing cause that is not trivial or insignificant. I would not adopt the Harbottle-like test proposed by the respondent. ... Similarly, I would not adopt the sufficient nexus test proposed by the Crown as an additional component of the test for either party liability or causation. ... Rather, the ordinary rules of causation and party liability apply. ... I see nothing in the language of the SVO definition or in the added consequences of an SVO designation that justifies a departure from the standard criminal law test for causation or that requires a heightened level of participation to support an SVO designation for a person found guilty as a party to the underlying offence. That said, I do think that it may be arguable that some level of foreseeability of bodily harm is a necessary component of determining whether a young person is sufficiently morally blameworthy to meet the threshold for an SVO designation. ... if foreseeability of bodily harm is found not to be a component of the SVO threshold, in my view, it is a factor that can be considered as part of the exercise of discretion as to whether to make an SVO designation or not" - See paragraphs 60 to 72.

Criminal Law - Topic 8801.2

Young offenders - Decisions (incl. punishments) - "Serious violent offence" defined (incl. when designation made) - Section 42(9) of the Youth Criminal Justice Act provided that "On application of the Attorney General after a young person is found guilty of an offence, and after giving both parties an opportunity to be heard, the youth justice court may make a judicial determination that the offence is a serious violent offence and endorse the information or indictment accordingly" - The Ontario Court of Appeal held that s. 42(9) gave a court discretion not to impose a serious violent offence (SVO) designation even though the threshold for making an SVO designation had been met - The court stated that "Although 'may' can also be construed as conferring a power that can be coupled with a duty to exercise that power once the statutory criteria for doing so are met, I see no indication in the language of s. 42(9) or elsewhere in the YCJA of a duty to make an SVO designation ... it seems to me that at least one factor a sentencing judge must consider in deciding whether to designate an offence as a serious violent offence is whether the consequences of an SVO designation are necessary to achieve the purposes of youth sentencing. Depending on the circumstances of the particular case, this in turn could bring into play the whole panoply of factors relevant to youth sentencing" - See paragraphs 73 to 80.

Statutes - Topic 2417

Interpretation - Interpretation of words and phrases - General principles - "May" and "shall" - [See fourth Criminal Law - Topic 8801.2 ].

Statutes - Topic 4985

Operation and effect - Enabling Acts - Power coupled with duty - Permissive power - "May" - General - [See fourth Criminal Law - Topic 8801.2 ].

Cases Noticed:

R. v. Maciel (R.) (2007), 222 O.A.C. 174; 219 C.C.C.(3d) 516 (C.A.), refd to. [para. 1, footnote 1].

R. v. C.D., [2005] 3 S.C.R. 668; 343 N.R. 1; 376 A.R. 258; 360 W.A.C. 258; 2005 SCC 78, refd to. [para. 22].

R. v. McCraw, [1991] 3 S.C.R. 72; 128 N.R. 299; 49 O.A.C. 47, refd to. [para. 22].

R. v. V.J.T. (2007), 214 Man.R.(2d) 94; 395 W.A.C. 94; 218 C.C.C.(3d) 563; 2007 MBCA 45, refd to. [para. 23].

R. v. M.E., 2008 ONCJ 99, refd to. [para. 23].

R. v. D.B., [2008] 2 S.C.R. 3; 374 N.R. 221; 237 O.A.C. 110; 2008 SCC 25, refd to. [para. 27, footnote 3].

R. v. Smithers, [1978] 1 S.C.R. 506; 15 N.R. 287, refd to. [para. 38].

R. v. Nette (D.M.), [2001] 3 S.C.R. 488; 277 N.R. 301; 158 B.C.A.C. 98; 258 W.A.C. 98, refd to. [para. 38].

R. v. Harbottle (J.), [1993] 3 S.C.R. 306; 157 N.R. 349; 66 O.A.C. 35, refd to. [para. 43, footnote 4].

R. v. Paquette, [1977] 2 S.C.R. 189; 11 N.R. 451, refd to. [para. 54].

R. v. Nicholson, [1981] 2 S.C.R. 600; 39 N.R. 611; 13 Man.R.(2d) 91, refd to. [para. 55].

R. v. McGuigan, [1982] 1 S.C.R. 284; 40 N.R. 499, refd to. [para. 55].

R. v. J.S. (2006), 213 O.A.C. 274; 81 O.R.(3d) 511 (C.A.), refd to. [para. 59, footnote 6].

R. v. Johnson (J.J.), [2003] 2 S.C.R. 357; 308 N.R. 333; 186 B.C.A.C. 161; 306 W.A.C. 161, refd to. [para. 74].

R. v. E.F., 2007 ONCJ 113, refd to. [para. 80, footnote 7].

Statutes Noticed:

Youth Criminal Justice Act, S.C. 2002, c. 1, sect. 2(1) [para. 19]; sect. 42(9) [para. 20].

Authors and Works Noticed:

Bala, Nicholas, Youth Criminal Justice Law (2002), p. 491 [para. 58, footnote 5].

Bala, Nicholas, and Anand, Sanjeev, Youth Criminal Justice Law (2nd Ed. 2009), p. 600 [para. 27].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 47].

Counsel:

Holly Loubert, for the appellant;

Raymond Boggs, for the respondent.

This appeal was heard on October 26, 2010, before O'Connor, A.C.J.O., Simmons and Blair, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Simmons, J.A., and was released on April 4, 2011.