Your Calculator Didn’t Read the YCJA: How the Youth Criminal Justice Act’s Sentence Merger Provisions Can Unexpectedly Extend Custody

By summer students Luca Boudignon, Maya Vidovich, and Christine Yasay

Unlike adult sentences, many custodial sentences under the Youth Criminal Justice Act ("YCJA") are divided into two parts. The young person first serves a period of time in custody. They are then released into the community under supervision, where they must comply with conditions until their sentence expires. Together, these two parts are called a custody and supervision order. In most cases, two-thirds of the sentence is served in custody and the remaining one-third is served under community supervision.

Things become more complicated when a young person receives a second custody and supervision order before the first one has expired.

Sections 43 [1] and 44 [2] of the YCJA require the two sentences to be treated as one youth sentence. Rather than serving each sentence separately, the law combines them into a single sentence and recalculates how much of that sentence must be served in custody and how much must be served under community supervision.

Section 43 provides that where a young person receives another custody and supervision order before the first has expired, they are deemed to have been sentenced to:

"...one youth sentence commencing at the beginning of the first of those youth sentences to be served and ending on the expiry of the last of them to be served."

That recalculation can produce an unexpected result. If counsel do not account for the merger provisions when crafting a sentence, a young person may remain in custody longer than anticipated.

This issue was exemplified in R. v. L. (D.M.C.), 2015 ABQB 781 [3]. The young person was already serving a 45-day custody and supervision order, consisting of 30 days in custody followed by 15 days under community supervision, when he received a second custody and supervision order (R. v. L. (D.M.C.) at paras 2–3).

For the second offence, the sentencing judge imposed a 201-day custody and supervision order, consisting of 134 days in custody followed by 67 days under community supervision. Before sentencing, the young person had already spent 57 days in pre-sentence custody awaiting the resolution of those charges (R. v. L. (D.M.C.) at paras 3–4). Under the YCJA, sentencing judges must take that time into account. The judge therefore credited those 57 days against the custodial portion of the second sentence, reducing it from 134 days to 77 days (R. v. L. (D.M.C.) at para 16). Everyone at the sentencing hearing understood that the young person therefore had 77 more days to serve in custody before beginning community supervision.

That is not what happened.

Because the young person was still serving his first custody and supervision order, sections 43 and 44 required Sentence Administration to treat the two sentences as one merged sentence. This meant the 77-day calculation could no longer be used. Instead, Sentence Administration was required to apply the statutory formula for a merged sentence. That formula required it to account for the 9 custody days remaining on the first sentence and then calculate the custodial portion of the merged sentence. The result was 89 days in custody, rather than 77 days (R. v. L. (D.M.C.) at paras 24, 29). The young person therefore remained in custody 12 days longer than anticipated. The merger provisions changed how much of the merged sentence had to be served in custody and how much would be served under community supervision.

The Court rejected the young person’s constitutional challenge (R. v. L. (D.M.C.) at paras 54, 61, 68). However, it recognized that the unexpected result arose because neither counsel nor the sentencing judge had considered the effect of the merger provisions when the sentence was crafted (R. v. L. (D.M.C.) at paras 33–34). The Court explained that, had they done so, they could have structured the sentence differently to achieve the intended release date. It also observed that, where a youth is already serving a sentence, applying pre-sentence custody credit to the overall sentence rather than only to its custodial portion may avoid this problem (R. v. L. (D.M.C.) at para 37).

A similar issue recently arose in a matter handled by Kristen Dulysh, a partner at Bariteau Dulysh.

The client had already completed the custodial portion of an earlier youth sentence and was serving the community supervision portion when he received a second custodial sentence. Although the additional custodial sentence appeared relatively short, Sentence Administration advised that applying sections 43 and 44 of the YCJA resulted in a substantially later release date than counsel had anticipated.

The case illustrates that whenever a young person is already serving a custody and supervision order, counsel should consider the effect of the merger provisions before another sentence is imposed. Consulting Sentence Administration before finalizing a joint submission can help ensure that the sentence imposed reflects the custody period that the parties and the court actually intend.

[1] https://laws-lois.justice.gc.ca/eng/acts/y-1.5/section-43.html

[2] https://laws-lois.justice.gc.ca/eng/acts/y-1.5/section-44.html

[3] https://www.canlii.org/en/ab/abqb/doc/2015/2015abqb781/2015abqb781.html