Chuck's Case — Assault (youth) — Appeal Allowed

Background
Chuck was a youth in trouble. He entered a guilty plea before a Judge in Sudbury. The matter was not serious, but the Judge was concerned about Chuck's unstable family environment. To give Chuck structure in his life, the Judge sentenced him to one year in custody. Chuck's lawyer in Sudbury asked me to argue the appeal. At the Court of Appeal, I argued that the one-year sentence was completely disproportionate to the offence. The three judges agreed. The Appeal was granted. Chuck was immediately released from custody.

Between
Her Majesty the Queen, respondent, and Chuck H., appellant

[1995] O.J. No. 2770
Court File No. C-222-95

Ontario Court of Appeal
Toronto, Ontario
Morden A.C.J.O., Galligan and Doherty JJ.A.

September 22, 1995.
(5 paras.)
On appeal from Order of Al. Guay J., March 1, 1995.

Criminal law — Young offenders — Decisions (incl. punishments) — Review of disposition.

The 13-year-old young offender appealed a disposition of one year imposed upon conviction for assault. This was a first offender.

HELD: The appeal was allowed and the sentence was reduced to time served, which was seven months. The total disposition was so disproportionate that it could not stand.

Charge:	Assault, Criminal Code, s. 266
Counsel:	Craig Penney, Criminal Defence Lawyer Gillian Roberts, Assistant Crown Attorney, Toronto

The judgment of the Court was delivered by

¶ 1 MORDEN A.C.J.O. (endorsement): - The trial judge's reasons for disposition provide a detailed and careful analysis of a very difficult sentencing problem.

¶ 2 We recognize that the principle of proportionality does not apply with the same force in the disposition of young offenders as it does in the sentencing of those convicted of criminal offences: R. v. M. (J.J.) (1993) 81 C.C.C. (3d) 487 at 494-5.

¶ 3 Accepting this proposition, we think that in the circumstances of this case which involved a thirteen year old first offender, the total disposition (one year) is so disproportionate that it cannot stand.

¶ 4 We would grant leave to appeal and reduce the sentence to time served (7 months including the pre-conviction period of incarceration).

¶ 5 We would leave the probation order imposed by the trial judge, save we would delete the requirement that the appellant write a letter of apology to the victim of the assaults.

MORDEN A.C.J.O.