Court File and Parties

COURT FILE NO.: CR-063-DR

DATE: 2020/11/10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Guy Breen

BEFORE: M.G. Ellies R.S.J.

COUNSEL: S. Seguin for the Crown R. Currie for the Defendant

HEARD: October 22 and November 5, 2020

Endorsement

NOTICE

These reasons are subject to a ban on publication imposed under s. 517 of the Criminal Code.

[1] Mr. Breen is before me for a detention review pursuant to s. 525 of the Criminal Code. He has been in custody since his arrest on July 2, 2020.

[2] Mr. Breen is charged with threatening to kill his sister, her child, her husband, and the police, contrary to s. 264.1 of the Criminal Code. Because he was on probation for threatening at the time of the alleged offences, he is also charged with one count of breaching that probation order.

[3] The charges were laid following a phone call Mr. Breen made to his sister after he was released from an involuntary admission to a psychiatric hospital in Kingston. Mr. Breen blamed his sister, who lives near North Bay, for the fact that he was taken against his will for assessment under the Mental Health Act. The phone call was recorded and played for the police before Mr. Breen was charged. I have listened to the recording of the phone call and a synopsis has been prepared at the request of the Crown. The threats are vicious and vile. Mr. Breen threatens to “rape” his sister with a knife, among other things. The offences are serious ones.

[4] Notwithstanding Mr. Breen’s opinion to the contrary, the Crown’s case is very strong. There is no issue as to what was said, as the threats were recorded. Nor is identity an issue, as Mr. Breen’s sister is easily able to identify his voice and the details the caller gives on the phone are details that only Mr. Breen is likely to know. The law says that whether Mr. Breen intended to carry out the threats is also not an issue. All that matters is whether he intended to make them. The trial judge will likely have no problem drawing that conclusion based on what I heard. Finally, it seems unlikely that any kind of reduced capacity defence would succeed, given that Mr. Breen had just been discharged from the psychiatric hospital and has testified under oath before me that he does not do drugs.

[5] For some reason I have trouble understanding, Mr. Breen elected not to have a bail hearing in the Ontario Court of Justice and opted, instead, to take advantage of the decision of the Supreme Court of Canada in R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105 to have a bail hearing in this court as part of a detention review under s. 525 of the Code. I have a hard time understanding why he would do this for two reasons.

[6] First, if Mr. Breen is detained by this court, there is no opportunity for a bail review, as there is no provision in the Code for the review of a detention order made by a Superior Court judge with respect to this type of offence.

[7] Second, because one of the central issues in a detention review is whether the accused has begun or will soon begin serving more time in custody than he would if convicted, the detention review judge must, of necessity, form an opinion as to what the maximum sentence might be in the circumstances. An opinion expressed by a Superior Court judge, a judge of the court to whom summary conviction matters are appealed, is likely to have an effect on a summary conviction sentencing judge and on the Crown. If the Superior Court judge is of the opinion that a significant custodial sentence is warranted, that may not bode well for an accused.

[8] The Crown focuses its submissions on the heinous nature of Mr. Breen’s threats and the fear that they have invoked in members of his family and, according to the Crown, the police. The Crown also highlights the fact that Mr. Breen turned down trial dates that were available in the Ontario Court of Justice in November. However, none of this is relevant if Mr. Breen has served more time to this point than he would if he had been convicted of the offences he faces on the day he was taken into custody. We do not lock people up prior to trial for longer than they would be after trial "just to be on the safe side”.

[9] Thus, there are two issues in this detention review:

(1) What would the sentence have been on July 2, 2020, when Mr. Breen was arrested? If Mr. Breen has not yet served the equivalent amount of time, with enhanced credit, then the remaining issue is:

(2) Should Mr. Breen be detained on any of the grounds under s. 515(10) of the Code?

[10] I can dispose of the second issue quickly. If he has not already started serving “dead time”, I am satisfied that Mr. Breen should be detained on the secondary grounds under s. 515(10) of the Code.

[11] The secondary ground is set out in s. 515(10)(b). This subsection requires the court to detain an accused where detention is necessary to protect the public, including any victim, having regard to the likelihood that the accused will commit a criminal offence if released. In this case, the offence with which I am concerned is threatening death, not actually bringing it about. To do that, all Mr. Breen needs to do is pick up the phone. Given that he is alleged to have done exactly that while he was on probation for doing it before, I have no trouble concluding that he would do it again.

[12] Of course, my concerns under the secondary grounds could be mitigated if Mr. Breen had an appropriate plan of release, but he does not. If released, he proposes to get on a bus and return to Kingston. The problem is, he is not even sure that he has a home to return to. Nor does he have anyone in Kingston to supervise him other than his probation officer; the same officer that was supervising him at the time he is alleged to have threatened to kill his sister and her family.

[13] Thus, the remaining issue is this: has Mr. Breen already served as much time as he would have if he had been convicted of all of these offences when he was arrested?

[14] The Crown says that he has not. It submits that the appropriate sentence is 12 to 18 months in jail. It concedes that there are no cases directly on point but argues that one can draw support from other cases in which sentences for threatening formed part of a global sentence. I am not able to agree.

[15] In R. v. Ibrahim, 2014 ONCA 355, the Court of Appeal refused to grant leave to appeal a nine-month sentence imposed for threatening. However, leave was refused because the case did not meet the test of being important to the administration of justice, not necessarily because the sentence was fit. Further, the sentence was imposed for a course of conduct that lasted over many months and included a conviction for criminal harassment, neither of which is the case here.

[16] R. v. Cook, 2013 ONCA 467 is also distinguishable. In Cook, the accused had a long history of acrimonious behaviour towards family members. The threats were made in the course of 30 to 40 calls made in one night. Further, the accused was declared to be a long-term offender.

[17] The maximum sentence imposed in the cases cited by the Crown was 10 months. In R. v. Greenland, 2020 NWTSC, the summary conviction appeal court upheld two consecutive five-month sentences imposed for threatening two police officers with death. However, the threats were made not over the telephone, as in this case, but in the presence of the officers, who were pursuing the accused for the purpose of arresting him. The threats were much more immediate in Greenland.

[18] The defence submits that the maximum appropriate sentence in this case would be six months. I agree. This was the finding of the judge in Greenland, who concluded that the range of sentence for threatening police officers was three-to-six months, and for threatening others was two-to-six months.

[19] I also agree with the defence submission that consecutive sentences for each of the threatening charges would not be appropriate in this case, given that they were all part of the same phone call. However, there remains the issue of whether a conviction for breaching his probation would result in Mr. Breen receiving a concurrent or consecutive sentence to the one imposed for the threats.

[20] The judge in Greenland concluded, correctly in my view, that it is open to a sentencing judge to impose either concurrent or consecutive sentences for offences committed in the same time frame. My own experience is that consecutive sentences are often imposed for breach of probation where the probation order was not part of a suspended sentence. This is because the offender cannot be brought back to court and sentenced for the underlying offence under s. 732.2(5) of the Code. However, the sentence was suspended in this case, meaning that it is open to the court that placed Mr. Breen on probation to revoke the probation order and sentence him on the threatening charge with respect to which it was imposed. That court has no power to impose a sentence that is consecutive to the one imposed for the offence that constituted the breach: R. v. Oakes (1977), 1977 CanLII 2076 (ON CA), 37 C.C.C. 2d) 84 (Ont. C.A.). In reality, however, such a sentence is often served consecutively, at least in part, because of the fact that both sentences are not imposed at the same time. For this reason, I would impose a concurrent sentence on Mr. Breen for the breach of probation charge.

[21] Thus, I conclude that the appropriate sentence in this case would not likely exceed six months imprisonment. Mr. Breen has already been in custody for more than four months. With enhanced credit of 1.5 to 1, he has begun to serve more time in custody than he would have if he had been convicted shortly after his arrest on July 2. In these circumstances, he should be detained no longer.

[22] Mr. Breen will be released on terms to be discussed now with counsel.

M.G. Ellies R.S.J.

Date: November 10, 2020