DATE: 20021204
DOCKET: C38084
COURT OF APPEAL FOR ONTARIO
McMURTRY C.J.O., CRONK and ARMSTRONG JJ.A.
B E T W E E N :
MICHAEL POCHAY
Michael Pochay, in person
Appellant
- and -
THE COMMISSIONER OF CORRECTIONS CANADA
R. Jeff Anderson, for the respondent
Respondent
Heard: November 27 and 29, 2002
On appeal from the order of Justice Douglas Cunningham dated March 19, 2002.
BY THE COURT:
(1) Background
[1] The appellant was convicted on August 16, 2000 of: two counts of conspiracy to commit robbery; possession of a prohibited weapon; possession of a restricted weapon; exploding a home made bomb with intent to cause an explosion of an explosive substance; and making an explosive substance, without lawful excuse, for the benefit of a criminal organization. He was sentenced on September 26, 2000 to: four years imprisonment, after credit for pre-trial custody, on the first conspiracy to commit robbery conviction; six months imprisonment consecutive on his conviction for possession of a prohibited weapon; six months imprisonment consecutive on his conviction for possession of a restricted weapon; one year imprisonment concurrent on his conviction for exploding a home made bomb with intent to cause an explosion of an explosive substance; one year imprisonment consecutive for making an explosive substance, without lawful excuse, for the benefit of a criminal organization; and three years imprisonment concurrent, after credit for pre-trial custody, on the second conspiracy to commit robbery conviction. His total sentence was six years imprisonment.
[2] The warrant committing the appellant to the penitentiary did not detail the specific provisions of the Criminal Code under which the appellant was convicted. Officials of the Correctional Service of Canada (the “CSC”) initially calculated the appellant’s parole eligibility dates as if he were entitled to accelerated parole review (“APR”). Subsequently, officials of the CSC concluded that the appellant had been sentenced to offences which excluded him from eligibility for APR. Accordingly, they denied the appellant APR. The appellant challenged that denial by way of an application for a writ of habeas corpus with certiorari in aid. By order dated March 19, 2002, Cunningham J. dismissed the appellant’s application. The appellant appeals that dismissal to this court.
(2) Issues
[3] As set out in his notice of appeal, the appellant challenges the order of the applications judge on numerous grounds. In particular, he argues that the applications judge erred: i) in finding that the initial calculation of the appellant’s eligibility date for APR was incorrect because it failed to take into account the “nature of the offences” for which the appellant was convicted; ii) in relying on the terms of the indictment against the appellant in determining the offences for which the appellant was convicted; iii) in failing to find that the appellant’s committal warrant was ambiguous; and iv) by failing to require further clarification from the sentencing judge concerning the offences for which the appellant was convicted. During oral argument before this court, the appellant also argued that the applications judge erred: v) by failing to ensure that the appellant was personally aware, prior to the hearing of the application, of a connection between the respondent’s agent on the application and the former law firm of the applications judge; vi) by failing to find that the decision to deny the appellant APR violated the appellant’s rights under the Charter of Rights and Freedoms (the “Charter”); vii) in relying on s. 782 of the Criminal Code in support of his decision to dismiss the application; viii) in his approach to the applicable statutory provisions regarding parole eligibility; and ix) by failing to find that the CSC lacked sufficient information on which to determine the appellant’s eligibility for APR.
[4] There is urgency to the determination of this appeal because the appellant has a parole hearing scheduled for December 5, 2002. Counsel for the respondent concedes that if, contrary to the decision of the applications judge, the appellant is eligible for APR, the legal criteria to be applied at the appellant’s parole hearing will be less onerous than would apply at a standard parole hearing.
[5] Many of the grounds of appeal advanced by the appellant are inter-related. In some instances, they are subsumed by, or form part of the foundation for, other grounds of appeal asserted by him. We have considered all of the grounds of appeal raised by the appellant and, for the reasons that follow, have concluded that they cannot succeed. Accordingly, we would dismiss the appeal.
(3) Analysis
[6] In our view, the grounds of appeal raised by the appellant are best determined by consideration of the following three questions:
i) what information may form the basis for the determination of the appellant’s eligibility for APR?
ii) what APR provisions apply to the appellant and is he excluded thereunder from eligibility for APR?
iii) was the applications judge obliged to ensure that the appellant was personally aware, prior to the hearing of the application, of a connection between the respondent’s agent and the former law firm of the applications judge?
(i) What Information May Form the Basis for the
Determination of the Appellant’s Eligibility for APR?
[7] The warrant of committal in this case referenced the offences for which the appellant was convicted, and the sentences he received, in the following manner:
CONSP ROBBERY 4 years
POSS PROH WPN 6 years consecutive
POSS REST WPN NOT CERT. 6 months consecutive
USE EXPL SUBST. 1 year concurrent
MAKE EXPL SUBST. 1 year consecutive
CONSP ROBBERY 3 years concurrent
TOTAL: 6 years imprisonment (Pre-trial custody of 4 years already
considered)
The warrant did not refer to any specific provision of the Criminal Code in relation to the convictions of the appellant.
[8] The appellant acknowledges in his factum that officials of the CSC sought on a number of occasions between January, 2001 and September, 2001 to obtain further information concerning the warrant of committal, and further that they were “doing everything within their power” to obtain copies of the transcripts from the appellant’s sentencing hearing “to try to resolve any uncertainties.” On the record before this court, it appears that none of those attempts were successful. However, the sentencing judge’s endorsement on the indictment was available to the CSC.
[9] The endorsement on the indictment indicates that, among other matters, the appellant was convicted of count thirteen, described in the indictment as exploding a home made bomb with intent to cause an explosion that was likely to cause serious damage to property, and count fourteen, described in the indictment as making an explosive substance, the home made bomb, for the benefit of a criminal organization. The appellant points out in his submissions that the reasons of the sentencing judge, dated September 26, 2000, make no reference to count thirteen in the indictment. Instead, they refer to the exploding of the home made bomb as “count eleven”. According to the indictment, count eleven was a charge of having possession of a restricted weapon, namely, a 9 mm. Baretta handgun, for which the appellant did not have a registration certificate issued to him. The endorsement on the indictment indicates that the appellant was acquitted of count eleven. The reasons of the sentencing judge also refer to count fourteen as set out in the indictment, that is, the making of a home made bomb for the benefit of a criminal organization.
[10] Like the warrant, the indictment against the appellant makes no reference to any specific provision of the Criminal Code in relation to the charges against the appellant.
[11] Several issues arise on those facts. First, is the warrant ambiguous? Second, were the applications judge and the CSC officials entitled to have regard to the indictment to resolve any ambiguity arising from the warrant for the purpose of ascertaining the offences for which the appellant was convicted? Third, does the indictment conform with the requirements of s. 581 of the Criminal Code? Fourth, what is the significance, if any, of the sentencing judge’s failure to refer to count thirteen in his reasons for sentence?
[12] The applications judge concluded that the warrant of committal is not ambiguous “as it clearly reflects, although not as precisely as one might expect, the convictions and the sentences imposed.” That conclusion was based on the applications judge’s review of the indictment in conjunction with the warrant, and his consideration of s. 782 of the Criminal Code. In interpreting the warrant, the applications judge stated: “There can be no doubt that the reference in the Warrant to ‘use expl. subst.’ refers to ss. 81 (1)(a) or (b) [of the Criminal Code], both of which are offences [which would exclude the appellant from eligibility for APR].” He further indicated: “With respect to the other conviction of relevance noted in the Warrant, ‘make expl. subst.’, this can only refer to s. 82 (2) of the Criminal Code…This is a criminal organization offence for which [APR] is not available.”
[13] Section 782 of the Criminal Code provides:
No warrant of committal shall, on certiorari or habeas corpus, be held to be void by reason only of any defect therein, where
(a) it is alleged in the warrant that the defendant was convicted; and
(b) there is a valid conviction to sustain the warrant.
[14] In reliance on Ewing v. Warden of Mission Institution (1994), 1994 2390 (BC CA), 92 C.C.C. (3d) 484 (B.C.C.A.), the applications judge observed, correctly in our view, that s. 782 of the Criminal Code is designed to prevent challenges to warrants of committal based merely on defects in form. Rather, the core issue concerning the validity of a warrant is the legality of the offender’s detention and not the form which evidences the detention. Moreover, also as indicated by the applications judge, a warrant of committal is not a court order. It is a document completed as an administrative act by court officials in accordance with a sentencing judge’s decision, which is directed to peace officers and gaolers for the purpose of facilitating enforcement of a sentence of incarceration: see R. v. Fuller, 1968 792 (MB CA), [1969] 3 C.C.C. 348 (Man. C.A.) per Dickson J. (as he then was) at 349.
[15] In this case, the warrant indicates that the appellant was convicted of multiple offences, including the use of an explosive substance and the making of an explosive substance. The reasons of the sentencing judge demonstrate that the appellant was convicted for exploding a home made bomb and for making the home made bomb for the benefit of a criminal organization. The available reasons of the sentencing judge thus confirm that the appellant was validly convicted of those offences and the warrant conforms with the sentencing judge’s reasons. In those circumstances, s. 782 of the Criminal Code precludes any challenge to the validity of the committal warrant based on any alleged defect in form.
[16] The appellant emphasizes the failure of the warrant to set out the provisions of the Criminal Code under which he was convicted. That omission, the appellant argues, renders the warrant ambiguous. In our view, the applications judge properly referred to the indictment to resolve any ambiguity in the warrant. The indictment bears the requisite endorsement of the sentencing judge which clarifies the offences for which the appellant was convicted: Carter v. Canada (Correctional Service), [2001] B.C.J. No. 2307 (S.C.). The endorsement of a sentencing judge on an indictment or an information, as required under the Criminal Code, provides the final record of a conviction. Accordingly, it was open to the applications judge and officials of the CSC to review the available reasons of the sentencing judge and his endorsement on the indictment to ascertain the offences for which the appellant was convicted.
[17] Any assertion that the indictment is flawed because it fails to set out the relevant provisions of the Criminal Code under which the appellant was charged is misconceived. An indictment may, but need not, reference specific provisions of the Criminal Code. An indictment is required to sufficiently describe the discrete offences of which an accused is alleged to be guilty: see s. 581 of the Criminal Code. In our view, as conceded by the appellant in his notice of appeal, the indictment here satisfied the requirements of s. 581 of the Criminal Code.
[18] The appellant’s argument that his habeas corpus application should have been granted because the available reasons of the trial judge do not accurately set out the counts in the indictment of which he was convicted also fails. Although the sentencing judge referred in error in his reasons to count eleven in the indictment, rather than to count thirteen, the subject-matter of the offence described in the relevant portion of the sentencing judge’s reasons clearly relates to count thirteen (exploding an explosive substance) and not to count eleven (possession of a restricted weapon). The sentencing judge’s endorsement on the indictment indicates that the appellant was acquitted of count eleven and convicted of count thirteen in the indictment. In those circumstances, the sentencing judge’s mistaken reference in his reasons to count eleven, rather than to count thirteen, was inconsequential.
(ii) What APR Provisions Apply to the Appellant and Is He Excluded Thereunder from Eligibility for APR?
[19] Section 125 (1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the “CCRA”) provides for the review of the cases of certain offenders for the purpose of referring them to the Parole Board for APR determination under s. 126 of the CCRA. However, offenders serving a sentence for serious, specified offences are not entitled to a review of their cases for that referral purpose. As in force in September 2000, s. 125 (1)(b) of the CCRA provided:
125 (1) This section and section 126 apply to an offender sentenced, committed or transferred (otherwise than pursuant to an agreement entered into under paragraph 16 (1)), to penitentiary for the first time, other than an offender serving a sentence for
(b) an offence set out in Schedule I that was prosecuted by way of an indictment;
[20] Also as in force in September 2000, s. 1 (a) of Schedule I of the CCRA read:
- An offence under any of the following provisions of the Criminal Code:
(a) paragraph 81 (2)(a) (causing injury with intent);
[21] The appellant makes several arguments concerning s. 125 (1)(b) and s. 1 (a) of Schedule I of the CCRA. First, he argues that the applications judge erred in stating that the initial calculation by officials of the CSC of the appellant’s parole eligibility dates “was in error because it failed to take into account the nature of the offences for which he had been convicted”. The appellant submits that the “nature of the offences” is not one of the grounds for exclusion from APR enumerated in s. 125 (1) of the CCRA.
[22] While the appellant is correct that the phrase “nature of the offences” does not appear in s. 125 (1) of the CCRA, his submission misconstrues the meaning of the challenged statement by the applications judge. In our view, when the applications judge described the reason for the error in the initial calculation of the appellant’s parole eligibility dates he was not suggesting that s. 125 (1) of the CCRA refers to the “nature of the offences” for which an offender was convicted or sentenced. His statement merely referred to the fact that the officials of the CSC, who initially calculated the appellant’s parole eligibility dates, did not have regard to the type of offences for which the appellant was serving his sentences. Regard to the type of offence is required in calculating parole eligibility dates under s. 125 (1) of the CCRA in order to determine whether the offence in respect of which the offender is serving a sentence is set out in Schedule I of the CCRA, such that the offender is ineligible for APR. We would not give effect to this ground of appeal.
[23] Second, the appellant points out that the provisions of s. 125 of the CCRA concerning criminal organization offences came into force in May, 1999 pursuant to S.C. 1999 c. 50, ss. 50 and 53. The offences for which the appellant was convicted occurred in the years 1996 to 1998. He was sentenced in September, 2000. Accordingly, the appellant argues that the criminal organization offences provisions of s. 125 cannot be applied retrospectively. He asserts that the controlling content of s. 125 and Schedule I of the CCRA is that in force at the time the offences were committed, rather than the content of those provisions in force at the time of his sentencing. For the reasons that follow, we conclude that it is unnecessary to consider the retrospective application of the criminal organization offences provisions of the CCRA.
[24] Third, the appellant also argues that, as none of the warrant, indictment or available reasons of the sentencing judge specified the provisions of the Criminal Code under which he was charged and convicted, the CSC lacked sufficient information on which to calculate his parole eligibility dates and to determine whether he was eligible for APR. He submits that s. 81 (1) of the Criminal Code has four sub-paragraphs, and that Schedule I of the CCRA in force at the time he committed the offences referred only to ss. 81 (1)(a) and (b) of the Criminal Code. Thus, he argues that if he was convicted under ss. 81 (1)(c) or (d) of the Criminal Code in connection with count thirteen in the indictment (exploding an explosive substance), he is not ineligible for APR under s. 125 (1)(b). We reject that argument, for several reasons.
[25] Sections 81 (1) and 81 (2) of the Criminal Code read as follows:
- (1) Every one commits an offence who
(a) does anything with intent to cause an explosion of an explosive substance that is likely to cause serious bodily harm or death to persons or is likely to cause serious damage to property;
(b) with intent to do bodily harm to any person
(i) causes an explosive substance to explode,
(ii) sends or delivers to a person or causes a person to take or receive an explosive substance or any other dangerous substance or thing, or
(iii) places or throws anywhere or at or on a person a corrosive fluid, explosive substance or any other dangerous substance or thing;
(c) with intent to destroy or damage property without lawful excuse, places or throws an explosive substance anywhere; or
(d) makes or has in his possession or has under his care or control any explosive substance with intent thereby
(i) to endanger life or to cause serious damage to property, or
(ii) to enable another person to endanger life or to cause serious damage to property.
(2) Every one who commits an offence under subsection (1) is guilty of an indictable offence and liable
(a) for an offence under paragraph (1)(a) or (b), to imprisonment for life; or
(b) for an offence under paragraph (1)(c) or (d), to imprisonment for a term not exceeding fourteen years.
[26] The offences for which the appellant was convicted were committed in the years 1996 to 1998. From 1992, when the CCRA was brought into force, s. 1 (a) of Schedule I of the CCRA listed an offence under s. 81 (2)(a) of the Criminal Code as an excluded offence for the purpose of s. 125 (1)(b) of the CCRA. Therefore, by the combined operation of s. 125 (1)(b) of the CCRA, which refers to offences set out in Schedule I to the CCRA that are prosecuted by way of indictment, and s. 1 (a) of Schedule I as in force from 1992, an offender serving a sentence for an offence under s. 81 (2)(a) of the Criminal Code is ineligible for APR. Those provisions of the CCRA were in effect when the offences for which the appellant was convicted were committed. They were also in effect when the appellant was convicted and sentenced.
[27] Section 81 (2)(a) of the Criminal Code refers to offences under ss. 81 (1)(a) or (b) of the Criminal Code. It provides that every one who commits an offence under ss. 81 (1)(a) or (b) is guilty of an indictable offence and liable to imprisonment for life. Accordingly, if the appellant was convicted under either s. 81 (1)(a) or s. 81 (1)(b) of the Criminal Code, he is ineligible for APR by application of s. 125 (1)(b) and s. 1 (a) of Schedule I of the CCRA and no question concerning the retrospective application of the CCRA arises.
[28] The applications judge concluded:
There can be no doubt that the reference in the Warrant to “use expl. subst.” refers to ss. 81 (1)(a) or (b), both of which are offences set out in Schedule I of the CCRA. Schedule I refers specifically to s. 81 (2)(a) of the Criminal Code which establishes that anyone convicted under ss. 81 (1)(a) or 81 (1)(b) is liable to be imprisoned for life.
[29] Count thirteen in the indictment against the appellant provides:
MICHAEL POCHAY stands further charged that he, on or about the 5th day of June, in the year 1998, in the Township of Cavan-Millbrook and Monaghan, in the Province of Ontario, with intent to cause an explosion of an explosive substance, to wit: a home made bomb that was likely to cause serious damage to property, to wit: construction equipment, namely a gradeall, did explode the said bomb, contrary to the Criminal Code [emphasis added].
[30] The mens rea referred to in s. 81 (1)(b) of the Criminal Code is “intent to do bodily harm to any person.” In contrast, the mens rea referred to in s. 81 (1)(a) of the Criminal Code is “intent to cause an explosion of an explosive substance that is …likely to cause serious damage to property.” The mens rea referenced in count thirteen of the indictment against the appellant tracks, in virtually identical terms, the language of s. 81 (1)(a) of the Criminal Code. The conviction of the appellant on count thirteen in the indictment was confirmed by the endorsement of that count on the indictment by the sentencing judge. Accordingly, in our view, it is beyond dispute that the appellant was convicted of an offence under s. 81 (1)(a) of the Criminal Code and, following his sentencing on September 26, 2000, was serving a sentence for that offence. It follows that the application of s. 125 (1)(b) and s. 1 (a) of Schedule I of the CCRA are fully engaged, and the appellant is ineligible for APR, having been convicted and sentenced to an offence which, by operation of law, excludes the possibility of eligibility for APR.
[31] Ineligibility from APR under the CCRA is established where an offender is serving a sentence for any offence set out in Schedule I of the CCRA. A sentence concerning only one excludable offence is sufficient to trigger the operation of s. 125 (1)(b). Accordingly, as we have concluded that the appellant is ineligible for APR because he was convicted and sentenced for an offence under s. 81 (1)(a) of the Criminal Code, it is unnecessary to consider the arguments advanced by the appellant concerning his conviction for a criminal organization offence, as detailed in count fourteen of the indictment and referred to in the reasons of the sentencing judge.
[32] Further, as s. 125 (1)(b) and s. 1 (a) of Schedule I of the CCRA were in force at the time of the commission of the offences for which the appellant was convicted, the appellant’s submissions concerning the alleged breaches of his rights under the Charter have no application. Those submissions were premised on the assertion that the appellant was convicted and sentenced under a law which did not exist when he committed the offences in question. That premise is inaccurate in connection with count thirteen in the indictment against the appellant.
[33] It is important, in our view, to address one further aspect of the appellant’s submissions in connection with s. 125 (1) and Schedule I of the CCRA. Several of the appellant’s contentions, including some of his submissions in oral argument before this court, were based on the mistaken understanding that the review of cases under s. 125 of the CCRA, for the purpose of referring them to the Parole Board for APR determination under s. 126 of the CCRA, is a discretionary decision by the CSC. If that were the case, there would be merit to the appellant’s claim that the involved officials of the CSC require up-to-date information concerning an offender and his or her sentence prior to conducting a s. 125 review: see s. 125(3) of the CCRA. However, a referral determination under s. 125 is not discretionary. In this case, it flows from the application, as a matter of law, of s. 125 (1)(b) and Schedule I of the CCRA. It follows, as found by the applications judge, that a referral decision under s. 125 of the CCRA is not a decision involving the exercise of discretion by the CSC or the respondent.
(iii) Was the Applications Judge Obliged to Ensure that the
Appellant was Personally Aware, Prior to the Hearing of the
Application, of a Connection Between the Respondent’s
Agent and the Former Law Firm of the Applications Judge?
[34] The respondent’s agent on the hearing of the appellant’s application before the applications judge was a member of the law firm at which the applications judge practised law prior to his appointment to the bench. That fact apparently was unknown to the appellant personally at the time of the application.
[35] The appellant does not assert any direct or indirect bias against the applications judge, nor does he argue that the decision of the applications judge should be set aside on the basis of the respondent’s agent’s connection to the former law firm of the applications judge. Rather, he submits that in a small community, where the practising members of the bar may be assumed to be familiar with one another, it would have been prudent for the applications judge to ensure that the appellant was aware of the connection with his former law firm in order to permit the appellant to make submissions concerning conflict of interest, should he elect to do so.
[36] We agree that there may be cases in which it would be preferable for a judge to ensure that the connection of one or more of the counsel appearing before him or her with the judge’s former law firm is known to the litigants. The desirability of such disclosure may arise, for example, where one of the parties to the proceeding is not represented by counsel and where the proceeding is to be heard in a small community where the applications judge previously practised law.
[37] In this case, however, the appellant was represented by counsel during the argument of the habeas corpus application. His counsel practised law in Kingston, Ontario, the same community where the applications judge previously practised law. The letterhead of the respondent’s agent’s law firm, which was used in correspondence between the appellant’s counsel and the respondent’s agent, clearly disclosed the identity of the respondent’s agent’s law firm which continues to bear the family name of the applications judge. Accordingly, the connection to the applications judge’s former law firm was known to the appellant’s agent, his counsel, who made no submission on the matter before the applications judge although it was open to him to do so. The appellant did not object to the applications judge hearing the habeas corpus application, nor is any disqualifying bias alleged against the applications judge on this appeal. In all of those circumstances, we are fully satisfied that no prejudice was occasioned to the appellant by the applications judge hearing the habeas corpus application.
(4) Disposition
[38] For these reasons, the appeal is dismissed.
RELEASED: “RRM”
“DEC 04 2002” “Roy McMurtry C.J.O.”
“E.A.Cronk J.A.”
“Robert P. Armstrong J.A.”