Court File and Parties

Court File No.: CR-20-30000277-00SR Date: 2024-04-23 Ontario Superior Court of Justice

Between: His Majesty The King And: Moses Water

Counsel: Matthew Shumka and Perry Rutherford, for the Crown Magda Wyszomierska, for Moses Water

Heard: April 12, 2024

Reasons for Judgment on Breach of Conditional Sentence Order

R.F. Goldstein J.

[1] Moses Water breached his conditional sentence order. He was outside his residence when he was on house arrest. None of the exceptions to the house arrest applied. He also failed to carry a copy of his conditional sentence order. He breached the peace by getting into a fight and assaulting someone. The issue before the court is what to do about the remainder of his conditional sentence.

Background

[2] Moses Water is HIV positive. Tragically, he has been HIV positive since he was born in 1996.

[3] On January 27, 2019 Mr. Water met the complainant in a bar. They had met each other over social media. They went to his residence where a sexual encounter occurred in the early morning hours of January 28, 2019. Mr. Water did not use a condom. The complainant went to the police on January 29, 2019. As the Agreed Statement of Facts put it:

For the purposes of the guilty plea and sentencing hearing, the Crown does not seek to establish whether the sexual encounter that occurred on January 28, 2019 was consensual or non-consensual at the operative time. Even if there was consent at the operative time, it would have been vitiated by fraud via non-disclosure. Mr. Water did not disclose that he had HIV prior to the sexual encounter with [the complainant]. Mr. Water did not use a condom at any point during the sexual encounter. Mr. Water was unaware of his viral load on January 28, 2019. [The complainant] would not have consented to having any kind of sexual encounter with Mr. Water, had she known that he was HIV positive.

[4] On March 8, 2018 Mr. Water attended for screening. He received the results of that screening on April 30, 2018. He did not attend for screening again until July 17, 2019. He therefore had no knowledge of his viral load at the time of his offence.

[5] Mr. Water was initially charged with aggravated sexual assault. On May 12, 2023 Mr. Water pleaded guilty before me to the lesser and included offence of sexual assault. The Crown accepted the plea. I found him guilty. On September 19, 2023 counsel jointly submitted that I should impose a conditional sentence on Mr. Water. I accepted the joint submission and sentenced Mr. Water to 21 months to be served in the community. Among the conditions were that for the first seven months of his sentence, Mr. Water was to be under house arrest. He was not to leave his residence except for certain specific exceptions. For the second seven months of his sentence Mr. Water was to obey a curfew and remain in his residence between 9:00 pm and 6:00 am each day. There was no house arrest or curfew condition for the last seven months of his sentence. Mr. Water was also subject to the statutory condition to keep the peace and be of good behaviour.

The Breaches

[6] In the early morning hours of February 11, 2024, at around 7:34 am, Constable Gharibo was called to an incident at Kingston Road and Bearcroft Blvd. in Scarborough. He received an “unknown trouble” call. He received information that sounded like two people were arguing and that one person was lying in the middle of Kingston Road. He arrived in a Toronto Police scout car at 7:42 am. He observed a man lying unconscious in the road and a woman standing over him. He received information that a male fleeing the scene had assaulted the person on the ground. Constable Gharibo observed a person fleeing the scene – Mr. Water – and stopped and detained him. He arrested Mr. Water and conduced a pat-down search. He was booked later that morning and again searched. Mr. Water did not have any paperwork on him. In cross-examination, Constable Gharibo agreed that Mr. Water had alcohol on his breath and was intoxicated.

[7] On February 13, 2024 Detective Elliot signed an Allegation of Breach of Conditional Sentence Order. On the same day, Mr. Water’s conditional sentence supervisor filed a Supervisor’s Report on an Allegation of Breach.

[8] After reviewing the video evidence, and hearing the evidence of Constable Gharabo, I am satisfied on a balance of probabilities that Mr. Water breached the following conditions of his order:

• First, Mr. Water was still in the first seven months of his conditional sentence. He was required to be in his residence. There is no evidence that one of the exceptions applied. Accordingly, he breached the house arrest condition.
• Second, Mr. Water was required to carry a copy of his conditional sentence order on him whenever he was outside his residence, and present it to a peace officer on demand. Constable Gharabo confirmed that Mr. Water did not have a copy of the conditional sentence order when he searched him.
• Third, Mr. Water assaulted the victim. It may be that the fight started out as a consensual fight, or that Mr. Water may have initially acted in self-defence. Based on the video evidence, I agree with Crown counsel that even if Mr. Water did not start the fight, he surely finished it. He clearly did not keep the peace when he assaulted the victim.

The Breach Regime

[9] A conditional sentence is available for most offences: Criminal Code, s. 742.1(b) and (c). A court may impose a conditional sentence where it is satisfied that the sentence would not endanger the community and would be consistent with the fundamental purpose and principles of sentencing: Criminal Code, s. 742.1(a).

[10] Where a breach is alleged, the hearing into the allegation is to be held within 30 days of the allegation of the breach, or as soon thereafter as is practical: Criminal Code, s. 742.6(3). In this case, the proceeding was initiated by the arrest of Mr. Water: Criminal Code, s. 742.6(1)(c)(ii). The allegation of breach must be supported by a report of the conditional sentence supervisor, which is admissible at the hearing: Criminal Code, s. 742.6(4) and (5).

[11] Under exceptional circumstances, and in the interests of justice, the court may credit some or all of the period of suspension be deemed to be time served: Criminal Code, s. 742.6(16). In determining whether or not to give credit for time served, s. 746.6(17) states:

746.6 (17) In exercising its discretion under subsection (16), a court shall consider

(a) the circumstances and seriousness of the breach;

(b) whether or not making the order would cause the offender undue hardship based on the offender’s individual circumstances; and

(c) the period for which the offender was subject to conditions while the running of the conditional sentence order was suspended and whether the offender complied with those conditions during that period.

[12] Counsel for Mr. Water has not asked that I apply s. 742.6(16). There are no exceptional circumstances here.

[13] The breach hearing is reverse onus: the court may take action if it is satisfied, on a balance of probabilities, that the offender has, without reasonable excuse, breached a condition. The powers of the court are set out in s 742.6(9):

(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.

[14] Section 742.6(9) provides a “sliding scale” of options to a judge to fashion an appropriate order where a breach occurs. The scale ranges from taking no action to changing the optional conditions or ordering a period of the unexpired sentence to be served in custody, to terminating the conditional sentence and directing that the offender serve the remainder in custody: R. v. Antaya, 2022 ONCA 819 at para. 8.

[15] In R. v. Wismayer (1997), 115 C.C.C. (3d) 18, 33 O.R. (3d) 225 (C.A.), Rosenberg J.A. succinctly described the breach hearing at para. 39:

One of the important features of the conditional sentence regime is the procedure for breach of the conditional sentence order. Again to safeguard the community and also to emphasize the gravity of violation of the conditional sentence order, s. 742.6 enacts a relatively simple and expeditious procedure for dealing with an offender who breaches any of the conditions in the order. In the normal course, the allegation of breach may be proved by a written report accompanied by witness statements. The allegation is to be heard within 30 days of the offender's arrest. The allegation need only be proved on a balance of probabilities and the burden is on the offender to establish the defence of reasonable excuse. Where the allegation is made out, the court has a broad range of options. Most importantly, the court may suspend the conditional sentence order and require the offender to serve a portion of the unexpired term in custody or the court may terminate the conditional sentence order and direct the offender to serve the balance of the sentence in custody. Lesser sanctions are also provided for, including the variation of the optional conditions.

[16] In R. v. Ramsaran, [2008] O.J. No. 3163, 2008 CarswellOnt 4761, Hill J. described the breach hearing as a “hybrid” between a sentencing hearing and a pure revocation hearing. See also: R. v. McIvor, 2008 SCC 11 at paras. 12-13.

The Period Between Arrest And Disposition

[17] Mr. Water was arrested on February 11, 2024. I am determining the future status of his CSO on April 22, 2024. That is a period of 72 days.

[18] Sections 742.6(10), (11), and (12) set out how the conditional sentence is to be treated during the period between the allegation of the breach and the finding of the breach:

742.6 (10) The running of a conditional sentence order imposed on an offender is suspended during the period that ends with the determination of whether a breach of condition had occurred and begins with the earliest of

(a) the issuance of a warrant for the arrest of the offender for the alleged breach,

(b) the arrest without warrant of the offender for the alleged breach, and

(c) the compelling of the offender’s appearance in accordance with paragraph (1)(d).

(11) If the offender is not detained in custody during any period referred to in subsection (10), the conditions of the order continue to apply, with any changes made to them under section 742.4, and any subsequent breach of those conditions may be dealt with in accordance with this section.

(12) A conditional sentence order referred to in subsection (10) starts running again on the making of an order to detain the offender in custody under subsection 515(6) and, unless section 742.7 applies, continues running while the offender is detained under the order.

[19] In this case, the conditional sentence was suspended on February 11, when Mr. Water was arrested. As I understand it, Mr. Water did not seek bail. He is therefore in the same position as the appellant in R. v. Menezes, 2023 ONCA 838. In that case, the offender was sentenced to a one-year CSO after assaulting his former partner. Within days of the order he started contacting his former partner in violation of the CSO. He was arrested and charged with criminal harassment. At his breach hearing six months later, the breach judge suspended the CSO and directed that the offender serve just over a month of his CSO in custody. He was then tried and convicted of criminal harassment. The trial occurred on the day that the custodial portion of the CSO was completed. The real issue on the appeal was whether the sentencing judge on the criminal harassment case could credit him with any pre-sentence custody from the six-month period between the violation and the breach hearing. For that to happen, the nature of the six-month period had to be determined.

[20] Fairburn J.A. observed that at first glance, s. 742.6(10)(b) mandated that the CSO is suspended upon arrest. However, she also observed that what one section gives, another takes away. Pursuant to s. 742.6(12), however, the CSO continues running where an offender is detained pursuant to s. 515(6), unless the offender is serving a sentence. Fairburn J.A. interpreted the section to mean that a detention order is in effect whether the offender has had a bail hearing and been detained, or has not yet had a bail hearing: R. v. Menezes, supra, at paras. 50-52. Since the CSO was running during the six month period, the sentencing judge on the criminal harassment case could not credit the offender with any of that time.

[21] In this case, Mr. Moses was presumptively detained because of the reverse onus he faced: Criminal Code, s. 515(6) and s. 742.6(2). As I understand it, he has not had a bail hearing at this point. Therefore, the 72-day period applies to his conditional sentence.

The Presumption Is That The Offender Serve The Remainder In Custody

[22] In the Supreme Court of Canada’s leading case, R. v. Proulx, 2000 SCC 5, Lamer C.J.C. considered breaches of conditional sentences. He noted that a conditional sentence is a punitive sentence. Thus, where an offender has breached it should be presumed that the offender serve the remainder of the sentence in jail: Proulx at para. 39. In R. v. Wismayer, supra, Rosenberg J.A. made the point at para. 41 that:

It is appropriate that if the offender breaches the order, and particularly if the breach represents the commission of a further offence or endangers the community, all or a portion of the unexpired term of the sentence be served in prison. However, the fact that the offender may end up serving the sentence in prison suggests to me that the court must carefully assess the appropriate length of the sentence. In my view, in setting the length of the sentence the court should contemplate that the offender may ultimately serve the sentence in prison.

[23] See also R. v. Antaya, supra, at paras. 5, 10.

Factors To Apply When Considering Remedy

[24] In determining the appropriate order in the wake of a breach, a court must take into account the circumstances of the original offence, the circumstances of the breach, and the circumstances of the offender: R. v. Antaya, supra, at para. 16.

[25] In R. v. Ramsaran, supra, at para. 65, Hill J. listed some of the principles that a judge may consider pursuant to s. 742.6(9) of the Criminal Code. I will summarize the key points:

(1) A conditional sentence disposition is an order for imprisonment and accordingly, "conditional sentences should generally include punitive conditions that are restrictive of the offender's liberty ... Conditions such as house arrest ... should be the norm"…

(2) "[C]onditional sentences are only to be imposed on offenders who would otherwise have been sent to jail"… an offender's presence in the community pursuant to such permission is exceptional.

(3) Where a conditional sentence order is breached, there is a rebuttable presumption in favour of incarceration — the "constant threat of incarceration" fosters compliance, albeit coercively, with the order's terms and conditions.

(4) Because the presumption of incarceration is rebuttable, not every breach need attract such a disposition… In some instances, for example where extenuating circumstances exist, other less drastic options may fulfil the necessary objectives of sanctioning the particular breach of a conditional sentence order… The appropriate exercise of discretion requires that each case fall to be assessed on its own circumstances.

(5) A primary consideration in the exercise of discretion pursuant to s. 742.6(9) is the seriousness of the breach(es) and certainly where the offending conduct itself amounts to the commission of a criminal offence…

(6) There is, however, no exhaustive list of relevant factors. In R. v. Langley, 2005 BCCA 478 at para. 13, the court catalogued a number of important considerations:

... the task of the court at a disposition hearing is to consider the nature of the offence; the nature, circumstances, and timing of the breach; any subsequent criminal conduct and sentences for that conduct; changes in the plan for community supervision; the effect of termination on the appropriateness of the sentence for the original offence; and the offender's previous criminal record, in determining whether the presumption of termination for breach is to be applied.

Mr. Water’s Circumstances

[26] Mr. Water, as I mentioned, is HIV positive. The Agreed Statement of Facts at the original guilty plea stated:

The accused before the Court, Mr. Moses Water, has been positive for the Human Immunodeficiency Virus (“HIV”) since his date of birth on October 25, 1996. He has been under the care of physicians for all of his life as a result of his condition, inclusive of regular blood screenings to assess viral loads and the administration of antiretroviral medication. His history of screening and treatment has been overseen by the Ontario Agency for Health Protection and Promotion. Over the course of his lifetime of treatment, he has had periods of non-compliance with prescribed medications and scheduled blood screenings.

[27] Mr. Water is the third youngest of seven siblings. His father passed away when he was six years old and his mother had to raise the family alone. He grew up in a difficult neighbourhood with violence, crime, and a strong police presence. He is a young Black man, being only 26 when I sentenced him for this offence. At the time he committed this offence, he had no criminal record. He did not complete high school, but did go to adult school. He has worked in a restaurant and as a music promoter. He is very interested in art and music and he wants to go into some kind of business involving the arts and music.

[28] Ms. Wyszomierska also informed me that Mr. Water has a problem with alcohol. One of the purposes of the CSO was to allow him to obtain treatment. He recognizes that he has this problem, and wants to take steps to deal with it. Her submission is that public safety would be protected in a more meaningful way if he could get access to treatment while on a conditional sentence order.

Disposition

[29] When I consider all of the circumstances, including the factors set out in R. v Antaya and R. v. Ramsaran, supra, I make the following findings:

• The original circumstances of the offence were serious. Mr. Water did not disclose his HIV status to a sexual partner. His moral blameworthiness for that offence was high. The impact on the complainant was psychologically devastating, although, fortunately, she did not contract HIV. In the absence of a guilty plea and a joint submission for a conditional sentence order, I would likely have imposed a significant jail sentence.
• Mr. Water’s personal circumstances are tragic. He has been HIV positive since birth. As I understand it, he will require a regime of antiretrovirals for the rest of his life. He will also require regular blood screenings. He will also be subject to surveillance and monitoring by public health agencies for the rest of his life. All of this was determined before he was born.
• The circumstances of the breaches were also serious. While not carrying his conditional sentence order was probably on the less serious side, getting into a fight is serious. I am aware that he has not been convicted of assault. Mr. Shumka also confirmed that the Crown is seriously considering whether to proceed with the charge. Even if he is not guilty of an assault, however – and I accept that it may be difficult to prove that beyond a reasonable doubt – I am satisfied on a balance of probabilities that he did engage in a fight, and that he assaulted the victim. Even if it was in self-defence – which is not impossible – at the end of the day the victim was lying unconscious in the middle of Kingston Avenue while Mr. Water was leaving the scene.
• I find that the breach of the house arrest condition was also serious. His breach was wilful, not technical or accidental. He was not arrested because he was late getting back from a legitimate appointment or spent too much time on a permitted errand. Rather he was drunk and outside his residence for no purpose that could possibly be related to one of the exceptions.
• I do take into account that as of today’s date, Mr. Water will have spent 72 days in custody as part of his conditional sentence. That is almost 2 ½ months of his 21 month conditional sentence.

[30] The rebuttable presumption that an offender spend the remainder of his sentence in custody is meant to satisfy the demands of both specific and general deterrence, and remind offenders that a CSO is not a probation order. It is also not a get-out-of-jail free card.

[31] In my respectful view, the 72 days that Mr. Water will have spent in custody is simply not punitive enough given the seriousness of the breach. In my view, some further time in custody is required. That said, I am also mindful that the custodial portion of the sentence should not be longer than what Mr. Water might have spent if he had received a straight jail sentence. I am also mindful that rehabilitation still remains an important principle of sentencing. Ms. Wyszomierska’s point that Mr. Water needs to receive substance abuse counselling has considerable merit. Her point that a sentence that accommodates counselling may also promote public safety also has merit. I take both of those points into account.

[32] When I balance the principles of sentencing, and the principles set out in the cases under s. 742.6, the circumstances of the breach, the circumstances of the original offence, as well as the personal circumstances of Mr. Water, I find that a further 3 months in custody is the appropriate disposition. That will be followed by modifications to the optional conditions of the conditional sentence order. Accordingly, pursuant to s. 742.6(9)(c) of the Criminal Code:

1. The conditional sentence order is suspended, and Mr. Water will spend an additional 90 days in custody, commencing on today’s date.
2. The conditional sentence will resume on Mr. Water’s release from custody.
3. The remainder of his conditional sentence (for greater certainty, the portion to be served after his release from custody), except for the last 60 days, will be served under house arrest. All of the conditions that applied to the house arrest portion of his original conditional sentence order (for greater certainty, the first seven months of that order) will now apply to the period from his release from custody until 60 days before the expiry of his conditional sentence.
4. For the last 60 days of Mr. Water’s conditional sentence, he will be subject to a curfew. All of the conditions that originally applied to the curfew portion of his original conditional sentence order (again, for greater certainty, the second seven months of that order) will now apply to the last 60 days of his conditional sentence.

R.F. Goldstein J. Released: April 23, 2024