Ontario Criminal

Youth offenders

Youth Criminal Justice Act
Youth court judges are not required to give credit for pre-sentence custody

Accused young person, age 17, fired volley of shots into crowd, injuring three persons. Crown applied to have accused sentenced as adult under s. 72(1) of Youth Criminal Justice Act (YCJA). Defence counsel opposed Crown’s application and urged sentencing judge not to give accused credit for about 15 months he spent in pre-sentence custody to buttress submission that youth sentence would be sufficient to hold accused accountable for his behaviour. Sentencing judge found that Crown had not rebutted presumption of diminished moral blameworthiness, and that maximum sentence of three years available under YCJA would be sufficient to hold accused accountable. Sentencing judge declined to give accused credit for about 15 months of pre-sentence custody so that fit sentence reflecting statutory principles in YCJA could be imposed. Accused appealed, submitting that sentencing judge erred in denying him credit for pre-trial custody. Appeal dismissed. While youth court judge must consider pre-sentence custody in sentencing, credit which will be given in particular case is discretionary. YCJA mandates youth sentencing judges to impose least restrictive sentence capable of achieving purposes in YCJA, and to impose sentence most likely to rehabilitate and reintegrate young person into society. Requiring youth court judges to give credit for pre-sentence custody could reduce their ability to meet those objectives. While parity principle applies in context of youth sentencing, R. v. Summers does not affect discretion of youth court judges to take pre-sentence custody into account in whatever manner judge concludes will result in sentence that will hold young person accountable. Sentencing judge did not err in acceding to defence submissions, sentencing accused as young person and considering pre-sentence custody, but opting not to give credit for pre-sentence custody.

R. v. B. (M.) (2016), 2016 CarswellOnt 16259, 2016 ON CA 760, J.C. MacPherson J.A., S.E. Pepall J.A., and G. Pardu J.A. (Ont. C.A.).

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