R. v. Kabosos

92 O.R. (3d) 682

Court of Appeal for Ontario,

O'Connor A.C.J.O., MacPherson and Juriansz JJ.A.

October 16, 2008

Criminal law -- Sentence -- Conditional sentence -- Breach of conditional sentence -- Accused breaching conditional sentence by committing new offence -- Arrest warrant issuing for breach of conditional sentence -- Hearing of alleged breach of condition taking place 33 days after execution of warrant on breach charge -- Requirement in s. 742.6(3)(a) of Code that hearing be held within 30 days of offender's "arrest" or "as soon thereafter as practicable" referable to arrest for breach of condition, not when warrant issued for breach and not to arrest for new offence -- Hearing held "as soon as practicable" after arrest for breach of condition -- Criminal Code, R.S.C. 1985, c. C-46, s. 742.6(3).

While serving a conditional sentence, the accused was arrested and charged with new offences. A warrant for his arrest on a charge of breaching the conditional sentence was issued, and 23 days later, the accused was arrested on that charge. A hearing relating to the alleged breach of condition took place 33 days after that arrest. Section 742.6(3) of the Criminal Code requires that a hearing be commenced "within thirty days, or as soon thereafter as is practicable, after (a) the offender's arrest". The trial judge found that the triggering event in s. 742.6(3) is the arrest on a charge of breaching the conditional sentence and that the hearing was held as soon as was practicable in the circumstances. The accused appealed his conviction for breaching the conditional sentence.

Held, the appeal should be dismissed. [page683]

The trial judge was correct in finding that the running of the 30-day time period in s. 742.6(3) is triggered by executing the warrant for the offender's arrest for breaching the conditional sentence, not its issuance nor by the accused's arrest for the new offences. The trial judge did not err in finding that the commencement of the hearing three days after the end of the 30-day period was not unreasonable in the circumstances and that the hearing was commenced as soon as was practicable.

APPEAL from the conviction entered by Kruzick J. of the Superior Court of Justice dated March 28, 2007 for breaching conditional sentence.

Cases referred to R. v. Beckles, [2007] O.J. No. 2799 (S.C.J.), consd Other cases referred to R. v. Cruz, [2001] O.J. No. 3756, [2001] O.T.C. 702, 51 W.C.B. (2d) 136 (S.C.J.); R. v. Greville, 2002 44901 (ON CA), [2002] O.J. No. 1768, 158 O.A.C. 183, 54 W.C.B. (2d) 164 (C.A.); R. v. Laviola, [2005] O.J. No. 5712 (S.C.J.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 742.6 [as am.], (3) [as am.]

Tommy Kabosos, in person. Leslie Maunder, as duty counsel. Leslie Paine, for respondent.

The judgment of the court was delivered by

MACPHERSON J.A.: -- A. Introduction

[1] Sometimes a person serving a conditional sentence in the community gets into more trouble. He breaches a condition of his sentence (for example, a curfew) or by, as in this case, committing a new criminal offence. When this happens, there is a process established by the Criminal Code, R.S.C. 1985, c. C- 46 for converting the remainder of the conditional sentence to a custodial sentence. This court has stated that "there is urgency in holding a hearing alleging a breach of a conditional sentence": see R. v. Greville, 2002 44901 (ON CA), [2002] O.J. No. 1768, 158 O.A.C. 183 (C.A.), at para. 12.

[2] The principal issue on this appeal is the interpretation of s. 742.6(3)(a) of the Criminal Code which requires that a hearing relating to an allegation of a breach of condition of a sentence be held within 30 days of "the offender's arrest". The main question raised in this appeal is which of the three following events triggers the running of the 30-day time period: [page684] (1) the offender's arrest on the new offence with which he has been charged while serving his conditional sentence; (2) the issuing of the warrant of arrest for the charge of breach of condition; or (3) the execution of the warrant on the offender.

B. Facts

(1) The parties and events

[3] On November 17, 2006, the appellant, Tommy Kabosos, was convicted of break and enter with intent to commit an indictable offence, failure to comply with probation and two counts of break and enter theft. He was given a 12-month conditional sentence and a two-year probation order.

[4] Five weeks later, on December 22, 2006, the appellant was arrested and charged with break and enter with intent to commit an indictable offence, possession of break-in instruments, and possession of property obtained by crime of $5,000, all stemming from an incident in Bolton.

[5] On January 24, 2007, the supervisor of the appellant's conditional sentence prepared the documents for a breach of condition charge. On January 31, the warrant for the appellant's arrest was issued, and on February 23, the warrant was executed (i.e., served on the appellant).

(2) The hearing

[6] The hearing relating to the alleged breach of condition took place on March 28, 2007 -- 96 days after the appellant's arrest for the new offences, 56 days after the warrant was issued and 33 days after the warrant was executed.

[7] The trial judge was called upon to interpret s. 742.6(3) of the Criminal Code, which 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).

[8] It appears that both counsel accepted that the 30-day period commenced after the warrant for the appellant's arrest for breach of condition was executed on the appellant. Accordingly, the only issue was whether the 33 days between execution of the warrant and commencement of the hearing was "as soon . . . as is practicable" [page685] after the 30-day period prescribed by the provision. On this issue, the trial judge agreed with the Crown. He said that "[w]hile there has been some delay and some failure in the communication between the two levels of court", the 33-day delay was close to the statutory 30-day period and was as soon as is practicable.

[9] On appeal, the appellant, with the generous and capable assistance of duty counsel, raised two issues, one relating to the triggering event for a s. 742.6 hearing and the other relating to the interpretation of the words "as soon thereafter as is practicable".

C. Issues

[10] The issues are: (1) When does the 30-day period for a hearing of an allegation of breach of condition commence? (2) Irrespective of the answer to (1), did the hearing in this case take place as soon as practicable after the expiration of the statutory 30-day period?

D. Analysis

(1) The trigger for the breach of condition hearing

[11] There are three possible triggers for the commencement of the 30-day period in s. 742.6(3) of the Criminal Code. In chronological order, the possibilities are: the arrest of the offender for the new offence; the issuance of the warrant of arrest for breach of condition; and the execution of the warrant.

[12] Duty counsel contended that the issuance of the warrant should trigger the 30-day time period. She acknowledged that this event did not amount to "the arrest" of the offender, but submitted that the policy underlying s. 742.6 of the Criminal Code is to deal with alleged breaches of conditions on an urgent basis: see Greville, at para. 12.

[13] Duty counsel also pointed out that, by virtue of s. 742.6(10) of the Criminal Code, the running of the conditional sentence is potentially suspended from "the issuance of a warrant for the arrest of the offender for the alleged breach". Duty counsel submitted that if the trigger date for the 30-day period is the warrant execution, there will be no incentive on the police to execute the warrant in a timely fashion at precisely the time during which the conditional sentence has been suspended.

[14] I admit that there is some force to these submissions. However, in the end I do not accept them, essentially for two reasons. [page686]

[15] First, the wording of s. 742.6(3) is clear. The 30-day period leading up to the commencement of the breach hearing is triggered by "the offender's arrest". The arrest of the offender on the new offence is an arrest. So is the execution of the warrant which compels the offender to appear to answer the charge of breach of condition. However, the issuance of the warrant is not an arrest; it compels nothing of the offender until he receives it.

[16] Second, in my view, an answer to the argument about delay by the police in executing the warrant can be found in s. 742.6(14) of the Criminal Code:

742.6(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 order . . .

This provision, coupled with the policy underlying the provision and judicial statements in cases like Greville, combine to ensure that the police and court administrators will not delay steps they must take in an alleged breach of condition scenario.

[17] This leaves a final question: does "the offender's arrest" as stated in s. 742.6(3)(a) of the Criminal Code refer to the appellant's December 22, 2006 arrest for the new offence, or to his arrest on February 23, 2007 for a breach of his conditional sentence?

[18] In my view, the answer is obvious; the relevant date is when the warrant is executed. [See Note 1 below] Section 742.6 is entitled Procedure on Breach of Condition and contains the subheading Warrant or arrest -- suspension of running of conditional sentence. Further, the entire provision deals with a specific offence: the breach of condition of a sentence. In addition, there will be some cases (not this one) where the offender commits no new offence; all he does is breach a condition of the sentence he is already serving. Accordingly, both the wording and the logic of s. 742.6 compel the conclusion that "the offender's arrest" in s. 742.6(3)(a) refers to his arrest for breach of condition, not for the new offence. In this respect, I agree with what Karakatsanis J. said in one of the very few cases dealing with s. 742.6(3), R. v. Beckles, [2007] O.J. No. 2799 (S.C.J.), at para. 9: "In my view, it is clear that the arrest referred to in s. 742.6(3)(a) is the arrest for the alleged breach of condition. The section deals with procedure on breach of [page687] condition and provides for the arrest, release, hearing, and powers of the court with respect to the breach and conditional sentence."

(2) "As soon . . . as is practicable"

[19] The appellant's alternative argument is that a 33-day delay between the execution of the warrant and the commencement of the breach hearing is outside the 30-day period prescribed by s. 742.6(3) of the Criminal Code and that the Crown has not demonstrated that the extra three days came within the "as soon thereafter as is practicable" extension of the 30-day period.

[20] With respect, I disagree. The appellant was detained on the charges for the new offences; accordingly, he suffered no prejudice with respect to the custodial time relating to the breach of condition charge.

[21] Moreover, in many cases, including this one, the new offences will be proceeding in provincial court while the breach of condition charge will require a hearing in superior court. This will require communication and co-operation between two court levels. As expressed by Weiler J.A. in Greville, at para. 12, "some flexibility is required to accommodate the realities of a new case entering the system". It may well be that "some flexibility" will not accommodate delays of 57 days, R. v. Cruz, [2001] O.J. No. 3756, [2001] O.T.C. 702 (S.C.J.); or 111 days, R. v. Laviola, [2005] O.J. No. 5712 (S.C.J.). However, an additional three days in a case involving several charges and two court levels does not strike me as being unreasonable.

[22] Finally, I observe that the trial judge gave the appellant credit for 30 days for the time served before the commencement of the breach of condition hearing even though the appellant was detained on the new offence charges. This implicit invocation of s. 742.6(14) of the Criminal Code strikes me as an appropriate counterbalance to a three-day delay in commencing the breach of condition hearing.

E. Disposition

[23] I would dismiss the appeal.

Appeal dismissed.

Notes

Note 1: I observe that in Greville the parties agreed on this point: "The warrant for breach of the conditional sectence was executed on December 6, 1999 and it is agreed that time began to run as of that date" (para. 6).