R. v. Ismail, 2013 ABQB 315

Court of Queen ’ s Bench of Alberta Citation: R. v. Ismail, 2013 ABQB 315 Date: 20120524 Docket: 09087519U1 Registry: Edmonton Between: The Queen Crown - and - Mohammed Ismail Accused Restriction on Publication: Discretionary ban By Court Order, this decision may not be published, broadcast, or transmitted in any manner until the conclusion of the CSO breach hearing. Editorial Notice: The restriction on publication ended on May 25, 2011. _______________________________________________________

Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [1] Where the alleged breach of a CSO is an alleged new substantive offence, how should the court exercise its discretion,pursuant to s. 742.6(3.3) of the Criminal Code, to grant reasonable adjournments? [2] In deciding the length of a permissible adjournment for the hearing of an alleged CSO breach, within Parliament’sframework for a prompt,

summary, hearing, and having in mind the risk to the Crown of issue estoppel affecting the future substantivetrial, a court must take into account both the accused’s right to appropriate due process and the Crown’s right to present as effective acase as possible. [3] Here, Mr. Ismail was within 25 days of completing a 2 year less a day CSO sentence imposed for drug convictions when hewas charged with assault causing bodily harm, and other related charges. Any adjournment of the CSO breach hearing beyond May 24,2013 restricts Mr.

Ismail’s liberty beyond the period of the original sentence; an adjournment therefore results in a risk that, if the newcharges against him are not proven at the breach hearing on a balance of probabilities, the restriction of Mr. Ismail’s liberty beyond thedate of his original sentence cannot be compensated. The evidence available to the Crown to advance its case against Mr. Ismail on thenew charges consists mainly of the evidence of police officers, that is, of individuals whose attendance at a hearing for cross-examination can typically be easily arranged.

In those circumstances, a one day hearing scheduled for June 7, 2013 at the latest, bestaccommodates Parliament’s intention and the process rights of each party. Cases and authority cited [4] By the Crown: R. v Rahime 2006 ABQB 270; R. v Beckles [2007] O.J. No. 2799; R. v Palmer 2008 BCPC 305; R. vBright 2009 ABCA 56; R. v Greville (ON CA), 158 O.A.C. 183. [5] By the court: R. v Thompson 2012 ONSC 3979. 1. Background

a) Factual [6] On May 25, 2011, this court imposed a 2 year less a day CSO sentence on Mr. Ismail in relation to convictions on onecount of possession of cocaine for the purpose of trafficking and one count of possession of proceeds of crime under $5,000.00, both ofwhich occurred on July 17, 2009. The terms of the CSO included the statutory condition that Mr. Ismail keep the peace and be of goodbehaviour. [7] Mr. Ismail appealed his conviction, which was, however, affirmed by the Court of Appeal: 2012 ABCA 178.

[ 8 ] In April, 2013, Mr. Ismail was charged with a series of offences arising out of an April 9, 2013 afternoon break-in of a residence during which the female occupant of the residence - who was accused by the attacker of “ ratting him out ” - suffered severe injuries including two broken wrists, a broken ankle and other less serious injuries when the attacker used a stick already in the residence for self-defence purposes against the female occupant. The attacker left the residence in a silver coloured 2 door car. The victim of the assault was unable to identify her assailant.

However, a wallet found in the residence after the attack contained identification documents relating to Mr. Ismail. Also, the police had apparently been surveilling Mr. Ismail and identified him as the lone occupant of a vehicle 13 minutes prior to the 911 call on the break-in. A neighbour is apparently able to testify that he saw the vehicle in which the attacker fled parked in front of the residence on an earlier occasion. [ 9 ] Mr. Ismail was granted bail on the assault and related charges in Provincial Court on May 2, 2013.

On May 3, the accused was in this court before me on an allegation of breach of the CSO, consisting of a breach of the term that he keep the peace and be of good behaviour. Because the federal prosecutors were unaware of the circumstances of the alleged Criminal Code offence, the matter was adjourned to Monday, May 6 with a view to having a bail hearing with respect to the charge of breach of the CSO and also setting a date for the CSO breach hearing. On May 6, 2013, Mr. Ismail was released by me on bail in relation to the allegation of a CSO breach.

However, as of Monday, May 6, 2013, there had not yet been any agreement between counsel on the date for a hearing of the breach of the CSO, so the matter was adjourned to QBAC, a superior court docket court, on Friday, May 17, at which time the parties agreed that the setting of a date for the hearing of the alleged breach of the CSO would be determined on May 22. [ 10 ] The prosecution indicates that the usual practice in Edmonton in circumstances such as these where the allegation of a breach of a CSO consists of an allegation of the commission of a new substantive crime, as opposed to the somewhat more common situation where the alleged breach of the CSO consists of a failure to comply with one of the more explicit conditions of the sentence such as the failure to comply with a curfew or the failure to report or the failure to abstain from intoxicating substances, is to adjourn the hearing on the breach of the CSO until after the new substantive offence has been dealt with.

b) Legislative [ 11 ] For ease of reference, the provisions of the Criminal Code relating to hearings on alleged breaches of CSOs include the following: Hearing

(3) The hearing of an allegation of a breach of condition shall be commenced within thirty days, or as soon thereafter as is practicable, after (

a) the offender ’ s arrest; or (

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

(3.3) A judge may, at any time during a hearing of an allegation of breach of condition, adjourn the period for a reasonable period. Report of supervisor

(4) An allegation of a breach of condition must be supported by a written report of the supervisor, which report must include, where appropriate, signed statements of witnesses.

Admission of report on notice of intent

(5) The report is admissible in evidence if the party intending to produce it has, before the hearing, given the offender reasonable notice and a copy of the report. (6) and (7) [Repealed, 2008, c. 18, s. 41 ] Requiring attendance of supervisor or witness

(8) The offender may, with leave of the court, require the attendance, for cross-examination, of the supervisor or of any witness whose signed statement is included in the report. Powers of court

(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. 2. Discretionary publication ban [ 12 ] As far as I can determine, there is no statutory publication ban on proceedings leading up to a breach of CSO hearing. However, during the course of such proceedings, it may be necessary, as it has been here, to provide at least a general overview of the anticipated evidence to be presented at the breach hearing.

In that sense, even though most often the same judge will deal with all hearing issues and that judge will be the original sentencing judge and even though the public cannot participate in the process as in a jury trial, pre-hearing proceedings in CSO breach situations resemble bail and bail review hearings. In my view, it is therefore appropriate to allow a publication ban of the same type that would apply in a bail review proceeding to a pre-CSO-breach hearing with the obvious difference that the ban on publication only applies until the conclusion of the CSO breach hearing itself. 3.

What general principles apply to the holding of a CSO breach hearing: timing, due process, evidence, issue estoppel? [ 13 ] The outline of a CSO breach hearing is, of course, well established both by statute and by case law: the Code establishes that Parliament intends the hearing to be held as quickly as can fairly and reasonably be arranged, that reasonable adjournments of the hearing are permissible, and that, because the process does not constitute an allegation of a new crime - as is the case in proceedings dealing with alleged breaches of probation - evidentiary shortcuts are allowed in a

summary process.

[ 14 ] On the other hand, the Supreme Court of Canada has reminded us that CSO breach hearings can have important negative consequences for a convict and because the allegation resembles an allegation of aggravating circumstances in an original sentencing hearing, proportional attention to the requirements of due process must be paid during the course of the breach hearing.

In McIvor , speaking for a unanimous court, Charron J. highlighted some of the unique features of a CSO breach hearing: As noted in the excerpt above, failure to comply with the condition of a probation order constitutes a distinct criminal offence under s. 733.1 of the Criminal Code , while failure to comply with a conditional sentence order does not. One should not on that basis jump to the conclusion that the initiation of a s. 742.6 breach proceeding is of less consequence to the offender . . . .

I find it noteworthy, however, that from a procedural standpoint the commencement of a s. 742.6 breach proceeding, in many respects, is assimilated to the laying of a new charge against the offender. Indeed, from the offender's viewpoint, the effect is much the same. 18 Parliament, however, intended that allegations of non-compliance be dealt in a simpler and more expedited fashion under the conditional sentence regime. First, the hearing must be commenced within 30 days, or as soon thereafter as is practicable, after the offender's arrest or the compelling of his appearance: s. 742.6(3).

Second, the prosecution of an allegation of a breach of condition is facilitated in four significant respects: (1) by allowing for documentary proof of the alleged breach of condition: s.742.6(4); (2) by imposing a leave requirement on the right to cross-examination: s.742.6(8); (3) by placing on the offender the persuasive burden of proving any reasonable excuse for non-compliance: s. 742.6(9); and (4) by lowering the ultimate standard of proof of a breach to a balance of probabilities: s. 742.6(9). 19 In order to appreciate how these provisions facilitate the process, it is helpful to consider what evidentiary rules would apply if Parliament had simply been silent on these matters.

Again here, a comparison to the prosecution of a non-compliant offender for breach of probation is instructive. Since breach of probation constitutes a distinct offence, the laying and prosecution of the charge proceed in the usual way. The hearing judge has the authority, upon finding the offender guilty of breach of probation (or of any other offence), to revoke the suspended sentence and impose any sentence that could have been imposed if the passing of sentence had not been suspended (s. 732.2(5)(d)). However, the Criminal Code is silent with respect to applicable evidentiary rules. This is not unusual.

In the absence of any applicable statutory provision, hearings are simply conducted in accordance with the common law rules of evidence applicable in all criminal courts. In order to prove an alleged breach of probation, the Crown must adduce admissible evidence and prove the allegation beyond a reasonable doubt. Evidence adduced by the Crown must comply with common law evidentiary rules, including the hearsay exclusionary rule. As in other proceedings, evidence is usually presented in the form of viva voce testimony, and the accused has the right to cross-examine the witnesses.

It is against this basic evidentiary backdrop that the provisions in question in this appeal must be considered, because it is these rules that would apply had Parliament not provided otherwise in respect of an allegation of a breach of conditional sentence order. (Emphasis added) [ 15 ] The result in McIvor was, of course, a determination that the documentary evidence on a breach hearing must be provided “ by persons who would be in a position to provide the same information by way of admissible viva voce evidence ” . [ 16 ] As to the timing of the CSO breach hearing, in Bright , our own Court of Appeal built on the McIvor principles and highlighted the remedies available to a court where a breach hearing has been delayed: Credit for Time Served During the Period of Suspension 8 A review of the Criminal Code provisions relating to CSO's suggests that the court is to expedite a hearing to determine whether there has been an alleged violation of the CSO's conditions : R. v.

McIvor , 2008 SCC 11 , [2008] 1 S.C.R. 285 ; 229 C.C.C. (3d) 1 at para. 18. For instance, a warrant for arrest is to issue once an allegation has been made and a hearing "shall" commence within 30 days following the offender's arrest (or as soon thereafter as is practicable):

section 742.6(3). The rules of evidence are relaxed, such that evidence of the alleged breach may be tendered in the form of the supervisor's report, subject to the request of the offender to cross-examine on the details of that report:

section 742.6(5) and (8). This timing is subject to the court's discretion to grant adjournments "for a reasonable period":

section 742.6(3.3) . 9 Nevertheless, the court may relieve any prejudice to the offender where the process is delayed. For example, where there exists

undue delay from the period between the issuance and execution of the warrant, the court may order that it constitutes time served under the CSO:

section 742.6(14). Additionally, the court may "in exceptional cases and in the interests of justice" deem the period of suspension as being time served under the CSO:

section 742.6(16). In making that determination, the court must consider: (

a) the circumstances and seriousness of the breach, (

b) whether 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:

section 742.6(17). 10 In assessing whether the period of suspension should be deemed as being time served under the CSO, the sentencing judge failed to assess those factors prescribed by

section 742.6(17) or to explain why this was not "an exceptional case and in the interests of justice." 11 In our view, the inordinate delay of ten months constitutes an exceptional case, particularly where this period was due to institutional delay. We were not told whether any of the delay was attributable to the conduct of the appellant. The interests of justice warrant credit being given for the period of suspension in this case. In considering the factors under

section 742.6(16), we are of the view that while the failure to report and to perform community service are serious breaches, they need to be balanced with the hardship to the appellant, who is a mother of two children and caregiver to a third. More importantly, she abided by the remaining conditions of the CSO during the period of suspension, including a more stringent reporting condition. (Emphasis added) [ 17 ] Finally, I observe that the law is not yet settled as to whether the result in a CSO breach hearing constitutes issue estoppel in subsequent substantive proceedings.

In obiter , some superior court decisions - such as Rahime and Beckles - have expressed the view that the CSO result is not binding on eventual substantive proceedings, whereas some academic commentary and superior court decisions have come to an opposite operating conclusion. Thompson , a recent decision of the Ontario superior court, comes to a conclusion similar to that of the Provincial Court in Palmer : 18 The Provincial Court of British Columbia considered the application of issue estoppel to a circumstance similar to that facing this court.

The accused in that case was charged with possession of controlled substances and given a conditional sentence. He was alleged to have breached conditions of the conditional sentence order. The judge at the hearing into the breach of the conditional sentence order found the Crown did not satisfy its onus to prove possession on a balance of probabilities.

The trial judge was faced with deciding whether, considering the stricter burden of proof at trial, issue estoppel could operate to bar re-litigation of the issue of possession based as it would be on essentially the same facts as presented at the earlier proceeding [ R. v. Palmer , [2008] B.C.J. No. 2050 , paras. 2-5 (B.C.P.C.) ]. 19 This issue was addressed by Shaun Laubman in his

article on conditional sentences and issue estoppel. Laubman observed that a breach of a conditional sentence, unlike a breach of probation or a breach of parole, does not give rise to a new offence which allows issue estoppel to be available as a possible bar to trial on the same facts. In the following commentary Laubman arrives at a useful analysis of the effect of the differing burdens of proof on the operation of issue estoppel. Given the provisions providing for the expeditious disposition of breach hearings, it is quite possible that they will often be decided before the underlying offence is dealt with.

However, ... [the higher standard of proof at trial] would dictate that a finding that the offender did not breach the condition to keep the peace and be of good behaviour on the balance of probabilities test would mean the Crown would be unable to prove guilt for the underlying offence beyond a reasonable doubt. Even if the more inclusive

interpretation for "keep the peace and be of good behaviour" advanced in Whitty is adopted, so long as some evidence relating to the underlying offence is tendered, a finding that there has been no breach necessarily includes a determination that no new offence has been committed. The three-part test for estoppel will be satisfied as the fundamental question of whether the offender committed an offence will be determined at the breach hearing. Shaun Laubman, "Conditional Sentences and Issue Estoppel", 50 Crim. L.Q. 283 (2005) at pp. 290 and 298] CONCLUSION 20 I am of the view that Mr.

Thompson has met his burden to show that the requirements for the application of issue estoppel have been met. There is no question about satisfaction of the first requirement -- that the same issue of possession that was before the court in

the conditional sentence hearing is now before the court to be tried. The third element of common parties at both proceedings is also clearly satisfied. In the Crown's view, it is not clear that Kelly, J. finally disposed of the specific issue of possession. 21 I disagree. I find that Kelly, J. made a conclusive finding on a specific question of fact. She made a determination on a material fact in the accused's favour in concluding the Crown failed through the evidence presented in the signed witness statements to meet its burden to prove that Mr. Thompson was in possession of the drugs.

The parties were left with no uncertainty about that at the end of the proceeding. 22 This is the type of circumstance in the criminal context that is contemplated by the doctrine of issue estoppel. Proceeding to trial would leave open the possibility for inconsistent findings on the issue of possession. Mr. Thompson has a decision in his favour on possession. It would be a patent injustice to him and not in the interests of the fair administration of justice for him to be faced once again with defending himself against the same allegation.

DISPOSITION 23 For the reasons set out above, I enter a judicial stay of the proceedings with respect to possession of a controlled substance for the purpose of trafficking on count one of the indictment. 4. In the circumstances here, what is a reasonable adjournment for the hearing of the alleged breach? [ 18 ] Both parties are of the view that, in principle, the hearing of the alleged CSO breach should be heard as quickly as possible. Both parties agree that it is not desirable to delay the hearing of the alleged CSO breach until after the trial of the aggravated assault charges.

In this, they agree with the conclusion of Karakatsanis J., as she then was, in Beckles : There is no requirement that a breach hearing that alleges conduct that is also the subject of criminal charges be deferred until after the charges have been dealt with. [ 19 ] Moreover, in the circumstances here, the Criminal Code process is at its very earliest stages, the matter still being in docket court and the defence still awaiting disclosure. Eventually, a date will have to be set for a preliminary hearing and, if there is a committal for trial at the conclusion of that process, a trial date will have to be set.

It would not be at all unusual in this jurisdiction for a trial to take place between one and two years after the docket appearances. In the result, this is clearly not a case where the breach hearing should be adjourned until after the trial of the aggravated assault charges. [ 20 ] The difference between the parties is that Mr.

Ismail is of the view that the hearing could and should be heard later this month, when the court has already advised counsel that it has the time available for a one day hearing, while the Crown is of the view that more time, perhaps some months, will be required to familiarize itself with the case, to subpoena witnesses, etc. The prosecutor had no information at today ’ s hearing on the condition of the victim of the assault; he was not aware, for example, if she was still in hospital.

The real question to be decided at this hearing is, therefore, what length of adjournment is reasonable in the circumstances here. [ 21 ] Although it acknowledges that the breach hearing should be held as soon as possible, the Crown is concerned that, if it uses the evidentiary shortcuts available to it under the Code at the breach hearing, issue estoppel may be used against it in the subsequent substantive criminal proceedings should the court find no breach of the CSO. This court does not have to adjudicate on issue estoppel.

However, this court must recognize that, in light of the case law cited above, the Crown ’ s concern about the eventual application of issue estoppel is not fanciful. [ 22 ] The arguments can be summarized from Mr. Ismail ’ s perspective as advocating a hearing as soon as possible which would be in compliance with Parliament ’ s intention and from the Crown ’ s perspective as having a delay in order to allow the Crown to put its best

case forward in light of the risk of issue estoppel. [ 23 ] In weighing the arguments of each of the parties, I begin with the fact that Mr. Ismail was, at the outset of the breach application, within 25 days of completing his CSO and that today is the day on which his original sentence expires. The best possible result of the breach hearing from the Crown ’ s perspective would be to achieve a collapse of the CSO into an actual jail sentence for 25 days. However, if the Crown were to fail to prove a breach of the provision of Mr.

Ismail ’ s sentence requiring him to keep the peace and be of good behaviour, the most which the court could do for Mr. Ismail is to determine that the time he has spent on restricted liberty while awaiting the CSO hearing would be counted as part of his CSO sentence: Bright . Even as of May 24, however, much less if an adjournment of a few months were granted, if the Court were to find that the new charges against Mr. Ismail had not been proven on a balance of probabilities, the court could not compensate Mr.

Ismail for the restriction of his liberty beyond the expiry of his CSO sentence. [ 24 ] Also, the Crown states that this is a situation in which Mr. Ismail may require the attendance for cross-examination of the witnesses used by the supervisor in the supervisor ’ s report. The Crown may be correct. Here, the attack itself is not in doubt; the identity of the attacker is the real issue. According to the best evidence available at this hearing, a month and a half after the attack, the victim cannot identify her attacker; therefore, Mr. Ismail may not wish to cross-examine the victim.

The physical condition of the victim, and the ability to subpoena her, may not, therefore, be matters of real concern in the circumstances of this case. On the other hand, Mr. Ismail may require the attendance for cross-examination of the police officer who seized the wallet and the police officer(

s) who were conducting surveillance of Mr. Ismail on April 9, 2013. However, since those witnesses are police officers, there should be no problem in anticipating their attendance on short notice at a hearing. The evidence of the neighbour does not appear to advance the Crown ’ s case on the issue of identity, so it may be that nothing more than the written statement from that witness will be required by Mr.

Ismail. [ 25 ] Having considered Parliament ’ s intention with respect to breach hearings, and the circumstances of this particular case, I have concluded that the breach hearing should be heard as soon as possible and advise counsel that I am available for a one day hearing on any day next week, as well as on June 3 rd and June 7th. It appears to me that a one day hearing would be sufficient because the

summary procedure anticipated in the Code suggests that written statements from proposed witnesses will serve as examination in chief and any persons whom the defence wishes to be present personally will only be available for cross-examination. Even a hearing scheduled for the latter part of next week would allow the Crown sufficient time to provide written statements from potential hearing witnesses for review by Mr. Ismail and Mr. Ismail sufficient time to prepare his cross-examination of those witnesses.

In any event, however, a one day hearing can be held by June 7 th , 2013, a date which will almost come within the 30 day period preferred by Parliament, but which will be fair to both parties. Heard on the 22 nd day of May, 2013. Dated at the City of Edmonton, Alberta this 24 th day of May, 2013.

J.B. Veit J.C.Q.B.A. Appearances: Jared Bialowas, Public Prosecution Service of Canada for the Crown Akram Attia, Attia Reeves for the Accused