SUPREME COURT OF CANADA

Citation: R. v. McIvor, [2008] 1 S.C.R. 285, 2008 SCC 11

Date: 20080320

Docket: 31642

Between:

Her Majesty The Queen Appellant

v.

Jill Marie McIvor Respondent

‑ and ‑

Attorney General of Nova Scotia and Trial Lawyers Association of British Columbia Interveners

Coram: McLachlin C.J. and Bastarache, Binnie, Fish, Abella, Charron and Rothstein JJ.

Reasons for Judgment: (paras. 1 to 31)

Charron J. (McLachlin C.J. and Bastarache, Binnie, Fish, Abella and Rothstein JJ. concurring)

R. v. McIvor, [2008] 1 S.C.R. 285, 2008 SCC 11

Her Majesty The Queen Appellant

v.

Jill Marie McIvor Respondent

and

Attorney General of Nova Scotia and Trial Lawyers Association of British Columbia Interveners

Indexed as: R. v. McIvor

Neutral citation: 2008 SCC 11.

File No.: 31642.

2007: November 8; 2008: March 20.

Present: McLachlin C.J. and Bastarache, Binnie, Fish, Abella, Charron and Rothstein JJ.

on appeal from the court of appeal for british columbia

Criminal law — Sentencing — Conditional sentence — Breach of condition — Evidentiary requirements for establishing breach of conditional sentence order — When must supervisor’s report include signed statements of witnesses to prove allegation of breach of condition — Criminal Code, R.S.C. 1985, c. C‑46, s. 742.6(4).

Pursuant to s. 742.6 of the Criminal Code, the Crown applied for a hearing of allegations that M breached a conditional sentence and for an order to have M serve the unexpired sentence in custody. M’s conditional sentence required in part that she: (1) not be in the direct company of P without permission from her sentence supervisor; (2) obey a curfew; (3) keep the peace and be of good behaviour; and, (4) not possess identification, credit cards, cheques or documents in any name other than her own. The Crown alleged that police officers investigating a motor vehicle collision discovered that M was a passenger in a vehicle driven by P, in breach of her curfew, and in possession of stolen property including identification and other documents in the names of third parties. At the breach hearing, the Crown submitted a report prepared and signed by M’s sentencing supervisor, as required by s. 742.6(4), however the report did not include signed witness statements. Instead, an unsigned police report was attached to the supervisor’s report, summarizing information provided by witnesses to the collision. The police report was prepared by an officer who did not witness any of the material facts upon which the alleged breach was based. At the hearing, M challenged the admissibility of the supervisor’s report on the ground that it failed to include signed statements from witnesses who had personal knowledge of the material facts. The hearing judge rejected the argument, found M in breach of her conditional sentence and committed her into custody. A majority of the Court of Appeal set aside the decision and restored the conditional sentence.

Held: The appeal should be dismissed.

The Crown may prove a breach of a conditional sentence by adducing, in documentary form, the evidence it would otherwise be required to present by calling witnesses to give viva voce evidence in accordance with the ordinary rules of evidence. The contents of the supervisor’s report or of any witness statement are not confined to firsthand knowledge and may contain any matter in respect of which the author of the report or of the statement can testify viva voce. This evidentiary shortcut is subject to any successful application for cross‑examination of the supervisor or a witness where the offender satisfies the court that the cross‑examination can serve a useful purpose. [5]

Parliament sought to achieve a proper balance between the need for an efficient process and the requirements of procedural fairness. By allowing the prosecution to present all of its evidence in documentary form, the hearing may proceed in a simpler and more expedited fashion. The requirement that signed statements of witnesses be included in the supervisor’s report assures a minimum level of reliability of the evidence. The court’s power to require the attendance of the supervisor or of any witness for cross‑examination further ensures the fairness of the proceedings. [27]

In some cases the supervisor will be in a position to provide all of the information necessary to prove the allegation of breach. In the present case, however, neither M’s supervisor nor the author of the police report could have provided admissible viva voce testimony about any of the facts alleged to constitute the breach. Given the nature of the allegations, it became appropriate and necessary to include signed statements of witnesses from those persons who could provide information about the material facts. The hearing judge had no admissible evidence before him upon which to base his finding that M had breached her conditional sentence order. He therefore erred in terminating the conditional sentence order. [25] [31]

Cases Cited

Referred to: R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5.

Statutes and Regulations Cited

Canada Evidence Act, R.S.C. 1985, c. C‑5, s. 30.

Criminal Code, R.S.C. 1985, c. C‑46, ss. 515(6), 724, 732.2(5)(d), 733.1, 742.6.

APPEAL from a judgment of the British Columbia Court of Appeal (Donald, Hall and Smith JJ.A.) (2006), 228 B.C.A.C. 300, 376 W.A.C. 300, 210 C.C.C. (3d) 161, [2006] B.C.J. No. 1608 (QL), 2006 CarswellBC 1748, 2006 BCCA 343, setting aside an order of Higinbotham J. Appeal dismissed.

M. Joyce DeWitt‑Van Oosten, for the appellant.

Donald J. McKay and Michael D. Smith, for the respondent.

Daniel A. MacRury, Q.C., and Kenneth C. Haley, Q.C., for the intervener the Attorney General of Nova Scotia.

Howard Rubin, Q.C., for the intervener the Trial Lawyers Association of British Columbia.

The judgment of the Court was delivered by

Charron J. —

1. Overview

[1] At issue in this appeal are the evidentiary requirements for establishing a breach of a conditional sentence order under s. 742.6 of the Criminal Code, R.S.C. 1985, c. C‑46. The particular question that arises is the following: when “must” the supervisor’s report “include . . . signed statements of witnesses” to prove the allegation of a breach of condition? In the words of s. 742.6(4), the legislative response to this question is “where appropriate” or “le cas échéant”. The parties are divided on the meaning of this provision, as are the courts below.

[2] Of particular relevance are the following provisions:

742.6 . . .

(4) An allegation of a breach of condition must be supported by a written report of the supervisor, which report must include, where appropriate, signed statements of witnesses.

(5) The report is admissible in evidence if the party intending to produce it has, before the hearing, given the offender reasonable notice and a copy of the report.

(6) Service of any report referred to in subsection (4) may be proved by oral evidence given under oath by, or by the affidavit or solemn declaration of, the person claiming to have served it.

(8) The offender may, with leave of the court, require the attendance, for cross‑examination, of the supervisor or of any witness whose signed statement is included in the report.

(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.

[3] It is Ms. McIvor’s position that it is mandatory for the supervisor to “include” in the report “signed statements of witnesses” from those persons who have firsthand knowledge of the material facts whenever the supervisor cannot himself or herself provide that information. It is submitted that this interpretation accords with the mandatory language of s. 742.6(4) and the offender’s right to apply under s. 742.6(8) for leave to require the attendance of “the supervisor or of any witness whose signed statement is included in the report” for cross-examination. In short, subject to leave being granted requiring the attendance of any of the witnesses, the legislative scheme allows the Crown to prove the breach by adducing in documentary form the evidence it would otherwise have been required to present in the usual way by viva voce evidence. It is submitted that this interpretation not only accords with the wording of the statute, it also reflects the correct balance between expediency and fairness in the conditional sentence order breach process (respondent’s factum, at para. 124). Ms. McIvor’s argument was rejected by the hearing judge but found favour with Smith J.A., Donald J.A. concurring, on appeal to the British Columbia Court of Appeal ((2006), 228 B.C.A.C. 300, 2006 BCCA 343).

[4] The Crown, on the other hand, contends that the supervisor’s written report, however formulated, is admissible in evidence as long as the Crown complies with the notice requirements under s. 742.6(5). The hearing judge then determines, depending on the nature or complexity of the allegation, whether it would have been “appropriate” for the supervisor to include “signed statements of witnesses” so as to relay better specifics of the circumstances surrounding the breach, fill in gaps, or satisfy the court of the reliability of the information. When the judge is of the view that it would have been appropriate to include such statements, the Crown bears the risk of the judge dismissing the allegation for failure to provide sufficient evidence to establish the breach on a balance of probabilities under s. 742.6(9) (appellant’s factum, at para. 111). In other words, according to the Crown, the contents of the supervisor’s report are left entirely discretionary under the legislative scheme, their sufficiency being simply a matter of weight to be determined by the court on a case-by-case basis. It is argued that this approach accords with the evidentiary standard on sentencing hearings that allows for the admission of the greatest possible range of information available. It is further submitted that this interpretation is consistent with Parliament’s intent that proceedings under s. 742.6 be expeditious and simple. Hall J.A., writing in dissent, accepted the Crown’s argument and would have dismissed Ms. McIvor’s appeal. The Crown appeals to this Court from the majority finding.

[5] For the reasons that follow, I would dismiss the appeal. Simply put, I conclude that the legislative scheme allows the Crown to prove the breach by adducing, in documentary form, the evidence it would otherwise have been required to present, in accordance with the ordinary rules of evidence, by calling witnesses to give viva voce evidence about the alleged breach. In turn, the supervisor’s report and the statements of witnesses (if any) may contain any matter in respect of which the author of the report or of the statement could testify to if he or she were called upon to give viva voce testimony. This evidentiary shortcut, of course, is subject to any successful application under s. 742.6(8) requiring the attendance for cross-examination of the supervisor or of any of the witnesses. In accordance with Parliament’s intent to keep the process simple and expeditious, however, the supervisor and the witnesses should not routinely be required to attend the hearing. For leave to be granted, the offender must satisfy the hearing judge that the attendance of the supervisor or of any of the witnesses for cross-examination could serve a useful purpose.

2. The Facts and Proceedings Below

[6] On September 20, 2005, Jill Marie McIvor was sentenced to a 12-month conditional sentence for a number of property-related offences. Among other conditions, the conditional sentence order required that Ms. McIvor: (1) not be in the direct company of her co‑accused without permission from her sentence supervisor; (2) unless authorized in writing by her supervisor, or required to be outside her residence for a bona fide medical emergency, obey a curfew between the hours of 9:00 p.m. and 7:00 a.m.; (3) keep the peace and be of good behaviour; and (4) not possess identification, credit cards, cheques or documents in any name other than her own. It is alleged that Ms. McIvor breached these four conditions.

[7] The facts in support of the alleged breaches all arise out of a motor vehicle collision which occurred during the late evening hours of September 25, 2005. It is alleged that the circumstances surrounding the collision reveal that: (1) Ms. McIvor was a passenger in a vehicle driven by her co-accused, Dean Pelley; (2) she was outside of her residence past her curfew; (3) she was in possession of stolen property located in the vehicle; and (4) some of the stolen property included identification and other documents in the names of third parties.

[8] At the breach hearing, the Crown relied exclusively on the supervisor’s report, adduced in accordance with the notice and service requirements under s. 742.6(5) and (6). The report, signed by the supervisor, set out the relevant conditions and stated that Jill Marie McIvor had not been given permission to be out beyond her curfew or to be in contact with her co-accused. Attached to the supervisor’s report was a comprehensive police report prepared by the investigating officer, summarizing the information obtained from several witnesses concerning the circumstances surrounding the motor vehicle collision. The witnesses named in the report included Ms. McIvor’s co‑accused, some eyewitnesses to the collision, police officers attending at the scene, and the persons who identified as their property the items found in the car occupied by Ms. McIvor and her co‑accused. No signed statements from any of these witnesses was included in the police officer’s report. The investigating officer who prepared the report was not himself a witness to any of the material facts and his report was not signed. It simply concluded with the typewritten words: “Respectfully Submitted. Cst. Paul DOUGLAS #160 Traffic Safety Unit”.

[9] On a preliminary motion, Ms. McIvor’s counsel sought a dismissal of the breach allegations on the ground that the supervisor had failed to include “signed statements of witnesses” with his report, contrary to s. 742.6(4). The hearing judge rejected this argument, holding that the comprehensive police report was a formal document created by investigators for the use of prosecutors and that it would not be “appropriate” for the court to “insist on a technicality of the signature given the overall scheme of the section dealing with conditional sentence breaches and the nature of the document itself”. He proceeded with the hearing, found Ms. McIvor in breach, terminated the conditional sentence order and committed her to custody until the expiration of her sentence.

[10] The hearing judge’s decision was overturned by a majority of the British Columbia Court of Appeal. Smith J.A. held that the hearing judge seemingly misapprehended Ms. McIvor’s argument by focussing on whether the report to Crown counsel was signed, rather than on its contents. Smith J.A. found it unnecessary to decide whether the report was “signed” by Constable Douglas because, in his view, the comprehensive police report could not be a witness statement within the meaning of s. 742.6(4) because a “witness” is a person present at an event and able to give information about it. “Statements of witnesses” must then refer to written accounts of the facts alleged to constitute a breach prepared by persons having knowledge of those facts. That s. 742.6(8) allows the offender, with leave, to cross-examine the supervisor and any witness whose statement is included, lent further support to this interpretation. The supervisor’s report lacked signed statements of witnesses, and could therefore not be admitted in evidence. Accordingly, Smith J.A. set aside the order of the hearing judge and restored the conditional sentence.

[11] Hall J.A. dissented, holding that Constable Douglas’s report was functionally equivalent to a signed witness statement. He noted that the comprehensive police report was very detailed, seemed reliable on its face, and provided sufficient information to allow Ms. McIvor to challenge its contents. In his view, Ms. McIvor could apply to have any witness attend before the court for cross‑examination and therefore there was no possible unfairness in the hearing proceedings. Hall J.A. found that the majority’s approach elevated form over substance, and did not accord with Parliament’s intent to create an expeditious breach process.

3. Analysis

[12] A breach proceeding under s. 742.6 is not simply a hearing to obtain information about the offender’s background in order to fashion a fit sentence. If any analogy may be usefully drawn, conditional sentence breach proceedings are more akin to a prosecution for breach of probation, coupled with a revocation hearing to lift the suspension of a sentence. Therefore, the Crown’s submission that the Court of Appeal’s majority ruling creates an illogical dichotomy by setting a higher evidentiary standard than that required at the sentence hearing is misguided. Moreover, to the extent that the breach hearing may be regarded as a continuation of the sentencing proceeding, the proof of a breach is analogous to the proof of aggravating facts. When an aggravated fact is disputed at a sentence hearing, s. 724 of the Criminal Code provides that the Crown must establish its existence by proof beyond a reasonable doubt and the offender has the right to cross-examine any witness called for that purpose. Therefore, any analogy to the sentence hearing does not lend support to the Crown’s position.

[13] In interpreting the provisions in question in this appeal, conditional sentence breach proceedings may usefully be compared to, and from an evidentiary standpoint contrasted with, a prosecution for breach of probation and the consequent revocation hearing to lift the suspension of a sentence. Indeed, the comparison between a conditional sentence and a suspended sentence with probation was the focal point of the Court’s discussion about the nature of the conditional sentence in R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5. Writing for the Court, Lamer C.J. explained at length how, despite the many similarities between the conditional sentence regime and probationary measures, there are strong indications that Parliament intended the conditional sentence to be more punitive than the suspended sentence with probation. He concluded that the new provisions should be interpreted accordingly, stressing that “conditional sentences should generally include punitive conditions that are restrictive of the offender’s liberty” (para. 36), and that “[m]ore importantly, where 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” (para. 39).

[14] In the course of his analysis, Lamer C.J. described some of the distinctions between the breach proceedings under each regime. He noted that, at first blush, it appeared that the consequences for breaching probation appeared more severe than for breaching a conditional sentence order:

Pursuant to s. 733.1(1), breach of probation constitutes a new offence, punishable by up to two years imprisonment, while a breach of condition does not constitute a new offence per se. The maximum penalties are also different. In the case of a breach of probation, the offender is subject to the revocation of the probation order and can be sentenced for the original offence (in cases where a suspended sentence was rendered): see s. 732.2(5). By contrast, in the case of breaches of conditional sentences, the maximum punishment available is incarceration for the time remaining of the original sentence (s. 742.6(9)). [para. 27]

[15] However, despite the potentially more severe consequences for breaching probation, Lamer C.J. noted how the procedure set out in s. 742.6 demonstrated Parliament’s intention that committal to prison be a real threat to ensure better compliance with the conditional sentence order. He explained it as follows:

The conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders. The offenders who meet the criteria of s. 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. These offenders’ liberty will be constrained by conditions to be attached to the sentence, as set out in s. 742.3 of the Code. In case of breach of conditions, the offender will be brought back before a judge, pursuant to s. 742.6. If an offender cannot provide a reasonable excuse for breaching the conditions of his or her sentence, the judge may order him or her to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence. [Emphasis added; para. 21.]

[16] Lamer C.J. did not elaborate on how the relatively simple and expedited nature of the breach proceeding can provide a “real threat of incarceration” by facilitating the prosecution of non-compliant offenders, as the particularities of the hearing under s. 742.6 were not in issue in Proulx. This appeal brings these particularities into focus.

[17] As noted in the excerpt above, failure to comply with the condition of a probation order constitutes a distinct criminal offence under s. 733.1 of the Criminal Code, while failure to comply with a conditional sentence order does not. One should not on that basis jump to the conclusion that the initiation of a s. 742.6 breach proceeding is of less consequence to the offender. In that respect, it is noteworthy that the provisions of Parts XVI and XVIII of the Criminal Code with respect to compelling the appearance of an accused before a justice are incorporated by reference under s. 742.6(1)(a). Likewise, for the purpose of arrest powers, the breach of a conditional sentence order is treated as an indictable offence: s. 742.6(1)(b) and (f). In so far as interim release is concerned, the reverse onus provisions of s. 515(6) apply, requiring that the offender be kept in custody until dealt with according to law unless he or she shows cause why detention is not required: s. 742.6(2). Questions concerning the initiation of process or interim release in respect of allegations of breach of a conditional sentence order are not in issue in this appeal and I do not propose to deal with the scope or particular application of these provisions. I find it noteworthy, however, that from a procedural standpoint the commencement of a s. 742.6 breach proceeding, in many respects, is assimilated to the laying of a new charge against the offender. Indeed, from the offender’s viewpoint, the effect is much the same.

[18] Parliament, however, intended that allegations of non-compliance be dealt in a simpler and more expedited fashion under the conditional sentence regime. First, the hearing must be commenced within 30 days, or as soon thereafter as is practicable, after the offender’s arrest or the compelling of his appearance: s. 742.6(3). Second, the prosecution of an allegation of a breach of condition is facilitated in four significant respects: (1) by allowing for documentary proof of the alleged breach of condition: s. 742.6(4); (2) by imposing a leave requirement on the right to cross-examination: s. 742.6(8); (3) by placing on the offender the persuasive burden of proving any reasonable excuse for non-compliance: s. 742.6(9); and (4) by lowering the ultimate standard of proof of a breach to a balance of probabilities: s. 742.6(9).

[19] In order to appreciate how these provisions facilitate the process, it is helpful to consider what evidentiary rules would apply if Parliament had simply been silent on these matters. Again here, a comparison to the prosecution of a non-compliant offender for breach of probation is instructive. Since breach of probation constitutes a distinct offence, the laying and prosecution of the charge proceed in the usual way. The hearing judge has the authority, upon finding the offender guilty of breach of probation (or of any other offence), to revoke the suspended sentence and impose any sentence that could have been imposed if the passing of sentence had not been suspended (s. 732.2(5)(d)). However, the Criminal Code is silent with respect to applicable evidentiary rules. This is not unusual. In the absence of any applicable statutory provision, hearings are simply conducted in accordance with the common law rules of evidence applicable in all criminal courts. In order to prove an alleged breach of probation, the Crown must adduce admissible evidence and prove the allegation beyond a reasonable doubt. Evidence adduced by the Crown must comply with common law evidentiary rules, including the hearsay exclusionary rule. As in other proceedings, evidence is usually presented in the form of viva voce testimony, and the accused has the right to cross-examine the witnesses. It is against this basic evidentiary backdrop that the provisions in question in this appeal must be considered, because it is these rules that would apply had Parliament not provided otherwise in respect of an allegation of a breach of conditional sentence order.

[20] The sole issue here concerns the nature of the documentary proof required under s. 742.6(4). I repeat the provision here for convenience:

(4) An allegation of a breach of condition must be supported by a written report of the supervisor, which report must include, where appropriate, signed statements of witnesses.

(4) Le prétendu manquement est établi sur le fondement du rapport écrit de l’agent de surveillance, où figurent, le cas échéant, les déclarations signées des témoins.

[21] As stated earlier, the Crown contends that the supervisor’s report, whatever its contents, is admissible so long as the notice and service requirements set out in s. 742.6(5) have been complied with. According to the Crown, whether or not to include signed statements of witnesses is left entirely to the discretion of the supervisor or the prosecutor. I do not accept this argument. It ignores the mandatory language of s. 742.6(4). Parliament’s intent that the inclusion of signed statements of witnesses be mandatory in certain circumstances is manifest by its choice of the word “must” in the English version and the expression “le cas échéant” in the French version. The Crown’s argument also fails to consider the usual evidentiary rules against which the statutory provision was enacted. In other words, in interpreting the meaning of s. 742.6(4), one must ask to what extent did Parliament intend to depart from the ordinary rules of evidence that would otherwise apply?

[22] If the Crown is correct in saying that the supervisor’s report is admissible, however formulated, the supervisor alone could in all cases provide admissible evidence regarding the breach. This would be so regardless of whether he or she had any direct knowledge of the material facts alleged to constitute the breach. If Parliament had so intended, there would have been no need to make reference to signed statements of witnesses at all, let alone provide that they “must” be included “where appropriate”. The approach advocated by the Crown would also constitute a significant departure from the rules of evidence that ordinarily circumscribe the scope of a witness’s admissible testimony. In the context of this case for example, this would mean that the supervisor himself, from the viewpoint of his desk, would be permitted to provide evidence that Ms. McIvor was out beyond her curfew, in the company of her co-accused Dean Pelley, and in possession of stolen goods, including documents in a name other than her own. I find it of interest to note that even proof of service of the report requires a more demanding standard than that proposed by the Crown for proof of the breach itself. Under s. 742.6(6), service of the report may be proven by oral evidence under oath, or an affidavit or solemn declaration, by “the person claiming to have served it”.

[23] In my view, the meaning of s. 742.6(4) is plain when considered against the default evidentiary rules I have earlier described. As I stated in my earlier remarks, subject to leave being granted requiring the attendance of any of the witnesses, the legislative scheme simply allows the Crown to prove the breach by adducing in documentary form the evidence it would otherwise have been required to present in the usual way by viva voce evidence. As such, it is an enabling provision. Of course, documentary evidence admissible under some other statutory authority, such as s. 30 of the Canada Evidence Act, R.S.C. 1985, c. C-5, continues to be admissible. (I note in this respect that Constable Douglas’s report would not be admissible under this latter provision because s. 30(10)(a)(i) expressly excepts “a record made in the course of an investigation” from its application.)

[24] In essence, I am in substantial agreement with the analysis of the majority in the Court of Appeal below. However, I would not circumscribe the contents of the documents that may be introduced under s. 742.6(4) in terms of “firsthand knowledge” as the majority have ruled (para. 38). Under the usual common law evidentiary rules, a witness’s testimony is not necessarily restricted to personal observations. The contents of the supervisor’s report and of any witness statement should likewise be defined in terms of what the author of the report or the statement could testify to if called to give viva voce testimony. Indeed, the supervisor or witness may well end up before the court if leave is granted under s. 742.6(8) requiring their attendance for cross-examination. The contents of the documents adduced under s. 742.6(4) and (5) should mirror what their testimony would be.

[25] In some cases, the supervisor will be in a position to provide all of the information necessary to prove the allegation of breach. For example, this would be the case if the alleged breach consisted of a failure to report to the supervisor, or a refusal to attend for counselling as directed. In the present case, the supervisor could attest to the fact that he had “read the CSO to Jill McIvor, explained the conditions and the consequences of failure to comply by those conditions”. He could also attest, as stated in his report, that he had never given “Ms. McIvor written permission to be out beyond her curfew or to be in the company of Dean Pelley”. However, the supervisor could not have provided admissible testimony about any of the facts alleged to constitute the breaches of the conditional sentence order if called upon to testify. Constable Paul Douglas was in no better position. To the extent that the supervisor’s report exceeded those boundaries, it was inadmissible as proof of breach. Given the nature of the allegations, it became “appropriate” and necessary to include “signed statements of witnesses” from those persons who could provide information about the material facts.

[26] I stated earlier that the contents of the supervisor’s report or of any witness statement need not be confined to firsthand knowledge where the information would be otherwise admissible if offered viva voce. For example, the report may include a summary of evidence expected to be non-contentious, even if the supervisor could not personally give that evidence. Since a copy of the report must be served on the offender, any question concerning the admissibility of this evidence can be resolved between the parties by agreement. If no agreement can be reached, a signed witness statement may be sought where appropriate. In addition, in the context of this expedited proceeding, the supervisor may well include in his report relevant information about the offender to assist the court in determining an appropriate sanction in the event that the court finds that the offender breached a condition of the conditional sentence order. Similarly, the signed report of an investigating police officer may be included even if it is not grounded in the personal knowledge of the officer where it provides relevant context concerning the material facts. For example, the police report may well disclose some circumstance that would call into question the reliability of a witness’s statement. The evidence would be admissible, in the same way as the police officer’s testimony would be, for that limited purpose.

[27] In my view, Parliament sought to achieve a proper balance between the need for an efficient process and the requirements of procedural fairness. By allowing the prosecution to present all of its evidence in documentary form, it is not necessary to routinely marshall witnesses before the court in every case. The hearing may proceed in a simpler and more expedited fashion. On the other hand, the requirement that signed statements of witnesses be included assures a minimum level of reliability. Personal authentication of the material facts alleged to constitute a breach is important. It is one thing to have the actual witnesses attesting to the material facts by apposing their signature, and quite another for a police officer to repeat information received from witnesses, or a supervisor to relate it third hand. This brings me to say a few words about the leave requirement under s. 742.6(8). I reproduce it here for convenience:

(8) The offender may, with leave of the court, require the attendance, for cross‑examination, of the supervisor or of any witness whose signed statement is included in the report.

[28] I note firstly that the leave provision expressly targets witnesses “whose signed statement is included in the report”. As noted by the majority in the Court of Appeal, this lends further support to the argument that the documentary evidence on a breach hearing must be provided by persons who would be in a position to provide the same information by way of admissible viva voce evidence. On this point, the dissenting judge was wrong in asserting that there was no unfairness because Ms. McIvor could seek leave to cross-examine any of the witnesses named in the police report without regard to the wording of s. 742.6(8).

[29] While the judge’s discretion under s. 742.6(8) is not in issue in this appeal, I find it important to note that this provision must not be interpreted in a manner that defeats the legislative scheme put in place by Parliament. If, for example, leave were to be granted routinely upon request, thereby requiring the attendance of the supervisor and witnesses in all cases, Parliament’s intent to streamline the conditional sentence breach process would be defeated. The hearing judge performs an important gate-keeping function, limiting cross-examination to those situations in which it is appropriate in the interests of fairness. The offender bears the burden of showing that cross-examination may serve a useful purpose.

[30] In light of my conclusion on the requirements of s. 742.6(4), it is not necessary to decide whether the typewritten name of the police officer constitutes a signature within the meaning of that provision. I would simply note that, whenever the issue arises, the question should be determined contextually, having particular regard to the importance of personal authentication and, in a flexible manner, allowing for ever‑changing technological tools.

4. Disposition

[31] I conclude that the hearing judge had no admissible evidence before him upon which to base his finding that Ms. McIvor had breached her conditional sentence order. He therefore erred in terminating the conditional sentence order. Accordingly, I would dismiss the appeal, but as Ms. McIvor has now fully served her sentence, I would make no further order.

Appeal dismissed.

Solicitor for the appellant: Attorney General of British Columbia, Victoria.

Solicitor for the respondent: Donald J. McKay Law Corporation, Victoria.

Solicitor for the intervener the Attorney General of Nova Scotia: Public Prosecution Service of Nova Scotia, Halifax.

Solicitor for the intervener the Trial Lawyers Association of British Columbia: Rubin Howard Law Corporation, North Vancouver.