Law360 Canada (September 25, 2026, 12:09 PM EDT) --
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| John L. Hill |
An Alberta Court of Appeal decision illustrates the discretion available to a sentencing judge under the
Youth Criminal Justice Act (YCJA) in determining how to consider a young offender’s pre-sentence custody (
R. v. I.A., 2026 ABCA 298).
A.I. was 16 when he and his brother attacked a young man on a basketball court with bear spray and a knife. The victim died, and A.I. was convicted of manslaughter. He was sentenced under the YCJA to an 18-month custody and supervision order: 12 months in custody, followed by six months of conditional supervision in the community.
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The unusual feature was that A.I. had already spent 25 months in custody before sentencing. The sentencing judge credited him with 18 months. A.I. appealed, arguing principally that he should have received 1:1 credit for the entire 25 months.
The Court of Appeal dismissed the appeal.
The decision is significant because it confirms that pre-sentence custody must be taken into account under the YCJA, but there is no automatic entitlement to 1:1 credit. It also illustrates the considerable deference given to a sentencing judge who has considered the relevant statutory principles and explained the sentence imposed.
The offence occurred on Sept. 5, 2023. A.I. was arrested four days later and remained in custody until his sentencing on Oct. 7, 2025.
The Crown sought the maximum youth sentence for manslaughter: a three-year custody and supervision order, without credit for pre-sentence detention. The defence proposed a sentence that would leave A.I. with 11 or 12 months of conditional supervision after credit for some or all of his pre-sentence custody.
The sentencing judge rejected both positions. She concluded that imposing the full three-year order without credit would effectively result in five years of custody and supervision, given the 25 months already spent in detention. That would be disproportionate to the three-year maximum under the YCJA.
At the same time, she concluded that A.I. should not receive credit for all 25 months. Although he had made progress while in custody, she found that further work was required, particularly concerning rehabilitation and accountability.
She therefore gave A.I. credit for 18 months and imposed an 18-month custody and supervision order, consisting of 12 months in custody and six months under conditional supervision.
An important issue on appeal concerned an argument that A.I. had not made before the sentencing judge.
A.I. argued that the combination of his 25 months of pre-sentence custody and the sentence imposed exceeded the three-year maximum for manslaughter under s. 42(2)(o) of the YCJA. That provision permits a youth court to make a custody and supervision order for a specified period not exceeding three years from the date of committal.
The court declined to decide the issue. Appellate courts have discretion to consider an issue raised for the first time on appeal but should exercise that discretion sparingly. The court relied on
R. v. Al Askari, 2021 ABCA 204, at paras. 78-79, and
Guindon v. Canada, 2015 SCC 41, at para. 22.
The difficulty was that A.I.’s argument that the sentence was legally impermissible developed largely during oral argument. His written appeal complained about inadequate reasons and sought greater credit for pre-sentence custody but did not clearly argue that the sentence was illegal because it exceeded the statutory maximum.
The new argument would have required the court to determine whether 1:1 credit is mandatory in some circumstances, even though the YCJA contains no express requirement. It would also have required detailed consideration of the relationship between the provisions dealing with pre-sentence custody and the three-year maximum in s. 42(2)(o).
The court was unwilling to resolve those questions without properly developed submissions from both sides.
The court therefore considered whether the sentencing judge had adequately explained why she did not give A.I. credit for all 25 months. It concluded that she had.
Section 38(3)(d) of the YCJA requires a sentencing court to take pre-sentence custody into account when determining a fit sentence. The authorities the Crown relied on included
R. v. DB, 2008 SCC 25;
R. v. DMT, 2012 ABCA 142;
R. v. DDT, 2010 ABCA 365;
R. v. CHC, 2009 ABQB 125; and
R. v. DM, 2026 ABCA 115.
The Crown also relied on
R. v. Mathieu, 2008 SCC 21, for the proposition that a sentence begins when it is imposed and that pre-sentence custody is not itself part of the sentence.
A.I. had relied at sentencing on
R. v. SK, 2025 ABKB 494, which recognized judicial discretion in dealing with pre-sentence custody. However, it did not decide whether failing to give sufficient credit could produce a sentence exceeding the statutory maximum.
The court did not resolve that broader legal question. Instead, it held that the sentencing judge properly exercised her discretion.
Her reasons, the court said, had to be read as a whole and in context. She considered A.I.’s criminal record, the psychological and risk assessment prepared under s. 34 of the YCJA, the other evidence, his expression of remorse and comparator cases.
She also considered whether a non-custodial sentence could adequately achieve the purposes and principles of the YCJA. She had concerns about A.I.’s ability to comply with supervision by his parents, given his previous pattern of defying authority and circumventing rules. She concluded that the seriousness of the manslaughter, together with A.I.’s need for further rehabilitation and accountability, justified continued custody.
The court held that those reasons adequately explained both the sentence and the amount of credit given. A.I.’s argument effectively asked the court to reweigh the evidence and substitute a different sentence, which was not its role on a sentence appeal.
A.I. also argued that the sentencing judge had misunderstood evidence about the programs he undertook while in custody. The court rejected that argument.
One letter described A.I.’s progress in a recovery program, including personal growth and taking ownership of his actions. A.I. argued this showed he had accepted responsibility.
The Court noted, however, that the program was primarily directed toward trauma-informed healing, mental health, emotional regulation, wellness and preparation for life after release. The sentencing judge was entitled to conclude that the material did not specifically establish participation in programming directed at accepting responsibility for the offence or acknowledging the harm caused to the victim and community.
The psychological and risk assessment was also significant. It indicated that, during the assessment, A.I. had demonstrated little remorse or accountability for the death, limited insight into his offending behaviour and little victim empathy.
The sentencing judge nevertheless accepted that A.I. had made progress and regarded his apology to the victim’s family as sincere. She was entitled, however, to conclude that more work remained.
The court found no misapprehension of the evidence and again emphasized that it was not its role to reweigh the sentencing evidence.
A.I.’s final argument was that his sentence was demonstrably unfit because it was longer than the sentences imposed in
R. v. PD, 2025 ABKB 320, which the sentencing judge had identified as the closest comparator. The court rejected that argument.
Section 38(2)(b) of the YCJA requires consideration of sentences imposed in the region on similar young persons convicted of the same offence in similar circumstances. But parity does not require identical sentences.
The court relied on
R. v. Ellahib, 2008 ABCA 281, for the principle that parity does not displace the need for a fit and proportionate sentence tailored to the particular offender and offence. It also relied on
R. v. LM, 2008 SCC 31, which confirms that a sentence is not demonstrably unfit merely because it differs from a sentence imposed in another, even similar, case.
Several features distinguished A.I.’s circumstances from PD. He participated in an unprovoked attack, possessed the weapon used, was subject to conditions arising from an earlier offence, had a history of defying authority and was assessed as presenting a moderate risk of reoffending. There were also concerns about his ability to comply with community supervision through his parents.
Those circumstances permitted the sentencing judge to impose a sentence different from the comparator cases.
The decision reminds us that youth sentencing is individualized. Pre-sentence custody must be considered, but the YCJA does not expressly prescribe a mathematical formula requiring 1:1 credit.
It also demonstrates the importance of fully developing an argument at the sentencing hearing. The court did not decide A.I.’s potentially significant argument concerning the relationship between pre-sentence custody and the statutory maximum because it emerged too late in the appeal.
Finally, the decision reinforces the deferential standard governing sentence appeals. Under
R. v. I.M., 2025 SCC 23, youth sentences, like adult sentences, are reviewed deferentially. Under
R. v. Friesen, 2020 SCC 9, appellate intervention requires a material error in principle or a demonstrably unfit sentence.
The court found neither. The sentencing judge had considered the seriousness of the offence, A.I.’s circumstances, rehabilitation, accountability, risk, comparable sentences, and the substantial period already spent in custody. Her decision to credit 18 of the 25 months was therefore entitled to appellate deference, and the court dismissed the appeal.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). His most recent book, Acts of Darkness
(Durvile & UpRoute), was shortlisted as one of five nominees for the Crime Writers of Canada’s Brass Knuckles Award for Best Nonfiction Crime Book.
Contact him at johnlornehill@hotmail.com.
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