DATE: 20020507
DOCKET: C35108
COURT OF APPEAL FOR ONTARIO
WEILER, CHARRON and SHARPE JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
BELINDA GREVILLE
Appellant
Susanne Boucher, for the respondent
Michael J. MacDonald, for the appellant
Heard: March 26, 2002
On appeal from the finding of a breach of conditional sentence imposed by Justice Bruce J. Young dated January 27, 2000.
WEILER J.A.:
[1] After serving two months of pre-trial custody, the appellant pled guilty to offences of trafficking in cocaine and failing to appear in court and received a 7 month conditional sentence of imprisonment. Subsequently, Young J. found that she had breached a condition of her conditional sentence and committed the appellant to serve the remainder of her sentence in custody.
[2] There are three issues on this appeal. The first is whether the appeal is moot because the appellant has served her sentence. The second is whether the hearing of the allegation of breach was commenced within 30 days or as soon thereafter as is practicable as required by s. 742.6(3) of the Criminal Code. The third is whether the hearing judge erred in finding that the appellant breached the condition of the sentence.
1. Is the appeal moot?
[3] Although the Crown submits that the appeal is moot, we agree with the appellant that it is not moot because the breach would remain on the appellant’s record to her detriment should she reoffend. See R. v. Chaisson (1995), 1995 16079 (NB CA), 102 C.C.C. (3d) 564 at 573 (N.B.C.A.). The appeal should be considered on its merits.
2. Was the hearing commenced within 30 days or as soon as practicable?
[4] Section 742.6(3) provides:
742.6(3) The hearing of an allegation of a breach of condition shall be commenced within thirty days, or as soon thereafter as is practicable, after
(a) the offender’s arrest; or
(b) the compelling of the offender’s appearance in accordance with paragraph (1)(d).
[5] On October 13, 1999, the supervisor of the appellant’s conditional sentence prepared a report alleging that she had breached the reporting requirements of her conditional sentence. On October 26, 1999, a warrant was issued for the appellant’s arrest.
[6] On November 3, 1999, the appellant was arrested and ordered detained in custody on a new charge of trafficking in cocaine. The warrant for breach of the conditional sentence was executed on December 6, 1999 and it is agreed that time began to run as of that date.[^1]
[7] The appellant appeared in court before Young J. on December 30, 1999 and was served with the documents alleging a breach of the order, including the supervisor’s report. In view of the statutory requirement in s. 742.6(3) of the Criminal Code that the hearing on the breach commence “within 30 days, or as soon thereafter as is practicable”, the Crown requested that the hearing be “at least formally technically commenced”. The appellant’s counsel had not been formally retained and wished to review the documentation that he had just been given. The judge stated that he would “take jurisdiction over the matter” and adjourned the case without any evidence being heard.
[8] On the appellant’s next appearance in court, January 4, 2000, the matter was adjourned to January 11, 2000 when Young J. would be available to hear the evidence of the breach. On January 11, 2000, the matter was adjourned to January 17 as the appellant’s counsel indicated he did not wish to proceed that day and the Crown indicated that transcripts of the original sentencing hearing were not available although the matter could proceed without transcripts.
[9] At the hearing on January 17, 2000, the Crown adduced the documentary evidence previously served on the appellant. Viva voce evidence was also heard. The hearing could not be completed in the time available on January 17th and it was completed on January 27, 2000. Young J. found that the appellant had breached her conditional sentence and, pursuant to s. 742.6(9)(d), directed the appellant be committed to custody until the expiration of her sentence.
[10] On January 17, 2000, the defence argued that the court was without jurisdiction to proceed with the matter because the hearing had not commenced within 30 days of the offender’s arrest or as soon as practicable as required under s. 742.6(1)(b). On this issue, the Crown took the position that the hearing had commenced within 30 days of the offender’s arrest on December 6, 1999 when she was brought before the hearing judge on December 30, 1999. The hearing judge agreed with the Crown’s position and held that he had jurisdiction to proceed with the matter. The appellant submits that the hearing judge erred and that the hearing only commenced when evidence was heard on January 17th. Consequently, the appellant says the hearing did not commence within 30 days or as soon as practicable thereafter.
[11] I would disagree with this submission. The court before which the appellant appeared on December 30th was the appropriate court having jurisdiction to hear the breach allegation and the judge took jurisdiction over the case. The hearing was commenced even if evidence was not heard at that time. See: R. v. Lutz (1997), 1997 3514 (BC CA), 121 C.C.C. (3d) 216 (B.C.C.A.). As stated by Hill J. in R. v Cruz, [2001] O.J. No. 3756 (S.C.J.) at para. 32:
As long as the respondent is before the appropriate Court having jurisdiction to hear the breach allegation within 30 days or as soon thereafter as practicable, then the hearing has commenced even if evidence and submissions do not occur within that time frame. This interpretation allows the respondent to engage counsel, the judicial scheduling system to accommodate an incoming case, and the production of any additional signed witness statements to be produced attached to a supplementary supervisor’s report i.e. a forensic testing report or a witness statement from a victim released from hospital. Section 742.6(3.3) recognizes that the hearing may be adjourned for a reasonable time.
[12] I acknowledge that there is urgency in holding a hearing alleging a breach of a conditional sentence. This is because s. 742.6(10) suspends the conditional sentence from the earliest point of arrest or issuance of process relating to the alleged breach to the point of determination as to whether a breach has occurred. In this case, the appellant was in custody for 24 days before appearing on the breach of condition charge. The appellant was, however, in custody on other charges and her detention was not solely related to the allegation of breach of condition. The appellant had not retained counsel at the time of her appearance in court on December 30th and was not ready to proceed on that date. The appellant submits that the documents served on the appellant on December 30th in support of the breach should have been served prior to her appearance in court. The issue of the timeliness of service of the supervisor’s report under s. 742.6(5) is a separate issue from the question of when the hearing was commenced and is not the subject-matter of this appeal. The statutory requirement to hold a hearing within 30 days or as soon thereafter as practicable, acknowledges that some flexibility is required to accommodate the realities of a new case entering the system. I would agree with the hearing judge that the hearing was commenced on December 30th and would dismiss this ground of appeal.
3. Did the hearing judge err in finding that there had been a breach of the reporting condition?
[13] The conditional sentence imposed on the appellant on August 26, 1999 included the following condition:
(n) … attend the Mary Ellis House Drug Rehabilitation Program immediately.
[14] The Allegation of Breach set out the following particulars:
… to wit did breach the condition:
To attend the Mary Ellis House Drug Rehabilitation Program immediately (69 Bolt St., Hamilton, Ontario),
by:
Failing to report to the Mary Ellis House Drug Rehabilitation Program by 29 August, 1999.
A second alleged breach was dismissed by the hearing judge.
[15] With respect to the failure to report to the drug rehabilitation program, the documentary evidence established that the appellant “did not attend the Mary Ellis House for her scheduled intake on August 29, 1999 nor did she attend at any other time thereafter.” The appellant testified and offered an explanation for her conduct. She testified that, on August 28, 1999, her common-law spouse committed suicide and that she was locked out of her spouse’s rooming house the following day. The appellant made no further efforts after August 29, 1999 to report to Mary Ellis House. The court accepted the appellant’s explanation for failing to report on August 29th, but held that the obligation to attend was a continuing one and that the appellant had no excuse for not attending at any time after August 29th:
… Mary Ellis House, reporting there, I am afraid I would interpret her obligation under the Conditional Sentence Order to be a continuous one.
I understand what she has told the Court about the death of her common law husband and how perhaps she had to do certain things, but after that time she made absolutely no effort to attend Mary Ellis House in Hamilton.
[Defence counsel] argues that that provision is so precise that if the Court accepts the explanation that she didn’t report by the 29th because of the death of her common law husband, then that is the end of the matter. Well, that can’t be a reasonable interpretation of this Conditional Sentence Order taken as a whole. It was clear that she was to go there immediately, she never did at any time, and she knew perfectly well she was to be there.
[16] I would agree with the hearing judge and would reject this ground of appeal. The conditional sentence imposed on the appellant required not only that she report to Mary Ellis House but also that she attend its drug rehabilitation program. It is obvious that the condition contained an ongoing obligation to attend Mary Ellis House. The allegation of breach alleges that she failed to report by August 29th . It does not simply allege a breach on August 29th. The appropriate meaning of “by” in the Concise Oxford Dictionary is “as soon as”, or “not later than”. There is nothing in the word “by” that suggests that the failure to report was only on the 29th. The court was entitled to consider the allegation of breach in the context of the conditions that had been imposed. If there was objection to the wording of the allegation of breach it could, in the circumstances of this case, have been amended without any prejudice to the appellant.
[17] I would therefore dismiss the appeal.
Released: MAY 07 2002 KMW
Signed: “Karen M. Weiler J.A.”
“I agree Louise Charron J.A.”
“I agree Robert J. Sharpe J.A.”
[^1]: We note that the appellant had already been detained on an unrelated charge at the time the warrant for breach of the conditional sentence was executed. It was therefore open to the Crown to compel the appellant’s appearance in accordance with paragraphs 742.6(3)(b) and 742.6(1)(d). This subsection was not argued before us.