Court Information
Ontario Court of Justice
Date: February 16, 2017
Court File No.: Info 3911-998-16C-901, 3911-998-17C-54
Parties
Between:
Her Majesty the Queen
— and —
Beverly Anne Mary McPhee
Before the Court
Before: Justice D.A. Kinsella
Heard on: February 2, 2017
Reasons for Judgment released on: February 16, 2017
Counsel
Julian Johnson — counsel for the Crown
Ian Paul — counsel for the defendant Beverly Anne Mary McPhee
KINSELLA J.:
FACTS AND INTRODUCTION
[1] On June 21, 2016 Ms. McPhee was charged with one count of assault with a weapon, one count of utter threats to cause death and one count of possession of a weapon for a purpose dangerous to the public peace. She was released the next day, June 22, 2016, on her own recognizance of bail.
[2] Ms. McPhee was charged with further offences July 21, 2016. As a result the recognizance of June 22, 2016 was cancelled pursuant to section 524 of the Criminal Code and she was released again on her own recognizance of bail on July 22, 2016. She was charged again with further offences on October 11, 2016. On November 21, 2016 she appeared before me on those offences and was sentenced to one day in addition to 44 days of pre-sentence custody, and placed on probation. She was also released on her own recognizance of bail for the June 21, 2016 offences, which were scheduled for trial on January 11, 2017.
[3] On January 9, 2017 Ms. McPhee was arrested for assault, six counts of breach of recognizance and one count of breach of her probation order. She was also, I am told, advised that she was being arrested pursuant to section 524 of the Criminal Code. Her first appearance in bail court was on January 10, 2017 and she was remanded in custody to appear in court on January 11, 2017 for her trial. She did not seek bail nor did the Crown apply to have the recognizance of November 21, 2016 cancelled.
[4] The trial commenced in front of me on January 11, 2017 but could not be concluded. A continuation date of May 9, 2017 was set. Ms. McPhee remained in custody on consent.
[5] On February 2, 2017 Ms. McPhee came back before me and entered pleas of guilty to the following: (from June 21, 2016) the included offence of assault, utter threats to cause death, and possession of a weapon for a purpose dangerous to the public peace and; (from January 9, 2017) assault, four counts of breach of recognizance, and one count of breach of probation.
[6] Ms. McPhee candidly acknowledges that she struggles with alcohol addiction, and alcohol in fact has played a significant role in the offences before the court on this matter, as well as for those offences which were before me in November of 2016. Filed as exhibit 3 in these proceedings are records which confirm that Ms. McPhee has attempted on several occasions in the recent past to seek help for her addiction. Her letter to the court, which forms part of the same exhibit, shows her to be an intelligent woman who is painfully aware of the harm alcohol addiction has caused in her life. Her common law partner Donald Waldorf, who is the victim for all of the offences of personal violence before this court, has written a victim impact statement, which is exhibit 2 in these proceedings. In that statement, he reaffirms his support for Ms. McPhee. He, too, acknowledges a problem with substance abuse and expresses his wish that both of them can "get help" for their addictions.
[7] Counsel for the Crown and counsel for Ms. McPhee jointly submit that a custodial sentence of seven months (or 210 days) to be followed by a term of probation is appropriate in light of Ms. McPhee's criminal record and the nature of the charges for which she has pled guilty, which are domestic in nature. The parties agreed that, as of February 2, 2017, Ms. McPhee had been in custody for 25 days. As of the date of this decision, she will have been in custody for 39 days.
[8] What the parties do not agree on, and what I must decide, is whether or not this court can and should allow for enhancement for pre-sentence custody. The Crown submits that I am precluded from granting any enhancement for pre-sentence custody by virtue of section 719(3.1) of the Criminal Code. Counsel for Ms. McPhee asks me to find that section 719(3.1) is unconstitutional in that it violates section 7 of the Canadian Charter of Rights and Freedoms ("Charter") and is not saved by section 1.
[9] No formal notice of constitutional challenge was filed with this court. Mr. Johnson, on behalf of the Crown, advised the court that he was content to let counsel for Ms. McPhee argue the constitutional issue without the need for a formal application with notice.
RELEVANT LEGISLATION
[10] In 2009 Parliament passed the Truth in Sentencing Act. Sections 719(3) and 719(3.1) of the Criminal Code now state:
(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.
(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).
[11] Section 524(8) reads:
- (8) Where an accused described in subsection (3), other than an accused to whom paragraph (a) of that subsection applies, is taken before the justice and the justice finds
(a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertaking or recognizance, or
(b) that there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him,
he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10). [emphasis added]
[12] It is apparent that, through this legislation, it was Parliament's intention to limit the amount of pre-sentence credit an accused person can receive, particularly when they have been released on bail and re-arrested after committing further offences. The two exclusions listed under section 719(3.1) are often referred to as the "criminal record exclusion" and the "bail misconduct exclusion". It is only the "bail misconduct exclusion" that is at issue in this case.
APPLICABLE CASE LAW
[13] Mr. Johnson submits that the Ontario Court of Appeal's ruling in R. v. Akintunde [2015] O.J. No. 4614 is binding on this court. In that case, the issue before the court was whether or not an accused who has consented to the revocation of his bail and declined to seek a show cause hearing was disentitled from enhanced pre-sentence custody by virtue section 719(3.1) of the Criminal Code.
[14] In that case, counsel for the appellant argued that section 719(3.1) did not apply when the accused's release was cancelled under section 524(8) on consent and was only engaged when the bail was cancelled after a contested hearing. In rejecting this argument, the court noted that section 719(3.1) only required that a person be detained in custody pursuant to section 524(8); it did not require that the person be "ordered" detained pursuant to that section. Of particular concern for the court was that, to interpret the section as suggested by counsel for the appellant would allow for individuals to "'game the system' by repeatedly consenting to detention and delaying any show cause hearing" [at paragraph 48].
[15] Mr. Paul asks me to follow the ruling of Justice Fuerst in the case of R. v. Meads 2016 ONSC 7156 (S.C.J.). In that case, Mr. Meads brought a constitutional challenge to the "bail misconduct exclusion" portion of section 719(3.1) of the Criminal Code, serving notice on both the Attorney General of Ontario and Attorney General of Canada. In finding that section 719(3.1) violated section 7 of the Charter and could not be saved by section 1, Justice Fuerst found that the denial of enhanced credit for pre-sentence custody to offenders who are detained because of misconduct while on bail release was overbroad. She notes:
"…the bail misconduct exclusion catches individuals in ways that have nothing to do with enhancing public safety and security. Its ambit captures all persons who are alleged to have breached their release or committed indictable offences while on bail, had their bail cancelled, and been unable to obtain fresh release even though the misconduct does not render the person a real threat to public safety or security." [at para. 33]
[16] In addition, and after the proceedings of February 2, Mr. Paul filed an additional case book which included the Meads decision as well as a number of other cases, the majority of which concluded that section 719(3.1) violated section 7 of the Charter and was not saved by section 1.
[17] One exception in that case book was the decision of Justice Rabley in R. v. Morris [2016] O.J. No. 106 (C.J.). In that case, Justice Rabley was asked to find that Mr. Morris was not entitled to any enhancement of his pre-sentence custody because he had been released on bail and re-arrested for additional offences, including being arrested pursuant to section 524 of the Criminal Code. The Crown in that matter also argued that R. v. Akintunde, supra, had decided that issue. Mr. Morris, like Ms. McPhee, did not seek a show cause hearing upon being re-arrested, instead choosing to remain in custody on consent for approximately six weeks before pleading guilty.
[18] Justice Rabley found that the case before him was different from that considered by the Court of Appeal in Akintunde. He observed that, while Mr. Morris had been notified that he was being arrested pursuant to section 524, the Crown had never sought to have Mr. Morris' bail cancelled. Justice Rabley found that for the "bail misconduct exclusion" to be engaged, there must first be a judicial finding under one of the two grounds listed in section 524(8) which then results in a cancellation of the release and a detention.
[19] There are sound reasons for interpreting the section in this manner. In our criminal justice system, the Crown has a great deal of power and at all stages in the proceedings has the authority to make decisions which can have a significant impact on how a criminal charge proceeds. This discretion conferred on Crown attorneys is an essential feature of our justice system and an acknowledgment that the Crown "performs a special function in ensuring that justice is served."
[20] To interpret the bail misconduct section in the manner suggested by the Crown would in fact interfere with that discretion by making the cancellation of bail something automatically engaged merely by an arrest pursuant to section 524. There may be any number of practical reasons why the Crown would not want to have the prior form of release cancelled, as noted by Justice Rabley:
…the Crown may not wish to have the bail cancelled and may seek to abandon a section 524 arrest as was originally done in Mr. Morris's case. In addition, the Crown may consider the subsequent charge to be a technical one and therefore not worthy of detaining the individual. Another example is where the Crown has knowledge that an accused has been co-operative with the police and may therefore not wish to have his or her bail cancelled. Finally, there may be legal or compassionate reasons for allowing the original bail to remain in place.
These are all factors that a Crown will wrestle with on a daily basis in an often busy bail court. It makes sense that the Crown be allowed to maintain this discretion in order to help efficiently run the Courts. Therefore, although the language of section 524(8) is mandatory, it is my view, that the Crown must take an individual before a Justice and request a cancellation of his or her bail before that Justice does so. [at para. 20 & 21]
ANALYSIS
[21] In this case, the Crown did not seek to cancel Ms. McPhee's recognizance of bail upon her arrest on January 9, 2017, although she may have well been notified that she was being arrested pursuant to section 524. As such, I am of the view that she was not detained in custody pursuant to section 524(8) and so that the "bail misconduct exclusion" in section 719(3.1) is not engaged. It is therefore open to me to exercise my discretion to give Ms. McPhee enhancement for her pre-sentence custody on a 1.5:1 basis.
[22] In light of this finding, I do not need to address the issue of whether or not the "bail misconduct exclusion" of section 719(3.1) violates Ms. McPhee's section 7 Charter rights. In any event, I am of the view that I would not have the jurisdiction to hear this matter since the pre-requisites set out in section 109 the Courts of Justice Act have not been met. While Mr. Johnson, on behalf of the Attorney General of Ontario, was content to waive the requirement for formal notice, I do not believe he can waive the notice requirement which must be given to the Attorney General of Canada.
DETERMINATION OF SENTENCE
[23] Ms. McPhee has been in custody for 39 days. I am satisfied that she should receive enhanced credit for that pre-sentence custody at a 1.5:1 basis, which results in a credit for 58 days.
[24] In my view, the offences arising out of events on the 21st day of June, 2016 are the more serious. Ms. McPhee, while intoxicated, pulled out a knife in a residential area in the middle of the day and proceeded to chase Mr. Waldorf with that knife. For the offence of assault arising from that incident, Ms. McPhee is sentenced to a period of custody of 120 days to be followed by a term of probation for 18 months. For the offence of utter threats to Donald Waldorf, occurring on the same date, I am imposing a period of custody of 60 days concurrent to be followed by a concurrent term of probation. For the offence of possession of a weapon for a purpose dangerous to the public peace, also from the same date, there will be a sentence of 60 days custody to be served concurrently also followed by a concurrent term of probation.
[25] For the incidents arising from the offences of January 9, 2017 the sentence is as follows:
i. 30 days custody consecutive followed by probation for 18 months concurrent for the assault on Daniel Dupuis;
ii. For the charge of breaching her recognizance by consuming alcohol, 1 day concurrent in addition to 15 days pre-sentence custody at a ratio of 1.5:1, which is the equivalent of 22 days;
iii. For the charge of breaching her recognizance by contacting Donald Waldorf, two days custody consecutive in addition to 15 days pre-sentence custody at a ratio of 1.5:1, which is the equivalent of 22 days;
iv. For the charge of breaching her recognizance by being within 100 m of any place she knows Donald Waldorf to live, 1 day custody concurrent in addition to 9 days pre-sentence custody at ratio of 1.5:1, which is the equivalent of 14 days;
v. For the charge of breaching her recognizance by failing to remain in her residence, 30 days custody concurrent; and
vi. For the charge of breaching her probation order by failing to keep the peace and be of good behaviour, 30 days custody concurrent.
[26] The period of probation will be for 18 months. In addition to the statutory terms, Ms. McPhee will be required to comply with the following terms:
Report in person to a probation officer once only today within two working days of your release from custody and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision;
Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer on request;
Live at a place approved of by the probation officer and not change that address without obtaining the consent of the probation officer in advance;
Do not contact or communicate in any way, directly or indirectly, by any physical, electronic or other means, with Daniel Dupuis;
Do not contact or communicate in any way, directly or indirectly, by any physical, electronic or other means, with Donald Waldorf except with the prior written consent of the above named person filed in advance, by that person, with the probation intake or the assigned probation officer. This may be cancelled by the person in any manner at any time;
Do not be within 25 metres of any place where you know any of the persons named above live, work, go to school, frequent or any place you know the persons to be, and in the case of Donald Waldorf, except with the prior written consent of the above named person filed in advance, by that person, with the probation intake or the assigned probation officer. This may be cancelled by the person in any manner at any time;
Do not be in the presence of Donald Waldorf if you are intoxicated by alcohol;
Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for anger management, substance abuse, domestic violence or other counseling as recommended by your probation officer, including residential treatment;
You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed; and
You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
[27] That assault charges and the utter threats are both secondary designated offences and I am satisfied that Ms. McPhee's privacy interests are outweighed by society's interests in obtaining a sample of her DNA, I will require that Ms. McPhee submit a sample of her DNA to the databank.
[28] There will be a weapons prohibition pursuant to section 110 for 10 years.
Released: February 16, 2017
Corrigendum: paragraph 27 corrected April 25, 2017
Signed: Justice D.A. Kinsella
Footnotes
[i] The criminal record exclusion, which would not have been engaged by the facts in this case, was found to be a violation of section 7 of the Charter which could not be saved by section 1 in the case of R. v. Safarzadeh-Markhali 2016 SCC 14, [2016] S.C.J. No. 14.
[ii] The additional cases filed by counsel for Ms. McPhee were: R. v. Dinardo [2015] O.J. No. 1387 (S.C.J.); R. v. Norman [2015] O.J. No. 5799 (S.C.J.); R. v. Gill 2015 ONSC 6184, [2015] O.J. No. 5339 (S.C.J.); R. v. Morris [2016] O.J. No. 106 (C.J.); R. v. P.R. [2016] O.J. No. 652 (C.J.); R. v. Jupiter 2015 ONCJ 376, [2015] O.J. No. 3729 (C.J.); upheld [2016] O.J. No. 3182 (C.A.); R. v. Safarzadeh-Markhali 2016 SCC 14, [2016] S.C.J. No. 14; R. v. Hussain 2015 ONSC 7115, [2015] O.J. No. 6159 (S.C.J.); R. v. Kovich 2016 MBCA 19, [2016] M.J. No. 34 (C.A.)
[iii] R. v. Cook, [1997] S.C.J. No. 22, at para. 21