DATE: 20030327
DOCKET: C37997
COURT OF APPEAL FOR ONTARIO
CATZMAN, ROSENBERG and MOLDAVER JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Laura Hodgson, for the respondent
Respondent
- and -
Kenneth W. Golish,
DARREN RICHARD ATKINSON
for the appellant
Appellant
On appeal from the finding of a breach of a conditional sentence by Justice Gordon Thomson of the Superior Court of Justice on March 4, 2002.
ROSENBERG J.A.:
[1] The appellant appeals in writing from a finding by Thomson J. that the appellant breached his conditional sentence. The hearing judge found that the appellant had breached the house arrest term of the sentence and revoked the conditional sentence. The appellant was therefore required to serve the time of 13 days remaining on the sentence in custody, subject to any earned remission.
[2] The appellant submits that his conditional sentence had expired at the time of the alleged breach. He does not dispute that he breached a condition of the sentence, if it was still running at the time. The appeal turns on the interpretation of s. 742.6 of the Criminal Code. The appellant submits that because he was in custody for certain periods the conditional sentence had expired prior to the date of the alleged breach. Since I agree with the appellant’s interpretation of that section I would allow the appeal and set aside the order of the hearing judge.
Mootness
[3] The respondent raises a preliminary matter. As counsel points out, the issue is now moot, the appellant long ago having served the remaining 13 days of his sentence. Nevertheless, I would deal with the case on its merits. The court has had the benefit of very complete and helpful written argument from counsel for the appellant and for the Crown. The appeal raises an important question concerning the interpretation of s. 742.6 of the Criminal Code. Because of the time involved in bringing an appeal, the issue might never come to this court as a live issue. As in this case, the times involved will often be very short. For these reasons, this an appropriate case to exercise our discretion to hear the appeal on its merits. See Fraser v. Kent Institution (1998), 1997 3272 (BC CA), 130 C.C.C. (3d) 393 (B.C.C.A.).
The Facts
[4] On April 14, 2000, following a guilty plea to a charge of sexual assault, the appellant was sentenced to a conditional sentence of two years less a day to be served in the community. According to Ministry of Correctional Services records, the appellant’s sentence would have otherwise ended on April 12, 2002. The appellant breached his conditional sentence three times prior to the most recent hearing. In each case, he was arrested, appeared before a justice of the peace within 24 hours of his arrest and was detained. In each case, a bail determination was not made at his first appearance before a justice of the peace. The appeal turns on whether the appellant should have been credited with the periods the appellant spent in custody before the bail determinations.
[5] As a result of the three prior breach dispositions the appellant was ordered to serve seven days, sixty days, and four months respectively of the conditional sentence in custody.
[6] On February 19, 2002, Windsor police arrested the appellant for an alleged breach of his conditional sentence. Thomson J. conducted a fourth breach determination hearing on March 4, 2002. He found that the house arrest condition of the sentence had been breached. As indicated, the appellant does not dispute this finding.
The Statutory Conditions
[7] Section 742.6 of the Criminal Code sets out the procedure to be followed where it is alleged that an offender has breached the conditional sentence. The relevant parts of that section are the following:
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;
(2) For the purpose of the application of section 515, the release from custody of an offender who is detained on the basis of an alleged breach of a condition of a conditional sentence order shall be governed by subsection 515(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).
(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).
(12) A conditional sentence referred to in subsection (10) starts running again on the making of an order to detain the offender in custody under subsection 515(6) and, unless section 742.7 applies, continues running while the offender is detained under the order.
(13) Section 6 of the Prisons and Reformatories Act does not apply to the period of detention in custody under subsection 515(6).
(14) Despite subsection (10), if there was unreasonable delay in the execution of a warrant, the court may, at any time, order that any period between the issuance and execution of the warrant that it considers appropriate in the interests of justice is deemed to be time served under the conditional sentence unless the period has been so deemed under subsection (15).
(16) If a 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, in exceptional cases and in the interests of justice, order that some or all of the period of suspension referred to in subsection (10) is deemed to be time served under the conditional sentence.
(17) In exercising its discretion under subsection (16), a court shall consider
(a) the circumstances and seriousness of the breach;
(b) whether not making the order would cause the offender undue hardship based on the offender's individual circumstances; and
(c) the period for which the offender was subject to conditions while the running of the conditional sentence was suspended and whether the offender complied with those conditions during that period.
[Emphasis added.]
[8] For completeness, reference should also be made to a portion of s. 742.7:
742.7 (1) If an offender who is subject to a conditional sentence is imprisoned as a result of a sentence imposed for another offence, whenever committed, the running of the conditional sentence is suspended during the period of imprisonment for that other offence.
[9] The other important provisions for dealing with this appeal are found in s. 515 as follows:
- (1) Subject to this section, where an accused who is charged with an offence other than an offence listed in section 469 is taken before a justice, the justice shall, unless a plea of guilty by the accused is accepted, order, in respect of that offence, that the accused be released on his giving an undertaking without conditions, unless the prosecutor, having been given a reasonable opportunity to do so, shows cause, in respect of that offence, why the detention of the accused in custody is justified or why an order under any other provision of this section should be made and where the justice makes an order under any other provision of this section, the order shall refer only to the particular offence for which the accused was taken before the justice.
(5) Where the prosecutor shows cause why the detention of the accused in custody is justified, the justice shall order that the accused be detained in custody until he is dealt with according to law and shall include in the record a statement of his reasons for making the order.
(6) Notwithstanding any provision of this section, where an accused is charged
(a) with an indictable offence, other than an offence listed in section 469,
(i) that is alleged to have been committed while at large after being released in respect of another indictable offence pursuant to the provisions of this Part or section 679 or 680,
the justice shall order that the accused be detained in custody until he is dealt with according to law, unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified, but where the justice orders that the accused be released, he shall include in the record a statement of his reasons for making the order.
[Emphasis added.]
The Hearing Judge’s Decision
[10] Ms. Bosveld, the appellant’s probation and parole officer, gave evidence at the hearing that using the date of determination of bail as the date upon which a detention order is made within the meaning of s. 742.6(12), the sentence for the appellant terminates on March 17, 2002.[^1] The hearing judge agreed with this analysis:
I am satisfied that the reading of the whole of subsection (12) of section [742.6] allows of only one construction, and that is that the making of the order as a result of the show cause, either by a contested show cause or a consent to it, does not mean an order by a justice of the peace remanding an accused person in custody, for a period of time, until the hearing or the consent is registered. That being said, I am satisfied that the sentence was still outstanding as at February 19, 2002.
[11] The hearing judge therefore revoked the conditional sentence and ordered the appellant to serve the remaining 13 days of his sentence in custody.
Analysis
[12] The scheme of the legislation as I understand it is this. Where an offender has been detained under s. 742.6 because he or she is alleged to have breached a term of the conditional sentence the offender’s right to release is governed by s. 515(6). I have reproduced a portion of that subsection above. In short, s. 515(6) enacts a reverse onus. Ordinarily, a person charged with an indictable offence is entitled to be released unless the prosecution shows cause why the accused should not be released. Section 515(6), however, provides that the accused will be detained until he or she shows cause why he or she should be released. I have reproduced paragraph (6)(a) of s. 515, which sets out one of the most common reasons why there is a reverse onus, namely where the accused is alleged to have committed an indictable offence while at large after being released in respect of another indictable offence.
[13] Section 742.6(2) deems the reverse onus provision in s. 515(6) to also apply in circumstances of an alleged breach of a conditional sentence. In other words, in accordance with s. 515(6), where the offender is arrested, whether with or without warrant, he or she must be detained in custody. The offender can only be released if he or she shows cause for the release.
[14] The dispute in this case turns on the meaning of s. 742.6(10) and (12), which provide for the suspension of the conditional sentence but also provide that in some circumstances the sentence can begin to run again pending the determination of the breach allegation.
[15] The effect of s. 742.6(10) is that the conditional sentence stops running between the time when a warrant is issued, the offender is arrested without a warrant, or the offender is given certain process requiring his or her attendance in court, and the time when the determination is made of whether a breach of condition occurred. Thus, s. 742.6 contemplates that the conditional sentence would stop running even though the offender is in custody.
[16] As I understand it, the paramount purpose of s. 742.6(10) was to meet the problem that, where a person is alleged to have breached the conditional sentence, the sentence may very well have expired before the person was brought before the courts and the breach allegation determined. For example, a warrant might be issued but the person never arrested until after the sentence had expired. Alternatively, the person might have been released on a promise to appear but not actually dealt with for the breach allegation until after the sentence had expired. In both those cases, there would be no effective sanction remaining despite the breach of the conditional sentence. Section 742.6(10) stops the sentence running to avoid these consequences. However, the subsection also catches within its terms persons who are in custody because they have been arrested without a warrant or the warrant has been executed.
[17] Section 742.6(12) relieves against the harshness of the result of the offender being in custody by providing that the conditional sentence begins to run again “on the making of an order to detain the offender in custody under subsection 515(6)”. The sentence continues to run while the offender is detained under that order. However, pursuant to s. 742.6(13), which refers to the Prisons and Reformatories Act, the offender does not receive any remission for any time spent in custody on the detention order. Once the judge makes the breach determination and decides that the offender should serve some or the balance of the sentence in custody, the Prisons and Reformatories Act would apply and the offender would get remission on that part of the sentence remaining to be served in custody.
[18] The narrow issue in this case is the meaning of the phrase “on the making of an order to detain the offender in custody under subsection 515(6)”. The appellant contends that as soon as the offender is brought before a justice, a detention order is made and therefore, unless the offender shows cause, he or she is in custody under s. 515(6) and the sentence begins to run again. The appellant’s position is that it should not matter whether there has been a formal show cause hearing, as long as the offender remains in custody and is not serving any other sentence.
[19] The Crown’s position is that a detention order within the meaning of s. 515(6) and 742.6(12) means the formal order detaining the offender after a show cause hearing. In the appellant’s case he requested adjournments of the show cause hearings when he was arrested on the three previous breaches and the conditional sentence did not run during those periods. The Crown counsel particularly relies upon s. 742.6(16), which allows a court to order that some or all of the period of suspension be deemed to be time served under the conditional sentence. She submits that Parliament turned its mind to the possibility of unfairness and thus gave the judge the discretion to relieve against it in special circumstances.
[20] In my view, for the purpose of s. 742.6 it does not matter whether there has been a formal show cause hearing. I do not find it helpful to distinguish between the order made detaining the offender pending his attempt, if any, to show cause why he should be released and the “formal” detention order made after the show cause hearing. In either case, the justice makes an order detaining the offender in custody. The main purpose of the reference to s. 515(6), in my view, is a procedural one, to place the burden on the offender to show cause for his release. Whether he is detained in custody while he is given an opportunity to do so or whether the is detained after he has been given the opportunity, he can fairly be said to be detained under s. 515(6).
[21] In my view, this interpretation is consistent with the purpose of s. 742.6(10) and the companion provisions. Parliament was concerned that persons would be at large and their sentence expire before the conditional sentence breach allegation was dealt with. As the appellant observes the purpose of these provisions, which were enacted in 1999, “was to ensure that an offender receives his or her original punishment when a condition of release failed and justified detention, not to create an artificial gap through which an offender would be further punished”. Parliament’s purpose does not require that an offender who is already in custody as a result of the breach allegation get no credit for that time in custody. I simply cannot see any legitimate reason why Parliament would distinguish between an offender in custody before or after the bail hearing. In either situation, the offender is no longer in the community.
[22] I am not persuaded that s. 742.6(16) should lead to a different result. First, s. 742.6(16) applies only “in exceptional cases”. It seems to me that Parliament must have had in mind an unusual case where the offender was not in custody but should nevertheless be given some credit for that time, even though he or she was found to have breached the condition. It seems to me that this interpretation is borne out by the terms of s. 742.6(17) which set out the factors the court must consider in the exercise of the discretion under s. 742.6(16). For convenience I will set out that subsection and subsection (16):
(16) If a 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, in exceptional cases and in the interests of justice, order that some or all of the period of suspension referred to in subsection (10) is deemed to be time served under the conditional sentence.
(17) In exercising its discretion under subsection (16), a court shall consider
(a) the circumstances and seriousness of the breach;
(b) whether not making the order would cause the offender undue hardship based on the offender's individual circumstances; and
(c) the period for which the offender was subject to conditions while the running of the conditional sentence was suspended and whether the offender complied with those conditions during that period.
[Emphasis added.]
[23] I particularly rely on paragraph (c) of that subsection. The reference to “conditions while the running of the conditional sentence was suspended” would seem to refer to a time when the offender is on a release order of some kind. Thus understood, s. 742.6(16) is not to relieve against hardship for an offender who was in custody for a period before the show cause hearing but an offender who was not in custody for some reason, possibly on bail conditions of some kind.
[24] It also seems odd that an offender who was actually in jail would have to meet the stringent “exceptional cases” test under s. 742.6(16) to obtain some credit for that period of time whereas an offender who was not in custody has a much easier threshold to meet simply because there was delay in executing the warrant. Yet that would be the result because of the terms of s. 742.6(14). Under that subsection, which for convenience I set out below, the offender merely has to show an unreasonable delay in the execution of the warrant.
(14) Despite subsection (10), if there was unreasonable delay in the execution of a warrant, the court may, at any time, order that any period between the issuance and execution of the warrant that it considers appropriate in the interests of justice is deemed to be time served under the conditional sentence unless the period has been so deemed under subsection (15).
[25] Even if the provisions were ambiguous, the appeal would still have to succeed. As Dickson J. said in Marcotte v. Deputy Attorney-General of Canada (1974), 1974 1 (SCC), 19 C.C.C. (2d) 257 (S.C.C.) at 262, “No authority is needed for the proposition that if real ambiguities are found, or doubts of substance arise, in the construction and application of a statute affecting the liberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to be enforced.” The interpretation that favours the liberty of the subject in this case is the interpretation that requires the sentence to start running again immediately upon the offender being brought before a justice and detained in custody either to await the show cause hearing under s. 515(6) or to be dealt with in according to law in accordance with s. 515(6).
[26] I acknowledge that this decision would appear to be at variance with the decision of the Manitoba Court of Appeal in R. v. Currie, [2001] M.J. No. 40. It does not appear, however, that this argument was made to the court. It seems that the parties simply assumed that the conditional sentence did not run until the offender applied for and was refused bail.
Disposition
[27] Accordingly, I would allow the appeal and set aside the decision of Thomson J.
Signed: “M. Rosenberg J.A.”
“I agree M.A. Catzman J.A.”
“I agree M.J. Moldaver J.A.”
RELEASED: “MAC” MARCH 27, 2003
[^1]: The sentence expiry date is less than if the appellant served the whole sentence in the community because of statutory remission, which only applied while the appellant was serving the sentence in prison.