COURT OF APPEAL FOR ONTARIO DATE: 20231219 DOCKET: COA-23-CR-0031

Fairburn A.C.J.O., MacPherson and Zarnett JJ.A.

BETWEEN

His Majesty the King Respondent

and

David Menezes Appellant

Counsel: Dan Stein, acting as duty counsel Frank Au, for the respondent

Heard: October 4, 2023

On appeal from the sentence imposed on January 10, 2023 by Justice Brock Jones of the Ontario Court of Justice.

Fairburn A.C.J.O.:

Overview

[1] The appellant was placed on a one-year conditional sentence order (“CSO”) after he was convicted of assaulting his former partner. He breached the non-contact condition of that order almost immediately after it was imposed. Accordingly, within ten days of being placed on the CSO, the appellant found himself back in custody, charged with both a breach of the CSO and the substantive crime of criminal harassment.

[2] The appellant spent six months in custody before his breach hearing was held. The judge at the breach hearing (the “breach hearing judge”) found that the appellant had breached the non-contact condition without reasonable excuse and so he suspended the operation of the CSO and directed that the appellant serve just over a month of his unexpired CSO in custody.

[3] The appellant appeared before a second judge (the “trial judge”) who found the appellant guilty of criminal harassment. The trial judge later sentenced the appellant to a three-year custodial term, less four months for what the trial judge described as the “difficult conditions” he experienced while serving his CSO in custody. However, the trial judge declined to give the appellant credit for the time the appellant had spent detained in pre-sentence custody (“PSC”). The trial judge reasoned that the appellant’s CSO had continued to run while he was detained and, therefore, to credit the appellant with any pre-sentence custody would amount to impermissible double counting.

[4] This appeal is strictly focussed upon whether the trial judge erred by refusing to grant the appellant credit for PSC in sentencing him for criminal harassment. The appellant maintains that he was erroneously denied what amounts to eight months of PSC, which, properly enhanced, should constitute a credit of one-year toward his custodial term. He asks that we grant him that credit now.

[5] For the reasons that follow, I would allow the appeal in part. I agree that the trial judge erred in denying the appellant credit for PSC, but only with respect to the period of approximately two months following the custodial term imposed for the breach of the CSO. Accordingly, I would grant the appellant three months’ credit toward his sentence for criminal harassment.

The Background Facts

(1) The CSO and the Breach

[6] The appellant had an acrimonious and violent relationship with his former domestic partner, who is the mother of his child. He pled guilty to having assaulted her and having breached conditions of a release order not to contact her as well as other charges. He was sentenced on March 28, 2022, to a 12-month CSO, one of the conditions being that he not communicate with the victim except in certain delineated circumstances.

[7] Almost immediately after the CSO was imposed, the appellant started breaching the non-contact condition by repeatedly communicating with the victim by text message and phone. The messages were threatening and abusive in nature. Accordingly, on April 8, 2022, a mere 11 days after the CSO was imposed, the appellant was arrested for breaching his CSO and for criminal harassment. Although it is not clear whether the appellant ever attempted to obtain bail, he has remained in custody since his arrest on April 8, 2022.

(2) The Breach Hearing and Reasons

[8] The breach hearing was presided over by the judge who originally imposed the CSO. For reasons that are not evident from the record on appeal, the appellant spent around six months in detention at the Toronto South Detention Centre (“TSDC”) before the breach hearing was held: from the date of arrest on April 8, 2022, to the date of the hearing on October 11, 2022.

[9] The breach hearing judge confirmed the breach, noting that the appellant had “fairly spectacularly breached” his CSO.

[10] The breach hearing judge then exercised his powers under s. 742.6(9) of the Criminal Code, which reads as follows:

(9) Where the 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

(a) take no action;

(b) change the optional conditions;

(c) suspend the conditional sentence order and direct

(i) that the offender serve in custody a portion of the unexpired sentence, and

(ii) that the conditional sentence order resume on the offender’s release from custody, either with or without changes to the optional conditions ; or

(d) terminate the conditional sentence order and direct that the offender be committed to custody until the expiration of the sentence. [Emphasis added.]

[11] Pursuant to s. 742.6(9) (c)(i) and (ii), the breach hearing judge suspended the CSO, directed that the appellant “remain in custody until November 14th, 2022” and said that the CSO would resume “after that date”. He later clarified that the CSO would resume “on [the appellant’s] release from custody.” Notably, that wording tracks the wording in s. 742.6(9) (c)(ii).

[12] In determining the appropriate disposition, the breach hearing judge said that he had imposed a lengthier CSO relative to what he would have given the appellant if he had been “imposing a straight jail sentence”. He then concluded that the one month in custody for breach of the CSO was the proper order, “[i]n all the circumstances”.

[13] The trial Crown inquired whether the “time spent” to that point, specifically the six months in custody pending the breach hearing, had been “factored into” the disposition on the breach. The breach hearing judge responded that it was his “understanding” that the CSO had continued to run from the time that the appellant had been detained on April 8, 2022 “to today [October 11, 2022].” He expressed the view that, as of the disposition date, the appellant had served “187 real days”.

[14] The trial Crown sought further clarification, asking whether the six months the appellant had spent in custody to that point was “applicable on the conditional sentence.” The Crown expressed the need for clarity around this issue, “in the event that there’s pre-sentence custody noted on another matter”. Clearly, the Crown was making reference to the outstanding criminal harassment trial, which was scheduled to proceed on the same day that the custodial period for the breach would expire (November 14, 2022). The breach hearing judge responded that the appellant had been “serving his sentence throughout this period.” Read in context, I take the breach hearing judge to mean that the appellant had been “serving his [conditional sentence] throughout this period.”

[15] The appellant then expressed concern that what was being discussed would impact his “dead time” on the outstanding criminal harassment charge. The breach hearing judge answered that it was his view that the CSO had been running non-stop since the time that the appellant had been detained upon arrest, although “the final decision on that will be up to the presiding judge”.

(3) Conviction for Criminal Harassment

[16] The appellant’s trial for criminal harassment commenced on November 14, 2022, the same date that the custodial portion of the disposition on the breach expired. Four days later, on November 18, 2022, the appellant was found guilty. The sentencing was put over for submissions.

(4) Appeal from the CSO

[17] In the meantime, before the sentencing took place, this court heard the appellant’s appeal of the CSO: R. v. Menezes, 2022 ONCA 875.

[18] The appellant challenged the length of the CSO. He also raised the issue of whether any of the period of time that he had been detained after April 8, 2022, could be credited toward the sentence for the criminal harassment – a sentence which had yet to be imposed.

[19] The appeal was dismissed. This court concluded that the length of the CSO was appropriate when it was imposed and that the appellant found himself in a position of his own making, having breached the CSO. The court noted that it would be up to the trial judge to “determine what time should be credited as dead time on [the charge of criminal harassment]”: at para. 4.

[20] This brings us to the sentencing for criminal harassment.

(5) Sentencing on the Conviction for Criminal Harassment

[21] The appellant was sentenced on January 10, 2023. At that point, almost exactly nine months had passed from the date of the appellant’s arrest. Of the nine months, one month had been consumed by the disposition he received for breaching the CSO. Therefore, for purposes of simplicity, I will refer to the period for which PSC is sought as eight months in duration. The appellant was detained at the TSDC the entire time.

[22] On January 10, 2023, the trial judge sentenced the appellant to a three-year sentence, what the trial judge said was the “shortest sentence available” in light of the seriousness of the appellant’s conduct, as well has his “long record of abusing [the victim].” There is no dispute about the three-year term. As will be discussed, the dispute lies in what, if any, PSC should have been applied to that term.

[23] The trial judge declined to give the appellant any credit for PSC. In his view, the breach hearing judge had deemed the CSO to have been “in place and running between April 8, 2022 and its planned termination date of March 27, 2023”. The trial judge shared that view. He understood the breach hearing judge to have considered the fact that the CSO continued to run in the period leading up to the breach hearing in determining a fit disposition for the breach.

[24] As an accused cannot “double count” the time spent in custody, the trial judge refused to assign any PSC to the sentence for criminal harassment. He was, however, prepared to grant four months’ credit for what he deemed to be the “enhanced hardship” that the appellant had experienced during his time in detention at the TSDC. This hardship arose from what the trial judge referred to as frequent lockdowns at TSDC during a period of detention that arose from both the breach allegation and the substantive charge of criminal harassment.

[25] Accordingly, the appellant was sentenced to 3 years minus 4 months, leaving a net sentence of 32 months to serve.

(6) Summary of Chronology of Events

[26] By way of conclusion, I summarize the chronology of events:

March 28, 2022 – imposition of CSO for assault & related charges

• The appellant receives a 12-month CSO for, among other things, assaulting the mother of the appellant’s child.
• The CSO includes a non-contact condition.

April 8, 2022 – arrest & detention for criminal harassment & CSO breach

• The appellant is arrested for breaching the non-contact condition and criminal harassment.
• He is detained in custody from this point forward.

October 11, 2022 – CSO breach hearing & disposition

• The breach is confirmed, the CSO is suspended and the appellant is directed to serve the CSO in custody until November 14, 2022.
• The CSO is to resume “on [the appellant’s] release from custody.”

November 14-18, 2022 – criminal harassment trial

• The appellant is tried and found guilty of criminal harassment.
• His detention continues.

December 13, 2022 – CSO sentence appeal

• The sentence appeal from the CSO is dismissed.
• The court comments that it will be for trial judge on the criminal harassment matter to “determine what time should be credited as dead time” on that charge.

January 10, 2023 – sentencing for criminal harassment

• The appellant is sentenced to three years’ imprisonment, less 4 months credit for “enhanced hardship” while serving his CSO in custody since April 8, 2022.
• No “dead time” is assigned because the CSO had been running from April 8, 2022.

Analysis

(1) Overview

[27] The appellant received the capable assistance of duty counsel on appeal.

[28] The appellant contends that the trial judge erred by denying him credit for eight months of PSC. Calculated at a rate of 1.5:1, this would result in one year of credit, leaving a net sentence of 20 months: 3 years, less 1 year credit for enhanced PSC, less 4 months for harsh conditions.

[29] In arguing that the trial judge erred in denying him credit for PSC, the appellant advances several arguments. The arguments split along two periods of time: (a) the six-month period from detention on April 8, 2022 to the breach hearing on October 11, 2022, and (b) the two-month period between when the appellant completed the one-month custodial term imposed for the CSO breach on November 14, 2022 and his sentencing for criminal harassment on January 10, 2023. I will refer to the time between April 8, 2023 and October 11, 2022 as the “first period of detention” and, for simplicity, will say that it constitutes six months. I will refer to the time between November 14, 2022 and January 10, 2023 as the “last period of detention” and, for simplicity, will say that it involves two months.

[30] Crown counsel parts company with the appellant on the first period of detention, saying that the trial judge was right to deny the appellant PSC during that time. This is because, by virtue of the relevant statutory provisions, the CSO was running. In contrast, Crown counsel agrees with the appellant that the trial judge erred by denying the appellant PSC for the last period of detention. This is because, by virtue of the relevant statutory provisions, the CSO was suspended during this time.

[31] For the reasons that follow, I find that the CSO was running during the first period of detention and was suspended during the last period of detention. It follows that the appellant is not entitled to PSC for the first period of detention but is entitled to it for the last period of detention.

[32] As it is simple to dispose of the last period of detention, I will first address that period and explain why PSC should have been credited to the appellant.

(2) The Last Period of Detention

[33] The parties agree that the CSO was suspended during the last period of detention, and so the appellant should receive credit for that two-month period, which, at a properly enhanced rate, translates into three months’ credit. They are right.

[34] Recall that on October 11, 2022, the breach hearing judge suspended the CSO and directed that the appellant would “remain in custody until November 14th, 2022”. In doing so, he had regard to all of the circumstances, including that the appellant had already spent “187 real days” in custody. The breach hearing judge then directed that the CSO would “resume” upon his release from custody. The breach hearing judge’s order nicely tracked the language of s. 742.6(9) (c)(ii) of the Criminal Code that, upon finding a breach of a CSO, the judge may suspend the operation of the CSO, direct the offender to serve a portion of their CSO in custody and have the CSO “resume on the offender’s release from custody”.

[35] In this case, the appellant was not released from custody upon the completion of his custodial term for having breached the CSO because he was still facing the outstanding criminal harassment charge. Indeed, the same day that his custodial term ended, the criminal harassment trial commenced. He was found guilty four days later and then awaited sentencing until January 10, 2023. Accordingly, because the breach hearing judge suspended the CSO until the appellant’s release from custody, and the appellant remained in custody awaiting sentencing for the criminal harassment, the CSO did not run after November 14, 2022.

[36] Since the CSO was not running during the last period of detention, there is no issue of double counting. Therefore, the appellant should have received credit for PSC during the last period of detention. At a ratio of 1.5:1, I would grant the appellant 3 months’ PSC toward the sentence for the criminal harassment.

[37] I will now turn to the first period of detention.

(3) The First Period of Detention

(a) Positions of the parties

[38] The appellant argues that the statutory provisions also support the fact that the CSO was suspended during the first period of detention. In the alternative, he argues that even if the statute is not clear on this point, fairness demands that it be interpreted in a way that permits granting credit for PSC. In the end, the appellant maintains that, regardless of how the court gets there, he should have received credit for this six-month period, which, properly enhanced, would amount to a nine-month credit toward his three-year sentence for the first period of detention.

[39] In contrast, Crown counsel argues that the statutory provisions make clear that the CSO was running during the first period of detention. As there is no ambiguity in the statute, there is no scope to interpret it otherwise. And, in fact, considering the context of CSOs as a whole, and what is expected to happen when they are breached, the statutory scheme makes sense. Accordingly, Crown counsel says that the trial judge was right to refuse to assign any credit for PSC during the first period of detention.

[40] In light of the parties’ divergent positions on statutory interpretation, the first step in the analysis must be to determine the proper interpretation of the statute. Specifically, does the statute operate so as to keep the CSO running in circumstances like the ones faced by the appellant? The answer is yes.

(b) The statutory provisions dictate that the CSO continued to run

[41] Conditional sentence orders are governed by a self-contained statutory scheme: Criminal Code, ss. 742 - 742.7. Those provisions govern all aspects of CSOs, from the circumstances in which one can be imposed to what happens when the offender is imprisoned on a new offence. Accordingly, we must look to these provisions for an answer to this appeal.

[42] The appellant leans heavily on ss. 742.6(10) and 742.7(1), whereas the Crown leans heavily on ss. 742.6(10) and 742.6(12). Section 515(6) is also relevant when looking at s. 742.6(12). Since the provisions build on each other, I will discuss each of these provisions in the order that makes most sense for analyzing their application to the circumstances of the appellant.

(i) Section 742.6(10): events triggering suspension of CSO

[43] Section 742.6(10) suspends a CSO in three circumstances, including the arrest of an offender. Here is the provision:

(10) The running of a conditional sentence order 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). [Emphasis added.]

[44] This provision says that a CSO is suspended upon a certain event occurring, as delineated in (a) through (c), and that the suspension continues until a determination as to whether a breach has occurred. In this case, the triggering event was the one outlined in (b): the appellant’s arrest without a warrant on April 8, 2022.

(ii) Sections 742.6(12) and 515(6): continued running of CSO while in detention under s. 515(6)

[45] If s. 742.6(10)(b) stood alone, the answer to the issue raised by the appellant would be simple because the appellant’s CSO would have been suspended from the moment of his arrest without warrant until the breach hearing six months later. As Crown counsel points out, though, what s. 742.6(10) gives on the one hand, s. 742.6(12) takes away on the other. Section 742.6(12) starts the running of a CSO on the detention of an offender under a s. 515(6) order:

(12) A conditional sentence order 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. [Emphasis added.]

[46] This provision is rooted in fairness. It ensures that the time an offender spends in custody after failing to obtain bail is not lost time for purposes of the CSO. Instead, the CSO will start to run again where there is an “order to detain” under s. 515(6) of the Criminal Code, unless s. 742.7 applies.

[47] This brings us to s. 515(6) and the meaning of an “order to detain the offender in custody”.

[48] Section 742.6(2) provides that: “the release from custody of an offender who is detained on the basis of an alleged breach of a condition of a [CSO] shall be governed by subsection 515(6) .” Section 515(6) is a reverse onus bail provision, meaning that the onus is on the accused to establish why their detention in custody is not justified. The provision reads as follows:

(6) Unless the accused, having been given a reasonable opportunity to do so, shows cause why the accused’s detention in custody is not justified, the justice shall order, despite any provision of this section, that the accused be detained in custody until the accused is dealt with according to law ….

[49] In this case, it does not appear, based upon the record before us, that the appellant sought bail under s. 515(6) . Therefore, it appears that, technically speaking, there was no order to detain him in custody under that provision. This begs the question: were the requirements of s. 742.6(12) met, such that the CSO continued to run because the appellant was detained under a s. 515(6) order? The answer is yes.

[50] Even if the appellant acquiesced in his detention, which it appears that he did, he was presumptively detained under s. 515(6) because of the reverse onus contained in that provision. There need not be a formal detention order following upon a show cause hearing for there to be an “order” for purposes of s. 742.6(12). As Rosenberg J.A. put it in R. v. Atkinson (2003), 174 C.C.C. (3d) 144 (Ont. C.A.), at para. 20: “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.”

[51] Therefore, regardless of whether an offender is detained in custody while the opportunity to show cause remains open or whether they are detained in custody after failing to obtain bail, for all intents and purposes it is on the strength of s. 515(6) that the accused is detained: Atkinson, at para. 20.

[52] Accordingly, consistent with this court’s prior authority in Atkinson, I find that the appellant was, in effect, ordered detained under s. 515(6) . Coming back to the wording of s. 742.6(12), then, the CSO was “running” during the first period of detention. Of course, this is “unless s. 742.7 applied”. Did s. 742.7 apply?

(iii) Section 742.7(1) – suspension of CSO upon imprisonment for new offence

[53] The appellant says that s. 742.7(1) applied to suspend the running of the CSO. That provision reads as follows:

742.7 (1) If an offender who is subject to a conditional sentence order is imprisoned as a result of a sentence imposed for another offence , whenever committed, the running of the conditional sentence order is suspended during the period of imprisonment for that other offence . [Emphasis added.]

[54] The appellant maintains that s. 742.7(1) can operate so as to, in effect, retroactively suspend a CSO. He maintains that if the trial judge had simply assigned the first period of detention to PSC, this would have made that period of detention part of the “sentence imposed for another offence”. Accordingly, the CSO would be, in effect, retroactively suspended during that “period of imprisonment for that other offence.” By way of analogy, the appellant draws on R. v. McDonald (1998), 40 O.R. (3d) 641 (C.A.), where this court found that PSC could constitute part of a sentence, even in the face of a mandatory minimum sentence.

[55] With respect, I cannot accept this interpretation of s. 742.7(1). The provision is clearly a forward looking one. It is designed to address those situations where an offender who is serving a CSO is imprisoned “as a result of a sentence imposed for another offence”. Where this occurs, the running of the CSO will be suspended during the period of imprisonment imposed. Indeed, the provision is operative in this very case, but not as the appellant suggests. Upon the imposition of the sentence for criminal harassment, s. 742.7(1) had the effect of suspending the CSO during the sentence imposed for that offence.

[56] To accept the proposed interpretation of s. 742.7(1) would not only be at odds with the clear wording of the provision, but may also result in practical mischief. This case provides an example of the type of mischief that may arise.

[57] Here, the breach hearing judge determined that he would only impose a one-month period of custody for the breach, having regard to all of the circumstances, including the “187 real days” the appellant had already spent in custody while the CSO was running pending the breach hearing. If the running of the CSO could be ex post facto turned into a suspended CSO, it would have the effect of retroactively altering the decision of the breach hearing judge.

[58] Leaving aside the impropriety of a second judge altering an earlier judge’s disposition for a breach, other forms of mischief could also arise if s. 742.7(1) were applied in a retroactive way that transformed a running CSO into a suspended CSO. In particular, one is driven to think about a situation where a CSO has expired by the time the appellant is “imprisoned as a result of a sentence imposed for another offence”. If a CSO from months earlier could be transformed from a running CSO into a suspended CSO, simply in order to capture credit for PSC for a different offence, it would add time back onto the CSO. How would that even work with expired CSOs? The answer is that it couldn’t.

[59] The practical difficulties that could arise from the appellant’s interpretation of s. 742.7(1) reinforce my view that the provision is only a forward looking one. If an offender who is the subject of a CSO is imprisoned for another offence, the running of the CSO will be suspended at the time of the sentencing on a go-forward basis until the period of imprisonment comes to an end and the appellant is released from custody: Criminal Code, ss. 742.7(1), 742.7(4) .

(iv) This interpretation does not result in unfairness or absurdity

[60] Finally, I will address the appellant’s submission that where two interpretations are available, which he says is the case here, the court should choose the one that is fair and avoids absurdity.

[61] In making that argument, he posits a hypothetical comparison.

[62] He compares two offenders, “A” and “B”. The scenario is that “A” and “B” are both arrested for a breach of their CSOs and criminal harassment at the same time. “A” gets immediate bail, whereas “B” does not. To make the hypothetical easier, I will assume that the breach hearing occurs for both “A” and “B” at the six-month mark and that, like the appellant, “A” and “B” are both directed to serve one month of their unexpired CSOs in custody. I will also assume that both “A” and “B” are convicted and sentenced on the criminal harassment in the immediate wake of serving the one month for the breach.

[63] The appellant says that the unfairness is clear on its face. Given that “A” secures immediate bail, he spends virtually no time in PSC. Therefore, the three-year sentence imposed on the criminal harassment count is a true three-year term. In contrast, when it comes to “B”, who could not secure bail, he will serve the equivalent of three years and six months in custody. This is said to be unfair and absurd.

[64] I accept, as a matter of law, that where a statute is ambiguous and susceptible to two reasonable interpretations, the one that accords with “justice and good sense” will be adopted over the one that “would lead to extravagant results”. This is true even when the latter interpretation aligns closer to the actual wording of the provision: R. v. McIntosh, [1995] 1 S.C.R. 686, at para. 35, quoting Altrincham Electric Supply Ltd. v. Sale Urban District Council (1936), 154 L.T. 379 (H.L.). Even so, if a statute is clear, it must be enforced, no matter how harsh it may be, provided of course that it is constitutional: McIntosh, at para. 34.

[65] In this case, I disagree that the statute is susceptible to two reasonable interpretations. As I have explained above, the statute is clear as to when a CSO runs and when it does not. In particular, the statute is clear that if an offender is detained in custody under s. 515(6) , as the appellant was in this case, s. 742.6(12) keeps the CSO running.

[66] Even if the statute were open to two reasonable interpretations, I disagree that the hypothetical illustrates an unfairness to be remedied.

[67] The appellant’s hypothetical fails to take into account the fact that “A” and “B” may receive different dispositions for the breach of the CSO, which is distinct from the substantive crime of criminal harassment. When “B” is sentenced for the breach, he, like the appellant, will already have served six months in custody on the CSO. This will properly be taken into account when determining the fit disposition for purposes of the breach, as the breach hearing judge did in this case by considering “all the circumstances”. As for “A”, he may well receive a lengthier custodial period for the breach than “B”, since “A” was on bail leading up to the breach hearing.

[68] There is no absurdity or unfairness arising from interpreting the statute in accordance with its plain meaning. This is precisely why, without any analysis or suggestion to the contrary, other provincial appellate courts applying s. 742.6(12) have all taken a consistent approach, which accords with the interpretation I have set out above: see R. v. Poole, 2005 BCCA 625, 204 C.C.C. (3d) 61; R. v. English, 2012 NLCA 64, 328 Nfld & PEIR 14; R. v. Adam, 2019 ABCA 225, 91 Alta. L.R. (6th) 23; and R. v. Langille, 2013 BCCA 274.

[69] By stepping back and thinking about the broader conditional sentence scheme, why it exists and how both it and the integrity of the sentencing process can be protected, the statutory scheme makes sense.

[70] It should be recalled that conditional sentences exist so that offenders who would otherwise serve a sentence of incarceration may serve their sentences in the community. They are terms of imprisonment to be served in the community. They exist to give courts a broader discretion when it comes to sentencing offenders in particular situations: R. v. Proulx, [2000] 1 S.C.R. 61, at paras. 117, 124 and 127; s. 742.1(a).

[71] There is a good deal of trust placed in those who receive conditional sentences. When they breach that trust without reasonable excuse, there is a presumption that they will serve the balance of their sentence in a custodial setting: Proulx, at para. 39. It is the threat of incarceration that helps ensure compliance with the conditions imposed: Proulx, at para. 21; R. v. McIvor, [2008] 1 S.C.R. 285, at para.15; and R. v. Antaya, 2022 ONCA 819, at para. 6.

[72] In this case, the appellant breached the CSO in the first ten days of his release into the community on the CSO. Not only that, but, as the breach hearing judge put it, he breached the CSO “spectacularly”. This is precisely why the breach hearing judge felt that another month on top of the 187 days of “real” time was adequate to reflect the seriousness of the breach. There is nothing unfair about that state of affairs.

[73] I would caution, though, that breach hearings are intended to proceed expeditiously. Indeed, s. 742.6(3) says that a hearing into an allegation of a breach “shall be commenced within thirty days, or as soon thereafter as is practicable” following an offender’s arrest or the compelling of an offender’s appearance. While a judge hearing the allegation of a breach may adjourn a hearing at any time during the hearing pursuant to s. 742.6(3.3), this may only be done for a “reasonable period” of time.

[74] Accordingly, there is statutory direction that breach hearings are not to languish. While the circumstances of each case will have to be taken into account, the fact is that, where possible, hearings should commence within 30 days and, if that cannot occur, they should commence as soon as practicable after that time.

[75] There is good reason to move, where possible, with dispatch. While, in this case, the breach hearing judge was satisfied that a total of seven months in custody was appropriate in the circumstances, there are cases where a much shorter period of custody will be appropriate, or even no time in custody at all. It would certainly be cold comfort to an offender who waited six months for his breach hearing to find out that the breach hearing judge thought the breach warranted a custodial term of less than six months or, even worse, warranted no action at all being taken: s. 742.6(9) (a).

[76] The point is that if the offender is detained under s. 515(6), then the breach hearing needs to move with all dispatch. This is particularly true since the offender earns no remission while detained under s. 515(6) (see Criminal Code, s. 742.6(13)).

[77] In this case, it turns out that it did not matter that it took six months to run the breach hearing, since the breach was so serious. Indeed, I have no doubt that if the breach hearing had happened earlier, the breach hearing judge would have imposed a much longer custodial term under s. 742.6(9) (c). With that said, situations will arise where this is not the case. The intent of the legislation, which is that hearings should be held expeditiously, should be respected.

(c) Could There Have Been any Other Form of Credit?

[78] Recall that the trial judge actually gave the appellant four months of credit recognizing the “difficult conditions” he experienced while in custody at the TSDC. He did this because, in his view, there was a causal connection between the breach and the criminal harassment, both leading to the appellant’s incarceration. The trial judge put it this way:

An offender cannot be permitted to “double-count” time in custody. However, in this case, there is a causal connection between the breach and the new substantive charge. Indeed, it is the same factual conduct that underlies both findings: see R. v. Barrett, 2017 ONCA 897, at para. 30. Both the breach allegation and the substantive charge of criminal harassment were factors resulting in his ongoing detention.

The time that Mr. Menezes has spent in custody since April 8, 2022, is therefore a relevant factor to consider even though he has been serving his conditional sentence. At a minimum, he has been serving his conditional sentence in a custodial environment rather than in the community. I take judicial notice of the difficult conditions present at the TSDC, including the regular use of lockdowns. Mr. Menezes also described the challenging circumstance that he has faced. As of January 10, 2023, he had been in custody for over nine months while serving [the breach hearing judge]’s conditional sentence.

Just over one month of this period was subsumed by [the breach hearing judge]’s disposition on the breach hearing. Considering the remaining eight months, I find that the appropriate credit to apply to this sentencing decision is four months. This adequately reflects the enhanced hardship that Mr. Menezes experienced while serving his conditional sentence at the TSDC.

[79] Crown counsel takes no objection to the four-month credit assigned to the appellant. Nor do I, subject to the following observation.

[80] The trial judge credited a specific period of time to reflect what he saw as the harsh conditions faced by the appellant at TSDC, a period of detention that arose from what the trial judge said was a “causal connection between the breach and the new substantive charge.” Therefore, it appears that he approached this four-month credit almost as if it reflected what we historically referred to as Duncan credit: R. v. Duncan, 2016 ONCA 754. There is no inconsistency in considering that credit with respect to time in custody that does not qualify for the usual presentence custody credit, since “ particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1)”: Duncan, at para. 6 (emphasis added) . However, in my view, it would have been preferable for the trial judge to have expressly dealt with this consideration as a mitigating factor: R. v. Marshall, 2021 ONCA 344, at para. 52.

[81] Duncan credit was historically used to credit some time to an accused who had experienced “[p]articularly punitive pretrial incarceration conditions”: Marshall, at para. 52. Since Marshall, courts are directed to treat harsh pre-sentence conditions as a mitigating factor to be taken into account with all mitigating and aggravating factors when determining a fit sentence.

[82] With that caveat in mind, I agree with the sentiment that because the breach and the criminal harassment were inextricably linked, one to the other, that it was open to the trial judge to look to the harshness of the entire eight-month period of custody as a mitigating factor. After all, it was the fact that the appellant had criminally harassed the victim that led to the “spectacular” breach of his CSO, and the fact that he spectacularly breached his CSO that revealed the criminal harassment. In other words, the matters were directly linked and the amount of time that the appellant spent in custody after his arrest was informed by the same factual backdrop.

[83] While the trial judge could have placed more emphasis on the strength of the link between the breach and criminal harassment, making for a stronger mitigating factor when it came to the harsh custodial conditions faced by the appellant, the trial judge’s determination fell squarely within an exercise of his discretion and is owed deference by this court. Accordingly, I defer to his determination on this point.

Conclusion

[84] I would grant leave to appeal sentence and modify the sentence only to the extent that I would direct that another three months of credit be deducted from the appellant’s sentence.

Released: December 19, 2023 Fairburn A.C.J.O.

I agree. J.C. MacPherson J.A.

I agree. B. Zarnett J.A.