Court File and Parties

COURT FILE NO.: CR-16-70000112-00AP DATE: 20170302 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN, Respondent AND: BRENDA ZEGIL, Appellant

BEFORE: MacDonnell, J.

COUNSEL: Nicola J. Langille for the Appellant Darren Hogan for the Respondent

HEARD: March 2, 2017

Endorsement

The appellant is a Canadian citizen. In March, 2016, she illegally entered the United States. Two months later, she was arrested in Pennsylvania for falsely identifying herself to a police officer. She was held in custody in relation to that charge. Her arrest came to the attention of the Toronto Police Service who determined that she was in breach of an order that had been made in 2008 under the Sex Offender Information Registration Act [SOIRA]. There is no evidence as to how the police in Toronto learned of the appellant’s arrest but, as a result of it, informations were sworn charging the appellant with two offences of failing to comply with the SOIRA order. A warrant was taken out for her arrest.

[1] On July 26, 2016, the appellant pleaded guilty in Pennsylvania to the charge of false identification and she received a sentence of time served. Rather than being released, she was then transferred to Delaware where she was wanted on an outstanding warrant for theft. On August 29, 2016, she pleaded guilty to that charge and once again received a sentence of time served. Accordingly, as of August 29, 2016 the appellant’s custody in relation to charges in the United States came to an end.

[2] The appellant was not released from custody at that point, however. According to the agreed statement of facts, she was held in ‘immigration detention’. At some point, she states, she was advised by the authorities in the United States that she was going to be extradited to Canada. It seems clear, however, that no extradition request was ever made. On November 1, 2016, the American authorities brought the appellant across the border at Niagara Falls and turned her over to officers from the SOIRA unit of the Toronto Police Service, who arrested her under the authority of the outstanding warrant.

[3] On November 22, 2016, the appellant appeared before Justice Katarynych of the Ontario Court of Justice in Toronto and pleaded guilty to the two counts of failing to comply with the SOIRA order. Justice Katarynych determined that the appropriate sentence would be a term of imprisonment of six months imprisonment on each count, to be served concurrently, less credit for the 21 days that the appellant had spent in custody since her return to Canada on November 1. The pre-sentence custody was credited, on a 1.5 to 1 basis, as 33 days, which resulted in the imposition of a global sentence of 147 days.

[4] The sole issue on this appeal is whether the appellant should have received credit for the time that she spent in custody in the United States between August 29 and November 1. The answer to that question turns on whether that time, or any part of it, can be said to have been served “as a result of” the offences to which the appellant pleaded guilty before Justice Katarynych on November 22: see s. 719(3) of the Criminal Code.

[5] I accept that the requirement in s. 719(3) that a period of custody be shown to have occurred “as a result of” the offences for which the offender is being sentenced does not necessarily require that the custody flow directly from those offences. If the fact that the offender was charged with the offences made a contribution to the decision to detain the offender on other matters, the custody related to those other matters may, in some circumstances, be characterized as being a result of the offences: see R. v. Wilson, 2008 ONCA 510, at paragraph 50.

[6] What this means in the context of this case is that the 63 days that the appellant spent in custody in the United States between August 29 and November 1 is capable of being taken into account in determining the sentence that the appellant should have received on November 22 if she is able to establish that the Canadian charges played a role in the decision of the American authorities to place her in immigration detention and to keep her there for all or part of that 63 day period.

[7] The appellant cannot meet that onus on the basis of the record before me. In my view, the most compelling inference that arises from the record is that the appellant, who has an extensive criminal history, was placed in immigration detention because she was illegally in the United States and she had, during her relatively short sojourn there, twice been convicted of criminal offences, albeit offences at the low end on the scale of gravity. While there is evidence that at some point the appellant was told by someone in authority that she would be extradited to Canada, there is no evidence that extradition was ever actually sought and it seems clear that extradition proceedings were never in fact commenced.

[8] I accept that the circumstances surrounding the appellant’s return to Canada into the waiting arms of the Toronto Police Service supports an inference that at some point during the appellant’s detention in the U.S. there were communications between the American authorities and the Toronto Police concerning her return to Canada to face the offences with which this appeal is concerned, but that does not lead inexorably to a conclusion that her detention in the United States was for the purpose of turning her over to the Toronto Police. In the end, I simply cannot say whether the existence of the Canadian charges played any role in the decision of the Americans to place the appellant in immigration detention and to keep her there until she was de facto deported to Canada on November 1.

[9] As the appellant has failed to establish that any part of the 63 day period that she spent in immigration detention in the United States was as a result of the charges to which she pleaded guilty before Justice Katarynych, she is not entitled to have that period taken into account in the determination of sentence. Accordingly, the appeal is dismissed.

MacDonnell, J. Date: March 2, 2016