ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
BK
Before Justice J.R. Richardson
Heard on February 24, 2026
Oral Decision Given February 25, 2026
Reasons for Sentence released on March 4, 2026
Conor X. Kyte Counsel for the Crown
Michelle Ramirez Counsel for the defendant
Introduction
1“The condition upon which God hath given liberty to man is eternal vigilance”.
2These words were uttered by Irish lawyer, politician and orator, John Philpot Curran in the late eighteenth or early nineteenth century. The maxim has been paraphrased to “Eternal vigilance is the price of liberty”, or “The price of liberty is eternal vigilance.”
3We would do better as a society if we paid greater heed to Curran’s maxim, along with the maxim, “Justice must be tempered with wisdom and mercy.”
4As well, of course, there is this old favourite, often attributed to Dostoevsky, “The degree of civilisation in a society can be judged by entering its prisons.”
5This case is a sentencing decision in which all three of these maxims collide. In the process, a fourth maxim, Voltaire’s pronouncement that “Common sense is not so common” takes the reins.
6BK is a 39-year-old woman who has an alcohol problem. She does not have a criminal record. She works as a Personal Support Worker.
7She lives in Quebec. She has no connection to Pembroke.
8On February 24, 2026, she found herself entering a plea before me to one count of breaching her release order. Her crime: drinking, contrary to a condition of that order.
Facts
9BK came to Pembroke with a man sometime before the 19^th^ of February, 2026.
10They took a room at the local Best Western.
11She drank.
12There were complaints.
13Police were called. The officer who investigated observed the signs of intoxication. He searched her on the police computer system and learned that she was bound by a release order from Quebec with a condition requiring her to reside at a certain address and refrain from using alcohol or other intoxicants.
14She was charged with breaching this order.
15For some reason, she was not released by police.
16She ended up being held for bail.
17On February 24, 2026, BK was traversed to my court for plea.
18By the time I saw her, she had been in custody six days.
19Her matter arrived in my court at around 4:00 pm. It was my last matter of the day.
20The Crown told me that he had spoken to the Quebec authorities. She had multiple charges in her home jurisdiction. Most of them involved drinking. She was before a specialized mental health and addiction court in Quebec.
21I was urged to accept a joint submission of one day in addition to the six days she had already served (pursuant to the usual Summers credit, she would have been entitled to nine days credit).
22The Crown submitted, “If Your Honour is concerned about the joint submission, pursuant to R. v. Anthony-Cook, 2016 SCC 43, the Crown has no submissions.”
23Defence counsel essentially submitted, “Ditto”.
24It was clear that the joint submission had been arrived at solely because BK needed to get back to Ottawa to get her property from the detention centre.
25Unless I ordered a one-day sentence, she had no way to get back there. Giving her “one day” would allow the police to transport her back.
The Legal Issue
26This was a joint submission.
27I am required pursuant to R. v. Anthony-Cook, supra, to follow joint submissions unless I am satisfied that it would be contrary to the public interest.
28The joint submission would have meant that BK, a woman of 39 years of age, would have a criminal record.
29If BK had appeared before me out of custody, I would have found that it was in her interest and not contrary to the public interest to grant her a discharge.
30The only reason she was looking at having a criminal record was because she was in custody and would not be returned to the detention centre to get her belongings unless she was sentenced to jail.
31A criminal record can have serious consequences for an individual.
32It can affect their ability to seek and maintain employment, particularly if they work with vulnerable individuals or if they need a security clearance.
33It can affect their ability to volunteer in certain capacities. I have heard anecdotal accounts of persons with minor criminal records being forbidden from volunteering at their child’s school or coaching minor sports.
34Finally, it can affect their ability to travel internationally, particularly to the United States.
35The range of sentence for Breach of Release Order is broad. It includes absolute and conditional discharges, suspended sentences and custodial sentences.
36The cardinal principle of sentencing is proportionality: R. v. Lacasse, 2015 SCC 64. That is, the punishment must be proportional to the seriousness of the crime and the degree of responsibility of the offender. One of the issues that is often considered when assessing “the degree of responsibility” is the moral blameworthiness of the accused. The more serious the crime and the greater the moral blameworthiness, the more likely that the sentence will gravitate to more severe consequences.
37Court orders, designed to control the behaviour of the accused and curtail the possibility of further involvement with the criminal justice system, must be taken seriously.
38Anyone with more than twenty years at the bar will remember a time when a breach of a court order almost always involved a sentence of custody, often on the order of 30 days.
39Fortunately, we have become more enlightened. While court orders must still be taken seriously, analysis of these crimes on the basis of proportionality reveals that custodial dispositions are no longer almost always appropriate for these crimes.
40This is particularly so when the crime the accused has committed involves breach of a court order designed to control drug and alcohol consumption or deal with an accused person’s mental illness.
41Justice Trotter has stated that bail conditions designed to control drug and alcohol consumption “must be imposed with some care” (Trotter, The Honourable Justice Gary T., The Law of Bail, Third Edition (Toronto: Thomson, Reuters, 2022) at paragraph 6.26).
42In R. v. Zora, 2020 SCC 14 at paragraph 5, Justice Martin, writing for a unanimous panel of the Supreme Court of Canada noted that:
[o]ffences under section 145(3) are very common, on the rise and often involved questionable conditions imposed upon vulnerable and marginalized persons. Parliament has recently acted to address how numerous and onerous bail conditions interact with s.145(3) to create a cycle of incarceration, especially among the most vulnerable in our population.
43In considering BK’s sentence, I find that she is on the cusp of becoming trapped in such a cycle. Crown counsel advised that she has a number of breach and substantive charges outstanding before the Quebec court. He advised that almost all, if not all, of her outstanding charges arise when she has been drinking.
44Justice Martin specifically addressed “abstain” conditions at paragraph 92 of Zora:
…judicial officials should be wary of conditions that may be directed to symptoms of mental illness. This includes alcohol and drug abstinence conditions for an accused with an alcohol or drug addiction. If an accused cannot possibly abide by such a condition, then it will not be reasonable. In addition, rehabilitating or treating an accused’s addiction or other illness is not an appropriate purpose for a bail condition — a condition will only be appropriate if it is necessary to address the accused’s specific risks. Subjecting individuals who are presumed innocent to abstention conditions may effectively punish them for what are recognized health concerns, “if that individual is suffering from an alcohol addiction, an absolute abstention may present substantial risk to the health and well-being of that person” and even “give rise to potentially lethal withdrawal effects” (R. v. Denny, 2015 NSPC 49, 364 N.S.R. (2d) 49, at paras. 14-15; see also John Howard Society of Ontario, at pp. 12-13). If an abstinence condition is necessary, the condition must be fine-tuned to target the actual risk to public safety, for example, by prohibiting the accused from drinking alcohol outside of their home if their alleged offences occurred when they were drunk outside of their house. Those seeking and imposing bail conditions should also be aware that an accused’s substance use disorder, or any other mental illness, may yet be undiagnosed. [Citations omitted]
45The Supreme Court’s decision in Zora, intended for judges and Justices of the Peace who are making bail decisions, must also apply to judges who are making decisions about sentencing.
46I am mindful of the Court of Appeal’s decision in R. v. Greene, [2002] O.J. 5976 a case involving a plea and sentence on charges of break, enter and theft. The Court of Appeal found that in sentencing the accused, the trial judge gave undue emphasis on the accused’s several unsuccessful attempts at rehabilitation, noting at paragraph 5 that,
The appellant is addicted to cocaine and has been a very long time. It is unrealistic to expect that he will succeed at overcoming that addiction either on the first or second attempt or even after many attempts.
47This judgment is not intended to be critical of or second guess the court in Quebec that imposed the condition that I am sentencing BK for breaching.
48Zora does not outlaw these conditions. Indeed, I have imposed these conditions on bail orders and probation orders. The condition was, no doubt, intended to assist her in her treatment and recovery and minimize the risk that she posed to the community.
49We must, however, recognise that relapse is always a realistic possibility.
50I find that absent the commission of a more serious substantive offence, any “first offence” sentence for breaching such a condition – which involves the imposition of a criminal record upon BK – is contrary to the public interest.
51In my view, particularly given the fact that by the time she entered her plea before me, BK had already spent six days in jail, the appropriate sentence was an Absolute Discharge. BK could then return to Quebec to face her charges there, and, if and when she is sentenced on those charges, which include substantive offences, the Quebec Court may well decide to impose a more significant sentence.
The Practical Dilemma
52Having so decided, I was now faced with a significant practical dilemma, given the following additional facts:
a) It was late in the day and BK’s matter was my last matter before closing Court.
b) BK appeared before me in custody.
c) The custodial facility where BK was housed before appearing before me was in Ottawa, 155 kilometers away.
d) All of BK’s personal effects, including her wallet, identification and her clothes, were still in Ottawa.
e) She had no residence in Pembroke.
f) The temperature outside was -13 degrees Celsius.
53The matter was stood down for Crown and defence to discuss the case.
54The Crown contacted the local mental health program. They agreed to provide a bus ticket to get BK back to Ottawa. The bus did not, however, leave Pembroke for another four hours at 8:15 pm. BK would potentially have to wait in the cold and in the dark by herself for four hours.
55Even assuming that someone would stay with BK (or BK with them) and provide her a warm place to wait until the bus arrived, once BK arrived in Ottawa, she would have no way of getting from the Ottawa Train Station, the last stop on the bus, to the Ottawa Carleton Detention Centre.
56Even assuming that she was successful in her quest to arrive at Ottawa Carleton Detention Centre, there was no guarantee that the people there would let her in to claim her belongings.
57The immediate granting of an Absolute Discharge was, therefore, a pyrrhic victory. Who knows what unfortunate circumstance could have befallen BK if she had been released. The likelihood of reoffence and continuation of the cycle of incarceration the discharge was designed to avoid was high.
The Unpalatable Solution
58I asked duty counsel to speak to BK and get her instructions with these harsh practical realities in mind.
59BK ultimately concluded that her only option, was to return to the Detention Centre and serve one more night, on top of the six that she already served.
60She would then be sentenced, collect her property and be released the next day.
61These were, in my estimation, seven nights too many.
62On February 25, 2026, BK appeared before me by telephone from the Ottawa Carleton Detention Centre. At that time, I granted the Absolute Discharge.
Why?
63Small towns and cities like Pembroke, particularly in the north or near north, have had their local services decimated.
64The order of the day, not only in Justice, but also in other services is that “bigger is better”.
65We have lost sight of the fact that “small is beautiful”1. Or at least it used to be.
66In the early 2000s, the government of the day decided that Pembroke was going to get a new courthouse.
67It needed one. Although I never appeared or sat in the old Provincial Courthouse at the intersection of Christie Street and Pembroke Street West, its condition is the stuff of legend2.
68A beautiful new courthouse was built on the site of the old County courthouse, the jail, and the registry office on Pembroke Street East. It is a magnificent building; it is probably the finest example of late nineteenth century institutional architecture within a 100-kilometer radius.
69There was a heavy price for the beautiful new courthouse, however. To make way for the redevelopment of the new courthouse, the jail was closed3.
70Since 2003, prisoners for crimes committed in Renfrew County have been housed at the Ottawa Carleton Detention Centre, 155 kilometers away. They must endure a two-hour ride (one way) in a police prisoner transport vehicle to attend Court in Pembroke.
71That assumes that notorious Ottawa traffic is good. It seldom is.
What about video and other Technological Solutions?
72The Ottawa Carleton Detention Centre does not have enough video suites to accommodate all the video appearances to various courthouses. I routinely hear guilty pleas and conduct court appearances for accused persons where the guard is holding a cell phone to the accused through the door of his or her cell.
73That is how BK ultimately appeared before me on February 25.
74Even if video conferencing was available, personal attendance is often necessary to permit counsel to meet with their clients and obtain instructions. This was certainly the case for BK. She had attempted to enter a plea before another judge a day earlier, but the judge was not able to get through plea comprehension4.
75Another lesson we continue to refuse to learn is that sometimes the personal touch is the only solution.
76Virtual proceedings are not a panacea. We need to stop considering it so.
77Technological “solutions” are tools. Too often they become the tail that wags the proverbial dog.
78Audio conferencing for solicitor-client communications is apparently available for in-custody accused at Ottawa-Carleton Detention Centre, but defence counsel routinely tell me that such appointments can be difficult to obtain and are often cancelled because of staff shortages at the institution.
79Apart from the onerous transportation to and from the courthouse, there are other problems. Conditions at the Ottawa Carleton Detention Centre are notorious for overcrowding and lock-down. I commented on that in R. v. K.T., 2025 ONCJ 234.
80When BK appeared before me, she told me that she had been subject to overcrowding.
81Three or even four inmates often share a cell designed for two. Someone sleeps on the floor, often with their head next to the toilet.
82Staffing shortages also often mean that accused persons are subject to lock-down; they do not get exercise or showers.
83I hear these reports and see the written evidence from the custodial authorities confirming it almost daily.
What about Sending the Accused’s Belongings with them for their Court Appearances?
84There used to be a “red bag program” where staff at the Institution did exactly that. The accused’s belongings were placed in a red bag, which accompanied them on court appearances.
85I am advised by counsel that the Detention Centre claims, citing staffing issues, that they cannot send the accused’s belongings with them.
86Somehow they have sufficient staff to admit, unnecessarily house, feed and later release inmates such as BK in overcrowded facilities. But they do not have enough staff to take a few minutes to put the inmate’s belongings into a bag to accompany them to Court?
87The Probation Court Liaison Officer advises that for accused who are resident in Renfrew County, they have an agreement with the Detention Centre to send the offender’s belongings by courier.
88The belongings usually arrive within a week. Vulnerable and marginalized persons have to live without their cell phones and identification for up to a week.
89In BK’s case, to take advantage of that, I would have had to impose a Probation Order. She would have been released to live on the street, in a community she has no real connection to, while she waited for her belongings to arrive.
90This would have exposed her to more of the cycle of incarceration we were trying to avoid.
91Another pyrrhic victory.
What About Returning to the Detention Centre to Pick Up Her Belongings?
92The other option was to release BK in Pembroke and have her return to the institution another day to pick up her belongings after she was released from custody.
93This presented the same problem: the release of a vulnerable woman with a serious drinking problem without any of her personal effects in -13 degrees Celsius weather in a city (if not a province) that she had no connection with.
94Offenders who reside in Renfrew County are often in this situation. If they do not take advantage of the probation office accommodation, they are beholden on family and friends to get them a ride to Ottawa.
95This is because there is one bus a day. It leaves Pembroke at 8:15 pm and gets into Ottawa at about 11:00.5
Conclusion
96We live in a world where vulnerable, disadvantaged, addicted and mentally ill individuals are marginalized, criminalized and treated as subhuman.
97Essential services are withdrawn, eliminated, or nonexistent, particularly in small centres.
98We are losing the ability to care about other people.
99When we lose the ability to care for people, we lose the ability to value their liberty.
100When we lose the ability to value their liberty, we can hardly expect our own liberty to be valued.
101The price of liberty is eternal vigilance.
Released: March 4, 2026
Signed: Justice J.R. Richardson
Footnotes
- See Schumaker, Ernest F. Small is Beautiful: Economics as if People Mattered (New York: Harper Collins, 2010). First published in 1973.
- Before moving to its current location in 2007, the Ontario Court of Justice was located at 415 Pembroke Street West in Pembroke. On one occasion in the late 1990s, the ceiling collapsed and a racoon landed on the counsel table while Court was in session. On another occasion, the ceiling collapsed while the police were escorting prisoners in from the parking lot. There were not adequate cell facilities and prisoners appearing in the bail court often were handcuffed together. The building was also literally sliding down the hill that it was built upon. A few years ago, it was finally torn down and the site now serves as a parking lot.
- The Pembroke jail was one of the last county jails in the East Region to close. At one time, every county had a jail. Beginning in the early 1970s, they were systematically closed and prisoners were housed in new, larger and supposedly more modern jails, such as the Quinte Detention Centre in Napanee and the Ottawa Carleton Detention Centre in Ottawa. As I write, only the Brockville Jail survives. In Pembroke, when the decision was made to close the jail, stakeholders were told that the cost of transporting prisoners between Ottawa and Pembroke was less than the cost of keeping the jail open.
- I have no doubt that part of BK’s difficulty in securing bail and being sentenced sooner probably lay in the fact that she was what some would call “difficult”. The degree to which she was “difficult” however, was exacerbated by the fact that she was a neophyte to court proceedings and needed things carefully explained to her. This is not uncommon with self-represented accused persons. Virtual court appearances, particularly those where the jurist is unable to see the accused and the accused is not able to have immediate discreet consultation with duty counsel, are often ineffective.
- Good quality, affordable public transportation is something only people in larger urban centres are entitled to. Before May 2021 there was more frequent bus service to Renfrew County, but that ended when Greyhound ceased Ontario operations due to low ridership as a result of COVID-19. A passenger train last served the Valley in 1993 and the rails were torn up in 2014. Local municipalities could not afford the cost of acquiring and maintaining the right-of-way. It is now a nice walking and, this time of year, snowmobiling trail. Progress.