J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2005 SKCA 149 Date: 20051215 Between: Docket: 935 Her Majesty the Queen Coram: Gerwing, Lane Richards JJ.A. Counsel: A.B.Gerein for the Appellant Marvin Bloos, Q.C. for the Respondent Appeal: From: Provincial Court Heard: October 25, 2005 Disposition: Appeal allowed Written Reasons: December 15, 2005 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Madam Justice Gerwing The Honourable Mr. Justice Lane Richards J.A. [1] The respondent had just begun serving the community supervision portion of custody and supervision order made pursuant to the Youth Criminal Justice Act (“YCJA”) when he walked away from his designated residence and thereby breached the terms of the order. The provincial director immediately issued warrant for his apprehension but he was not found by police until almost month later. His case went to the Youth Justice Court (“Youth Court”) for review under s. 103 of the YCJA. [2] The Youth Court judge interpreted the YCJA as meaning the respondent’s sentence had continued to run while he was at large and, as a result, had already expired. In consequence, she held that no action was required on the alleged breach of the custody and supervision order. [3] The Crown appeals her decision and argues that, on a proper reading of the YCJA, the respondent was deemed not to be serving his sentence during the time period between when the warrant was issued and when he was apprehended. [4] I accept the Crown’s argument and find, for the reasons which follow, that the Youth Court judge erred in her interpretation of the YCJA. I. Factual Background [5] In May of 2004 the respondent was sentenced to six months deferred custody and supervision, followed by six months of probation, for variety of matters including break and enters, theft, weapons offence and drug offence. He breached the terms of the deferred custody order in June of 2004 and, on June 21, was directed to serve the remainder of his sentence under custody and community supervision order. [6] The respondent was released from custody on October 8, 2004 and began the community supervision portion of his sentence. The terms of the supervision included requirement that he reside at Quint Youth Lodge in Saskatoon, attend school and maintain curfew. Immediately after acknowledging these conditions, the respondent walked away from Quint Youth Lodge and did not return. [7] The provincial director issued warrant for the respondent’s arrest on October 8, 2004. Police located and arrested the respondent on November 4, 2004. The director concluded that the matter was serious and remanded the respondent pending review by the Youth Court pursuant to s. 103 of the YCJA. [8] As stated above, the Youth Court judge held that the community supervision portion of the respondent’s sentence had continued to run while he was at large, with the result that the sentence had ended prior to the matter coming before her for disposition. She concluded that no action was required on the alleged breach of the custody and community supervision order because the sentence had already expired. II. The Statutory Scheme [9] Much of the analysis necessary to the resolution of this appeal is grounded in the distinctions between what shall refer to as custody and conditional supervision orders on the one hand and custody and community supervision orders on the other. As result, it is useful to begin with brief overview of each type of order. [10] Custody and conditional supervision orders can be made pursuant to either ss. 42(2)(o), (q) or (r) of the YCJA. These provisions apply to offences of relatively serious nature. will not quote each of them in full. However, s. 42(2)(o) is reproduced below in order to provide an illustration of how the Act reads: 42(2) When youth justice court finds young person guilty of an offence and is imposing youth sentence, the court shall, subject to this section, impose any one of the following sanctions… (o) in the case of an offence set out in subparagraph (a)(ii), (iii) or (iv) of the definition "presumptive offence" in subsection 2(1), make custody and supervision order in respect of the young person for specified period not exceeding three years from the date of committal that orders the young person to be committed into continuous period of custody for the first portion of the sentence and, subject to subsection 104(1) (continuation of custody), to serve the remainder of the sentence under conditional supervision in the community in accordance with section 105; [11] young person sentenced under s. 42(2)(o), (q) or (r) is brought before the Youth Court at least one month before the expiry of the custodial portion of the sentence and the Court then sets the conditions of the young person’s conditional supervision. See: s. 105. [12] Breaches of conditional supervision are addressed in ss. 106 to 109 of the YCJA. For present purposes, s. 106 and 107(1) are particularly important. Section 106 empowers the provincial director to suspend the conditional supervision and to remand the young person in custody until review is conducted by the Youth Court. Section 107(1) sets out the director’s power to issue warrant when conditional supervision is suspended under s. 106. It also provides that, until the young person is apprehended, he or she is deemed not to be continuing to serve the youth sentence. Sections 106 and 107(1) are set out below: 106. If the provincial director has reasonable grounds to believe that young person has breached or is about to breach condition of an order made under subsection 105(1), the provincial director may, in writing, (a) suspend the conditional supervision; and (b) order that the young person be remanded to any youth custody facility that the provincial director considers appropriate until review is conducted under section 108 and, if applicable, section 109. (1) If the conditional supervision of young person is suspended under section 106, the provincial director may issue warrant in writing, authorizing the apprehension of the young person and, until the young person is apprehended, the young person is deemed not to be continuing to serve the youth sentence the young person is then serving. [13] turn then to custody and community supervision orders. They are made pursuant to s. 42(2)(n) of the YCJA. Section 42(2)(n) provides for sentence of up to two years. The first part of the sentence is served in custody and the second part is served under supervision in the community subject to conditions. Section 42(2)(n) states: (2) When youth justice court finds young person guilty of an offence and is imposing youth sentence, the court shall, subject to this section, impose any one of the following sanctions (n) make custody and supervision order with respect to the young person, ordering that period be served in custody and that second period which is one half as long as the first be served, subject to sections 97 (conditions to be included) and 98 (continuation of custody), under supervision in the community subject to conditions, the total of the periods not to exceed two years from the date of the coming into force of the order or, if the young person is found guilty of an offence for which the punishment provided by the Criminal Code or any other Act of Parliament is imprisonment for life, three years from the date of coming into force of the order; Section 97 of the YCJA sets out the conditions to be included in the order. [14] Violations of custody and community supervision order are addressed in s. 102(1) of the YCJA. It prescribes the powers of the provincial director when the director believes young person has breached or is about to breach supervision conditions: 102. (1) If the provincial director has reasonable grounds to believe that young person has breached or is about to breach condition to which he or she is subject under section 97 (conditions to be included in custody and supervision orders), the provincial director may, in writing, (a) permit the young person to continue to serve portion of his or her youth sentence in the community, on the same or different conditions; or (b) if satisfied that the breach is serious one that increases the risk to public safety, order that the young person be remanded to any youth custody facility that the provincial director considers appropriate until review is conducted. [15] Section 102(2) then states that ss. 107 and 108 of the YCJA, quoted above, are applicable to an order under s. 102(1)(b) with any modifications required by the circumstances. Section 102(2) says: (2) Sections 107 (apprehension) and 108 (review by provincial director) apply, with any modifications that the circumstances require, to an order under paragraph (1)(b). [16] With that introduction to the legislative scheme, now turn to the substance of this appeal. Analysis A. Right of Appeal [17] The respondent submits, as preliminary matter, that the Crown has no right of appeal in the circumstances of this case. Counsel for the respondent did not press this line of argument very strongly during oral submissions. However, his bottom line is summarized as follows at para. 34 of his factum: (a) young person or his counsel may only seek review by this Court where the Youth Justice Court ordered that the young person serve the balance of their sentence, or portion of it in custody pursuant to s. 103(2)(b); (b) The Attorney General or provincial Director may only appeal where the young person sought an order under s. 103(2)(a) and sought to keep the young person in custody pursuant to s. 103(2)(b) but the Court makes an order under s. 103(2)(a). [18] In order to deal with this issue, it is important to remember the procedural history of this case. It concerns an order made by the director pursuant to s. 102(1)(b) of the YCJA. He considered the breach of community supervision conditions by the respondent to be serious and concluded the respondent should be remanded in custody until review was conducted. Section 103 describes the nature of such review: 103. (1) When the case of young person is referred to the youth justice court under section 108 (review by provincial director), the provincial director shall, without delay, cause the young person to be brought before the youth justice court, and the youth justice court shall, after giving the young person an opportunity to be heard, (a) if the court is not satisfied on reasonable grounds that the young person has breached or was about to breach one of the conditions under which he or she was being supervised in the community, order that the young person continue to serve portion of his or her youth sentence in the community, on the same or different conditions; or (b) if the court is satisfied on reasonable grounds that the young person has breached or was about to breach one of the conditions under which he or she was being supervised in the community, make an order under subsection (2). (2) On completion of review under subsection (1), the youth justice court (a) shall order that the young person continue to serve the remainder of the youth sentence the young person is then serving in the community, and when the court does so, the court may vary the existing conditions or impose new conditions; or (b) shall, despite paragraph 42(2)(n) (custody and supervision order), order that the young person remain in custody for period that does not exceed the remainder of the youth sentence the young person is then serving, if the youth justice court is satisfied that the breach of the conditions was serious. (3) Subsections 109(4) to (8) apply, with any modifications that the circumstances require, in respect of review under this section. [emphasis added] [19] As is evident, s. 103(3) creates right of appeal “in respect of review under [s. 103]” by referencing ss. 109(4) to (8) of the YCJA and making them applicable with any modifications the circumstances require. Section 109(8) is particularly relevant for present purposes. It deals with appeals from Youth Court reviews where conditional supervision is suspended under s. 106 and the young person is remanded in custody. Section 109(8) refers, in turn, to s. 101, saying that s. 101 applies with necessary modifications. For its part, s. 101 provides for appeals not just from an order but also from refusal to make an order. While this obviously is not the most clearcut drafting imaginable, it does indicate that decision by Youth Court judge not to conduct review (and hence not to make an order) is subject to appeal. [20] In similar vein, also underline that s. 103(3) itself references ss. 109(4) to (8) as applying “in respect of review under this section”. This language is inconsistent with the notion that the right of appeal particularized in ss. 109(4) to (8) arises only in relation to certain kinds of orders and, in particular, that it arises only when there has been an unsuccessful attempt to keep the young person in custody. In other words, s. 103(3), on its face, contemplates appeals in respect of the s. 103 review generally rather than in respect of an order or certain kinds of orders. [21] As result, the respondent’s argument on this point must fail. B. Running of the Sentence 1. The Youth Court Decision [22] The Youth Court judge decided that the respondent’s sentence continued to run while he was at large. This produces an extraordinary result. The YCJA creates no offence for breaching the terms of community supervision order. Thus, as consequence of the decision appealed from, young person can escape the community supervision aspect of sentence simply by avoiding apprehension by the authorities. In other words, the Youth Court judge effectively found that Parliament intended there should be no consequences for breaching the terms of community supervision. [23] The decision of the Youth Court judge turned principally on what she saw as noteworthy differences in the YCJA between community supervision orders made pursuant to s. 42(2)(n) and conditional supervision orders made pursuant to s. 42(2)(o), (q) or (r). In this regard, she attached particular importance to the differences in the relevant breach and review provisions. She emphasized that, while s. 106 expressly enables the provincial director to suspend conditional supervision on breach of the terms of the supervision, s. 102 which deals with the breach of community supervision does not provide for suspension. [24] The Youth Court judge regarded this difference between conditional supervision and community supervision as extending through those parts of the YCJA dealing with apprehension. Although her analysis is perhaps not entirely clear in this regard, she seems to have considered the “deemed not to be continuing to serve the youth sentence” wing of s. 107(1) as being inapplicable on the facts at hand because the director had no authority to suspend the community supervision part of the respondent’s sentence. The key passages of her reasons are set out below: [49] Both sections 102 and 106 begin by saying that should the provincial director have reasonable grounds to believe that young person has or is about to breach condition of supervision, action may be taken. After that there is departure between the two sections. Pursuant to s. 106, the provincial director may suspend the conditional supervision and order that the young person be remanded until review is conducted. Pursuant to s. 102 the provincial director may permit the young person to continue to serve the sentence in the community upon the same or different conditions, or if satisfied that the breach is serious one that increases the risk to public safety, order remand until review is conducted. There is no reference to suspension in s. 102. [50] The procedure that follows for apprehension and review by the provincial director is the same both for s. 102 and s. 106. Section 102(2) does not set out separate procedure for apprehension and review by the provincial director; rather it incorporates the procedure applicable to s. 106 breaches, stating as follows: 102(2) Sections 107 (apprehension) and 108 (review by provincial director) apply, with any modifications that the circumstances require, to an order under paragraph (1)(b). There is no mention here of s. 106 or the power to suspend. [51] Section 107(1), which provides that the sentence doesn't run until apprehension, is reliant upon suspension pursuant to s. 106. It states: Apprehension 107. (1) If the conditional supervision of young person is suspended under section 106, the provincial director may issue warrant in writing, authorizing the apprehension of the young person and, until the young person is apprehended, the young person is deemed not to be continuing to serve the youth sentence the young person is then serving. Section 108 provides for prompt review of the case by the provincial director. It states: Review by provincial director s. 108 108. Without delay after the remand to custody of young person whose conditional supervision has been suspended under section 106, or without delay after being informed of the arrest of such young person, the provincial director shall review the case and, within forty-eight hours, cancel the suspension of the conditional supervision or refer the case to the youth justice court for review under section 109. While s. 102(2) provides that sections 107 and 108 apply with "any modifications that the circumstances require", it does seem that this proviso cannot have been intended to incorporate the power to suspend which is provided for under separate section. These sections may allow the issuance of warrant authorizing apprehension, as that is the focus of s. 107, and may direct the provincial director to review the case promptly, as that is the focus of s. 108, but they cannot incorporate the power to suspend. am assisted in part in ascertaining the focus of these sections by reference to the headings contained in the Bill. In Sullivan and Driedger on the Construction of Statutes, 4th edition by Ruth Sullivan, Butterworths Canada Ltd. 2002, the use of headings is discussed. Beginning at page 305 the author discusses the use of headings in statutory interpretation, noting that in R. v. Zundel (1992), 1992 CanLII 75 (SCC), 95 D.L.R. (4th) 202 (S.C.C.), "headings were relied on to help establish the purpose of s. 181 of the Criminal Code,". [underlining added] [2005 SKPC 6; (2005), 2005 SKPC (CanLII), 259 Sask. R. 75] 2. The Proper Interpretation of Section 102(2) [25] A straightforward analysis of the YCJA serves to answer the question of whether the respondent’s sentence continued to run while he was at large. That analysis begins with s. 102 of the Act. As noted above, s. 102(1) sets out the authority of the director when young person has breached or is about to breach condition of his or her community supervision. In those circumstances, the director may do one of two things: (i) pursuant to s. 102(1)(a), the director may permit the young person to continue to serve his or her sentence in the community, or (ii) pursuant to s. 102(1)(b), if the breach is serious and increases the risk to public safety, the director may order the young person to be remanded in custody until review is conducted. [26] As explained earlier, s. 102(2) goes on to make ss. 107 and 108 applicable to an order for remand and review made pursuant to s. 102(1)(b). Section 102(2) is reproduced below for ease of reference: 102. (2) Sections 107 (apprehension) and 108 (review by provincial director) apply, with any modifications that the circumstances require, to an order under paragraph (1)(b) [27] Section 107(1) is the provision referred to by s. 102(2) which is of immediate concern. Again, for ease of reference, it reads as follows: 107. (1) If the conditional supervision of young person is suspended under section 106, the provincial director may issue warrant in writing, authorizing the apprehension of the young person and, until the young person is apprehended, the young person is deemed not to be continuing to serve the youth sentence the young person is then serving. [28] There is an obvious modification of s. 107(1) which "the circumstances require" when, as per s. 102(2), it applies in the context of breach of the conditions of community supervision. That modification involves the notional deletion of the opening words of the subsection which refer to s. 106 and the substitution in their place of reference to s. 102. As result, when applied in respect of an order made pursuant to s. 102(1)(b), s. 107(1) effectively reads as follows: 107. (1) [When an order is made pursuant to s. 102(1)(b)] the provincial director may issue warrant in writing, authorizing the apprehension of the young person and, until the young person is apprehended, the young person is deemed not to be continuing to serve the youth sentence the young person is then serving. [29] This means two things. First, it means that when the director decides to issue an order under s. 102(1)(b) remanding young person in custody until review is conducted, the director has the authority to issue warrant authorizing the apprehension of the young person. Second, it means that if warrant is issued, the young person's sentence does not run until he or she is apprehended. [30] note that this issue has now been considered by several Youth Court judges. One case follows the decision under consideration in this appeal. See: R. v. C.K.W., 2005 ABPC 64 (CanLII). However, the courts in the other cases have reached the same bottom-line conclusion as have. See: R. v. T.F.W., 2005 SKPC 96 (CanLII); R. v. M.D.S., 2005 NSPC 39 [unreported]; R. v. C.W.W., 2005 ABPC 214 (CanLII). 3. Some Comments on the Youth Court Decision [31] It may be appropriate to comment further on some of the considerations which seem to have led to the decision in the court below. These are (a) the purpose of the YCJA, (b) the reference to s. 107 which is found in s. 102(2), and (c) the relationship between the concept of the suspension of supervision and the running of the sentence itself. The discussion of these points will also serve to further explain the basis of my own decision. (a) Purpose of YCJA [32] will deal first with the purpose of the YCJA. In her decision, the Youth Court judge quite properly cited the well known principle of statutory interpretation expressed by the Supreme Court in Rizzo Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] S.C.R. 27 at para. 21 and confirmed in various other cases including R. v. Sharpe, 2001 SCC (CanLII), [2001] S.C.R. 45 at para. 33. She then turned to the Preamble of the YCJA and the Declaration of Principle in s. and emphasized the uniqueness of the youth justice system and stressed its objectives of rehabilitation and reintegration, seeing these factors as supporting or leading to her construction of the statutory provisions at issue in this appeal. [33] In this regard, note that the Youth Court judge would presumably have been led in somewhat different direction if she had referred to the Preamble and the Declaration of Principle in their totality and given consideration to all of the factors included therein including, for example, the statement in the Preamble referring to youth justice system which “…fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation…” and the principle expressed in s. 3(1)(a)(iii) that young persons be subject to “meaningful consequences” for offences. [34] Further, and in any event, do not accept that even narrow focus on “rehabilitation and reintegration” is consistent with the conclusion that young person should be able to escape community supervision without consequence. One of the central purposes of community supervision is to promote rehabilitation and reintegration. sentence imposed after due process and careful consideration by sentencing judge should be complied with in full. An interpretation of the YCJA which allows young person to avoid the community supervision aspect of sentence directly undercuts the objectives of rehabilitation and reintegration. (b) Reference to s. 107 in s. 102(2) [35] Second, turn to the wording of s. 102(2). The Youth Court judge’s thinking appears to have been based in part on the fact that s. 102(2), when it refers to s. 107, uses the language “Sections 107 (apprehension) …”. In other words, the judge seems to have thought s. 102(2) incorporates only the “apprehension” aspect of s. 107 because that is all it refers to. The respondent advanced the same argument in his submissions. [36] However, this line of reasoning is faulty. Section 102(2) includes the word “apprehension” after the reference to s. 107 merely as an aid to the reader. “Apprehension” is the opening marginal note to s. 107. It is included in s. 102(2) in order to give the reader sense of what s. 107 is about without requiring him or her to actually turn to the section. This same technique is used throughout the YCJA. See, for example: ss. 16, 34(2) and 40(10). If Parliament had intended only part of s. 107(1) to apply in the context of breach of community supervision orders, it would have made that point expressly. (c) “Suspension” and Running of the Sentence [37] Third, and perhaps most importantly, it is useful to consider the relationship between the concept of the suspension of supervision and the running of sentence. In this regard, the Youth Court judge focused unduly on the provincial director’s lack of authority to “suspend” community supervision under s. 102 and the contrast in this regard with the power of the director under s. 106 to suspend conditional supervision. note, for example, that in para. of her decision the Youth Court judge framed the issues as follows: [3] …While Parliament provided for the application of sections 107 and 108 to the breach of custody and supervision procedure, it did not provide for the application of s. 106 which is the source of the authority for suspension. Furthermore, there is no similar provision permitting suspension where the sentence being served is s. 42(2)(n) custody and supervision. [38] Similarly, in the last paragraph of her reasons, the Youth Court judge again returned to what she characterized as the provincial director’s ability to “suspend” the operation of sentence. She wrote this by way of conclusion to her decision: [60] As held that the provincial director had no power to suspend operation of the Young Person's sentence, no action was required with respect to the breach initiated by the provincial director as the practical effect was that the sentence had expired. judicial stay was entered with respect to the provincial director's suspension of the sentence. [39] This emphasis on the provincial director’s power to “suspend” was misplaced and lead to an analysis which focused on the wrong question. The provincial director did not purport to suspend the respondent’s sentence in this case. He simply issued warrant. The real question before the Court is whether the sentence was deemed not to be continuing following the issuance of the warrant. It is not whether the provincial director had the power to suspend the community supervision. [40] The suspension of supervision and the running of sentence are separate concepts under the YCJA. This can be seen in the structure of s. 106 and s. 107 themselves. On the face of s. 107(1), the director’s authority to issue warrant is contingent on the existence of an order under s. 106, i.e. on the existence of an order which suspends the community supervision. If, as the Youth Court judge seems to have concluded, it is the suspension itself which stops the sentence from running, there would be no need for s. 107(1) to stipulate that the sentencing clock is frozen following the issuance of warrant. It already would have stopped on the making of the order under s. 106. [41] The distinction between the running of sentence and the suspension of conditional supervision is also evident in s. 109. It describes the authority of the Youth Court in its consideration of the case of young person where conditional supervision has been suspended and the young person has been remanded pending review. Section 109(2)(b) says the Youth Court can order “… the continuation of the suspension of the conditional supervision for any period of time, not to exceed the remainder of the youth sentence the young person is then serving…” This language necessarily contemplates distinction between the suspension and the running of the sentence. [42] In short, it is clear that the feature of the YCJA which stops sentence from running is not the “suspension” of supervision but the issuance of warrant for the apprehension of young person. Thus, when the director issues warrant pursuant to the combined effect of s. 102(2) and s. 107(1), the young person is deemed not to be continuing to serve his or her sentence until an apprehension is made. C. Other Matters [43] The Crown included significant argument in its written materials to the effect that the decision of the Youth Court judge should be set aside because it was tainted by reasonable apprehension of bias. The point was not pressed at the argument of the appeal. Rather, the Crown acknowledged that its root concern revolved around how the Youth Court judge had come to make an earlier decision on the same legal point which is at issue here and then had relied on that decision in the proceedings in this case. This does warrant some comment. [44] The earlier decision is R. v. K.P.A. (2004), 2004 SKPC 20 (CanLII), 243 Sask.R. 180 (“K.P.A. #1”). By apparent coincidence, it involves the same young person who is the respondent in this appeal. In R. v. K.P.A. #1, the respondent applied for reinstatement of the community supervision portion of his sentence. He had been sentenced to two months open custody, followed by one month of community supervision. He had absconded after the start of his community supervision and that portion of his sentence had been suspended as consequence. He appeared before the Youth Court judge on s. 103 review. She decided to re-release on community supervision with variations on the conditions of that release. [45] The Youth Court judge's written reasons for decision in K.P.A. #1 contain broad-ranging commentary on number of questions not necessary to her decision in that case. Some of those issues were not argued before her. The opening paragraph of her reasons for decision states: [1] This decision concerns review pursuant to s. 103 of the Youth Criminal Justice Act (YCJA). The community supervision portion of the Young Person's month custody and supervision sentence had been suspended. Pursuant to sections 102 and 108 his sentence was reviewed by the Provincial Director and he was referred to the Youth Justice Court for review. This application raised number of procedural and substantive questions when it came before me for review pursuant to s. 103. The Young Person had been in custody since December 23rd when this matter came up for argument on December 31st. was informed that his sentence expiry was January 18th. returned the Young Person to the community pursuant to s. 103(2)(a) and while gave some indication of my reasoning orally, indicated that full written reasons would follow. It was my intention to be instructive with respect to future applications of this nature both with respect to the merits of the review and the procedure employed. Many of the issues were not argued and some only came to light as wrote this judgment but persisted as believed it was in the interests of this Young Person and others that these issues be explored. [emphasis added] [46] One of the issues canvassed by the Youth Court judge in her reasons was the point which is at issue in the current appeal. Without the benefit of argument by counsel, she offered the opinion that the provincial director had no authority to "suspend" the running of community sentence order on the issuance of warrant. [47] When counsel for the respondent appeared before the Youth Court judge in the present case, she drew his attention to K.P.A. #1 and indicated she had number of concerns about whether the procedure which had been followed was in compliance with what she had said in K.P.A. #1. Counsel for the respondent, following an adjournment, decided to pursue only the aspect of K.P.A. #1 dealing with the provincial director's so-called power to "suspend." In her reasons for decision in this case, the Youth Court judge quoted at some length from K.P.A. #1 by way of an introduction to her analysis. [48] appreciate that in K.P.A. #1 the Youth Court judge was attempting to shed some light on what was then relatively new piece of legislation. However, judge is generally ill advised to offer legal commentary with respect to issues lying outside the line of analysis necessary to the determination of the matter before him or her. The risks involved in offering unnecessary opinions are compounded in circumstances where those opinions are put forward without the benefit of submissions from counsel. It would have been prudent for the Youth Court judge in this case to have written K.P.A #1 in less wide-ranging terms and, having written it as she did, to have treated it less as precedent and more as the collection of obiter observations it was. Conclusion [49] The appeal is allowed The respondent’s sentence did not run in the time period between the issuance of the warrant on October 8, 2004 and his apprehension on November 4, 2004. The Crown does not seek to have this matter returned to Youth Court for reconsideration and, as result, there will be no order in that regard. DATED at the City of Regina, in the Province of Saskatchewan, this 15th day of December, A.D. 2005. RICHARDS J.A. concur GERWING J.A.
The respondent had just begun serving the community supervision portion of a custody and supervision order made pursuant to the Youth Criminal Justice Act when he walked away from his designated residence and breached the terms of the order. The provincial director immediately issued a warrant for his apprehension but he was not found until almost a month later. His case went to the Youth Court for review under s. 103 of the Act. The Youth Court judge interpreted the Act as meaning the respondent's sentence had continued to run while he was at large and had expired. She held that no action was required on the alleged breach of the custody and supervision order. The Crown appeals the decision. HELD: Appeal allowed. 1) The Youth Court judge erred in her interpretation of the Act. On a proper reading of the Act, the respondent was deemed not to be serving his sentence during the time period between when the warrant was issued and when he was apprehended. 2) A straightforward analysis of the Act serves to answer the question of whether the respondent's sentence continued to run while he was at large. Section 102(1) of the Act sets out the authority of the director, when a young person has breached or is about to breach a condition of his community supervision. The director may, pursuant to s. 102(1)(a), permit the young person to continue to serve his sentence in the community or, pursuant to s. 102(1)(b) of the Act, if the breach is serious and increases the risk to public safety, the director may order the young person to be remanded in custody until a review is conducted. Section 102(2) goes on to make s. 107 and s. 108 applicable to an order for remand and review made pursuant to s. 102(1)(b). Section 107(1) is the provision referred to by s. 102(2) that is of concern. There is an obvious modification of s. 107(1) which 'the circumstances require' when it applies in the context of a breach of the conditions of community supervision. That modification involves the notional deletion of the opening words of the subsection that refers to s. 106 and the substitution in their place of a reference to s. 102. This means two things. First it means that, when the director decides to issue an order under s. 102(1)(b) remanding a young person in custody until a review is conducted, the director has the authority to issue a warrant authorizing the apprehension of the young person. Second it means that if a warrant is issued, the young person's sentence does not run until he or she is apprehended. 3) The court went on to comment further on some of the considerations that seem to have led to the decision in the court below, including the purpose of the Act, the reference to s. 107 that is found in s. 102(2) and the relationship between the concept of the suspension of supervision and the running of the sentence itself.