Court of Appeal for Ontario

Date: 2024-12-19 Docket: COA-24-CR-0445

Before: Rouleau, George and Gomery JJ.A.

Between: His Majesty the King Respondent

And: Terry Lynn Bardwell Appellant

Counsel: Terry Lynn Bardwell, acting in person Angela Ruffo, appearing as duty counsel Ian Bell, for the respondent

Heard: December 3, 2024

On appeal from the order of Justice Nicole E. Redgate of the Ontario Court of Justice, dated April 12, 2024, terminating the conditional sentence imposed on January 18, 2023.

Rouleau J.A.:

[1] On July 22, 2022, the appellant, Ms. Bardwell, pleaded guilty to possession of cocaine and methamphetamine for the purpose of trafficking, and possession of a concealed weapon. On January 18, 2023, she was sentenced to a conditional sentence of two years less a day. The terms of Ms. Bardwell’s conditional sentence order included that she not have any contact with Brendan Hitchcock-Hurst and that she keep the peace and be of good behaviour.

[2] On March 21, 2023, Ms. Bardwell’s cellphone was seized pursuant to a search warrant issued in the context of an investigation into Mr. Hitchcock-Hurst. The search of Ms. Bardwell’s phone uncovered text messages that became the subject of an allegation that she breached her conditional sentence. Specifically, it was alleged that the appellant had breached her conditional sentence order by contacting Mr. Hitchcock-Hurst and by communicating with him to acquire and supply drugs, thereby failing to keep the peace and be of good behaviour. The running of the appellant’s conditional sentence was suspended as of March 21, 2023, when the breach allegation was laid, pursuant to s. 742.6(10) of the Criminal Code, R.S.C. 1985, c. C-46. Despite this suspension, by operation of s. 742.6(11), Ms. Bardwell had to continue complying with the conditions of her conditional sentence order.

[3] On April 12, 2024, the sentencing judge found that the appellant had in fact breached the terms of her conditional sentence as alleged. She ordered that the appellant’s conditional sentence be terminated and that the appellant serve the balance of her sentence in custody.

[4] On appeal, the appellant argues that the sentencing judge erred in finding that she had breached her conditional sentence. Ms. Bardwell maintains that the evidence in support was insufficient. With the assistance of duty counsel, she further submits that she should have received some credit for the 13-month delay between the date of the breach allegation laid in March 2023 and the disposition of the breach hearing in April 2024. Ms. Bardwell’s position is that credit is due because during this period, the conditional sentence was not running, but she was nonetheless bound by its restrictive conditions. The discretionary power to grant such credit arises out of s. 742.6(16), which provides that,

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 order.

[5] Subsection 742.6(17) sets out certain mandatory – though non-exclusive – considerations:

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 order was suspended and whether the offender complied with those conditions during that period.

[6] In my view, the appeal must be dismissed.

[7] An order terminating a conditional sentence is subject to the same standard of review as other sentence appeals; the reviewing court owes substantial deference to the sentencing judge. Appellate intervention is nonetheless justified when the reasons below reveal an error in principle that had an impact on sentence: see R. v. Antaya, 2022 ONCA 819, at para. 3.

[8] In this case, there was ample evidence supporting the finding of breach. The search of the appellant’s cellphone revealed that there had been over 200 messages exchanged with Mr. Hitchcock-Hurst’s phone. The wording and context of those exchanges made it abundantly clear that the communications were in fact between the appellant and Mr. Hitchcock-Hurst, in contravention of the no-contact order that was a term of the appellant’s conditional sentence. It was also apparent from the texts exchanged that the appellant was arranging and directing the sale of drugs, which constitutes an additional breach.

[9] I turn now to Ms. Bardwell’s submission that she ought to have received some credit for the 13-month period between March 21, 2023, when the conditional sentence was suspended, and April 12, 2024, when the sentencing judge confirmed the breach, to offset against the remainder of her sentence. From my review of the record, the appellant did not advance this argument before the sentencing judge. That said, I do not see the failure to raise s. 742.6(16) before the sentencing judge as determinative on appeal, particularly when Ms. Bardwell was self-represented. Appellate courts have the discretion to hear and decide new issues not raised at trial: Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at paras. 20-22. In the circumstances, I am satisfied this court should entertain the appellant’s argument that she should have received credit pursuant to s. 742.6(16).

[10] The starting point on sentencing in these circumstances is, as stated by the Supreme Court of Canada, that the presumed consequence of a breach of conditional sentence is its termination, with the remainder of the term to be served in jail. As the court explained in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 39:

[W]here 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. [Citations omitted.]

[11] Section 742.6(16) nonetheless provides for the possibility of granting credit against the remainder of the sentence. In the absence of any reference to s. 742.6(16) in the sentencing judge’s reasons, I am unable to conclude that the sentencing judge in fact considered whether the 13-month delay made this case an exceptional one for the purpose of that section. It is therefore open to this court to consider the applicability of the provision based on the facts as found by the sentencing judge: R. v. McCool, 2024 ONCA 457, 438 C.C.C. (3d) 553, at para. 28.

[12] Having considered the possible application of s. 742.6(16), I have concluded that the appeal ought to be dismissed. There is no basis in the record to find that there were exceptional circumstances in this case that could justify ordering that some or all of the period during which Ms. Bardwell’s sentence was suspended be deemed to be time served.

[13] Subsection 742.6(16) can only be given effect in “exceptional cases”. As explained by Rosenberg J.A. in the context of interpreting a different criminal law provision that includes these words, [1] by restricting the application of s. 742.6(16) to exceptional cases, Parliament intended that this provision be given effect only in the “clearest of cases” presenting rare and exceptional circumstances: see R. v. R.E.W. (2006), 79 O.R. (3d) 1 (C.A.), at para. 31. The plain wording of s. 742.6(16) further requires that the court be satisfied that granting credit for at least a portion of the period during which the conditional sentence order was suspended is “in the interests of justice”.

[14] Beyond referring to the extent of the delay and her compliance with the conditions of her conditional sentence during that period, no evidence was led, either before the sentencing judge or before this court, that could have supported finding this was an exceptional case. Applying the three mandatory considerations prescribed by s. 742.6(17) does not assist the appellant.

[15] The first consideration clearly weighs against granting credit. The appellant’s breach was serious. The sentencing judge found it was “wilful, persistent and flagrant”, and that the appellant was not only “directing the sale of drugs with Mr. Hitchcock-Hurst, but that she was facilitating the sale of drugs with other members in the community.”

[16] As for the second consideration, nothing in the record would suggest that not making the order granting credit would cause Ms. Bardwell undue hardship based on her individual circumstances.

[17] Finally, the third consideration does not weigh against granting credit, but it does not weigh heavily in favour of making a finding of exceptional circumstances, either. Contrary to the appellant’s submission, I do not view delay as constituting a significant factor in the analysis in this case. Although the 13-month delay between the laying of the breach allegation and its disposition is on its face significant, the sentencing judge considered this delay and found that all but 2 to 3 months were attributable to the appellant. On this point, I note that the Crown, while maintaining that the appeal ought to be dismissed, ultimately agreed with the suggestion put to it by the panel that the delay attributable to the Crown could constitute exceptional circumstances such that part of the period when the conditional sentence was suspended could count as time served under that conditional sentence order. In my view however, a good deal more than a 2 to 3-month net delay is required in order to make out exceptional circumstances. While there is no evidence that Ms. Bardwell breached any of the conditions of her interim release over the course of these 13 months, she caused the bulk of that delay. In consequence, the delay in this case cannot reasonably be indicative of the “clearest of cases” presenting rare and exceptional circumstances.

[18] In conclusion, I do not consider the period during which the appellant continued to be bound by the terms of the conditional sentence order despite its suspension to constitute a basis to interfere with the sentencing judge’s disposition.

[19] For these reasons, I would dismiss the appeal.

Released: December 19, 2024 “ P.R. ” “ Paul Rouleau J.A. ” “I agree. J. George J.A. ” “I agree. S. Gomery J.A. ”

[1] Namely, s. 39(1)(d) of the Youth Criminal Justice Act, S.C. 2002, c. 1.