Her Majesty the Queen v. Filippelli [Indexed as: R. v. Filippelli]

61 O.R. (3d) 577

[2002] O.J. No. 3890

Docket No. C37781

Court of Appeal for Ontario,

O'Connor A.C.J.O., Cronk and Armstrong JJ.A.

October 18, 2002

Criminal law -- Sentence -- Conditional sentence -- Breach of conditional sentence -- Standard of proof required -- Ordinary civil standard of proof applies to question of whether accused has breached conditional sentence -- Rule in Hodge's Case has no application in conditional sentence breach hearing because Crown's burden of proof is on balance of probabilities.

Criminal law -- Sentence -- Conditional sentence -- Breach of conditions -- Defence counsel not asked for submissions regarding options to custody after trial judge finding accused breached conditions -- Appropriate to require offender to serve part or all of unexpired term in custodial facility after serious breach of conditions -- Even if procedural error made by trial judge in not hearing submissions, appropriate to require accused to serve rest of sentence in jail -- Appeal dismissed.

The accused pleaded guilty to trafficking in narcotics and received a conditional sentence of 15 months. Evidence was adduced at the sentencing hearing that the accused was a partner in a liquidation business which operated at a particular address, and an exception to the house arrest imposed by the conditional sentence was made to permit the accused to work at that location. The accused was subsequently arrested on 43 criminal charges relating to possession of stolen property, possession of firearms and making use of wares with the intention to deceive the public. The alleged offences related to four locations, one of which was the location of the accused's liquidation business. The accused was brought before the sentencing judge on an allegation of a breach of the condition in the conditional sentence order which required him to keep the peace and to be of good behaviour. The sentencing judge found that he had breached the conditional sentence and ordered that he serve the remainder of his sentence in jail. The accused appealed.

Held, the appeal should be dismissed.

To succeed in establishing a breach of a condition, the Crown must lead evidence that satisfies the judge on a balance of probabilities that such a breach has occurred. The gravity of the consequences of finding that the accused has breached his conditional sentence order does not require that a higher degree of probability is required. The standard of proof required by s. 742.6(9) of the Criminal Code, R.S.C. 1985, c. C-46 does not attract more than the ordinary standard required in civil cases. The rule in Hodge's Case has no application in a conditional sentence breach hearing because the Crown's burden of proof is on a balance of probabilities.

The sentencing judge had sufficient evidence before him to be satisfied on a balance of probabilities that the accused breached the condition in his conditional sentence to keep the peace and be of good behaviour.

Even if the sentencing judge erred in failing to hear defence counsel's submissions on the options afforded to him in s. 742.6(9) of the Code other than a return to jail, there was no reason to interfere with his disposition of the case. The decision to terminate the conditional sentence order was a fit disposition given the seriousness of the breach and the presumption in favour of termination of the order. [page578]

APPEAL from a judgment terminating a conditional sentence order.

Cases referred to Bater v. Bater, [1950] 2 All E.R. 458, [1951] P. 35, 114 J.P. 416, 66 (pt. 2) T.L.R. 589, 94 Sol. Jo. 533, 48 L.G.R. 466 (C.A.); Hodge's Case (1838), 2 Lewin 227, 168 E.R. 1136; R. v. Charemski, [1998] 1 S.C.R. 679, 157 D.L.R. (4th) 603, 224 N.R. 120, 123 C.C.C. (3d) 225, 15 C.R. (5th) 1; R. v. John, [1971] S.C.R. 781, [1971] 3 W.W.R. 401, 15 C.R.N.S. 257, 15 D.L.R. (3d) 692, 2 C.C.C. (2d) 157; R. v. Oakes, [1986] 1 S.C.R. 103, 53 O.R. (2d) 719n, 14 O.A.C. 335, 26 D.L.R. (4th) 200, 65 N.R. 87, 19 C.R.R. 308, 24 C.C.C. (3d) 321, 50 C.R. (3d) 1; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, 142 Man. R. (2d) 161, 182 D.L.R. (4th) 1, 249 N.R. 201, 212 W.A.C. 161, [2000] 4 W.W.R. 21, 140 C.C.C. (3d) 449, 49 M.V.R. (3d) 163, 30 C.R. (5th) 1 (sub nom. R. v. P. (J.K.D.)); R. v. Wismayer (1997), 33 O.R. (3d) 225, 115 C.C.C. (3d) 18, 5 C.R. (5th) 248 (C.A.); United States v. Shephard, [1977] 2 S.C.R. 1067, 70 D.L.R. (3d) 136, 34 C.R.N.S. 207, 9 N.R. 215, 30 C.C.C. (2d) 424 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 742.3(1)(a), 742.6

Iona Jaffe, for respondent. E. Bruce Olmsted, for appellant.

The judgment of the court was delivered by

[1] ARMSTRONG J.A.: -- The appellant pleaded guilty to trafficking in a narcotic before Justice Locke on August 22, 2001. He received a conditional sentence of 15 months following a joint submission by counsel for the Crown and defence.

[2] During the sentencing submissions, defence counsel advised the court that the appellant was a partner in a liquidation business, A & G Liquidators, which was engaged in the selling of goods purchased from estates of bankrupts, bailiffs and auctioneers. He produced documentation to the court which confirmed that the appellant was a partner in the business which was located at 820 Sheppard Avenue West in the former City of North York. Defence counsel requested the court to make an exception to the house arrest imposed by the conditional sentence to permit the appellant to work at A & G Liquidators between 8:00 a.m. and 7:00 p.m., Monday to Saturday. Justice Locke granted the exception.

[3] In December of 2001, the appellant was arrested on 43 criminal charges relating to possession of stolen property, possession of firearms and making use of wares with the intention to deceive the public. The alleged offences related to four specific locations in the Toronto area including 820 Sheppard Avenue West. [page579]

[4] The appellant was brought before Justice Locke on January 22, 2002 on an allegation of a breach of the condition in the conditional sentence order which required him to keep the peace and to be of good behaviour in accordance with s. 742.3(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. Justice Locke found that he had so breached the conditional sentence order and ordered that he serve the remainder of his sentence in jail.

[5] The appellant seeks leave to appeal from the order of Justice Locke and if leave is granted, he asks that the finding that he breached his conditional sentence order be set aside.

[6] The appellant argued three grounds of appeal:

(i) the sentencing judge failed to apply the proper test (standard of proof) in deciding that the appellant was in breach of the conditional sentence order;

(ii) the Crown presented insufficient evidence to establish on a balance of probabilities that the appellant had failed to keep the peace and to be of good behaviour; and

(iii) the sentencing judge erred in failing to consider the options afforded to him by s. 742.6(9) of the Criminal Code other than a return to institutional custody.

I will now review each of these grounds.

(i) The Standard of Proof

[7] The standard of proof applicable to a proceeding for a breach of condition is set out in s. 742.6(9) of the Criminal Code. To succeed in establishing a breach of a condition, the Crown must lead evidence that satisfies a judge on a balance of probabilities that such a breach has occurred.

[8] The appellant argued that there are different degrees of probability depending upon the nature of the case. See R. v. Oakes, [1986] 1 S.C.R. 103 at p. 137, 26 D.L.R. (4th) 200. In Oakes, Chief Justice Dickson cited the following passage of Lord Denning in Bater v. Bater, [1950] 2 All E.R. 458 at p. 459, [1951] P. 35 (C.A.):

The case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter. A civil court, when considering a charge of fraud, will naturally require a higher degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature, but still it does require a degree of probability which is commensurate with the occasion. [page580]

[9] The appellant argued that the gravity of the consequences of finding that the appellant breached his conditional sentence order required that a higher degree of probability was required. He did not attempt (perhaps wisely) to define with precision that higher degree of probability.

[10] In my view, the standard of proof required by s. 742.6(9) of the Code does not attract more than the ordinary standard required in civil cases. It must be appreciated as was stated by Chief Justice Lamer in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, 182 D.L.R. (4th) 1, at para. 29:

The conditional sentence is defined in the Code as a sentence of imprisonment. The heading of s. 742 reads "Conditional Sentence of Imprisonment". Furthermore, s. 742.1(a) requires the court to impose a sentence of imprisonment of less than two years before considering whether the sentence can be served in the community subject to the appropriate conditions. Parliament intended imprisonment, in the form of incarceration, to be more punitive than probation, as it is far more restrictive of the offender's liberty. Since a conditional sentence is, at least notionally, a sentence of imprisonment, it follows that it too should be interpreted as more punitive than probation.

[11] The consequences of finding a breach of a conditional sentence order are serious and may lead to imprisonment in a custodial institution. However, custodial incarceration involves limiting the liberty of a person whose liberty is already seriously restricted by reason of his conviction for a criminal offence and the imposition of a conditional sentence, which, as stated above, is a form of imprisonment.

[12] Given the context in which a breach hearing takes place, I am satisfied that Parliament intended nothing more than the ordinary standard of proof required in civil cases, i.e. a mere preponderance of probability is the applicable standard.

[13] The appellant also argued that a reformulation of the rule in Hodge's Case (1838), 2 Lewin 227, 168 E.R. 1136 should be imported into a hearing involving an alleged breach of a conditional sentence order. He argued that in accordance with Hodge's Case, a jury must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts before it can reach a verdict based on circumstantial evidence. From that position, he reasoned that in a hearing into an alleged breach of a conditional sentence order, the Crown must prove on a balance of probabilities that the guilt of the accused is the only reasonable inference to be drawn from the proven facts.

[14] I prefer the position advanced by counsel for the Crown to the effect that the rule in Hodge's Case can have no application in a conditional sentence breach hearing because the Crown's burden [page581] of proof is on a balance of probabilities. As the court explained in R. v. John, [1971] S.C.R. 781 at pp. 791-92, 15 D.L.R. (3d) 692, the language used in Hodge's Case is nothing more than a graphic illustration of the application of the standard of proof beyond a reasonable doubt in a circumstantial case.

[15] Counsel for the appellant further argued in the proceedings before Locke J. and before us that if this case were the subject of a motion for a directed verdict in a criminal jury trial, such motion without question would succeed. Again, this argument fails to take into account the different standards of proof in a criminal trial and on a s. 742.6 hearing. As Locke J. rightly observed:

[T]his case is not before a jury. This case is also not before a court for a trial. This is an application to this Court, by the Crown, to have Mr. Filippelli committed to jail under one of the provisions of s. 742.6 of the Criminal Code.

[16] The Supreme Court of Canada has held in United States v. Shephard, [1977] 2 S.C.R. 1067 at p. 1080, 70 D.L.R. (3d) 136 that the test for a directed verdict is "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty". See also R. v. Charemski, [1998] 1 S.C.R. 679, 157 D.L.R. (4th) 603, at para. 2ff.

[17] Whether the standard of proof applicable to a proceeding for a breach of condition is higher than the standard applicable to a motion for a directed verdict is perhaps open to debate. On a motion for a directed verdict the judge may only consider evidence which is admissible to determine the guilt of an accused at trial. On a proceeding for a breach of conditional sentence the judge may consider evidence not ordinarily admissible at trial such as a supervisor's report containing signed witness statements. It is only with leave of the court that the offender is able to cross-examine the supervisor who prepared the report or a witness whose signed statement is included in the report.

[18] In my view, the standard of proof applied by a judge presiding over a hearing for a breach of condition is simply different from the test that a trial judge applies in deciding a motion for a directed verdict. To characterize the two tests in the manner suggested by the appellant does not assist in attempting to ascertain what Parliament intended when it established the standard of proof in s. 742.6(9) of the Code.

(ii) Was There Sufficient Evidence to Establish the Breach of Condition?

[19] Counsel for the appellant argued that the evidence that linked the appellant to any of the locations, other than 820 Sheppard [page582] Avenue West, where searches were conducted and that provided evidence supporting the criminal charges was tenuous. The evidence in this regard was to the effect that some items seized from 820 Sheppard Avenue West allegedly came from the same stolen trailer load as did items seized at the other locations. Counsel argued that since the Crown had not provided any evidence of the nature and quantity of stolen items seized at 820 Sheppard Avenue West, the Crown's case was significantly weakened. He also pointed out that there were no charges against the appellant relating to stolen property seized from 820 Sheppard Avenue West.

[20] However, the evidence of the appellant's involvement as a partner of A & G Liquidators which was before the sentencing judge at the sentencing of the appellant was also before him at the hearing into the breach of condition. During the search by the police, the appellant's birth certificate was found at 820 Sheppard Avenue West. The police also found clothing from which original labels had been removed and fake labels attached. That evidence is the basis for the charges of making use of wares with the intention to deceive the public. The sister of the appellant's partner, who was an employee of A & G Liquidators, gave a statement to the police in which she said her bosses were the appellant and her brother. She had been asked to run the store at 820 Sheppard Avenue West by the appellant and her brother. She also stated that the appellant and her brother "bring stuff in here in boxes" and that no one else brought merchandise into the store.

[21] I am satisfied when viewing the evidence as a whole that Justice Locke had sufficient evidence before him to be satisfied on a balance of probabilities that the appellant breached the condition in his conditional sentence order to keep the peace and be of good behaviour.

(iii) Did the Sentencing Judge Err in Failing to Consider the Options Afforded to Him in S. 742.6(9) Other than a Return to Institutional Custody?

[22] After the sentencing judge had indicated that the appellant would serve the balance of his sentence in custody, the following exchange took place between defence counsel and the bench:

MR. OLMSTED: I don't believe I was given an opportunity to address Your Honour on . . .

THE COURT: On what?

MR. OLMSTED: There are different options that Your Honour has. [page583]

THE COURT: I've just selected the option, and that is the order of the Court.

[23] It would have been better if the sentencing judge had heard the submissions of counsel for the appellant on this issue. However, even if he erred in failing to hear the submissions, I would not interfere with his disposition of the case.

[24] The sentencing judge referred to the various options in his reasons and his decision is in accord with the presumption in favour of incarceration endorsed by the Supreme Court of Canada in R. v. Proulx, supra, at para. 39:

More importantly, where an offender breaches a condition without reasonable excuse, there should be a presumption that the offender serve the remainder of his or her sentence in jail. This constant threat of incarceration will help to ensure that the offender complies with the conditions imposed. . . . It also assists in distinguishing the conditional sentence from probation by making the consequences of a breach of condition more severe.

[25] In a case some three years earlier than Proulx, Rosenberg J.A. of this court fully supported the concept that where the court finds a breach of condition, particularly if the breach involves the commission of a further criminal offence, it is appropriate for all or a portion of the unexpired term of the offender's sentence to be served in custody. In the aforementioned case, R. v. Wismayer (1997), 33 O.R. (3d) 225, 115 C.C.C. (3d) 18 (C.A.), Justice Rosenberg stated at p. 238 O.R.:

In my view, Parliament intended that committal to prison be a real threat both to indicate to the offender the seriousness of violation of the terms and to reassure the community. 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.

In my view, this simple and expeditious procedure for dealing with violations of the order has important implications in understanding and applying the conditional sentence regime. 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.

[26] It is important to maintain the integrity of the conditional sentence regime. This is accomplished when the community understands that conditional sentences are not just another form of probation.

[27] This court has had the benefit of complete submissions by counsel for the appellant as to the proper disposition. I am satisfied that the decision to terminate the conditional sentence order [page584] was a fit disposition given the seriousness of the breach and the prescription in favour of termination of the order.

Disposition

[28] In the result, I would grant leave to appeal, but dismiss the appeal.

Appeal dismissed.