In February of 2009, Toronto police received a tip that a number of men in a car were in possession of illegal firearms. Officers approached a vehicle to investigate. As they advanced, the door flung open and a suspect fled. That suspect’s name was Warren Able.

He fled for good reason. He was in possession of a loaded, semi-automatic, .45 calibre firearm, a restricted weapon pursuant to section 95(1) of the Criminal Code. A chase ensued, he was arrested and the firearm was recovered.

It was not the first time he was arrested for possession of this type of weapon. Less than two years earlier, when he was a youth, he was convicted and sentenced for the same offence.

After considering his options, Mr. Able decided to plead guilty to the more recent charge in addition to a number of other offences.

Section 95(2) holds that for a second offence under section 95(1) the sentencing court is bound to sentence the offender to a mandatory minimum five years in custody if the second offence is within 10 years of the first offence.

The court sentenced Mr. Able to 9 ½ years in custody. Mr. Able appealed: 2013 ONCA 385.

On appeal he argued that the court should not have considered this a second 95(1) offence under the Code as he was sentenced as a youth for his previous offence under the Youth Criminal Justice Act. He argued that under section 82(4) of the Act, his previous offence was not a first conviction for the purpose of determining an adult sentence.

The Ontario Court of Appeal unanimously disagreed. The Court held that if it only examined section 82(4) of the Act the Appellant’s position might have had some merit. However, the youth offence became a first offence under the Code by virtue of the interaction between section 119(9)(a) of the Code and section 82 of the Act.

Section 119(9)(a) holds that if during the period of access to a youth record the person is convicted of an adult offence section 82 does not apply. Having been convicted of an indictable youth offence, pursuant to section 119(2)(h), the period of access here was five years. As Mr. Able’s youth offence was well within this five-year period, section 82(4) did not apply.

The court went one step further. At paragraph 28 the court held that the Appellant misinterpreted section 82(4):

…the reference in s. 82(4)(b) to an "adult sentence" applies only to an adult sentence imposed on a young person under the YCJA. Practically, s. 82(4)(b) would arise in cases where a court concludes that a young person should be sentenced as an adult and where the young person has an earlier finding of guilt that would give rise to a greater punishment on sentencing [para 28].

While he may disagree, Mr. Able will have 9 ½ years to think about the consequences of his actions. At the conclusion of his sentence he will still be within the ten years of his current offence.