Deferred Custody Cannot Be Imposed Consecutively: Quebec Court of Appeal

Can a youth court judge sentence a young person to a period of open custody, followed by deferred custody (or “house arrest”?) The Quebec Court of Appeal ruled in R v X, 2018 QCCA 1910 that this was unlawful.

The trial judge had imposed a 135 day sentence in the following manner:

  • 45 days open custody;
  • followed by 45 days deferred custody; and
  • followed by 45 days of community supervision.

The Court of Appeal held this sort of hybrid sentence was not permitted under s. 42(13) of the YCJA, which does not permit a deferred custody and supervision order from being served consecutively to a custody and supervision order. Rather, a custody and supervision order simply must normally be served with 2/3 in custody, and 1/3 under community supervision.

While the reasons of the appellate court are brief and do not give much detail about the trial judge’s reasons, one can infer that the trial court may have been attempting to structure an orderly transition for the young person from custody to community supervision. Curiously, these types of sentences are not uncommon in adult court, where the sentence begins with “real jail” and then is followed by a conditional sentence (“house arrest”), as long as the total sentence does not exceed 2 years: see R v Ploumis, 2000 CanLII 17033 (Ont. C.A.)

The decision from the Quebec Court of Appeal is another important reminder that some sentencing outcomes which are permitted under the Criminal Code may not be lawful under the analogous provisions of the YCJA.



Author: Brock Jones

Criminal lawyer practicing in Toronto. Adjunct professor of law, University of Toronto. Author of Prosecuting and Defending Youth Criminal Justice Cases from Emond Publishing. My personal views are posted on this blog and they do not necessarily represent the views of the Ministry of the Attorney General.

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