Federal Appeal

Charter of Rights


Merger provisions regarding youth and adult sentences did not offend Charter

Accused was inmate who had committed offence as youth, was convicted for it, and received sentence under youth offenders’ regime. Accused also committed offence as adult, was convicted for it, and received sentence to be served consecutively under adult offenders’ regime. To ensure that offender is subject to only one regime, Parliament had passed merger provisions. Together, two merger provisions converted remaining portion of youth sentence into adult sentence and merged two sentences together. When he was 17-and-half years old, accused committed second degree murder. Accused received seven-year youth sentence for murder: four years in custody with regular reviews, and three years in community under supervision. Roughly two-and-half years into custodial portion of his youth sentence, accused pleaded guilty to charge of conspiracy to commit robbery and received four-year consecutive adult sentence. Sentence manager at Institution calculated accused’s period of incarceration and times when he was eligible for various forms of conditional release from prison. Accused sought judicial review of that decision, submitting that merger provisions offended his rights under Canadian Charter of Rights and Freedoms and, thus, were of no force or effect. Federal Court dismissed accused’s application for judicial review and accused appealed. Appeal dismissed. Merger provisions did not offend Charter. Merger provisions made accused eligible for unescorted temporary absences from prison three weeks earlier than his release under supervision in community for youth sentence. To extent merger provisions disadvantaged accused, disadvantage was triggered by his own misconduct as adult. Only most important, basic values rooted in our time-honoured practices and understandings can possibly qualify as principles of fundamental justice. Unfairness in colloquial sense, freestanding policy views, or generalized views of what is proper, all matters in eye of beholder, cannot qualify as principles of fundamental justice, nor can they perform any part in their discernment or application. Today’s merger provisions created certainty and order by applying one clear rule to all. Accused’s seven-year sentence as youth offender remained at seven years. Only conditions of sentence changed and changes in conditions of sentence do not implicate principles of fundamental justice. Merger provisions created certain disincentives, applying only when person commits offence as adult and is sentenced for it while serving youth sentence. In many circumstances mitigation may be possible at time of adult sentencing.

Erasmo v. Canada (Attorney General) (May. 20, 2015, F.C.A., David Stratas J.A., A.F. Scott J.A., and Richard Boivin J.A., File No. A-518-14) Decision at 118 W.C.B. (2d) 549 was affirmed.  122 W.C.B. (2d) 24.

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