Youth conviction should play no role in adult sentence
A conviction under the Youth Criminal Justice Act should not be used as grounds to obtain an increased mandatory minimum penalty for a subsequent offence as an adult, Toronto criminal lawyer Kristin Bailey recently argued at the Ontario Court of Appeal. Read Factum
Trial judge Justice Patrick Moore, who presided over the case of Warren Able, “erred by treating the appellant’s finding of guilt under the YCJA as a prior conviction for the purpose of determining the mandatory minimum penalty,” says Bailey, associate with Hicks Adams LLP.
In October 2009, Able, 19, pleaded guilty to possession of a loaded firearm and several related charges and was sentenced to nine and a half years, minus two years of pre-sentence custody, says Bailey.
As a youth, he was also found guilty of having a loaded firearm and was sentenced to one year to be served in a youth facility, she adds.
“The question was whether he was subject to the five-year mandatory minimum sentence for a second firearm offence,” she says. “The minimum for a first offence is three years. It all came down to statutory interpretation of the YCJA (ss. 82 and 119 specifically).”
In the factum, Bailey says, “The rationale for setting the minimum sentence at five years for a subsequent offence must be that the accused would have already served at least a three-year sentence and was not deterred. Where the first offence took place while the accused was a youth, however, he would not have served a three-year sentence.
“In this case, the appellant was sentenced to 12 months secured custody in a youth facility. The discrepancy between these two sentences is not a step up. It is a giant leap.”
The nine-and-a-half-year sentence, therefore, was “harsh and excessive,” she says.
The larger question in the case is whether someone who commits a crime as a youth and is sentenced as a youth should be treated the same way as someone has previously served an adult sentence and not been deterred, says Bailey.
“For Mr. Able, this was his first adult sentence, his first time in an adult jail, and he got nine and a half years,” she says.
The sentence appeal was dismissed, says Bailey, as the court found the sentence was not grossly unfit, but it has yet to provide a written judgment on the issue of whether a finding of guilt as a youth counts as a previous conviction.
