R. v. Krasniqi, 2024 ONCJ 301

Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2024 06 19 File Numbers: 2811-998-23-28103047; 2811-998-23-28103168; 2811-998-23-28106601

BETWEEN:

HIS MAJESTY THE KING

— AND —

ARBER KRASNIQI

REASONS FOR JUDGMENT ON BREACH OF CONDITIONAL SENTENCE ORDER

Before: Justice Brock Jones

Heard on: June 13, 2024 Written Reasons Released on: June 19, 2024

Counsel: P. Kaur, for the Crown E. Ducharme, for A. Krasniqi

Jones J.:

Introduction

[1] On March 1, 2024, Justice Tetley of the Ontario Court of Justice sentenced Mr. Krasniqi to a one-year conditional sentence order (“CSO”) for the following offences:

• Theft of a motor vehicle;
• Break and Enter into a residence x 2; and
• Possession of Property Obtained by Crime over $5000

[2] On April 23, 2024, Mr. Krasniqi was arrested and provided notice that he had breached a term of the CSO. Justice Tetley has since retired. A breach hearing was conducted before me on June 13, 2024. Following the submissions of the parties, I reserved my decision.

Background Facts

[3] The facts in support of Mr. Krasniqi’s global plea before Justice Tetley were presented at the breach hearing.

[4] Between April 5, 2023, and April 7, 2023, Mr. Krasniqi stole a 2017 Lexus from a residential address in Whitby. The vehicle was valued at $60,000. It was subsequently recovered. Police officers searched it and located Mr. Krasniqi’s fingerprints.

[5] On April 14, 2023, police officers located a stolen white Lexus at a Four Seasons Hotel in Pickering. The vehicle was reported stolen that same day. The front bumper had damage.

[6] On April 19, 2023, Mr. Krasniqi attended an address in Durham and gained access to an unlocked vehicle in a residential driveway. He stole a garage door opener, which he used to open the garage door and enter the residence. He stole a set of keys inside the kitchen.

[7] That same day, he attended another residential address and opened another unlocked vehicle in the driveway. He stole a garage door opener and used it to access the residence. He then stole a set of keys and left the residence.

[8] He attended a third residential address and followed the same pattern of behaviour. This time, he set off a house alarm, which alerted the homeowner to run downstairs. He observed his vehicle, a Mini Cooper, being stolen and driven away by Mr. Krasniqi.

[9] In the early morning of April 20, 2023, Mr. Krasniqi attended a residential address in Ajax in the stolen vehicle. He checked the doors of cars parked in driveways. Once again, he located an unlocked vehicle with a garage door opener inside. He attempted to enter the associated residence but was unsuccessful. He stole some property from the garage, including an electronic scooter valued at $1000.

[10] Later that day, he attended a different address in Ajax in a stolen motor vehicle. He entered the unlocked front door of a residence and stole a set of vehicle keys, which he and an unknown man used to steal the owner’s Mercedes. The police located the vehicle in the Durham region. Mr. Krasniqi was driving at a high rate of speed and crashed into an embankment near an intersection. He was arrested after fleeing the vehicle.

[11] A search incident to arrest by an officer located a vehicle master key in his possession.

Relevant Condition Of The CSO

[12] A condition of the CSO mandated a 10 pm to 6 am curfew. Mr. Krasniqi was not permitted to be outside his residence during those hours for the first six months of the order. [1]

Facts In Support Of The Breach

[13] The Crown filed a supervisor’s report on consent and a signed copy of the investigating police officer’s notes. A breach must only be proven on a balance of probabilities, and it may be done using this form of evidence: see Criminal Code section 742.6(4) and (9); R. v. McIvor, 2008 SCC 11, at para. 5.

[14] The parties agreed on the following facts in support of the breach accordingly.

[15] On April 23, 2024, Mr. Krasniqi was located by Toronto Police Service (“TPS”) officers at 1:45 am outside 747 Gerrard Street East, Toronto. A citizen called the police to report concerns that men in masks might be breaking into a vehicle. Two men had been seen near a blue Lexus and silver Lexus SUV. They were wearing masks and may have had an unknown weapon. It was unclear to the caller if they obtained any property.

[16] Officers attended the scene shortly after that. The two men had stolen the silver Lexus SUV. It is unknown which man was driving. After the officers located the vehicle, the men fled on foot. Mr. Krasniqi began running down a laneway towards a nearby residential area. The officers began a search.

[17] At 2:21 am, a K9 police dog found Mr. Krasniqi attempting to avoid detection in a residential backyard.

[18] Accordingly, I was satisfied on a balance of probabilities that Mr. Krasniqi breached the curfew term of his CSO. He was one of the suspects scouting the two vehicles and was inside the stolen silver Lexus. I cannot determine if he was the driver, but I conclude the two men were working together to steal vehicles and other property. When the police arrived, he attempted to evade capture by fleeing and hiding.

[19] A search incident to arrest revealed that Mr. Krasniqi had a “key programmer.” Thieves use this device to assist with stealing modern cars.

[20] Furthermore, Mr. Krasniqi was subject to a release order issued by the Ontario Court of Justice for various property-based offences arising out of Newmarket at the time of this incident. That release order also contained a curfew condition requiring him to remain in his place of residence overnight.

Commencement Of The Breach Hearing And Time Between Arrest And Disposition

[21] The parties agreed Mr. Krasniqi was notified of the allegation of breaching a term of the CSO following his arrest on April 23, 2024, as required by Criminal Code section 742.6(1)(c)(ii). I decided the breach hearing on June 19, 2024. That is 57 days.

[22] Criminal Code sections 742.6(10), (11), and (12) set out how the CSO is to be treated during the period between the allegation of the breach and the finding of the breach. These provisions were reviewed by the Ontario Court of Appeal in R. v. Menezes, 2023 ONCA 838. The Court concluded that a CSO continues running where an offender is either formally detained following a bail hearing or where the offender has not yet had a bail hearing and remains in custody regardless: see paras. 50-52. In the latter case, the offender is presumptively detained because he faces a reverse onus situation: see Criminal Code section 515(6) and 742.6(2); R. v. Water, 2024 ONSC 2273, at para. 21.

[23] Mr. Krasniqi has not yet had a bail hearing on either the CSO breach or his substantive criminal charges. Accordingly, the 57-day period applies to his conditional sentence.

[24] He served the conditional sentence without incident from March 1, 2024, to April 22, 2023. That is 53 days.

[25] The remainder of his conditional sentence is, therefore, 255 days.

Available Sanctions

[26] At a CSO breach hearing, the court may take action if it is satisfied, on a balance of probabilities, that the offender has, without reasonable excuse, breached a condition.

[27] The powers of the court are set out in Criminal Code section 742.6(9):

(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.

[28] As described by Charron J. in McIvor at para. 12, a CSO breach hearing is somewhat of a hybrid between a sentencing and a pure revocation proceeding. In Water, Justice Goldstein described section 742.6(9) as providing a “sliding scale” of options to a judge to fashion an appropriate order where a breach occurs: see para. 14.

[29] A court must consider the circumstances of the original offence, the circumstances of the breach, and the circumstances of the offender at a breach hearing: R. v. Antaya, 2022 ONCA 819, at para. 16.

[30] In R. v. Proulx, 2000 SCC 5, the Supreme Court of Canada held that a conditional sentence is a sentence of imprisonment. When an offender has breached a term of that sentence, the presumption is that the offender serves the remainder of the sentence in jail: see para. 39. In R. v. J.W., Rosenberg J.A. described the severity of a breach coupled with evidence the offender was committing a new criminal offence at para. 41 (my emphasis added):

It is appropriate that if the offender breaches the order, and particularly if the breach represents the commission of a further offence or endangers the community, all or a portion of the unexpired term of the sentence be served in prison. However, the fact that the offender may end up serving the sentence in prison suggests to me that the court must carefully assess the appropriate length of the sentence. In my view, in setting the length of the sentence the court should contemplate that the offender may ultimately serve the sentence in prison.

[31] The complete picture of the offender and the breach must be thoughtfully considered at the breach hearing. In R. v. Langley, 2005 BCCA 478, at para. 13, the British Columbia Court of Appeal described the correct approach to follow before deciding on a disposition:

... the task of the court at a disposition hearing is to consider the nature of the offence; the nature, circumstances, and timing of the breach; any subsequent criminal conduct and sentences for that conduct; changes in the plan for community supervision; the effect of termination on the appropriateness of the sentence for the original offence; and the offender's previous criminal record, in determining whether the presumption of termination for breach is to be applied.

Personal Circumstances Of The Offender

[32] Mr. Krasniqi is 20 years old. He lives with his mother. He is unemployed. Once released from custody, he intends to return home.

[33] He suffers from depression and other mental health issues. He fled Kosovo in 2006 with his mother when he was very young and claimed refugee status.

Positions Of The Parties

[34] Ms. Kaur submitted that I should order Mr. Krasniqi to serve the balance of the CSO in custody. The breach was flagrant, and there is evidence on a balance of probabilities he was engaged in further criminal offending.

[35] Mr. Ducharme submits viewing this breach in context, some mitigating factors exist. Mr. Krasniqi remains a young man who has experienced hardship in his life. If his client can be released back into the community to serve the balance of the CSO, he proposed I amend Justice Tetley’s order to include GPS monitoring.

[36] He also asked me to consider that when the K9 dog located his client, it bit his ear, causing a severe injury. That may entitle him to some relief on this hearing or even ground a potential Charter application.

Analysis

[37] Mr. Krasniqi violated the CSO imposed by Justice Tetley within less than two months of it being issued. He was caught committing the very type of offence for which he had just been sentenced. When the police attended the scene to investigate the suspicious activity reported by a civilian, he fled and tried to evade capture. The breach was blatant.

[38] Mr. Krasniqi’s moral culpability for this breach is thus very high. Mr. Ducharme argued that if I am satisfied his client was involved in more theft-based offences, the gravity of those offences should be placed in context as his client would likely have been stealing to support his mother. Yet his client’s motivation for committing a criminal offence does not matter. He was ordered to keep the peace and to abide by a curfew. He willingly violated both these terms, and I find the Crown has proven on a balance of probabilities he was intentionally involved in further criminal activity. I note as well that he was caught in an expensive stolen car, not shoplifting from a grocery store, and I do not accept this purported explanation.

[39] It bears repeating that in J.W., Justice Rosenberg was clear that where a breach represents “the commission of a further offence or endangers the community,” all or a portion of the unexpired term of the sentence should be served in prison. I agree with Ms. Kaur, who argued that Mr. Krasniqi’s breach falls at the higher end of the spectrum of severity.

[40] The supervisor’s report indicates that Mr. Krasniqi’s response to community supervision thus far has been poor. Nothing new has been proposed for Mr. Krasniqi’s release if he is permitted to serve the balance of the CSO in the community other than the possibility of including electronic monitoring. As Mr. Kaur correctly noted, electronic monitoring cannot prevent someone from re-offending. Several prior court decisions have held that it only has meaningful value when associated with an independently strong plan of release: see R. v. Johnson, 2021 ONSC 5170, at para. 21; R. v. Hassan, 2020 ONSC 7908, at para. 32; R. v. Douse, 2020 ONSC 2811, at para. 55.

[41] Despite being subject to a CSO and a release order with a surety (his mother) Mr. Krasniqi was caught breaching and likely criminally re-offending. Returning him to the same environment with electronic monitoring is insufficient.

[42] Conditional sentences are jail sentences. The offender is allowed to serve that sentence at home, under the expectation that they will comply with the terms of the order and will not endanger the safety of the community. Offenders who breach their conditional sentences wilfully and flagrantly should not expect anything other than the presumption of reincarceration to apply. If courts tolerate intentional violations of these orders that will undermine respect for the administration of justice and reward unlawful behaviour.

[43] During the hearing, Mr. Ducharme fairly conceded that Justice Tetley's very generous disposition was already responsive to his client’s youth and other circumstances.

[44] A strong message must be sent to the public that CSOs are meaningful and there are significant consequences for offenders who violate the faith and trust placed in them by the original sentencing court: R. v. Yogarajah, 2023 ONCJ 211, at para. 15.

[45] Despite the valiant efforts of Mr. Ducharme, who advocated passionately for his client, Mr. Krasniqi is the author of his misfortune. He was given an opportunity to demonstrate a jail sentence was not required. He has now proven it is.

[46] Accordingly, pursuant to Criminal Code s. 742.6(9)(d), I terminate the conditional sentence order and direct that the offender be committed to custody until the expiration of the original sentence. That is a further 255 days.

[47] Whether Mr. Krasniqi’s physical injury resulting from the dog bite justifies a Charter remedy is best suited to the judge who will hear the trial on the substantive criminal offences. It remains unclear if a judge hearing a CSO breach is a court of competent jurisdiction for Charter purposes. In R. v. Francis, [2003] O.J. No. 6186, Festeryga J. held a court deciding such a breach lacks this jurisdiction. In R. v. Palmer, Durno J. came to the opposite conclusion.

[48] Based on the spartan hearsay evidence presented to me about the circumstances of Mr. Krasniqi’s arrest and the involvement of the police dog, I am not in a position to make any determinations with respect to this matter, even if I have jurisdiction to do so. Mr. Ducharme indicated his client will likely pursue a formal Charter application at his trial regardless.

Released: June 19, 2024 Signed: Justice Brock Jones

[1] By law, every CSO must also contain a term that the offender “keep the peace and be of good behaviour”: see Criminal Code section 742.3(1)(a).