R. v. T.W.O., (2013) 352 N.S.R.(2d) 8 (SC)

• Judge: Murphy, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: April 30, 2013
• Jurisdiction: Nova Scotia
• Citations: (2013), 352 N.S.R.(2d) 8 (SC);2013 NSSC 448

R. v. T.W.O. (2013), 352 N.S.R.(2d) 8 (SC);

    1112 A.P.R. 8

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. NO.037

T.W.O. (applicant) v. Her Majesty the Queen, The Attorney General for the Province of Nova Scotia, The Superintendent of the Central Nova Scotia Correctional Facility (respondents)

(Hfx. No. 414252; 2013 NSSC 448)

Indexed As: R. v. T.W.O.

Nova Scotia Supreme Court

Murphy, J.

April 30, 2013.

Summary:

When T.W.O. was 17 years old he was found guilty of aggravated assault, assault with a weapon and failure to comply with a youth sentence or disposition. Under s. 42(2)(n) of the Youth Criminal Justice Act, he was ordered to serve a total of 625 days, comprised of 416 days in custody, followed by 209 days under supervision in the community. After turning 18, while serving the community supervision portion of his sentence, T.W.O. breached two of the conditions of his community supervision. On February 16, 2013, he was arrested and charged as an adult under s. 137 of the Youth Criminal Justice Act with two counts of failing to comply with the sentence. On February 20, 2013, the Provincial Director issued a warrant of apprehension and remand for T.W.O. pending review of his youth sentence. Judge Campbell (now Justice Campbell) ordered that T.W.O. continue to serve the remainder of his sentence in the community and varied the conditions to include a three month period of house arrest. T.W.O. remained under remand for the two adult charges until he was released on a recognizance. He pleaded guilty to the charges and was sentenced to a custodial sentence of 30 days, to be served on weekends. When he presented himself for the third weekend of his sentence, he was informed by the Superintendent that the remaining supervision portion of his youth sentence had been converted into an adult sentence of incarceration in accordance with s. 743.5(1) of the Criminal Code and that he would not be released. T.W.O. applied for a writ of habeas corpus, claiming that the Superintendent's conversion of his sentence of community supervision and house arrest to adult custody was unlawful.

The Nova Scotia Supreme Court allowed the application and granted an order of habeas corpus.

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 8702.1

Young offenders - General principles - Interpretation of legislation - T.W.O. applied for habeas corpus seeking release from custody following a decision by the Superintendent of the Central Nova Correctional Facility to apply s. 743.5(1) of the Criminal Code to convert the remaining supervision portion of his youth sentence into an adult sentence of incarceration - He asserted that s. 50(1) of the Youth Criminal Justice Act (YCJA) prohibited invoking s. 743.5(1) to merge T.W.O.'s sentence into one adult sentence - Section 50(1) provided that, subject to s. 74 (application of the Code to adult sentences), the Code did not apply respecting proceedings under the YCJA except for the listed exceptions - The Nova Scotia Supreme Court stated that as T.W.O. was entitled to habeas corpus relief on other grounds, it was not necessary to consider this argument - However, the court rejected the argument as untenable - Section 743.5(1) applied to persons who had been sentenced to imprisonment while subject to a sentence under the former Young Offenders Act or the YCJA - The current s. 743.5(1) was the result of a consequential amendment to the Code made by s. 184 of the YCJA at the time it was introduced - It was inconceivable that when Parliament drafted s. 50(1) of the YCJA, its intention was to render s. 743.5(1) of the Code meaningless - Such would be contrary to the presumption that the legislature did not intend to contradict itself - It was presumed to create coherent schemes - Therefore, interpretations that avoided the possibility of conflict or incoherence among different enactments were preferred - See paragraphs 58 and 59.

Criminal Law - Topic 8817.3

Young offenders - Decisions (incl. punishments) - Custody and supervision order (incl. breach and review) - [See Criminal Law - Topic 8702.1 ].

Criminal Law - Topic 8817.3

Young offenders - Decisions (incl. punishments) - Custody and supervision order (incl. breach and review) - T.W.O. applied for habeas corpus seeking release from custody following a decision by the Superintendent of the Central Nova Correctional Facility to apply s. 743.5 of the Criminal Code to convert the remaining supervision portion of his youth sentence into an adult sentence of incarceration - The Nova Scotia Supreme Court allowed the application and gave the following guidance: "Administrative officials in the corrections system are obliged to carry out sentencing directions from the courts. It is not the role of those officials to independently invoke s. 743.5(1) or any other legislation to overrule the terms of a committal order or related direction from a judge. The difficulty which arose for the Superintendent in this case resulted from the communication gaps highlighted in paragraph 44 of these reasons. In future every reasonable effort should be made to have an individual's youth sentence reviewed and any related breach charge managed by the same crown attorney, and adjudicated by the same judge. The judge's reasons for disposition ought to be provided to the correctional facility. If those reasons are not received, the Superintendent should immediately request them. The Superintendent has an obligation, when contemplating application of s. 743.5, to learn and comply with the terms of any committal or other court order affecting the offender. ... If a superintendent or other administrative decision maker contemplates detention of an offender beyond the term imposed by the court, directions should be obtained from the court before the person's liberty is curtailed." - See paragraphs 61 and 62.

Criminal Law - Topic 8817.3

Young offenders - Decisions (incl. punishments) - Custody and supervision order (incl. breach and review) - When T.W.O. was 17 years old he was he was ordered to serve a total of 625 days, comprised of 416 days in custody, followed by 209 days under supervision in the community pursuant to s. 42(2)(n) of the Youth Criminal Justice Act - After turning 18, while serving the community supervision portion of his sentence, he breached two of the conditions of his community supervision - He was arrested without a warrant and charged as an adult under s. 137 of the Act with two counts of failing to comply with the sentence - Judge Campbell reviewed the youth sentence and ordered that T.W.O. continue to serve the remainder of his sentence in the community and varied the conditions to include a three month period of house arrest - T.W.O. pleaded guilty to the adult charges and was sentenced to a custodial sentence of 30 days, to be served on weekends - When he presented himself for the third weekend of his sentence, the Superintendent of the Central Nova Correctional Facility informed him that the remaining supervision portion of his youth sentence had been converted into an adult sentence of incarceration in accordance with s. 743.5(1) of the Criminal Code and that he would not be released - T.W.O. applied for a writ of habeas corpus - The Nova Scotia Supreme Court allowed the application - The Superintendent lacked jurisdiction to act independently to invoke s. 743.5 to convert the remainder of T.W.O.'s community supervision sentence into an adult sentence of incarceration - The effect of the Superintendent's action was to override judicial decision and unlawfully deprive T.W.O. of his liberty by detaining him beyond the committal order's term - Continued detention would be especially unjust as the police had lacked jurisdiction to detain and charge T.W.O. for breaching a condition of community supervision as s. 137 did not cover custody and supervision orders imposed under s. 42(2)(n) - The authority of the police was limited to advising the Provincial Director of the circumstances of the alleged breach - It was the Director's decision whether to issue a warrant authorizing the individual's detention pending the Director's review - Because T.W.O. had pleaded guilty and convictions were entered for the adult charges which were the basis of his arrest, the other remedies which might have been available to him precluded habeas corpus on the basis of that arrest.

Habeas Corpus - Topic 2

General - When available - [See third Criminal Law - Topic 8817.3 ].

Habeas Corpus - Topic 1000

Grounds for issue of writ - Detention - Requirement of unlawful detention - [See third Criminal Law - Topic 8817.3 ].

Statutes - Topic 2617

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Harmonization of statutes (incl. presumption of coherence) - [See Criminal Law - Topic 8702.1 ].

Cases Noticed:

R. v. R.M.W. (2008), 278 N.S.R.(2d) 21; 886 A.P.R. 21; 2008 NSSC 420, agreed with [para. 10].

Khela v. Mission Institution (Warden) et al. (2014), 351 B.C.A.C. 91; 599 W.A.C. 91; 455 N.R. 279; 2014 SCC 24, refd to. [para. 13].

R. v. A.C., 2008 ONCJ 613, consd. [para. 26].

R. v. L.S., [2009] O.A.C. Uned. 520; 2009 ONCA 762, refd to. [para. 28].

Van Buskirk v. Canada (Solicitor General) (2012), 423 F.T.R. 100; 2012 FC 1463, refd to. [para. 31].

J.P. v. Canada (Attorney General), [2010] 3 F.C.R. 3; 344 F.T.R. 235; 2009 FC 402, affd. [2011] 4 F.C.R. 29; 401 N.R. 73; 2010 FCA 90, refd to. [para. 36].

May et al. v. Ferndale Institution et al., [2005] 3 S.C.R. 809; 343 N.R. 69; 220 B.C.A.C. 1; 362 W.A.C. 1; 2005 SCC 82, refd to. [para. 56].

Gamble v. R., [1988] 2 S.C.R. 595; 89 N.R. 161; 31 O.A.C. 81, refd to. [para. 56].

R. v. Pearson (E.), [1992] 3 S.C.R. 665; 44 N.R. 243; 52 Q.A.C. 1, refd to. [para. 56].

R. v. Sarson (J.A.), [1996] 2 S.C.R. 223; 197 N.R. 125; 91 O.A.C. 124, refd to. [para. 56].

R. v. Stewart, [1991] 3 S.C.R. 324; 130 N.R. 159; 120 A.R. 32; 8 W.A.C. 32, refd to. [para. 56].

Statutes Noticed:

Criminal Code, R.S.C. 1995, c. C-46, sect. 743.5(1) [para. 6].

Youth Criminal Justice Act, S.C. 2002, c. 1, sect. 58(1) [para. 58]; sect. 137 [para. 47].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 412 [para. 59].

Tustin, Lee and Lutes, Robert, A Guide to the Youth Criminal Justice Act (2014 Ed.), pp. 182 [para. 50]; 229 [para. 48].

Counsel:

Chandrashakhar Gosine, for the applicant;

Terry M. Nickerson, for the respondent, Her Majesty the Queen;

Peter C. McVey, for the respondents, Attorney General of Nova Scotia, The Superintendent of Central Nova Scotia Correctional Facility.

This application was heard at Halifax, Nova Scotia, on April 30, 2013, by Murphy, J., of the Nova Scotia Supreme Court, who delivered judgment orally on April 30, 2013, and the following written judgment on November 13, 2014.