COURT FILE NO.: CR-17-97-MO
DATE: 2018-03-06
ONTARIO
SUPERIOR COURT OF JUSTICE
(Northwest Region)
B E T W E E N:
THE COMMISSIONER OF THE ONTARIO PROVINCIAL POLICE
Applicant
C. Diana, for the Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
A. Mason, for the Respondent Her Majesty the Queen
- and -
CHRISTOPHER BLACK
Respondent
- and –
NISHNAWBE-ASKI LEGAL SERVICES CORPORATION
Intervener
J. Bilton, for the Respondent Christopher Black
S. McDunnough, for the Intervener Nishnawbe-Aski Legal Services Corporation
HEARD: December 1, 2017 in Kenora, Ontario
FREGEAU J.
REASONS ON APPLICATION
[1] The Commissioner of the Ontario Provincial Police (the “Applicant”), brings an application for certiorari seeking to quash a warrant of committal issued by the Ontario Court of Justice in Pikangikum First Nation on October 25, 2017.
[2] The issue is whether the court below exceeded its jurisdiction or erred in law on the face of the record by ordering that the Respondent Christopher Black (“Mr. Black”) serve an intermittent sentence at the Ontario Provincial Police Detachment in Pikangikum (the “Detachment”).
[3] The Respondent Her Majesty the Queen has also filed a Notice of Appeal in regard to the October 25, 2017 sentencing decision.
Background Facts
Conviction, Sentencing and Warrant of Committal
[4] The facts are not in dispute. Mr. Black was charged with two counts of operation of a motor vehicle with a blood alcohol level over 80 milligrams, contrary to s. 253(1)(b) of the Criminal Code. The charges arise out of incidents which took place in Pikangikum, Ontario on February 3, 2016 and May 19, 2016, when Mr. Black provided breath samples of 328/322 and 242/227 milligrams of alcohol per 100 litres of blood.
[5] Mr. Black was previously convicted under this section of the Criminal Code on August 27, 2014.
[6] Mr. Black is an indigenous person resident in Pikangikum First Nation.
[7] On October 25, 2017, Mr. Black pleaded guilty to the two counts of operation of a motor vehicle with a blood alcohol level over 80 milligrams. The Honourable Justice Edward of the Ontario Court of Justice, presiding in Pikangikum, sentenced Mr. Black to 30 day terms of imprisonment on each count consecutively, on the following terms set out in the warrant of committal:
To be served intermittently. You must present yourself to Pikangikum OPP detachment every Friday at 6:00 p.m. until Sunday at 6:00 p.m.
If the Pikangikum OPP are not in a position to house you, they are free to release you and you are to return the following weekend.
You must show up on time and showing no effects of alcohol or other intoxicants. [Emphasis added].
[8] The wording used by the sentencing judge in his oral judgment differs from the warrant of committal in the following way:
If the Pikangikum police are not in a position to house you or do not have the means to get you to a place where you can serve your intermittent sentence they are free to release you to return the following Friday…[Transcript of proceedings, p.42, Respondent’s Applicant Record, Tab 3].[Emphasis added].
[9] The warrant of committal issued on October 25, 2017 directs peace officers in Ontario in the following language:
YOU ARE HEREBY COMMANDED in Her Majesty’s name, to arrest the offender if it is necessary to do so in order to take the offender into custody, and to take and convey him/her safely to the said prison and deliver him/her to the keeper thereof, who is hereby commanded to receive the offender into custody and to imprison him/her there for the terms of his/her sentence, and this is a sufficient warrant for so doing.
Policing in Pikangikum
[10] The community of Pikangikum is located 120 kilometres northwest of Red Lake, Ontario. It is accessible only by air or boat during the spring, summer and fall. During the winter, when conditions are safe, motor vehicles can access the community by winter ice road.
[11] Policing services in Pikangikum are provided primarily by officers of the Pikangikum Police Service (“PPS”). Ontario Provincial Police (“OPP”) officers are also in the community and provide support to PPS officers. No more than four OPP officers are on duty at any given time in Pikangikum.
[12] The Detachment is used by staff and members of the PPS as well as the OPP. It is unique in that it not only operates as a police detachment but also as an employee residence.
[13] The main floor of the building is home to the office, where the cell block is located. In total there are nine cells ranging in size from 12’ x 8’ to 9’ x 8’. The majority of the cells are used daily. Double and triple occupation is the norm. The cell arrangement includes concrete benches for sleeping/seating and a combination of a stainless steel toilet and sink for access to sanitation and water. At any given time, some of the prisoners may be in crisis and require significant staff attention and resources.
[14] The Detachment is a temporary lock-up facility meant for temporary and short-term custody only. It does not house sentenced inmates and is not designed, resourced or staffed to do so.
[15] The Detachment does not stock or supply personal hygiene products (i.e. toothbrushes, toothpaste, soap, towels etc.). It does not have shower facilities for prisoners. Food supplied to prisoners is simple and sustainable for the short term. Prisoners are served frozen microwavable meals and other frozen foods. Perishable food items like fruits and vegetables are not practical due to logistics.
[16] Prisoners do not have direct access to healthcare or healthcare professionals within the Detachment. For prisoners to access healthcare, on-duty members must transport prisoners to the nursing station. The nursing station has limited capability to deliver appropriate care. Residents are often required to fly out of the community to seek further treatment. Mental health resources are limited within the community and the Detachment is not equipped to facilitate mental health programming within its cell area.
[17] As the Detachment is a temporary lock-up facility, civilian guards follow specific policies on prisoner care. Prisoners do not leave their cells until they are either released or remanded in custody and transported out of the community to a correctional institution.
Positions of the Parties
Applicant
[18] The Applicant submits that certiorari is an available remedy in this case, because as a third party to this proceeding, the Applicant’s only available avenue to challenge the warrant of committal is by way of an application for certiorari.
[19] The Applicant submits that the Ministry of Correctional Services Act, R.S.O. 1990, c. M-22 (the “MCS Act”) is the law applicable in this case, and that it requires terms of imprisonment be served only at correctional institutions as defined and designated by Ontario. It is not in dispute that the Detachment in Pikangikum is not a correctional institution. The Applicant notes that, according to the MCS Act, any designation of a particular correctional institution in a warrant of committal is of no force or effect.
[20] The Applicant also argues that, pursuant to s. 732 of the Criminal Code, intermittent sentences can only be imposed where there is appropriate accommodation for that purpose. The Applicant contends that it is obvious that the Detachment in Pikangikum is not appropriate accommodation for an inmate to serve an intermittent sentence.
[21] The Applicant submits that, by issuing a warrant of committal requiring Mr. Black to serve his intermittent sentence at the Detachment in Pikangikum, the Court below exceeded its jurisdiction and/or erred in law on the face of the record by failing to comply with the provisions of the MCS Act and by imposing a sentence where appropriate accommodation was not available.
Mr. Black
[22] The Respondent Mr. Black submits that because the Respondent Her Majesty the Queen has filed a Notice of Appeal concerning essentially the same arguments invoked by the Applicant in this case, the Applicant has access to an alternative appellate process, and therefore the extraordinary remedy of certiorari is unavailable.
[23] Mr. Black also argues that relief by way of certiorari is only available in this case if there has been an error of jurisdiction. Mr. Black submits that the question of whether the police detachment amounts to “appropriate accommodation” for the purpose of serving an intermittent sentence remains within the jurisdiction of the court below pursuant to s. 732 of the Criminal Code and therefore no jurisdictional error has occurred.
[24] Mr. Black contends that the court below did not designate the Detachment as a “correctional institution” and, in any event, a sentencing judge is not required to order that an intermittent sentence of imprisonment be served in a “correctional institution”. Mr. Black submits that s. 16(1) of the MCS Act only applies when “a person is convicted under an Act of the Legislature”, which is not the case here as Mr. Black was convicted of Criminal Code offences.
[25] Mr. Black submits that judges have “prison placement authority”, and points to ss. 2 (definitions of “prison” and “prisoner”) and 3 (warrant of committal) of the Prisons and Reformatories Act, R.S.C. 1985, c. P-20, ss. 2 (definition of “prison”) and 743.1(3) of the Criminal Code, and s. 16.1 of the Police Services Act, R.S.O. 1990, c. P-15 in support of this submission. Mr. Black states that the permissive, not mandatory, language of s. 16(1) of the Ministry of Correctional Services Act also supports this position.
[26] Mr. Black relies on R. v. Roper (2003), 2003 CanLII 72337 (ON SC), 63 O.R. (3d) 599 of the Ontario Court of Justice, a case concerning the Interpretation Act of Ontario, which has since been repealed. In that case, the court held that there was a general authority by way of a warrant of committal to specify the provincial correctional institution at which a prisoner ought to serve the sentence (paras. 23, 39).
[27] Mr. Black argues that a narrow legislative limit to the judicial authority to name the prison might arise when a judge sentences a person to a “correctional institution”, in which case s. 17 of the MCS Act would prevent the judge from designating a particular “correctional institution”.
Nishnawbe-Aski Legal Services Corporation
[28] The Nishnawbe-Aski Legal Services Corporation (“NALSC”) essentially adopts the same positions as Mr. Black. However, NALSC submits that certiorari is available for both jurisdictional error and/or error of law on the face of the record, but that there has been neither jurisdictional error nor error of law on the face of the record in this case.
[29] NALSC also submits that the sentencing decision was consistent with the principles set out in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 and R. v. Ipeelee, 2012 SCC 13, and with the rights of First Nation peoples of northern Ontario under s. 7 and s. 15 of the Charter.
Issues
[30] The issues in this case are as follows:
Is a writ of certiorari available to the Applicant?
Does s. 16(1) of the Ministry of Correctional Services Act apply in this case?
Did the court below exceed its jurisdiction and/or err in law on the face of the record by directing the offender to serve an intermittent sentence at the Detachment in Pikangikum?
i. Is the warrant of committal contrary to s. 16(1) of the Ministry of Correctional Services Act?
ii. Is the Detachment “appropriate accommodation to ensure compliance with the sentence”?
Discussion
1. Is a writ of certiorari available to the Applicant?
Law
[31] Orders in the nature of certiorari may only be granted where an inferior court has made a jurisdictional error or an error of law on the face of the record. In certain circumstances, such as the review of preliminary inquiry decisions, certiorari can be granted only where there has been an error of jurisdiction. However, where a party’s right is finally disposed of, an order in the nature of certiorari is available where there has been either an error of jurisdiction or an error of law on the face of the record: R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 57; R. v. Mullings, 2012 ONSC 2910, at paras. 20-22, 26.
[32] A jurisdictional error concerns the authority to determine an issue, not the nature or correctness, actual or perceived, of the determination made. A court of limited jurisdiction either has jurisdiction over a particular subject-matter or it does not. In a matter within its jurisdiction, a court of limited jurisdiction may misconstrue a statute (other than an enabling statute) or otherwise incorrectly decide the law as freely and with as high an immunity from correction, except on appeal, as any other judge or court: R. v. Gray, 1991 CanLII 7130 (ON SC), 6 O.R. (3d) 73 (Ont. Ct. (Gen. Div.)), at para. 35. An error of law made within the court’s assigned jurisdiction does not constitute jurisdictional error: R. v. Russell (2001), 2001 SCC 53, para. 19; R. v. Forsythe, R. v. Forsythe (1980), 1980 CanLII 15 (SCC), 53 C.C.C. (2d) 225 (S.C.C.), at p. 235; R. v. Dubois (1986), 1986 CanLII 60 (SCC), 25 C.C.C. (3d) 221 (S.C.C.), at pp. 229-231; R. v. Corbeil (1986), 1986 CanLII 4650 (ON CA), 27 C.C.C. (3d) 245 (Ont. C.A.) at p. 251; R. v. Villota, 2002 CanLII 49650 (ON SC), [2002] O.J. No. 1027, at para. 91.
[33] An error of law on the face of the record is one that is “apparent” on the face of the record. The error need not be blatant or merely technical. The issuance of an order that is inconsistent with the governing law constitutes an error of law on the face of the record: Mullings, supra, at paras. 27-28, 35-36.
Application
[34] The Applicant in this case is not a party to the criminal prosecution. At this stage, the Applicant’s only available avenue to challenge the warrant of committal is by way of an application for certiorari. Accordingly, I will be dealing with this application on the basis that certiorari is an available remedy.
[35] As the Applicant is a third party and the challenged order finally decides the Applicant’s rights, I find that relief by way of certiorari lies on the more traditional grounds of both jurisdictional error and error of law on the face of the record: R. v. N.S., 2010 ONCA 670, [2010] O.J. No. 4306 (C.A.) at paras. 23-25, appeal to S.C.C. dismissed, 2012 SCC 72, [2012] 3 S.C.R. 726; Mullings, supra, at paras. 20-22, 26; R. v. Jackson, 2015 ONCA 832, at para. 39; Cunningham, supra, at paras. 57-58.
2. Does s. 16(1) of the [Ministry of Correctional Services Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-m22/latest/rso-1990-c-m22.html) apply in this case?
Law
[36] Prior to determining whether the warrant of committal is contrary to s. 16(1) of the MCS Act, it is necessary to consider whether that section is applicable to this case. The analysis will require an exercise in legislative interpretation, and thus I will briefly review the principles of legislative interpretation.
[37] When a court is called upon to interpret a statute, its task is to discover the intention of the legislator as expressed in the language of the statute: R. v. Dubois, 1935 CanLII 1 (SCC), [1935] S.C.R. 378 at p. 381.
[38] To interpret a statute, the words of the statute are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the statute, the object of the statute, and the intention of the legislator: Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, at para. 36.
[39] It is presumed that the legislator does not intend absurd consequences. An interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 27.
Application
[40] The key section at issue is s. 16(1) of the MCS Act. Section 16 in its entirety reads as follows:
Sentence to correctional institution
16 (1) The court before which a person is convicted under an Act of the Legislature of an offence punishable by imprisonment may sentence the person to imprisonment in a correctional institution.
(2) A person who has been sentenced to imprisonment in a correctional institution may be detained in any correctional institution, as directed by the Ministry, or in the custody of a provincial bailiff or other person employed in a correctional institution.
[41] “Correctional institution” is defined in s. 1 of the MCS Act as a correctional institution established under s. 14 of the MCS Act, but does not include a place of open custody, a place of secure custody, a place of temporary detention or a lock-up established under s. 16.1 of the Police Services Act.
[42] The words of s. 16(1) of the MCS Act indicate that that sub-section applies to a “person convicted under an Act of the Legislature”. However, the exercise in legislative interpretation does not end there. It is presumed that the legislator does not intend absurd consequences. The Criminal Code, as well as a number of other significant criminal statutes, are Acts of Parliament, and there is no similar provision, to my knowledge, which would apply to a person convicted under an Act of Parliament for a sentence of less than two years.[^1]
[43] If s. 16(1) only applies to persons convicted under an Act of Legislature, then offenders convicted under an Act of Parliament and sentenced to non-penitentiary imprisonment, could be allowed to serve their sentence in any “prison” or “place of confinement” in the province. The only restriction would be that, pursuant to s. 743.1(3) of the Criminal Code, the sentence would need to be served “in a prison or other place of confinement, other than a penitentiary, within the province in which the person is convicted, in which the sentence of imprisonment may be lawfully executed” (unless a special prison is prescribed by law).
[44] Section 2 of the Criminal Code defines “prison” broadly, to include “a penitentiary, common jail, public or reformatory prison, lock-up, guard-room or other place in which persons who are charged with or convicted of offences are usually kept in custody”. The term “place of confinement” is not defined in the Criminal Code. The requirement that the sentence must be served in a location “in which the sentence of imprisonment may be lawfully executed” has not, based on my research, been interpreted in the past.
[45] Therefore, if s. 16(1) only applied to persons convicted under an Act of the Legislature, given the broad wording in s. 743.1(3) of the Criminal Code, sentencing judges would then have the discretion to order that a person convicted under an Act of Parliament to a non-penitentiary sentence, serve the sentence in any “prison” or “place of confinement” in the province. This result would be completely contrary to how the federal and provincial correctional systems are statutorily designed.
[46] Under Canada’s correctional framework, persons sentenced to terms of imprisonment for two years or more will normally serve their sentences in the federal penitentiary system, and persons sentenced to terms of imprisonment for less than two years will normally serve their sentences in a provincial correctional institution. Prisons other than correctional institutions, such as temporary lock-up facilities, generally do not have the capacity or resources to house sentenced inmates.
[47] To avoid an interpretation that would lead to absurd results and profound capacity challenges, I find that s. 16(1) of the MCS Act must be interpreted as applying to persons convicted under either an Act of the Legislature or an Act of Parliament.
[48] Mr. Black pointed to a number of provisions (ss. 2 and 743.1(3) of the Criminal Code, ss. 2 and 3 of the Prisons and Reformatories Act, and s. 16.1 of the Police Services Act, R.S.O. 1990, c. P-15), which, according to him, allow imprisonment to occur in places other than a “correctional institution”.
[49] For ease of reference, I have reproduced those provisions below:
Definitions
2 In this Act,
prison includes a penitentiary, common jail, public or reformatory prison, lock-up, guard-room or other place in which persons who are charged with or convicted of offences are usually kept in custody; (prison)
Imprisonment for term less than two years
743.1(3) A person who is sentenced to imprisonment and who is not required to be sentenced as provided in subsection (1) or (2) shall, unless a special prison is prescribed by law, be sentenced to imprisonment in a prison or other place of confinement, other than a penitentiary, within the province in which the person is convicted, in which the sentence of imprisonment may be lawfully executed.
Definitions
2 (1) In this Act,
prison means a place of confinement other than a penitentiary as defined in Part I of the Corrections and Conditional Release Act; (prison)
prisoner means a person […] who is confined in a prison pursuant to a sentence for an offence under a provision of an Act of Parliament or any of its regulations, or pursuant to a committal for failure or refusal to enter into a recognizance under any of sections 83.3 and 810 to 810.2 of the Criminal Code; (prisonnier)
Warrant of committal
3 Where a person is sentenced or committed to imprisonment in a prison, it is sufficient compliance with the law, notwithstanding anything in the Criminal Code, if the warrant of committal states that the person was sentenced or committed to imprisonment in a prison for the term in question, without stating the name of any particular prison.
Detention facilities
16.1 Subject to the approval of the Ontario Civilian Police Commission, the council of every local municipality may establish, maintain and regulate detention facilities for the detention and imprisonment of persons sentenced to imprisonment therein for not more than 10 days, and of persons detained for examination on a charge of having committed any offence, or for transfer to any correctional institution for trial, or in the execution of any sentence, and such persons may be lawfully received and so detained in the detention facilities.
[50] I agree that these provisions contemplate forms of confinement other than imprisonment in a correctional institution. However, according to the generalia specialibus maxim of interpretation, provisions in a special Act prevail over incompatible provisions in an Act of general application: Stapleton v. Sears Ltd. (1982), 1982 CanLII 3234 (ON SCDC), 141 D.L.R. (3d) 130 (Ont. Div. Ct.), at para. 9. Section 16(1) of the MCS Act is a specific provision which prevails over the more general provisions cited by the Respondent.
[51] Mr. Black also argued that there is a general judicial authority to name the prison in which a convicted person will serve their sentence. Mr. Black cites R. v. Roper, supra, a case of the Ontario Court of Justice. I agree that, as per the Roper case, there is a general authority by way of a warrant of committal to specify the provincial correctional institution at which a prisoner ought to serve the sentence (Roper, at paras. 23, 39). However, I do not believe that the Roper case assists the Respondent’s argument, as it does not stand for the proposition that a sentencing judge can order a prisoner to serve a sentence somewhere other than a correctional institution.
[52] Following the principles of legislative interpretation, I conclude that s. 16(1) of the MCS Act applies to persons convicted under an Act of the Legislature or an Act of Parliament. Furthermore, the Respondent could not point to any competing authority that would trump the application of s. 16(1) of the MCS Act. Therefore, I find that s. 16(1) applies in this case.
3. Did the court below exceed its jurisdiction and/or err in law on the face of the record by directing the offender to serve an intermittent sentence at the Detachment in Pikangikum?
i. Is the warrant of committal contrary to [s. 16(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-m22/latest/rso-1990-c-m22.html#sec16subsec1_smooth) of the [Ministry of Correctional Services Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-m22/latest/rso-1990-c-m22.html)?
Law
[53] To repeat, s. 16(1) of the MCS Act states that:
Sentence to correctional institution
16 (1) The court before which a person is convicted under an Act of the Legislature of an offence punishable by imprisonment may sentence the person to imprisonment in a correctional institution.
[54] Mr. Black argues that the use of the word “may” in s. 16(1) constitutes permissive language which grants the sentencing judge discretion to sentence a person to imprisonment somewhere other than in a correctional institution. I disagree. The most logical reading of the provision is that a sentencing judge has discretion to sentence a person to imprisonment in a correctional institution, or to not sentence the person to imprisonment at all. If the Legislature had intended to grant the sentencing judge the discretion alleged by Mr. Black, the Legislature would have specified that a court “may sentence the person to imprisonment in a correctional institution or in another location”.
Application
[55] The warrant of committal issued on October 25, 2017 ordered Mr. Black to serve his intermittent sentence of imprisonment at the Detachment in Pikangikum. It is common ground that the Detachment is not a correctional institution as defined in the MCS Act. Furthermore, according to s. 17 of the MCS Act, “any designation of a particular correctional institution in a warrant of committal is of no force or effect”: R. v. Moldovan and Nancoo, 2017 ONCJ 625, at paras. 33-34; Brown v. Canada (Citizenship and Immigration), 2017 FC 710, at para. 136.
[56] Section 16(1) of the MCS Act is explicit that a sentence of imprisonment must be served in a correctional institution. The warrant of committal, which orders Mr. Black to serve his sentence of imprisonment at the Detachment rather than at a correctional institution, is contrary to this legislative provision.
[57] The court below did have jurisdiction over this subject-matter, and thus I do not go as far as finding that the court below made a jurisdictional error.
[58] However, I do find that the court below erred in law on the face of the record by issuing an order inconsistent with the governing law and the clear provisions of the MCS Act.
ii. Is the Detachment “appropriate accommodation to ensure compliance with the sentence”?
[59] The Applicant also argues that the court below exceeded its jurisdiction and erred in law on the face of the record by imposing a sentence where appropriate accommodation was not available. For the reasons set out below, I accept the Applicant’s submission on this issue.
[60] Section 732(1) of the Criminal Code reads as follows:
Intermittent sentence
732 (1) Where the court imposes a sentence of imprisonment of ninety days or less on an offender convicted of an offence, whether in default of payment of a fine or otherwise, the court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, and the availability of appropriate accommodation to ensure compliance with the sentence, order
(a) that the sentence be served intermittently at such times as are specified in the order; and
(b) that the offender comply with the conditions prescribed in a probation order when not in confinement during the period that the sentence is being served and, if the court so orders, on release from prison after completing the intermittent sentence. [Emphasis added].
[61] The question is therefore whether the Detachment is “appropriate accommodation to ensure compliance with the sentence” ordered. In this case, the sentence is for two 30 day terms of imprisonment to be served consecutively and intermittently, for a total of 60 days incarceration.
[62] The concept of “appropriate accommodation to ensure compliance with the sentence” was recently considered in Moldovan, supra. In that case, at para. 47, Cambell J. of the Ontario Court of Justice described “appropriate accommodation” in the context of intermittent sentences as follows:
47 It appears clear to me that the purpose of inserting the words "...and the availability of appropriate accommodation to ensure compliance with the sentence..." was to instruct courts not to order intermittent sentences in circumstances were the sentence could not be properly carried out. The added provision serves as a condition precedent. Before an intermittent sentence can be imposed, there must be available appropriate accommodations to ensure that the sentence can be complied with. In other words, there must be a prison available that is prepared to confine the person to custody on an intermittent basis. If I were to order an intermittent sentence for Mr. Nancoo and Ms. Moldovan, not only would there be nothing intermittent about their sentences, beyond a brief check-in or telephone call to report, neither offender will serve any time following their sentence actually in custody. [Italics in original; underlining added.]
[63] In this case, the Detachment in Pikangikum is not prepared to confine Mr. Black to custody on an intermittent basis. An intermittent sentence is a custodial sentence of imprisonment (Moldovan, supra, at para. 36). However, the Detachment has significant physical and other limitations which render it inappropriate for custodial sentences. I agree with the Applicant that the Detachment is a temporary lock-up facility meant for temporary and short-term custody only. It does not house sentenced inmates and is not designed, resourced or staffed to do so. It is worth noting that counsel were unable to advise me whether or not Mr. Black had served all or any portion of his sentence as of the date of the hearing of this Application, partially due to the fact that staff at the Detachment are obviously not trained to calculate a prisoner’s entitlement to earned remission.
[64] It was clear from the beginning that the Detachment was not appropriate accommodation to ensure compliance with the sentence. Indeed, the court below understood that the Detachment could likely not house the offender for the purpose of an intermittent sentence, and designed a “sign-in/sign-out” process to allow the offender to not be in custody. However, being in custody is a requirement for intermittent sentences.
[65] As the court below ordered an intermittent sentence when appropriate accommodation was clearly not available, I find that the court below issued an order inconsistent with the governing law and erred in law on the face of the record.
Additional Considerations
The Gladue and Ipeelee Principles
[66] Mr. Black and NALSC noted that the Supreme Court of Canada decisions of R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 and R. v. Ipeelee, 2012 SCC 13 encourage sentencing judges to use restorative approaches to sentencing when appropriate. The Supreme Court made it clear that judges have a duty to evaluate the unique background factors of indigenous offenders which may have played a role in bringing them before the courts, and to consider these factors when determining whether imprisonment or a more restorative approach to sentencing would be appropriate. Innovative sentencing practices and community-based sanctions, when reasonable and appropriate, should be implemented (Gladue, supra, at paras. 70-74).
[67] In this case, it was simply not reasonable or appropriate to order Mr. Black to serve his intermittent sentence at the Detachment, which is not a correctional institution and does not have appropriate accommodation for the purpose of an intermittent sentence. There are many cases where community-based sanctions are available and appropriate, but this is not one of them.
R. v. Armstrong
[68] Mr. Black argued that the approach taken by Edward J. in this case was consistent with the decision in R. v. Armstrong, [1996] O.J. No. 2261 (Ont. C.A.), which is the appeal of a case originally heard in Whitby, Ontario. In that case, the Ontario Court of Appeal granted the appeal of a non-aboriginal person and imposed an intermittent sentence to “be served at the custodial institution closest to the residence of the appellant”, from 7:00 p.m. on Saturday to 7:00 a.m. on Monday of each week, until the sentence was served. Armstrong is distinguishable from the case at bar. The Pikangikum Detachment is not a custodial institution and does not have the capacity to appropriately imprison Mr. Black during the weekends until his sentence is served.
The Charter
[69] NALSC has invoked s. 7 and s. 15 of the Canadian Charter of Rights and Freedoms, submitting that it would be discriminatory to find that an intermittent sentence to be served in Pikangikum First Nation was not available to residents of Pikangikum First Nation, when such an intermittent sentence, on these facts, would be available to residents in less remote areas of Ontario.
[70] There have been no Charter challenges to any of the legislative provisions at issue on this Application. NALSC did not make extensive Charter arguments. The statutory regime applicable to the issues raised in this Application has been established by Parliament and the Legislature based on considerations of access to justice, capacity, and resources. Absent a constitutional challenge to the legislation, that statutory regime must be applied as interpreted.
Order
[71] For these reasons, I conclude that the court below erred in law on the face of the record by ordering that Mr. Black serve an intermittent sentence at the Detachment in Pikangikum. The warrant of committal issued on October 25, 2017 in respect to Mr. Black is quashed by way of a writ of certiorari.
[72] As the warrant of committal is quashed, Mr. Black is remanded to the next available sitting of the Ontario Court of Justice in Pikangikum for sentencing.
FREGEAU J.
Released: March 6, 2018
COURT FILE NO.: CR-17-97-MO
DATE: 2018-03-06
ONTARIO
SUPERIOR COURT OF JUSTICE
North West Region
B E T W E E N:
THE COMMISSIONER OF THE ONTARIO PROVINCIAL POLICE
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
- and -
CHRISTOPHER BLACK
Respondent
- and –
NISHNAWBE-ASKI LEGAL SERVICES CORPORATION
Intervener
REASONS ON APPLICATION
FREGEAU J.
Released: March 06, 2018
/slf
[^1]: Section 743.1(1) of the Criminal Code indicates that a person sentenced to imprisonment for a term of two years or more must serve their sentence in a penitentiary (unless otherwise provided). However, that is not the case here.