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SENTENCING-PRIOR CONVICTIONS-CONSIDERING DISCHARGES AND YOUTH CRIMINAL JUSTICE ACT DISPOSITIONS

R. v. Gordon, 2022 ONCA 799, November 21, 2022, at paragraphs 80 and 81:

There was no basis placed before this court to find that the youth court disposition was properly adduced in accordance with the youth record access provisions in the Youth Criminal Justice Act, S.C. 2002 c.1. The trial judge should not have considered it.

While the trial judge should not have treated the conditional discharge as a previous conviction, he was entitled to consider the fact that the appellant was on probation and subject to a weapons prohibition at the time of the offence: R. v. Barclay, 2018 ONCA 114, 44 C.R. (7th) 134, at para. 49. He was also entitled to consider this past conduct and the “factual reality” that the offence before the court was not the first incident: R. v. Montesano, 2019 ONCA 194, 145 O.R. (3d) 474,at para. 11, leave to appeal refused, [2019] S.C.C.A No. 148; R. v. Naraindeen (1990), 75 O.R. (2d) 120 (C.A.).