KB ruling confirms ability of judges to review youth’s deferred custody sentencing order

The youth, who struggles with FASD and ADHD and has trouble focusing and connecting actions to consequences, was repeatedly arrested and held for breaching conditions of his sentence

September 09, 2022
By: Legal Aid Alberta

The Court of King’s Bench has ruled in favour of a case in which a youth’s four-month deferred custody sentence was terminated because he was unable to comply with its conditions and was repeatedly arrested and held in solitary confinement for breaching conditions.

Susan Haas, a member of the LAA Criminal Trial Group, represented the youth throughout the case. The youth pleaded guilty to a variety of charges, mostly property-related offences, and was handed a four-month deferred custody sentencing order, under a joint submission.

Read the full ruling online

But Haas grew frustrated when her client, who struggles with FASD and ADHD and has trouble focusing and connecting actions to consequences, was repeatedly arrested and held for breaching conditions of his sentence. He was picked up five times: four for missing curfew and once for failing to meet with his probation officer.

Due to COVID-19 protocols the youth was held in quarantine – the equivalent to solitary confinement – each time he was taken into custody.

“He was in breach five times and every time he’s brought in, he’s put in quarantine. That’s the same as solitary confinement and for someone with his medical conditions, that’s torturous,” said Haas.

By the time his sentence was reviewed and terminated, the youth had spent 51 days in solitary confinement over the course of his various entries to and releases from custody on breaches of his sentences.

“It was getting ridiculous,” said Haas. “He had spent a non-trivial amount of time in confinement because of his conditions – for things he has no control over.”

The original four-month deferred custody sentence was recommended in a joint submission. But it soon became apparent that the youth was unable to comply with the conditions of the sentence. He did not commit new crimes and each time he was picked up for breaches, he was later re-released.

After his fourth breach, Haas sought and received some changes to the youth’s sentence – giving him leeway on conditions such as when he was required to visit his probation officer. The youth was given seven days to connect with the officer, reported eight days later, and was taken into custody for a fifth time.

That’s when Haas decided “it was time to swing for the fences and do something about this” by asking to have the youth’s sentence terminated. There was no published precedent on cases like this one. Haas carefully crafted her case but wasn’t sure what the outcome would be.

“I wasn’t sure if I was going to go in and be told this is a ridiculous thing to ask for – the usual thing is to amend conditions, not ask: “How about we just stop the sentence today?” But when I looked at the section (section 59 YCJA) it doesn’t say you can’t ask that. So I did,” she said.

“To me, Parliament’s intent seemed clear – that these sentences should be reviewable under Section 59.”

The Crown later applied for an order quashing the judge’s decision, arguing that the court did not have jurisdiction to vary the sentence under section 59 of the Youth Criminal Justice Act. On June 10, the Alberta Court of King’s Bench ruled that the review was permitted.

Haas says it is because lawyers in the Criminal Trial Group are able to focus on such cases and deeply explore all their options for a client that she was able to ensure fair treatment for the youth.

The ruling, she adds, gives lawyers another tool they can use to protect their clients, and provides the court with confidence in varying deferred custody sentences for youths.

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