



COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Able, 2013 ONCA 385

DATE: 20130611

DOCKET: C53557

Doherty, Simmons and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Warren Able

Appellant

Christopher Hicks and Kristin Bailey, for the appellant

Michael Perlin, for the respondent

Heard: January 31, 2013

On appeal from the sentence imposed by Justice John C.
    Moore of the Ontario Court of Justice, dated January 29, 2010.

Tulloch J.A.:

A.

OVERVIEW

[1]

The appellant pleaded guilty to five firearms-related offences,
    including possession of a restricted firearm with ammunition, contrary to s.
    95(1) of the
Criminal Code

and breach of a firearms prohibition
    order. He received a global sentence of nine and one-half years.

[2]

The appellant sought leave to appeal his sentence. He argued that under
    the applicable provisions of the
Youth Criminal Justice Act
, S.C.
    2002, c. 1 (YCJA), he should not have been treated as a second or subsequent
    offender for the purpose of determining the applicable mandatory minimum
    penalty under s. 95(2) of the
Criminal Code
.

[3]

At the end of oral argument, the court dismissed the appeal indicating:

The sentence, while lengthy, regardless of whether this
    conviction triggered the mandatory minimum sentence for subsequent convictions,
    was not demonstrably unfit.

We cannot interfere. We will release reasons at a later date
    addressing the proper interpretation of the relevant provisions of the YCJA.

B.

the relevant facts

[4]

In November 2007, the appellant was found guilty of a number of offences,
    including possession of a restricted firearm with ammunition contrary to s.
    95(1) of the
Criminal Code
. He was sentenced as a youth under the YCJA
    and received a short custodial sentence, a period of probation and a firearms
    prohibition.

[5]

In February 2009, police received information that a small group of men
    in a vehicle parked in the Regent Park neighbourhood of Toronto were in
    possession of a restricted firearm. Officers approached the vehicle to
    investigate. Suddenly, a door to the car flung open and the appellant exited
    the vehicle and fled.

[6]

The officers gave chase and observed the appellant throw an object into
    a nearby dumpster as he ran. After a brief search of the dumpster, police
    discovered that the object was in fact a .45-calibre semi-automatic firearm
    with capacity for 12 rounds. Eleven out of the 12 rounds in the handgun were
    chambered and ready to fire. The serial number on the firearm had been scratched
    out and it was later found to have been stolen in the United States and
    illegally brought to Canada.

[7]

Shortly after the discovery of the handgun, police dogs located the
    appellant nearby. The appellant was taken to the police station where he
    provided a statement and admitted possession of the handgun recovered from the
    dumpster. He was charged with
,
inter alia
, possession of a restricted
    firearm with ammunition.

[8]

In October 2009, the appellant pleaded guilty to the offences charged
    and was remanded for sentencing.

[9]

In January 2010, the sentencing judge imposed a global sentence of nine
    and one-half years. At the sentencing hearing, Crown counsel, defence counsel
    and the sentencing judge agreed that the appellants finding of guilt under the
    YCJA in 2007 on a charge under s. 95(1) made this conviction under s. 95(1)(a)
    a second or subsequent offence for the purposes of determining the applicable
    mandatory minimum under s. 95(2).

C.

ANALYSIS

(1)

The Operation of the
    Criminal Code Provisions

[10]

Persons,
    like the appellant, convicted under s. 95(1) are subject to minimum penalties.
    In the case of a first offence, the minimum penalty is three years, and in the
    case of second or subsequent offences, the minimum penalty is five years: s.
    95(2) of the
Criminal Code
. An offence is a second or subsequent
    offence if within the 10 years prior to the conviction for which the accused
    is being sentenced, he or she was convicted of any of the offences enumerated
    in s. 84(5). Section 95(1) is one of the enumerated offences. Consequently, and
    setting aside the YCJA provisions for the moment, the appellants conviction
    under s. 95(1) in November 2007 made this conviction on a s. 95(1) charge a
    second or subsequent offence and triggered the five-year minimum penalty in
    s. 95(2).

(2)

The applicable YCJA
    provisions

[11]

The
    appellant submits that because he was found guilty under the YCJA for his
    previous s. 95(1) offence, this s. 95(1) conviction does not constitute a
    second or subsequent offence for the purpose of determining the applicable
    minimum penalty. The appellant relies on s. 82(4) of the YCJA:

Finding of guilt not a previous conviction

(4) A finding of guilt under this Act is not a
    previous conviction for the purposes of any offence under any Act of Parliament
    for which a greater punishment is prescribed by reason of previous convictions,
    except for

(a) [Repealed]

(b) the purpose of determining the adult sentence
    to be imposed.

[12]

Standing
    alone, s. 82(4) supports the appellants position. However, that subsection is
    subject to s. 119(9)(a):

Application of usual rules

(9) If, during the period of access to a record under
    any of paragraphs (2)(g) to (j), the young person is convicted of an offence
    committed when he or she is an adult,

(a) section 82 (effect of absolute discharge or
    termination of youth sentence) does not apply to the young person in respect of
    the offence for which the record is kept under sections 114 to 116;

[13]

The
    term period of access is defined in s. 119(2). For the appellants purposes,
    the relevant definition appears in s. 119(2)(h):

Period of access

(2) The period of access referred to in subsection
    (1) is



(h) subject to paragraphs (i) and (j) and subsection
    (9), if the young person is found guilty of the offence and it is an indictable
    offence, the period ending five years after the youth sentence imposed in
    respect of the offence has been completed;

[14]

The
    appellant was convicted of an indictable offence under the YCJA in November
    2007. Consequently, under s. 119(2)(h), the period of access ended five years
    after the conviction in November 2007. The appellants subsequent convictions,
    which are the subject of this appeal, were entered in February 2009, well
    within the access period.

(3)

Resolving the
    interpretation issue

[15]

The
    appellant submits that s. 119(9)(a) applies only to s. 82(1). Therefore, regardless
    of the fact that this s. 95(1) conviction was well within the five-year access
    period, s. 82(4) applies and the appellants finding of guilt as a youth under
    s. 95(1) is not a previous conviction. Accordingly, this s. 95(1) conviction is
    the appellants first such offence and he is subject to the three-year
    mandatory minimum sentence in s. 95(2).

[16]

The
    respondent, on the other hand, contends that the application of s. 82(4) is
    also limited by the operation of s. 119(9)(a). Accordingly, the appellant is well
    within the period of access defined in s. 119(2) and the enhanced five-year
    mandatory minimum in s. 95(2) for second or subsequent offenders should apply.

[17]

I
    agree with the respondent. In
Rizzo & Rizzo Shoes Ltd. (Re)
, [1998]
    1 S.C.R. 27, at para. 21, the Supreme Court of Canada held that statutory
    interpretation must begin with the words of the relevant statutory provisions,
    read in their entire context and in their grammatical and ordinary sense and
    interpreted harmoniously with the scheme and the object of the legislation and
    with Parliaments intention.

[18]

The
    relevant portion of section 119(9)(a) provides that [s]ection 82 (effect of
    absolute discharge or termination of youth sentence) does not apply. On a
    plain reading, this can only mean that the protection of s. 82, and that of
    each of its subsections, is extinguished in the event that an adult is
    convicted of an offence within the period of access applicable to his or her
    youth record. There is no indication on the face of the legislation why the
    application of s. 119(9)(a) would be restricted to s. 82(1).

[19]

The
    appellant points to the words effect of absolute discharge or termination of
    youth sentence in parentheses in s. 119(9)(a) as evidence that it should only
    apply to s. 82(1). However, s. 2(3) of the YCJA demonstrates that the words in
    parentheses are merely a matter of convenience and are to hold no interpretive
    weight:

Descriptive cross-references

(3) If, in any provision of this Act, a reference to
    another provision of this Act or a provision of any other Act is followed by
    words in parentheses that are or purport to be descriptive of the
    subject-matter of the provision referred to,
those words form no part of
    the provision in which they occur but are inserted for convenience of reference
    only
. [Emphasis added.]

[20]

The
    appellant also referred the court to s. 119(9)(c), which deems the finding of
    guilt as a young person to be a conviction for the purposes of
Criminal
    Records Act
, R.S.C. 1985, c. C-47 if a person with a youth record is
    convicted of an offence during the access period as an adult. He submits that,
    had Parliament intended all findings of guilt to be treated as previous
    convictions for all statutes, it would not have included the reference to the
Criminal
    Records Act
.

[21]

I
    disagree. As a whole, s. 119(9) concerns the consequences that flow from an
    individual having been convicted of an offence as an adult during the relevant
    period of access. Section 119(9)(c) addresses the ramifications of the
Criminal
    Records Act
where an offence is committed during the access period.
    Section 119(9)(c) does not purport to speak to the effects of s. 82 and the
    impact on those effects of a conviction during the access period. Regardless of
    whether the language in s. 119(9)(c) was general enough to encompass the effect
    of a conviction within the access period for all purposes, s. 119(9)(a) would
    still be necessary to nullify the operation of the general rule in s. 82(4).
    Therefore, the specific reference to the
Criminal Records Act

in
    s. 119(9)(c) is necessary.

[22]

Furthermore,
    the interpretation of ss. 82 and 119(9)(a) that I accept accords with the objectives
    of the YCJA. These objectives can be found in the preamble to the YCJA. While
    the preamble has a broad and general compass, it also fosters responsibility
    and ensures accountability through meaningful consequences and effective
    rehabilitation and reintegration. Effective rehabilitation and reintegration
    require that young persons are given an opportunity to move on with their life
    and put their interaction with the criminal justice system behind them. However,
    a balance must be struck: strings must be attached when providing young persons
    with such an opportunity.

[23]

This
    interpretation has also been discussed in the academic literature. In Nicholas
    Bala and Sanjeev Anands
Youth Criminal Justice Law
, 3rd ed. (Toronto:
    Irwin Law, 2012), at pp. 482-483, the authors comment on the general treatment
    of youth records under the YCJA:

The [YCJA] defines a period during which there can be access to
    a record by specified persons. After that statutory period, in general there
    can be no access to the record, and no use should be made of the fact that the
    youth was convicted of that offence. This general rule is subject to some
    statutory exceptions whose exact scope has been the subject of judicial
    controversy.
[1]

If the youth commits a further offence within the statutory
    periods, records of earlier offences can be retained and accessed for a further
    period of three years for a later summary offence and a further five years for
    a later indictable offence. [Footnote added.]

[24]

There
    is also support for this interpretation at the trial level in Ontario. In
Elliston
,
    Aston J. pronounced on the very issue of using prior findings of guilt to
    support the imposition of an enhanced mandatory minimum sentence within the
    statutory access period. Aston J. described it as a reasonable and nuanced
    approach by Parliament in balancing the need to punish recidivists without
    allowing offences committed when one is very young to haunt an individual in
    perpetuity.
Elliston
has since been followed in the Superior Court:
    see e.g.
R. v. Mensah and Sadat
, 2011 ONSC 3303, [2011] O.J. No. 3052.

[25]

In
    my view, such an interpretation of the scheme fulfills Parliaments purpose
    and realizes the YCJAs objective of fostering responsibility and ensur[ing]
    accountability through meaningful consequences and effective rehabilitation and
    reintegration.

[26]

In
    addition, and although it is not required to dispose of this ground of appeal,
    I wish to comment on the role of s. 82(4)(b). Section 82(4)(b) provides that:

Finding of guilt not a previous conviction

(4) A finding of guilt under this Act is not a
    previous conviction for the purposes of any offence under any Act of Parliament
    for which a greater punishment is prescribed by reason of previous convictions,
    except for



(b)
the purpose of determining the adult
    sentence to be imposed.
[Emphasis added.]

[27]

The
    term adult sentence is defined in s. 2 of the YCJA. Section 2 provides that
    an:

adult sentence
in the case of a young person
    who is found guilty of an offence
, means any sentence that could be imposed
    on an adult who has been convicted of the same offence. [Emphasis added.]

[28]

Therefore,
    the reference in s. 82(4)(b) to an adult sentence applies only to an adult
    sentence imposed on a young person under the YCJA. Practically, s. 82(4)(b)
    would arise in cases where a court concludes that a young person should be
    sentenced as an adult and where the young person has an earlier finding of
    guilt that would give rise to a greater punishment on sentencing.

[29]

That
    is not this case. The appellant was an adult at the time of his second offence
    under s. 95(1). As an adult, the earlier finding of guilt he received as a
    youth became an earlier offence within the meaning of s. 84(5) of the
Criminal
    Code
by virtue of the interaction between ss. 119(9)(a) and 82 of the YCJA.

D.

Disposition

[30]

Since
    the appellant was found guilty for the earlier s. 95(1) offence in November of
    2007, less than two years before his convictions for the charges in the case at
    bar, he lost the protection of s. 82(4) by operation of s. 119(9)(a) within the
    scheme set out in the YCJA and interpreted in the foregoing reasons. Therefore,
    the finding of guilt against the appellant as a young person was an earlier
    offence within the meaning of s. 84(5) of the
Criminal Code
and the
    applicable mandatory minimum  on which counsel and the judge at the sentencing
    hearing had agreed  was five years.

[31]

As
    indicated at the end of oral argument, leave to appeal the sentence is granted.
    However, the appeal is dismissed.

Released:  JUN 11 2013                   M.
    Tulloch J.A.

DD                                                  I
    agree Doherty J.A.

I
    agree Janet Simmons J.A.





[1]
There are numerous exceptions in the YCJA to this general rule. However, the
    authors do not elaborate on this point. Nevertheless, I note that the
    authorities placed before this court on the appeal support the interpretation I
    have set out above: see e.g.
R. v. Elliston
, 2010 ONSC 6492, 225 C.R.R.
    (2d) 109, at para. 24. In addition, I have been unable to find any authorities
    that would support the appellants position.


