Information Nos. 10-1125; 10-1201; 10-1451; 10-3777; 10-4149; 10-4466

ONTARIO COURT OF JUSTICE

IN THE MATTER OF THE PROVINCIAL OFFENCES ACT R.S.O. 1990

APPEAL COURT

HER MAJESTY THE QUEEN

v.

SCOTT A. NILSSON

REASONS FOR JUDGMENT

Before: The Honourable Justice J.S. Nadel

Date: March 5, 2012, at St. Catharines, Ontario

Charges

• s.136(1)(a) H.T.A. – Fail to Come to Full Stop
• s.53(1) H.T.A. – Drive While Suspended x6
• s.7(1)(a) H.T.A. – Drive without Valid Permit x4
• s.7(1)(c)(i) H.T.A. – No Permit Validation on Plate
• s.7(5)(a) H.T.A. – Fail to Surrender Permit
• s.3(1) C.A.I.A. – Fail to Surrender Insurance x2

Appearances

• S. McCartan – Counsel for the Crown
• E. Kocet – Paralegal for Scott A. Nilsson

Reasons for Judgment

NADEL, J. (Orally):

In this case, the learned Justice of the Peace, Her Worship, Madam Justice of the Peace Shelley, imposed a series of sentences upon you of periods of intermittent sentences that were to run concurrent to each other for a period of about, in total, 25 days. But then, additionally, she imposed a lengthy period of probation upon you that contained as one of its terms, a period of house arrest, which I think was for 30 days. Do I have that figure correct, Mr. Kocet?

MR. KOCET: Forty-five in total. Thirty was concurrent with....

THE COURT: Yes, all right. A total of 45 days, but it was – the house arrest was to run concurrently with the period of intermittency. So, during those periods, you would be allowed to go to the jail, and indeed, were obliged to do so, if I have it correct.

The Crown appeals that sentence, and as I indicated at the beginning, the Crown is more concerned about the propriety of house arrest being part of a period of probation, rather than re-sentencing you, if in fact, the Crown's position is correct. The Crown takes the following position: that what Madam Justice of the Peace Shelley imposed was, in effect, a conditional sentence, and that a conditional sentence is a statutory punishment and the Provincial Offences Act does not provide for the imposition of a conditional sentence.

Mr. Kocet, on behalf of you, Mr. Nilsson, has submitted two cases that were quoted in my discussion with counsel.

One is, R. v. Mitchell, [2007] O.J. No. 2016, a decision of my brother justice, Harris, sitting in Cayuga. In my view, Mitchell can be distinguished on this basis: Mitchell was a joint submission, in which the Crown and the defence joined together to urge Judge Harris to impose the sentence that did contain a period of house arrest during the probationary period. But, the issue of Judge Harris' jurisdiction to impose that sentence was not formally before him, and as I read that judgment, not averted to by either counsel, or indeed, by Judge Harris himself. And certainly, while Judge Harris' decisions are persuasive, given that the jurisdictional issue that is now before me was not raised, it is not a decision that judicial comity requires me to follow.

Equally, the case of R. v. Wagenaar, [2006] O.J. No. 5531, a decision of Mr. Justice Stead out of Simcoe, is again, a very short decision and it is not clear, as I read that judgment, that the issue of jurisdiction to impose a conditional sentence was before Judge Stead or averted to by him.

The Crown's position is that in looking to determine whether or not there is jurisdiction to impose a conditional sentence, one must refer to the sentencing provisions of the Provincial Offences Act. This particular order that is under consideration was ostensibly imposed as part of a probation order, pursuant to section 72 of the Provincial Offences Act. The only place under which house arrest could shelter as an appropriately imposed period of incarceration, would be under subsection three, subparagraph (c) of the Provincial Offences Act. That subsection provides that in addition to the statutory conditions, the court may prescribe, as a condition of a probation order:

(c) where the conviction is of an offence punishable by imprisonment, such other conditions relating to the circumstances of the offence and of the defendant that contributed to the commission of the offence as the court considers appropriate to prevent similar unlawful conduct or to contribute to the rehabilitation of the defendant....

My view is that while it may be possible, under circumstances not before me, that a particular provincial offence might properly be dealt with by way of house arrest as a provision under 3(c), my view is that, albeit in good faith and with the best of intentions, the learned Justice of the Peace fell into error in imposing house arrest for six counts of driving while suspended, together with a whole series of other regulatory offences.

As I read her decision, particularly at page 17, beginning at the bottom of the page, she wrote at the last line:

You will have a period of house arrest for 45 days. Now it was this Court's intention that you serve 30 days of house arrest and in fixing the term at 45 days the Court has considered the time that you would actually be at the Niagara Detention Centre and in taking that into account 15 days were further added.

In my view, the proper interpretation of the learned Justice of the Peace's comments were that she was imposing a further punishment of house arrest. That is to say, a conditional sentence.

Mr. Kocet, on behalf of the respondent, urges that those – that the sentence should be interpreted to be an effort to prevent similar unlawful conduct. That is, keep him under house arrest and therefore, he cannot drive while he is under suspension and that prevents him from driving, and further, that being under house arrest will contribute to his rehabilitation.

Mr. Kocet did not spend a lot of time - certainly, I may have been responsible for some of that - in going through Proulx, R. v. Proulx, 2000 SCC 5, but Proulx makes clear that a conditional sentence is a completely different sentencing option than is probation. They are not the same thing and that a conditional sentence is essentially, although not as deterrent as actual jail, a denunciatory and deterrent sentence. And all sentences, of course, have some rehabilitative component.

My view is that there is no general power to impose a conditional sentence under the Provincial Offences Act, and that Justice of the Peace Shelley erred in imposing house arrest for these multiple counts of driving while suspended.

I do not view that house arrest provision as being designed to prevent Mr. Nilsson from driving, or that it was designed to rehabilitate him.

In light of the number of counts before Her Worship Justice of the Peace Shelley, in light of the Crown's position that the appropriate sentence ought to have been four to six months incarceration for these multiple and serial counts of driving while suspended, I am of the view that an appropriate sentence would have been substantially more incarceration than was actually imposed and that the house arrest provisions were meant to be further incarceration by way of a conditional sentence, that was sheltered, so to speak, in the form of a probationary order.

I rely upon R. v. Jacqueline Bankay, 2010 ONCA 799, in support of the position I have arrived at. Bankay was the case where a learned trial judge had intended to impose a conditional sentence and had announced that intention, but when it was pointed out that one was unavailable as a result of the offence in question having been determined to be a serious personal injury offence, the learned judge then reframed the conditional sentence as a period of house arrest, by way of probation.

The Crown appealed and the Court of Appeal ruled at paragraph two:

It was an error of law to impose a sentence that circumvented Parliament's decision to exclude conditional sentences for this offence....

My view is that the Provincial Legislature has not demonstrated, by the Provincial Offences Act terms, that a conditional sentence is available as a punishment, where incarceration is available.

In addition to Bankay, I also rely upon, what I find to be the persuasive commentary of Mr. Justice Libman, in his text, "Libman on Regulatory Offences in Canada", in which he writes at page 2-50:

Conditional sentences are "creatures of statute". While conditional sentences are available under the provisions of the Criminal Code, there is no jurisdiction to impose them under provincial legislation....

Ultimately, therefore, I find that the sentence imposed in this case was a sentence that amounts to an error in law, and in other circumstances, it would have fallen upon me to re-sentence or perhaps, remit the matter back to the learned Justice of the Peace to have a proper sentence imposed.

However, Ms. McCartan, quite fairly, indicated at the commencement of her submissions that her intention of bringing this appeal was to seek a declaration, so to speak, or the judgment of a court sitting in appeal, that conditional sentences were not available under the Provincial Offences Act, and she is content with these reasons, as I understand it, and is not seeking to have me re-sentence Mr. Nilsson.

In the result, the sentences imposed will stand in his particular case, he having effectively served the intermittent portion of his sentence, the house arrest portion of his sentence and he having completed all but three hours of the community service.

And as a result, given the position of the Crown, while the sentences imposed were in error, the appeal ultimately will be dismissed, so that no further re-sentencing is required.