Court File and Parties

KENORA COURT FILE NO.: CR-16-0027-AP DATE: 2016-04-27

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Mr. David Allan, for the Respondent, Crown. Respondent

- and -

ZACHARY LEONARD Mr. R. Sinding, for the Appellant, Zachary Leonard Appellant

HEARD: April 26, 2016, at Thunder Bay, Ontario Madam Justice H.M. Pierce

Reasons on Summary Conviction Appeal

Introduction

[1] At issue is whether consecutive conditional sentences merge when a breach of a conditional sentence occurs, such that the reviewing judge can collapse the remaining conditional sentences and treat them as one sentence.

[2] The appellant’s convictions are for summary conviction offences. Unless otherwise provided by law, the maximum period of incarceration prescribed for summary conviction offences, pursuant to s. 787 of the Criminal Code, is six months. In this case, the appellant pleaded guilty to various offences on which the Crown proceeded summarily.

[3] Mr. Leonard was sentenced to conditional sentences as follows: six months for break and enter; two months for possession of property obtained by crime; six months for break and enter; and six months for possession of property obtained by crime. All sentences were consecutive to one another. The sentence supervisor characterized these sentences as a twenty month conditional sentence order.

[4] While serving the third conditional sentence, the appellant breached the terms of the order by leaving the province without permission. His sentence supervisor brought the matter of this breach before the court. When he appeared at the review hearing, Mr. Leonard had 27 days left to serve on the third conditional sentence and six months or 180 days left to serve on the fourth and final conditional sentence. He had already served 36 days in custody at the time of the review hearing.

[5] The information before the reviewing court was that the appellant, an aboriginal man, had been attending school and engaging in a methadone program to combat his addiction before his arrest for the breach. He was residing with his partner and their five-month old daughter.

[6] At the review hearing, the court concluded that the sentence was a global one of 20 months, intended to be served as one order. The court collapsed the conditional sentence that gave rise to the breach and the remaining conditional sentence order that he had not begun serving and ordered the appellant to serve the remaining time on the two conditional sentences in custody.

Jurisdiction on Appeal

[7] The Superior Court has jurisdiction to hear appeals from summary conviction appeals. Nevertheless, deference is owed to the sentencing judge unless the court commits an error in principle; fails to consider a relevant factor; over-emphasizes a relevant factor; or otherwise imposes a sentence that is demonstrably unfit. See: R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163 at para. 14.

The Position of the Parties

[8] The appellant submits that the sentencing judge exceeded her jurisdiction set out in s. 742.6(9) of the Criminal Code which enumerates dispositions available when reviewing a breach of a conditional order. He submits that the law does not merge sentences except to calculate parole eligibility pursuant to the terms of the Corrections and Conditional Release Act, S.C. 1992, c. 20. The appellant also submits that the effect of conflating the two remaining conditional sentence orders was to impose a sentence that exceeded the maximum allowable sentence for summary conviction offences under the Criminal Code.

[9] The respondent submits that multiple conditional sentences do merge and count as one sentence for the purposes of reviewing a breach of a conditional sentence. It takes the position that the sentence imposed was one sentence of twenty months duration which the sentencing judge was entitled to terminate upon the breach. The respondent relies on R. v. James, [2002] Y.J. No. 20 as being on point. The respondent also submits that there is no distinction to be made between consecutive and concurrent sentences in these circumstances: that the sentences merge such that only the duration of the sentence changes.

Analysis

[10] Is there a difference between a consecutive and a concurrent sentence? In R. v. Veniot, [1985] N.S.J. No. 280 (N.S.C.A.) the court made the distinction between consecutive and concurrent sentences, holding that a sentence cannot be consecutive when it runs at the same time as another sentence. In fact, when sentences are served at the same time, they are said to run concurrently, as two trains run side by side on parallel tracks and get to their destination at the same time.

[11] A consecutive sentence, on the other hand, follows another sentence, so that the two sentences do not overlap. Although a sentencing judge must consider whether the combination of consecutive sentences is unduly harsh (see s. 718.2(c) of the Criminal Code), consecutive sentences are individual sentences served continuously, one after another.

[12] There is no doubt that the reviewing judge was entitled to order Mr. Leonard to serve the remaining portion of the conditional sentence he was serving in custody. However, in considering whether the reviewing judge was entitled to collapse the remaining conditional sentence that the appellant had not yet begun to serve, it is necessary to consider her options for sentence on review of the breach. The Criminal Code addresses the possible dispositions available at s. 742.6(9), which provides:

742.6(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.

[13] The Court of Appeal in R. v. Ng, [2007] O.J. No. 933 confirmed that the only sentencing dispositions available when an offender breaches a conditional sentence order are to: take no action; change the optional conditions; suspend the conditional sentence order and require 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. See: para. 2. Significantly, the court added, “A court cannot impose a new or second sentence or lengthen the original sentence.”

[14] In addition, at para. 4 of Ng, the court held:

… 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…..

[15] In R. v. Proulx, 2000 SCC 5, [2000] S.C.J. No. 6, at para. 27, the court discussed the differences between probation orders and conditional sentences. The Supreme Court observed that the charge of breach of probation constituted a new offence, whereas a breach of a conditional sentence “is not a new offence per se.” The court contrasted the sentence available for breach of probation, (revocation of the probation order and re-sentencing on the original offence where there was a suspended sentence) with the dispositions available for a breach of a conditional sentence, where the maximum punishment available is incarceration for the time remaining on the original sentence.

[16] The respondent relies on R. v. James in support of its argument that the conditional sentences in the case at bar merged to form one global sentence, such that the reviewing judge was able to collapse the last conditional sentence and order Mr. Leonard to serve it in custody along with the remnant of the third sentence.

[17] In James, the offender was sentenced on indictable offences to a series of short consecutive and concurrent conditional sentences totaling eleven months. When he breached while serving a two month conditional sentence, the offender argued that the maximum penalty to which he was subject was the remnant of the two month sentence. The court disagreed and held that Mr. James was subject to one eleven month conditional sentence. The court concluded that it could suspend any part of the remaining eleven months or terminate the sentence in its entirety.

[18] In reaching this conclusion, the court relied on R. v. Fletcher, (1982), 2 C.C.C. (3d) 221 (Ont. C.A.). Fletcher considered whether, pursuant to the provisions of the Parole Act, two consecutive intermittent sentences of 90 days comprised one sentence or two. The Court of Appeal concluded that the two sentences constituted a sentence of 180 days for purposes of the Parole Act, making the intermittent aspect of the sentence was unlawful because it exceeded 90 days.

[19] Fletcher was decided before conditional sentences were legislated by Parliament. It has been overtaken by R. v. Middleton, 2009 SCC 21, [2009] S.C.J. No. 21, which considered whether a conditional sentence merged with an intermittent sentence for purposes of determining whether the intermittent sentence was lawfully imposed. The court held that conditional sentences are not caught by s. 139 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 as they are to be served in the community. The court concluded that the merger of multiple custodial sentences referred to at s. 139 of the Act was intended to facilitate the calculation of parole eligibility dates for sentences served in custody and had no application to conditional sentences: para. 34. Thus, the conditional sentence did not merge.

[20] James was decided in 2002; thus, it predates the decisions in Ng and Middleton. As well, James deals with indictable offences, where the maximum penalty is not six months imprisonment as in the case at bar.

[21] In this case, when the reviewing judge terminated the conditional sentence that was breached and the conditional sentence yet to be served, she imposed a custodial sentence of 207 days in jail. As the maximum penalty available for an offence prosecuted summarily is six months or 180 days, the sentence imposed exceeded the prescribed penalty for summary conviction offences in s. 787 of the Criminal Code. In doing so, the learned judge exceeded her jurisdiction. This was an error in principle.

Conclusion

[22] The appeal is allowed. The respondent agrees with the appellant’s submissions as to credits due. As reasons on this appeal were reserved, I have adjusted the calculations as follows: Mr. Leonard served 27 days which remained on the conditional sentence which he admittedly breached. At the time these reasons are released, he will have served an additional 30 days for which he is entitled to credit based on 1.5:1 days for a total credit of 45 days against the remaining conditional sentence, leaving 135 days left to serve.

[23] The appellant is ordered to be released from jail immediately to commence the remaining conditional sentence.

__________“original signed by” ___ The Hon. Madam Justice H.M. Pierce

Released: April 27, 2016

KENORA COURT FILE NO.: CR-16-0027-AP DATE: 2016-04-27 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent - and - ZACHARY LEONARD Appellant REASONS ON SUMMARY CONVICTION APPEAL Pierce J. Released: April 27, 2016 /cs