COURT OF APPEAL FOR ONTARIO
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.:
1The 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.
2On 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.
3The 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.
- 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
4The facts are not in dispute and can be set out in summary
form.
5In 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.
6As 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 .
7On 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.
8Gorewich 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.
9When 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.
10The 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).
11In 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.
12The 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.
13Against 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
14Section 11(d) of the Charter provides:
- 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.
15The 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.))
16The 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.
17Although 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.
18Rights 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.
19In 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.
20Writing 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.]
21Admittedly, 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.
22That 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.
23It 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.
24Further 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
25Section 11(h) of the Charter provides:
- 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.
26The 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.
27I have already explained why s. 11 has no application to the
proceedings in question. Those reasons apply with equal force to
the instant submissions.
28In 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.).
29I 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
30Section 7 of the Charter provides:
- 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.
31The 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.
32In 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.
33McLachlin 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.
34I 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.
35Even 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.]
36In 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.]
37It 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.
38In 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.
39The “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.]
40In 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
41In 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.
42In 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”
43The 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.
44In my opinion, the record does not provide a foundation from
which the appellant’s submissions on this issue can be sustained.
45On 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.
46The 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.
47There 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.
48There is no merit in this ground of appeal.
Acceptance of the Appellant’s Guilty Plea
49The 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.
50The 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.
51The 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.
52At 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.
53There 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)
54The 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.
55The 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).
56In 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.
57For 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
