In November of 2007, Mr. Able was found guilty of a number of offences, including possession of a restricted firearm with ammunition, contrary to s.95 (1) of the Criminal Code. He was sentenced as a youth under the YCJA.

Apparently, Mr. Able did not learn his lesson nor did he give up his interest in guns.

In February of 2009, police got a tip about a small group parked in a car with a gun. The police approached the car. Suddenly, a door flung open. Mr. Able jumped out and ran as fast and as far as he could.

The police followed. They saw Mr. Able toss an object into a nearby dumpster. Inside the dumpster, the police found the object Mr. Able tossed: a 45-calibre semi-automatic firearm with a capacity for 12 rounds. Eleven of the 12 rounds were chambered and ready to fire.

Shortly after the police found the gun, police dogs found Mr. Able. He was charged with possession of a restricted firearm with ammunition. Back at the station, Mr. Able confessed.

In October of 2009, Mr. Able pled guilty and he was sentenced in January of 2010. The sentencing judge imposed a sentence of 9 and one-half years. All parties agreed that Mr. Able’s finding of guilt under the YCJA in 2007 on a charge under s.95(1) made this conviction under s.95(1), “a second or subsequent offence”, for the purposes of determining the mandatory minimum under s.95(2).

Central Issue on Appeal:

On appeal Mr. Able argued that because he was found guilty under the YCJA for his previous s.95 (1), this ‘new’ s.95 (1) conviction would not constitute a “second or subsequent offence” for the purposes of determining the applicable minimum penalty: 2013 ONCA 385. Mr. Able relied on section 82(4) of the YCJA:

Finding of guilt not a previous conviction.

(4) A finding of guilt under this Act is not a previous conviction for the purposes

of any offence under Any of Parliament for which a greater punishment is

prescribed by reason of previous convictions, except for

(a) Repealed

(b) The purpose of determining the adult sentence to be imposed.

The Ontario Court of Appeal noted that standing alone; s.82 (4) would support Mr. Able’s position. However, that subsection is subject to s.119 (9) (a) which states that if during the period of access to a record under any of paragraphs 2(g) to (j), the young person is convicted of an offence committed when he or she is an adult, section 82 (effect of absolute discharge or termination of youth sentence) does not apply in respect of the offence for which the record is kept under section 114 to 116.

“Period of access” is defined in s.119 (2) of the YCJA and for Mr. Able’s purposes, the relevant provision was s.119 (2) (h). Mr. Able was convicted of an indictable offence under the YCJA in November of 2007. Consequently, under s.119 (2) (h), the period of access ended five years after the conviction in November of 2007. Mr. Able’s subsequent convictions were entered in February of 2009, well within the relevant access period.

The Court of Appeal commented that there is support for this approach at the trial level in Ontario. The Court cited R. v. Elliston, 2010 ONSC 6492 where Justice Aston commented on the issue of using prior findings of guilt to support the imposition of an enhanced mandatory minimum sentence within the statutory access period. Aston J described it as

“a reasonable and nuanced approach by Parliament in balancing the need to punish recidivists without allowing offences committed when one is very young to haunt an individual in perpetuity.”