Tuesday, June 11, 2013

Youth sentences relevant for adult mandatory minimum calculation

R. v. Able, 2013 ONCA 385 holds that a youth sentence can be applicable in determining the mandatory minimum penalty under s. 95(2) of the Criminal Code:

[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 Parliament's 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).

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