CITATION: R. v. Wabano, 2012 ONSC 426
COURT FILE NO.: CR-11-0105-AP
DATE: 2012-01-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
David MacKenzie, for the Crown
Appellant
- and -
WANDA WABANO
George Joseph, for the Respondent
Respondent
HEARD: January 16, 2012 at Thunder Bay, Ontario
Mr. Justice F.B. Fitzpatrick
Reasons On Decision
[1] This is an appeal of a suspension of a conditional sentence order (“CSO”) which occurred following admissions by the respondent, Wanda Wabano, that she committed three breaches of her CSO. The CSO was entered into 29 November 2010 and arose from guilty pleas for charges of assault causing bodily harm, contrary to s. 267(b) of the Criminal Code of Canada (“CCC”), assaulting a police officer engaged in the execution of his duty contrary to s. 270 (1)(a) CCC , assault contrary to s. 266 CCC and resisting arrest contrary to s, 129 (a) CCC. The conditional sentence order imposed a period of incarceration of one year plus probation for two years.
[2] At the date of the sentencing hearing in respect of the appeal at issue, Ms. Wabano had 134 days left on her conditional sentence. Ms Wabano admitted she breached the conditional sentence on three separate occasions. The Crown sought to terminate the conditional sentence order and to have Ms. Wabano serve the balance of her sentence in jail.
[3] The sentencing judge upon hearing the admission of the breaches and the submissions of the parties, was satisfied that in the circumstances, the conditional sentence order did not have to be terminated in its entirety. The sentencing judge suspended the conditional sentence and directed that Ms. Wabano serve a period of 30 days custody before her conditional sentence was reinstated. However the sentencing judge ordered that Ms. Wabano would serve the 30 days custody 3 days at a time, every weekend from Friday to Sunday commencing the weekend following the sentencing. As of the date of this earning Ms. Wabano has in fact served the 30 days custody and has commenced her period of probation.
[4] The Crown appeals on the basis that the sentence imposed was an intermittent sentence. The Crown takes the position, as it did before the court at first instance, that the provisions of section 742.69 of the CCC do not give a sentencing judge the jurisdiction to impose an intermittent sentence in respect to the breach of a conditional sentence order.
Law and Analysis
[5] In the case of R. v. Ng [2007] O.J. No.933, the Ontario Court of Appeal stated the following:
2 Where the court is persuaded of a breach of a conditional sentence, the Criminal Code, section 742.69, provides four options. The court can take no action, change the optional conditions, suspend the conditional sentence order and direct the offender to serve a portion of the unexpired sentence in custody, or terminate the conditional sentence order and commit the offender to custody until the expiration of the sentence. A court cannot impose a new or second sentence or lengthen the original sentence.
3 In contrast, a section 732 intermittent sentence is only available where a sentence is imposed, the sentence is one of less than 90 days, a probation order is also imposed, and an offence has been committed. None of those circumstances apply in the matter under appeal.
4 First, under the provisions of the Criminal Code, a breach of a conditional sentence order is not a new offence; second, the judge below was not imposing a sentence, but rather changing the terms of the conditional sentence already imposed; third, the sentence that was breached was not less than 90 days, but rather was one of 559 days; and fourth, probation is not available as a term of a conditional sentence nor as a term on an order dealing with the breach of conditional sentence.
5 Accordingly, in our view, an intermittent sentence is not available on the disposition of a breach of conditional sentence.
[6] In my view, following the decision of the Ontario Court of Appeal in R v. Ng, the learned sentencing judge did not have the jurisdiction to order that Ms. Wabano serve out the 30 days of custody in manner that she did. While the R v. Ng case was brought to her attention during the course of the sentencing, the sentencing judge held that R v. Ng did not apply. The sentencing judge stated that R v. Ng concerned the imposition of an intermittent sentence which the sentencing judge stated she was not ordering in Ms. Wabano’s case. With the greatest of respect, there is no other way to characterize what the court did in this case other than to recognize that, in fact, an intermittent sentence was imposed. Ordering that an offender serve out a 30 day sentence in 10 weekend segments, cannot reasonably be considered as anything other than an intermittent sentence. As set out in R v. Ng, s. 742.69 of the Code does not allow an intermittent sentence to be imposed for a disposition of a breach of conditional sentence.
[7] Accordingly the appeal is allowed (which was not opposed by the counsel for the respondent). As a practical matter, Ms. Wabano has served out the 30 days of custody and has commenced the period of her probation on January 1, 2012 and the Crown is not seeking to vary any other aspect of the sentence imposed. Therefore the sentence will be varied to one of time served plus probation. The terms and duration of probation remain unaffected by this order as do all ancillary orders made by the original sentencing judge.
The Hon. Mr. Justice F.B. Fitzpatrick
Released: January 17, 2012
CITATION: R. v. Wabano, 2012 ONSC 426
COURT FILE NO.: CR-11-0105-AP
DATE: 2012-01-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant
- and –
WANDA WABANO
Respondent
REASONS ON DECISION
Fitzpatrick J.
Released: January 17, 2012
/nf