Court File and Parties

Court File No.: Hamilton 12-1670 Ontario Court of Justice

Between: Her Majesty the Queen — and — Conrad Allard

Before: Justice M. Speyer

Heard on: July 20th, 2012

Reasons for Judgment released on: July 30th, 2012

Counsel:

• J. Levy for the Crown
• G. Johnson for the accused Conrad Allard

SPEYER, J.:

Background

[1] On April 23, 2009, Mr. Allard was convicted of sexual assault and was sentenced to 2 years, 5 months and 15 days in custody. Mr. Allard was also required to comply with a Long Term Supervision Order (hereinafter referred to as "LTSO") for ten years following his release from custody.

[2] On August 5, 2009, the National Parole Board imposed several LTSO conditions on the accused, including:

1. Not to enter into an establishment where the primary source of income is derived from the sale of alcohol, and

2. Must reside at a Community Correction Centre or a Community-Based residential facility approved by Corrections Service of Canada.

[3] He is charged with breaching these two conditions.

[4] Mr. Allard was directed to reside at a Community-Based Residential Facility, namely St. Leonard's House at 73 Robert Street in Hamilton. When he first arrived at St. Leonard's House on March 30, 2011, Mr. Allard was advised of the rules of the residence including the following:

"Residents are expected to inform the staff in the Reception Office when they leave and when they can be expected back. When checking out, residents are to give a detailed account of where they are going, including addresses and phone numbers. If a resident is out of the building all day (i.e. working), they must check in at the CRF after work (between 17:00 and 18:00) to ensure that daily contact is maintained. At the staff's discretion, this may be in-person or by phone. Residents are to return to the CRF by curfew".

[5] While in the community, Mr. Allard established a pro-social relationship with a woman named Daisy Grady. He was permitted by his probation officer to leave St. Leonard's House to visit with Mrs. Grady at her home at 46 Barnesdale Avenue North in Hamilton.

[6] On seven occasions between September 23, 2011 and November 21, 2011, Mr. Allard signed himself out of St. Leonard's House advising staff he was going to visit Ms. Grady at her house. Instead, he was going to an off-track betting establishment in the basement of Sam's Tavern at 632 Barton Street East in Hamilton. On at least four of these occasions, he was seen placing bets on horse races. There is no evidence he ever consumed alcohol while in the off-track betting area of Sam's Tavern.

[7] On November 23, 2011, Mr. Allard's probation officer discovered that Ms. Grady had not seen the accused since the summer. The probation officer issued an LTSO suspension warrant. Upon his arrest a few days later, Mr. Allard admitted going to the gambling location in Sam's Tavern instead of Ms. Grady's house.

Count 1: Breach of LTSO by Failing to Reside as Directed

[8] On this count, the Crown argues that Mr. Allard is in breach of the residency condition of the LTSO because, although he was living at St. Leonard's House between August 1, 2011 and November 23, 2011, he was not abiding by the rules of the residence. Mr. Levy for the Crown concedes that this condition does not explicitly require Mr. Allard to abide by the rules of the residence, but argues that this is an implied condition of his residency which the accused breached by not being truthful about where he was going. Mr. Levy urged me to take a purposive approach when interpreting the residence condition, keeping in mind that the object of a LTSO is protection of the public.

[9] Defence counsel argues that the accused was always living at the residence and therefore is not in breach of this condition. Moreover, the wording of the rule, that residents are to advise staff of their whereabouts when leaving the residence, suggests that this is more of a practice or expectation, and not an absolute rule. It would therefore be unfair to import this as an additional condition of the LTSO.

[10] In R. v. Tremblay 2008 ONCA 24, the Ontario Court of Appeal held that conditions of an LTSO must be interpreted in light of their protective purpose and courts should avoid unduly restrictive interpretations that would impede the authorities in supervising offenders while in the community. However, the Court was also mindful that failure to comply with conditions of an LTSO constitutes a serious criminal offence carrying a period of incarceration of up to ten years and must be interpreted according to applicable legal principles. In particular, the accused is entitled to the benefit of the principle explained by Justice Dickson in Marcotte v. Canada (Deputy A.G.), [1976] 1 S.C.R. 108 at 115:

"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. If one is to be incarcerated, one should at least know that some Act of Parliament requires it in express terms, and not, at most, by implication".

[11] The condition which Mr. Allard is alleged to have breached is that he reside at a specific residence approved by the Correctional Service of Canada, namely St. Leonard's House. There is no explicit requirement in the LTSO that he abide by the rules and regulations of that residence. Given the principle articulated in Marcotte, supra, I would not, by implication, import such a condition into the LTSO. However common sense tells us that if a resident fails to abide by the rules of a residence in which he is required to reside, he could be evicted for non-compliance with the rules, and thereby be in breach of the LTSO residency condition.

[12] In the case before me, the accused was residing at St. Leonard's House during the material time. There is no evidence that he was evicted because he failed to notify the staff of his true whereabouts when he signed himself out. I am therefore not satisfied that he was in breach of the residency condition. The charge in count 1 is dismissed.

Count 2: Breach of LTSO by Entering into Sam's Tavern

[13] The evidence on this count establishes that Sam's Tavern has three separate areas: the basement which is used as a bar and for off-track betting, the main level which is used as a bar/restaurant, and the upper levels which function as a rooming house. On seven occasions between September and November 2011, the accused went to the off-track betting area in the basement of Sam's Tavern.

[14] Mr. Edward Wallace is the manager of Sam's Tavern. He testified that the basement of the tavern has a separate entrance from the main floor bar/restaurant area. There is an admission fee to the basement which is collected by tavern employees, who also serve alcohol. Patrons can place bets on horse races shown on video screens. Employees from Flamborough Downs collect and pay out on the bets. The tavern gets a percentage of the betting profits from Flamborough Downs. Sam's Tavern has one liquor license for both the basement and main floor areas.

[15] Mr. Wallace testified that most of the profits of Sam's Tavern, from both the main floor bar/restaurant area and the off-track betting area combined, are derived from the sale of alcohol. However, in the off-track betting area, the primary source of income is from betting. He testified that not as much alcohol is sold in the off-track betting area as in the bar/restaurant on the main floor and the drinks are more expensive in the off-track betting area.

[16] The accused was seen in the basement on at least four occasions during the time period alleged in the count. Mr. Wallace also saw the accused in the upstairs bar area, but he could not recall when. There is no evidence Mr. Allard was drinking in either the upstairs or downstairs area of the tavern.

[17] Defence counsel argued that since the primary source of income in the basement area is not from alcohol, the accused must be acquitted of this count. Moreover, there is no evidence that the accused knew that the tavern's primary source of income was from alcohol. I cannot accept this argument. I agree with Crown counsel that I must consider Sam's Tavern as a single entity when determining whether the accused breached his LTSO condition to not enter into any premises where the primary source of income is derived from the sale of alcohol.

[18] In coming to this conclusion, I am mindful of the purpose for which the condition was imposed: to protect the public by prohibiting the accused from entering into establishments where the primary business is the sale of alcohol. Both upstairs and downstairs premises are regulated by one liquor licence and alcohol is sold in both areas by employees of Sam's Tavern. Moreover, the name itself suggests that the primary business of the establishment is to sell alcohol. That off-track betting is also available in the basement is secondary.

[19] Lastly, I take into account the fact that Mr. Allard misled the staff at St. Leonard's House as to his true location when signing himself out. The fact that he was not forthright about where he was going leads me to conclude he knew he ought not to be there in the first place.

[20] On all of the evidence I am satisfied beyond a reasonable doubt that the accused knowingly entered into premises where the primary source of income is derived from the sale of alcohol, and I find him guilty on count 2.

Released: July 30, 2012

Signed: "Justice M. Speyer"