COURT OF APPEAL FOR ONTARIO

DATE: 20000119

DOCKET: C29745

OSBORNE, ABELLA and MOLDAVER JJ.A.

B E T W E E N : )

) Christopher Hicks

HER MAJESTY THE QUEEN ) for the appellant

)

Respondent )

)

• and - ) Graeme Cameron

) for the respondent

MARK CASEY )

)

Appellant ) Jeffrey Kehoe

) for the intervener

• and - )

)

ATTORNEY GENERAL OF CANADA ) Heard: January 22, 1999

)

Intervener )

On appeal from the disposition of Gorewich J. dated January 29, 1998

OSBORNE J.A.:

[1] The principal issue on this appeal is the constitutionality

of the statutory provisions, found in s. 742.6 of the Criminal

Code, applicable in proceedings resulting from an offender’s

alleged breach of the conditions of a conditional sentence order.

[2] On January 29, 1998, Gorewich J. found that the appellant

had breached two conditions of a conditional sentence order that

required him to serve a sentence of two years less one day in the

community on the statutory and other conditions. After the

appellant admitted that he breached the conditions of his

conditional sentence order, as alleged by the Crown, Gorewich J.

varied the original custodial sentence order by requiring the

appellant to serve 12 months of the 21 month unexpired part of

his conditional sentence in prison, with the 9 month remainder of

the original conditional sentence to be served in the community.

[3] The appellant contends that the procedure established for

breaches of a conditional sentence order in s. 742.6 of the

Criminal Code violates his constitutional rights under ss. 11(d)

and (h) and 7 of the Charter and cannot be saved by resort to s.

1. He also contends that the trial judge erred in allowing him

to plead “guilty” to the breach of the conditions of his

sentence when he was not aware of the consequences of that plea.

Finally, he takes issue with Gorewich J.’s jurisdiction and the

fitness of his order varying the original conditional sentence

order.

OVERVIEW OF THE FACTS

[4] The facts are not in dispute and can be set out in summary

form.

[5] In July 1997, the appellant was charged with stealing 18

women’s bathing suits and with failing to appear in court. On

July 30, 1997, he plead guilty before Fuller P.C.J. to one count

of theft under $5,000 and one count of failing to appear. The

trial judge sentenced him to two years less one day to be served

conditionally. The conditional sentence order required, among

other things, that he report to a supervisor as required, that he

attend the Salvation Army Turning Point Program every day, and

that he reside in the Greater Toronto Area.

[6] As it turned out, the appellant breached two of the

conditions of his conditional sentence order almost immediately

in that he failed to report to the Salvation Army program and to

his supervisor on August 4 and 5, 1997, as required .

[7] On January 29, 1998, after he was arrested for failing to

surrender as required by an intermittent sentence imposed on

August 8, 1997, the appellant appeared before Gorewich P.C.J. in

response to the Crown’s allegation that he had breached some of

the conditions of his conditional sentence order. At that time

he was represented by duty counsel who confirmed that he did not

wish to have either the conditional sentence supervisor or the

witnesses who, in writing, provided evidence of his failure to

comply with some of the conditions of the conditional sentence

order attend at court to be cross-examined. The appellant,

through duty counsel, admitted that he had breached some of the

conditions of his conditional sentence order, as alleged by the

Crown.

[8] Gorewich P.C.J. varied the 21 month unexpired part of the

conditional sentence order by ordering the appellant to serve 12

months (8 months on the theft charge and 4 months on the failure

to appear charge) in prison and 9 months to be served

conditionally in the community.

[9] When the appellant heard what the outcome of the proceedings

referable to his breach of his conditional sentence was, he said,

“Your Honour, don’t I get a chance to plead guilty?” Through

duty counsel he then expressed a desire to strike his admission

of the breaches. He said that he would not have admitted the

breaches had he known what the outcome of the proceedings was

going to be. Neither duty counsel nor the appellant took any

issue with the constitutionality of any part of the conditional

sentencing scheme set out in s. 742.1 of the Criminal Code.

[10] The appellant submits that s. 742.6 on its face, and in its

application, violates ss. 7, 11(d) and 11(h) of the Charter. He

also raises issues pertaining to the jurisdiction of the judge

who dealt with the allegations of breach of his conditional

sentence order and the fitness of the judge’s order under s.

742.6(9).

[11] In R. v. Wismayer (1997), 1997 3294 (ON CA), 115 C.C.C. (3d) 18 (C.A.)

Rosenberg J.A. thoroughly reviewed the conditional sentencing

provisions. In doing so, he referred to the statutory provisions

for dealing with an offender who the Crown alleges has breached

any of the conditions of an applicable conditional sentence

order. Rosenberg J.A. emphasized that a conditional sentence is

a sentence of imprisonment, to be served in the community. He

said, at pp. 32-33:

One of the important features of the conditional sentence

regime is the procedure for breach of the conditional sentence

order. Again to safeguard the community and to emphasize the

gravity of violation of the conditional sentence order, s. 742.6

enacts a relatively simple and expeditious procedure for dealing

with an offender who breaches any of the conditions in the order.

In the normal course, the allegation of breach may be proved by a

written report accompanied by witness statements. The allegation

is to be heard within 30 days of the offender’s arrest. The

allegation need only be proved on a balance of probabilities and

the burden is on the offender to establish the defence of

reasonable excuse. Where the allegation is made out, the court

has a broad range of options. Most importantly, the court may

suspend the conditional sentence order and require the offender

to serve a portion of the unexpired term in custody or the court

my terminate the conditional sentence order and direct the

offender to serve the balance of the sentence in custody. Lesser

sanctions are also provided for, including the variation of the

optional conditions.

… The procedure under s. 742.6 appears to be more straightforward

than the little-used procedure for revoking a suspended sentence.

It is also easier than proof of breach of probation which, being

a criminal offence, requires proof beyond a reasonable doubt in

accordance with the normal rules of evidence.

… This procedure which is set out in s. 742.6 reinforces the

point that this is a sentence of imprisonment that the offender

is permitted to serve in the community. It is appropriate that

if the offender breaches the order, and particularly if the breach

represents the commission of a further offence or endangers the

community, all or a portion of the unexpired term of the sentence

be served in prison.

[12] The relevant parts of the conditional sentencing scheme are:

s. 742.1 Where a person is convicted

of an offence, except an offence that is

punishable by a minimum term of imprisonment,

and the court

(a) imposes a sentence of imprisonment

of less than two years, and

(b) is satisfied that serving the

sentence in the community would not endanger

the safety of the community and would be

consistent with the fundamental purpose and

principles of sentencing set out in sections

718 to 718.2

the court may, for the purpose of

supervising the offender’s behaviour in the

community, order that the offender serve the

sentence in the community, subject to the

offender’s complying with the conditions of

the conditional sentence order made under

section 742.3.

…

742.3 (1) The court shall prescribe, as

conditions of a conditional sentence order,

that the offender do all of the following:

(a) keep the peace and be of good

behaviour;

(b) appear before the court when

required to do so by the court;

(c) report to a supervisor

(i) within two working days, or such

longer period as the court directs, after the

making of the conditional sentence order, and

(ii) thereafter, when required by the

supervisor and in the manner directed by the

supervisor;

(d) remain within the jurisdiction of

the court unless written permission to go

outside that jurisdiction is obtained from

the court or the supervisor; and

(e) notify the court or the supervisor

in advance of any change of name or address,

and promptly notify the court or the

supervisor of any change of employment or

occupation.

(2) The court may prescribe, as

additional conditions of a conditional

sentence order, that the offender do one or

more of the following:

(a) abstain from

(i) the consumption of alcohol or other

intoxicating substances, or

(ii) the consumption of drugs except in

accordance with a medical prescription;

(b) abstain from owning, possessing or

carrying a weapon;

(c) provide for the support or care of

dependants;

(d) perform up to 240 hours of community

service over a period not exceeding eighteen

months;

(e) attend a treatment program approved

by the province; and

(f) comply with such other reasonable

conditions as the court considers desirable,

subject to any regulations made under

subsection 738(2), for securing the good

conduct of the offender and for preventing a

repetition by the offender of the same

offence or the commission of other offences.

(3) A court that makes an order under

this section shall

(a) cause to be given to the offender

(i) a copy of the order,

(ii) an explanation of the substance of

sections 742.4 and 742.6, and

(iii) an explanation of the procedure

for applying under section 742.4 for a change

to the optional conditions; and

(b) take reasonable measures to ensure

that the offender understands the order and

the explanations given to the offender under

paragraph (a).

742.6 (1) For the purpose of proceedings

under this section,

(a) the provisions of Parts XVI and

XVIII with respect to compelling the

appearance of an accused before a justice

apply, with any modifications that the

circumstances require, and any reference in

those Parts to committing an offence shall be

read as a reference to breaching a condition

of a conditional sentence order;

(b) the powers of arrest for breach of a

condition are those that apply to an

indictable offence, with any modifications

that the circumstances require, and

subsection 495(2) does not apply;

…

(4) An allegation of a breach of

condition must be supported by a written

report of the supervisor, which report must

include, where appropriate, signed statements

of witnesses.

(5) The report is admissible in evidence

if the party intending to produce it has,

before the hearing, given the offender

reasonable notice and a copy of the report.

…

(7) Notwithstanding subsection (6), the

court may require the person who appears to

have signed an affidavit or solemn

declaration referred to in that subsection to

appear before it for examination or cross-

examination in respect of the issue of proof

of service.

(8) The offender may, with leave of the

court, require the attendance, for cross-

examination, of the supervisor or of any

witness whose signed statement is included in

the report.

(9) Where the court is satisfied, on a

balance of probabilities, that the offender

has without reasonable excuse, the proof of

which lies on the offender, breached a

condition of the conditional sentence order,

the court may

(a) take no action;

(b) change the optional conditions;

(c) suspend the conditional sentence

order and direct

(i) that the offender serve in custody a

portion of the unexpired sentence, and

(ii) that the conditional sentence order

resume on the offender's release from

custody, either with or without changes to

the optional conditions; or

(d) terminate the conditional sentence

order and direct that the offender be

committed to custody until the expiration of

the sentence.

(10) The running of a conditional

sentence imposed on an offender is suspended

during the period that ends with the

determination of whether a breach of

condition had occurred and begins with the

earliest of

(a) the issuance of a warrant for the

arrest of the offender for the alleged

breach,

(b) the arrest without warrant of the

offender for the alleged breach, and

(c) the compelling of the offender's

appearance in accordance with paragraph

(1)(d).

(11) If the offender is not detained in

custody during any period referred to in

subsection (10), the conditions of the order

continue to apply, with any changes made to

them under section 742.4, and any subsequent

breach of those conditions may be dealt with

in accordance with this section.

[13] Against that general background, I set out at least some of

the important elements of the conditional sentence scheme as set

out above:

• a conditional sentence is a sentence of imprisonment (See

• Wismayer);

• the conditional sentence scheme vests the ultimate

• responsibility for supervising the offender’s conduct while the

• offender is in the community with the court. (See s. 742.1(a)

• and (b));

• in the event of a breach of a conditional sentence order, s.

• 742.6(9) limits the powers of the court. The court cannot impose

• a second sentence for the breach itself (as occurs when an

• offender is charged with the offence of breach of probation); nor

• can the court increase the length of the sentence originally

• imposed. The court can only deal with the unexpired part of the

• conditional sentence within the limits prescribed in s. 742.6(9);

• the breach provisions of the conditional sentence scheme,

• found in s. 742.6, require the filing of a supervisor’s report

• and where appropriate, written/signed witnesses’ statements,

• from which the supervisory judge is entitled to find that the

• offender breached the conditions of the conditional sentence

• order. The standard of proof is a balance of probabilities;

• Section 742.6(8) provides for the attendances of the

• supervisor and the witnesses for cross-examination, if the court

• grants leave upon the offender advancing some suggestion that

• viva voce testimony would be relevant to the supervisory judge’s

• determination whether the offender breached the conditions of the

• conditional sentence order, or whether there is a “reasonable

• excuse” for the breach.

Section 11(d) of the Charter

[14] Section 11(d) of the Charter provides:

11. Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty

according to law in a fair and public hearing by

an independent and impartial tribunal.

[15] The appellant submits that s. 742.6(9)(a) which provides for

a balance of probabilities standard of proof and imposes an onus

on him to show “reasonable excuse” for the breach of his

conditional sentence order, violates his s. 11(d) right to be

presumed innocent. (See R. v. Oakes (1986), 1986 46 (SCC), 24 C.C.C. (3d) 321

(S.C.C.))

[16] The Crown submits that the appellant is not entitled to

raise this issue because proof on a balance of probabilities was

not used as the standard of proof at the appellant’s breach

hearing.

[17] Although I think that the appellant’s breach of the

conditions of his conditional sentence order were established

beyond a reasonable doubt, with the result that the appellant can

derive no advantage from his attack on the statutory standard of

proof in s. 742.6(9), I will, nonetheless, deal with the s. 11(d)

issue because of counsel’s extensive submissions on it, and its

importance.

[18] Rights under s. 11 of the Charter are limited to those

persons who are “charged with an offence.” Accordingly, in the

case of someone bound by a conditional sentence order, the

threshold issue, for s. 11 purposes, is whether an allegation

that certain conditions of the order have been breached is

equivalent to “charging” the person “with an offence.” If it is,

then s. 11 is available; if not, and the alleged breach is simply

part of the sentencing process, then, as was pointed out by the

Supreme Court of Canada in R. v. Lyons (1987), 1987 25 (SCC), 37 C.C.C. (3d) 1

at 37, s. 11 has no application.

[19] In Lyons, the Supreme Court was called upon to consider the

constitutionality of the dangerous offender provisions then in

force under Part XXI of the Code. One of the issues raised by

Lyons was that s. 689(2), which provided that dangerous offender

applications be determined by a court without a jury, was

unconstitutional because it deprived him of his right to trial by

jury under s. 11(f) of the Charter.

[20] Writing for the majority, La Forest J. rejected this

argument. In his view, earlier decisions of the court,

including Brusch v. The Queen, 1953 33 (SCC), [1953] 1 S.C.R. 373 and Wilband v.

The Queen, 1966 3 (SCC), [1967] S.C.R. 14 established that dangerous offender

proceedings did not involve the conviction for an offence but

rather, the determination of the sentence which might be

pronounced after conviction. Applying that reasoning to the

opening words “any person charged with an offence” in s. 11 and

bearing in mind the need to give those words “a constant meaning

that harmonizes with the various paragraphs of the section,” La

Forest J. concluded his analysis with the following apposite

remarks:

It seems clear to me that for the purposes of s. 11 it would

be quite inappropriate to conclude that a convicted person is

charged with an offence when confronted with a Part XXI

application. How can it be said that the right to the

presumption of innocence until proven guilty (s. 11(d)) and the

right to bail (s. 11(e)), for example, could have any application

in the context of the unique post-conviction proceeding mandated

by Part XXI? [Emphasis in original.]

[21] Admittedly, the analogy between dangerous offender

proceedings and proceedings under s. 742.6 of the Code is not

exact. For present purposes, however, the importance of Lyons

lies in the fact that despite the dire consequences flowing from

a successful dangerous offender application, the Supreme Court

has held that persons facing such an application are not “charged

with an offence.” Rather, dangerous offender proceedings form

part of the sentencing process and as such, they do not attract

the protections afforded by s. 11 of the Charter.

[22] That being so, I fail to see how someone facing the

comparatively minor consequences arising from breach of a

conditional sentence order can lay claim to a greater measure of

Charter protection than someone facing a dangerous offender

application. To the contrary, the reasoning in Lyons applies

with added force to persons who have allegedly breached the terms

of a conditional sentence order. Manifestly, such persons have

already been convicted of an offence and they are not at risk of

being convicted of a further offence on the breach hearing.

Rather, if the alleged breach is established, the powers of the

supervising judge are limited to those specified in s. 742.6(9)

of the Code. In short, the judge can change some of the

conditions of the conditional sentence order and the manner and

location in which the offender serves the time remaining on the

original conditional sentence. Significantly, the judge cannot

impose a second sentence for the breach itself, or lengthen the

original sentence.

[23] It follows, in my view, that persons facing a breach

application are not “charged with an offence.” Rather, the

breach hearing is part of the sentencing process and as such, s.

11 of the Charter has no application.

[24] Further support for this conclusion is found in s. 673 of

the Code, where, in the context of indictable appeals, the word

sentence is defined to include a disposition made under s.

742.4(3) and s. 742.6(9). That is to say the definition of

sentence includes an order made consequent upon an offender’s

breach of a conditional sentence order. Manifestly, this

suggests that Parliament viewed an order made under s. 742.6(9)

as a sentence.

Section 11(h) of the Charter

[25] Section 11(h) of the Charter provides:

11. Any person charged with an offence has the right

(h) if finally acquitted of the

offence, not to be tried again and, if

finally found guilty and punished for the

offence, not to be tried or punished for it

again.

[26] The appellant submits that the proceeding consequent upon

the alleged breach of a conditional sentence order is an

extension of the original sentencing hearing. Accordingly, he

argues that s. 742.6 violates s. 11(h) of the Charter which

guarantees that an accused will not be tried and punished twice

for the same offence.

[27] I have already explained why s. 11 has no application to the

proceedings in question. Those reasons apply with equal force to

the instant submissions.

[28] In any event, s. 742.1(b) makes it clear that an order made

under s. 742.3 requiring an offender to serve a sentence of

imprisonment in the community is subject to the offender

complying with the conditions of the order. Once the trial judge

has imposed a conditional sentence under s.742.3, that trial

judge is functus officio. If the offender breaches a condition

of the conditional sentence order, Parliament has given authority

to the court, through s. 742.6(9)(a) to (d), to take limited

measures to respond to the offender’s misconduct while serving

his sentence of imprisonment in the community. As I have said,

the measures do not permit the court to lengthen the existing

sentence of imprisonment, or to impose a different sentence

altogether. The court can only deal with the unexpired part of

the original conditional sentence. On that issue, the Crown

aptly cites an extreme example. If at the time of the breach the

balance of a conditional sentence was one day, a court acting

under s. 742.6 would have jurisdiction to address that one day

only. See R. v. Brady (1998), 1998 ABCA 7, 121 C.C.C. (3d) 504 (Alta. C.A.).

[29] I see no merit in the appellant’s s. 11(h) submission.

Neither the purpose nor the effect of s. 742.6(9) is to allow the

court to punish the offender twice for the same offence. The

court’s order made under s. 742.6(9) suspended part of the

unexpired term of the original conditional sentence and required

the appellant to serve 12 months of the 21 month unexpired part

of his original conditional sentence in prison, instead of in the

community. He was not punished twice for the same conduct.

Section 7 of the Charter

[30] Section 7 of the Charter provides:

7. Everyone has the right to life, liberty and security of

the person and the right not to be deprived thereof except in

accordance with the principles of fundamental justice.

[31] The appellant submits, in the further alternative, that if

proceedings under s. 742.6 do not attract s. 11 protection, then

s. 7 nonetheless precludes the use of a balance of probabilities

standard of proof of an alleged breach of the conditions of a

conditional sentence order. I see no merit in this submission

for the following reasons.

[32] In Cunningham v. The Queen (1993), 1993 139 (SCC), 80 C.C.C. (3d) 492

(S.C.C.) the Supreme Court considered whether s. 7 of the Charter

precluded the operation of an amendment to the Parole Act which

permitted the parole board to delay the offender’s release on

grounds of potential harm to the community, even though the

offender’s behaviour within the institution was such that he

would otherwise have been released. McLachlin J. held that to

demonstrate a violation of s. 7 the offender had to establish the

following three pre-conditions:

(a) that he was deprived of his liberty;

(b) that the deprivation was sufficiently serious to

attract Charter protection; and

(c) the deprivation was contrary to the fundamental

interests of justice.

[33] McLachlin J. concluded that since the appellant enjoyed a

high expectation of automatic release, which had been

substantially reduced because of the intervening Parole Act

amendments, a deprivation of liberty had occurred. In reaching

that conclusion, she emphasized the offender’s reasonable

expectation that if he behaved himself while in prison he would

be released on mandatory supervision. The offender did behave

himself in the institution but was not released on mandatory

supervision because of the intervening Parole Act amendments.

[34] I do not think it is necessary in this case to determine

whether the appellant, who was required to serve part of the

remainder of his conditional sentence in prison, suffered a

deprivation of liberty within s. 7 of the Charter. I would,

however, note that the circumstances here differ from those in

Cunningham in that Mr. Casey did not have the same liberty-

related expectations as Mr. Cunningham. Here the appellant knew,

or should have known, that if he breached the conditions of his

conditional sentence order he could be required to serve as much

as the entire unexpired part of his conditional sentence in

prison.

[35] Even if the appellant suffered a deprivation of his liberty

interest sufficient to engage s. 7, the deprivation of his

liberty must be contrary to the principles of fundamental

justice. On this issue, McLachin J. said in Cunningham, at p.

499:

The principles of fundamental justice

are concerned not only with the interest of

the person who claims his liberty has been

limited, but with the protection of society.

Fundamental justice requires that a fair

balance be struck between those interests,

both substantively and procedurally. …

… A change in the form in which a

sentence is served is not, in itself,

contrary to any principle of fundamental

justice. [Emphasis added.]

[36] In Mooring v. Canada (National Parole Board) (1996), 104

C.C.C. (3d) 97 (S.C.C.), Sopinka J. considered generally whether

the principles of fundamental justice were compromised in parole

revocation proceedings in which the applicable standard of proof

was “a preponderance of proof.” The specific issue was whether

the Parole Board, the supervising authority over offenders

released on mandatory supervision, was a court of competent

jurisdiction for the purposes of s. 24(2) of the Charter.

Sopinka J. concluded that it was not. In reaching this

conclusion, Sopinka J. drew support from the decisions of the

U.S. circuit courts. In particular, Sopinka J. adopted, at p.

111, the following statement of the court in Pratt v. United

States Parole Commission, 717 F.Supp. 382 at 387 (E.D.N.C. 1989):

… The very special needs of supervision … would be

sacrificed if parole authorities were prohibited from weighing

the full extent of petitioner’s conduct by reason of the

exclusionary rule. The parole revocation decision must meet the

preponderance of proof standard … after those tenets of minimum

due process has been followed. Nowhere does the beyond-a-

reasonable-doubt burden apply. The right to a trial by jury does

not apply. The parolee does not even enjoy the right to a

judicial decision maker. Neither, in my view, does a parolee

have the right to insist on strict adherence to fourth amendment

standards. … [Emphasis added.]

[37] It should also be noted that while Sopinka J. held that the

Parole Board was not a court of competent jurisdiction for the

purposes of s. 24(2) of the Charter, he also held that the

principles of fundamental justice required the Parole Board to

conduct a parole revocation hearing in a procedurally and

substantively fair manner.

[38] In my opinion, the breach provisions of s. 742.6 are

analogous to Parole Board administrative decisions in parole

revocation proceedings following an offender’s alleged misconduct

while in the community on parole. I attach no significance to

the fact that the conditional sentence offender has been deemed

fit to serve his/her sentence in the community, while the

offender in a parole revocation proceeding has not.

[39] The “without just cause” standard in bail hearings under s.

515 of the Criminal Code and hearings involving the revocation of

bail, both of which permit findings to be made on a balance of

probabilities, present another useful analogy. In R. v. Pearson

(1992), 1992 52 (SCC), 77 C.C.C. (3d) 124 (S.C.C.), the Supreme Court held that

the reverse onus in s. 515(6)(d) of the Criminal Code did not

violate an accused’s right not to be denied bail without just

cause. This conclusion extends to s. 7 of the Charter. In

Pearson, Lamer C.J. commented on the principles of fundamental

justice in this way, at p. 136:

… Section 8 speaks in terms of unreasonable search and

seizure, s. 9 of arbitrary detention and s. 11(e) of the right

not to be denied reasonable bail “without just cause’. Each of

these specific examples is consistent with the view that certain

deprivations of liberty and security of the person may be in

accordance with the principles of fundamental justice where there

are reasonable grounds for doing so, rather than only after guilt

has been established beyond a reasonable doubt. [Emphasis added.]

[40] In my opinion, even if a change in the custodial

arrangements of the unexpired part of the conditional sentence

constitutes a deprivation of liberty, the provisions of s. 742.6,

including the provision that a breach may be proved on a balance

of probabilities, do not contravene s. 7 of the Charter.

Jurisdiction

[41] In another of his several alternative submissions, the

appellant submits that if breach proceedings under s. 742.6 do

not constitute a separate offence, those proceedings must be

viewed as a continuation or extension of the trial sentencing

proceedings. As part of this submission the appellant submits

that once the appellant entered his plea of guilty, the

sentencing judge was seized of the matter and he cannot be

sentenced by another judge of the same court (or another court)

since the imposition of such a sentence would constitute the

continuation of the trial at which the appellant was convicted

and sentenced and about which the second judge knows very little

or nothing. Thus, the appellant submits that the conditional

sentence supervisory judge had no jurisdiction to alter the

conditional sentence order as he did, or at all.

[42] In my opinion, Gorewich J. had jurisdiction to make the

order he did. There is nothing in s. 742.6 that indicates that

Parliament intended only to vest jurisdiction in the original

sentencing judge. This could prove impractical in some

circumstances and could interfere with the speedy resolution of

allegations of breach of conditions. In this regard, I would

note that a subsequent amendment to s. 742.6 adding subsection

(3.1) confirms that the allegation may be heard by “any court

having jurisdiction to hear that allegation in the place where

the breach is alleged to have been committed or the offender is

found, arrested or in custody.” I see no merit in the

appellant’s submission on this issue.

The Failure to Afford the Appellant the Opportunity to Provide a

“Reasonable Excuse”

[43] The appellant submits that after he conceded that he

breached some of the conditions of the conditional sentence

order, Gorewich J. failed to go on and inquire whether he had a

reasonable excuse for the breaches. Accordingly, the appellant

submits that he was not given an opportunity to proffer a

“reasonable excuse” for his admitted breaches of the conditional

sentence order.

[44] In my opinion, the record does not provide a foundation from

which the appellant’s submissions on this issue can be sustained.

[45] On the breach proceedings, after the required filings were

attended to, Crown counsel summarized the breaches alleged. I

see no need to review that part of the record. Crown counsel

then noted for the record that the appellant could have any of

the witnesses providing evidence of the breaches of the

conditional sentence order come to court to be cross-examined.

Having spoken to duty counsel who was representing the appellant,

Crown counsel advised the court that he understood that the

appellant was not requesting that witnesses be brought to court

to be cross-examined. Duty counsel confirmed this. The

appellant personally acknowledged that he understood what Crown

counsel had said to the court on these issues. Gorewich J. then

summarized the breaches alleged (and admitted to by the

appellant) for the appellant’s benefit. He concluded his summary

by asking the appellant if he understood the breaches alleged.

The appellant said that he did. Gorewich J. then said to the

appellant:

Thank you. And you heard the Crown Attorney say a few

moments ago that you’re conceding the breaches. In other words,

as I understand him, and I have yet to get this from you for the

record, that you are agreeing and conceding that you did breach

the conditions as I set them out.

[46] The appellant responded, “Yes.” Then duty counsel

acknowledged that the appellant was “familiar” with his extensive

record which was filed with the court. She submitted that the

offences giving rise to the conditional sentence order and the

appellant’s numerous other criminal convictions were “all alcohol

related.” She then made submissions on what the trial judge

should do in response to the appellant’s breach of the

conditional sentence order. Neither duty counsel nor the

appellant suggested that the appellant had any excuse, reasonable

or otherwise, for the breaches of the conditions of his

conditional sentence order.

[47] There is nothing in the record to suggest that the appellant

was denied an opportunity to present a “reasonable excuse” for

breaching the conditional sentence order as he did. The closest

he came to disclosing an explanation or an excuse was duty

counsel’s statement that the offences were “all alcohol related.”

In addition, no material has been filed on the appeal to support

the submission that in fact the appellant had a reasonable excuse

for his breaches of the conditional sentence order.

[48] There is no merit in this ground of appeal.

Acceptance of the Appellant’s Guilty Plea

[49] The appellant submits that he did not understand that by

conceding the breaches he was in effect pleading guilty in

circumstances where he did not know what the possible outcome of

his concession would be. He, thus, moves to set aside his

admission that he breached some of the conditions of his

conditional sentence order.

[50] The appellant does not take issue with the validity of s-ss.

742.6(4) and (8) which, to repeat, are:

(4) An allegation of a breach of condition

must be supported by a written report of the

supervisor, which report must include, where

appropriate, signed statements of witnesses.

…

(8) The offender may, with leave of the

court, require the attendance, for cross-

examination, of the supervisor or of any

witness whose signed statement is included in

the report.

[51] The appellant’s assertion that he did not understand the

nature or consequences of the breach proceedings under s. 742.6

of the Criminal Code must be considered in light of the

following:

• at the July 30, 1997 sentencing hearing the sentencing judge

• explained to the appellant that a breach of the conditional

• sentence order could result in a hearing at which an order could

• be made requiring him to serve the balance of his sentence in

• prison;

• throughout the breach hearing the appellant was represented

• by duty counsel. She expressly waived the right to seek leave to

• cross-examine the breach witnesses on the appellant’s behalf.

• She advised the court that the breaches of the conditions of the

• conditional sentence order and the underlying offences (theft

• under and failing to appear) were alcohol related;

• the appellant has not filed any material to suggest that he

• received ineffective representation from duty counsel; and

• it was only after Gorewich J. varied the conditional

• sentence order to require the appellant to serve part of the

• remainder of his conditional sentence in prison that the

• appellant objected. At that point the trial judge reminded the

• appellant that he had asked him if he conceded the breaches and

• the appellant acknowledged that he did. Before the proceedings

• concluded the trial judge again explained the practical

• ramifications of his disposition under s. 742.6(a) and the

• appellant seems to have been satisfied with the explanation.

[52] At best, it seems to me that the appellant’s request to

withdraw his plea represented a request to reverse his decision

not to seek leave to require the attendance of the witnesses for

cross-examination pursuant to s. 742.6(8). In my view, there is

nothing in the record below, or here, to suggest that the cross-

examination of the witnesses could be relevant to whether the

alleged breaches of the conditional sentence order occurred or

whether the appellant had a reasonable excuse for them.

[53] There is nothing in the record to suggest that the appellant

did not understand what he was doing when he conceded the

breaches of his conditional sentence order. As a practical

matter, he had no alternative. He had the opportunity to provide

a “reasonable excuse” for the breaches, but did not do so. There

is no merit in this ground of appeal.

The Disposition under s. 742.6(9)

[54] The appellant contends that Gorewich J. committed an error

in principle in that he failed to take into consideration

relevant factors including circumstances surrounding the

existence of the original offence and the existence of mitigating

factors in varying the conditional sentence order as he did. He

emphasizes that Gorewich J. only had the facts of the breach and

the appellant’s criminal record before him. He also contends that

Gorewich J. failed to consider the delay in bringing the breach

issues to court and the total time that the appellant had spent

in custody. Lastly, he submits that the variation of the

conditional sentence order was unduly harsh and excessive.

[55] The issues before Gorewich J., who was acting under s. 742.6

in breach proceedings, were different from those before Fuller J.

who imposed the original conditional sentence order. Under

s. 742.6(9) the critical issue is whether an existing conditional

sentencing order should be varied, in whole or in part, having

regard to the post-sentence conduct of the offender. Gorewich J.,

in this case, had sufficient information upon which to exercise

his jurisdiction under s. 742.6(9).

[56] In my opinion, the variation of the conditional sentence

order was fit. There is, therefore, no basis upon which to

interfere with it. The partial revocation of the appellant’s

community sentence represented an appropriate remedy in light of

his almost immediate disregard of the conditions of his original

conditional sentence. The Crown is correct in submitting that

during the service of sentences on other matters, the running of

the appellant’s conditional sentence was suspended through the

operation of s. 742.7.

[57] For these reasons I would dismiss the appeal.

“C.A. Osborne J.A.”

“I agree: R.S. Abella J.A.”

“I agree: M.J. Moldaver J.A.”

Released: January 19, 2000