R v Cochrane, 2016 ABQB 535

Court of Queen’s Bench of Alberta Citation: R v Cochrane, 2016 ABQB 535 Date: 20160927 Docket: 120089271 U2 Registry: Calgary Between: Her Majesty the Queen Crown - and - Leonard Brian Cochrane Defendant _______________________________________________________ Decision of the Honourable Mr. Justice W.A. Tilleman _______________________________________________________ Introduction [ 1 ] This Court must decide two issues: (1) did Mr. Cochrane breach his Conditional Sentence Order (CSO) and (2) if so, what are the consequences of the breaches based on s 742.6(9) of the Criminal Code, RSC 1985, c C-46?

Background [ 2 ] On January 7, 2016, Mr. Leonard Brian Cochrane was sentenced to a five month CSO for one count of making a false statement contrary to s 153(

a) of the Customs Act , RSC 1985, c 1 (2nd Supp), and for six counts of smuggling goods contrary to s 159 of the Customs Act . He was also sentenced to a 12 month CSO for five counts of unauthorized possession of a prohibited weapon contrary to s 91(2) of the Criminal Code . Both CSOs ran concurrently. [1] [ 3 ] More specifically, Mr. Cochrane has been accused of breaching his CSO on four counts. The Crown alleges that he has

breached optional conditions 1, 5, 8 and 9 of his CSO. Optional conditions 1, 5, 8 and 9 require Mr. Cochrane to do the following: 1) Mr Cochrane must report to his CSO supervisor as required and in the manner directed by his CSO supervisor. 5) During the first 6 months of the CSO, Mr. Cochrane must be in his residence at all hours, subject to the listed exceptions.During the second 6 months, Mr. Cochrane must abide by his curfew from 10 pm to 6 am, subject to the listed exceptions. 8) Mr.

Cochrane must go for assessment, participate in and complete any counselling or treatment as directed by his CSOSupervisor. 9) Mr. Cochrane must, as directed, participate in individual supportive counselling to address issues related to feelings ofpersecution, obsession with criminal proceedings, pain management, and any other identified mental health concerns. First Issue: Did Mr. Cochrane breach the CSO? [4] This Court finds that Mr. Cochrane breached optional conditions 1 and 9 of his CSO. Based on s 742.6(9) of the CriminalCode, the Crown has proved, on a balance of probabilities, that Mr.

Cochrane breached his CSO. The Defence did not satisfy this Courtthat Mr. Cochrane had any reasonable excuse for these breaches. Law Applicable to Breaches of a CSO [5] Sections 742 to 742.7 of the Criminal Code set out the framework for CSOs. Under s 742.3(1), certain compulsoryconditions must be included in all CSOs. According to s 742.3(2), the court may also impose optional conditions. [6] If the offender breaches any of these conditions, s 742.6 of the Criminal Code governs.

Based on s 742.6(9) of the CriminalCode, the Crown must prove on a balance of probabilities that the offender breached a condition of the CSO. The onus then shifts to theoffender to prove on a balance of probabilities that they had a reasonable excuse.

If the offender cannot prove a reasonable excuse, thecourt has four options: (1) take no action; (2) change the conditions of the CSO; (3) suspend the CSO temporarily and require theoffender to serve a portion of their unexpired sentence in jail or (4) terminate the CSO and place the offender in custody for theremainder of their sentence. [7] The constitutionality of the Crown’s diminished onus of proof in s 742.6(9) has been upheld by the Newfoundland Court ofAppeal (R v Whitty (1999), (NL CA), 174 Nfld & PEIR 77). [8] Sections 742.6(10) to (17) outline how the duration of the CSO is measured in the case of a breach allegation.

Once theproceedings for the breach allegation have commenced, the CSO stops running. However, the conditions for the CSO remain in place. Ifthe offender is held in custody, the CSO continues to run. [9] If the allegations are dismissed or the offender has a reasonable excuse, the suspended period is deemed to have been timeserved. In exceptional circumstances, the court may deem a portion of the period of suspension to be time served, despite finding theoffender in breach of their conditions. [10] In this case, the CSO was suspended on July 19, 2016. As such, Mr. Cochrane has 171 days left in his CSO.

Crown’s Position on Breach [11] The Crown’s position is that Mr. Cochrane breached four different conditions of his CSO as follows: Breach of Condition 1 [12] On several occasions, Mr. Cochrane would not show up at his proper appointment time with his supervisor. Additionally, Mr.Cochrane’s behaviour was so unacceptable that the meetings were terminated. The Crown alleges that, due to Mr. Cochrane’s behaviour,it has been required to adjust Mr. Cochrane’s reporting conditions to a level that is insufficient for supervising Mr. Cochrane.

Breach of Condition 5 [13] In-person surveillance checks, where the Police attend at Mr. Cochrane’s residence to ensure compliance with his curfew,have been discontinued because of Mr. Cochrane’s hostile and abusive behaviour. Also, Mr. Cochrane has routinely failed to answer hisphone after 10:00 pm as part of his surveillance checks. He has also failed to return the surveillance calls as directed by his CSOsupervisor. Breach of Condition 8 [14] While Mr. Cochrane has attended three counselling sessions with Dr. Xie, these sessions have been unproductive due to hislevel of mistrust and behaviour. Although Mr.

Cochrane has stated that he would prefer to attend counselling sessions with Dr. Baillie, hehas refused to make an appointment. Breach of Condition 9 [15] Mr. Cochrane was directed to initiate counselling with a counselling agency and further to provide written documentation of

his contact with the agency to his CSO supervisor. He has not provided the documentation. He has contacted the John Howard Society; however, this was not one of the agencies suggested by his supervisor. Defence’s Position on Breach [ 16 ] The Defence’s position on the breaches is that Mr. Cochrane, while rude, did not breach his CSO. He could better comply with a CSO, if it were varied to meet his personal circumstances. Evidence of Breaches [ 17 ] Various witnesses gave oral testimony at the CSO breach hearing. Among the most important witnesses were Ms. Jennifer Moriarity, Ms. Erin Jackson, Dr. Xie and Mr.

Leonard Cochrane. Ms. Jennifer Moriarity was Mr. Cochrane’s first supervisor, from January 28, 2016 to April 28, 2016. Ms. Erin Jackson took over as Mr. Cochrane’s supervisor on April 28, 2016 and she continues to be Mr. Cochrane’s supervisor. Dr. Xie is a Forensic Psychiatrist at Forensic Adult Outpatient Services (FAOS). She has met with Mr. Cochrane several times for treatment. [ 18 ] In terms of the evidence of the breaches, this Court finds the Crown’s evidence accurate and reliable. This Court finds Mr. Cochrane’s evidence confused, contradictory and hard to reconcile with the evidentiary reality.

For example, Mr. Cochrane seems to believe that his appointments with Ms. Moriarity were going fine and that he “never had any arguments with her about anything”. Mr. Cochrane further stated in his oral testimony that he never yelled at Ms. Moriarity and that he was never asked to leave an appointment early on account of his bad behaviour. According to Mr. Cochrane, the trouble only started when Ms. Jackson became his supervisor. [ 19 ] However, Ms. Moriarity tells a different story. Ms. Moriarity, in her oral testimony, stated that [Mr.

Cochrane’s] behaviour towards us was unsettling....he would leave the office and slam doors....He’s one of the more difficult clients I’ve had to deal with....his actions make me fearful; that’s why I removed him from the office....Because when he stands up and he’s yelling at me...that makes me concerned. [ 20 ] Ms. Moriarity’s evidence is in direct conflict with Mr. Cochrane’s evidence. This Court accepts her evidence. Several other witness statements corroborate Ms. Moriarity’s evidence. [ 21 ] Mr. Cochrane’s evidence also conflicts with Dr. Xie’s evidence. During her oral testimony, Dr. Xie stated that Mr.

Cochrane “refused to take any medication” when she offered and that although he previously requested to see Dr. Baillie, a forensic psychologist, he no longer wanted to see him. During her direct examination she stated: So before this visit, he requested to see Dr.Baillie .... So this time on his visit I asked him, because Dr. Baillie is going to offer him opportunity for counselling if he’s interested, now this time he declined. He doesn’t want to have this appointment. [ 22 ] In his oral testimony, Mr. Cochrane confusingly stated that with Dr. Xie “there was no treatment offered, nothing like that”. Also, Mr.

Cochrane testified that he “asked [Dr. Xie] if I could see Dr. Baillie instead, and she refused”. [ 23 ] Dr. Xie’s evidence directly conflicts with Mr. Cochrane’s evidence and this Court finds hers reliable. She made notes of these meetings and was able to recall various details of the meetings. [ 24 ] Mr. Cochrane’s own evidence even contradicts itself. When discussing the various curfew phone calls, Mr. Cochrane stated that on “July 20 th , I couldn’t answer the phone”. Several minutes later, while still referring to the curfew phone calls, Mr.

Cochrane stated that “I answered the phone on every single one of these”. [ 25 ] This Court finds that Mr. Cochrane’s evidence is largely confused and cannot find within it a reasonable excuse for his breaches of the CSO. Condition 1: Mr. Cochrane failed to report as directed by his supervisor [ 26 ] This Court finds that Mr. Cochrane failed to report as directed by his supervisor on multiple occasions. Mr. Cochrane failed to report by telephone as directed on April 29, 2016 at 11:30 am. The Defence introduced an email into evidence that Ms. Jackson sent to Mr. Cochrane later that same day.

The email read: I’m Erin and I’m taking over your case, so I just wanted to touch base. I believe you were scheduled to report today at 11:30. [ 27 ] Mr. Cochrane later told Ms. Jackson that he was unaware that he had to report at a specific time. He did not offer any other reason for not reporting at that time. [ 28 ] Additionally, Mr. Cochrane was directed to report to Ms. Moriarity in person on March 4, 2016 at 10:00 am. However, Mr. Cochrane, of his own accord, reported on March 2, 2016. During this meeting, he was verbally abusive.

In order to convey the nature of this abuse, it is necessary, as disturbing as it is, to quote Ms. Moriarity’s report: [Mr. Cochrane] began yelling and stating that we were “ enforcing an illegal order .” He was told he would need to calm down or he would be asked to leave and return at a later time. He then equated us to a “ Nazi death camp ” and stated his community service is forced labour.... When he continued yelling the appointment was ended and he was told this behaviour would not be tolerated . [emphasis added] [ 29 ] After the March 2 nd meeting, Ms.

Moriarity met with Shannon Gallagher, a senior probation officer, to discuss Mr.

Cochrane’s behaviour. In the meeting, the two decided that Mr. Cochrane’s meetings should be conducted in the secure room. The secure room contains a plexiglass partition that separates Mr. Cochrane from the probation officer in order to ensure the protection of the probation officer. [ 30 ] On later dates, Mr. Cochrane continued to be verbally abusive. On May 6, 2016, Mr. Cochrane reported one hour before his scheduled appointment. He was combative and stated that he would not complete his required community service hours. On June 7, 2016, Mr. Cochrane reported at 10:30 am, despite being scheduled for 3:00 pm.

Mr. Cochrane was verbally abusive and threatening. Prior to Mr. Cochrane’s July 12, 2016 meeting, Ms. Jackson emailed him to change his reporting time from 3:00 pm to 1:30 pm. Ms. Jackson also phoned Mr. Cochrane and told him verbally that his appointment was changed from 3:00 pm to 1:30 pm. Nonetheless, Mr. Cochrane reported at 3:00 pm on July 12, 2016. He stated that he was unaware of the change in the appointment time. [ 31 ] As of August 18, 2016, all in-person appointments between Mr. Cochrane and his supervisor have been cancelled for safety concerns. [ 32 ] All of these incidents show that Mr.

Cochrane has consistently failed to report to his supervisor as directed. This Court does not accept that Mr. Cochrane did not know when he needed to report. While it is understandable that Mr. Cochrane could have shown up for his appointment at the wrong time once or twice, this Court specifically finds that not to be the case here. Mr. Cochrane’s consistent pattern of showing up for his appointments at the wrong time – and then verbally abusing his supervisor – displays a willful spurning of his supervisor’s legal authority.

That authority is directly rooted in optional condition 1 of his CSO. [ 33 ] By failing to report on April 29, March 4, May 6, June 7 and July 12, 2016 as directed by his supervisor, Mr. Cochrane breached his CSO. Condition 5:Mr. Cochrane has abided by his curfew [ 34 ] The Crown has pointed to various instances where Mr. Cochrane has failed to answer his phone for curfew checks after 10:00 pm. The Crown has also pointed to Mr. Cochrane’s belligerent and abusive behaviour when in-person curfew checks were performed. This Court accepts all of the Crown’s allegations regarding Mr.

Cochrane’s behaviour with respect to his curfew checks. However, despite these inappropriate behaviours, Mr. Cochrane has not breached his curfew. [ 35 ] This Court accepts that Mr. Cochrane has missed a number of curfew check phone calls. This Court accepts that Mr. Cochrane has been directed to return these missed curfew check phone calls. This Court finds that Mr. Cochrane is entirely inappropriate, vulgar and combative when answering his curfew phone calls from probation officials. This Court accepts that Mr.

Cochrane’s behaviour has subverted the monitoring process and has rendered his curfew condition meaningless. [ 36 ] Here are a few examples of Mr.

Cochrane’s behaviour: (1) answering his phone on July 11, 2016 and stating, “why don’t you just call at 3 am, this is criminal harassment, fuck off you fucking cunt”; (2) hanging a saw by his door on June 29, 2016, in visible view of the probation officers while they were performing a residence check; (3) leaving a voice message on July 14, 2016, in which he threatened to lay criminal harassment proceedings against the probation officers performing the curfew check phone calls. This Court finds all of these facts to be true. [ 37 ] For whatever reason, Mr.

Cochrane believes that he has the right to not receive phone calls after 10:00 pm – despite being sentenced to criminal sanctions that allow for otherwise. However, strictly speaking, Mr. Cochrane has not breached this condition. By answering the phone with profanities and expletives, Mr. Cochrane has not breached his curfew. Further, by failing to answer the phone from time to time, Mr. Cochrane has not breached his curfew. Further still, by failing to return the curfew check phone calls, Mr. Cochrane has not breached his curfew. [ 38 ] Under this condition, Mr.

Cochrane is required to be in his residence under a curfew from 10:00 pm to 6:00 am. The evidence shows that Mr. Cochrane has not breached his curfew. He is simply not picking up his phone. If the missed phone calls proved that Mr. Cochrane had breached his curfew, he would be in breach of this condition. However, the evidence does not allow me to draw such a conclusion. While being cross-examined by defence counsel, Ms. Erin Jackson gave the following evidence: Q: So you’re not alleging that he’s even breaching his curfew? A: No Q: You’re saying the problem is sometimes he doesn’t answer the phone and call back?

A: Correct Q: So that’s the extent on that of what he’s missing, as far as his curfew? A: Yes Q: Okay. But every time he’s been check [sic] on, he’s there? A: Yes [ 39 ] Based on Ms. Jackson’s evidence, Mr. Cochrane failed to answer the phone when he was required to do so. As the curfew condition of his CSO does not require him to answer his phone for curfew calls, this Court cannot find Mr. Cochrane in breach of his curfew. Condition 8: Mr. Cochrane has participated in counselling

[ 40 ] This Court finds that Mr. Cochrane has not breached this condition. Mr. Cochrane’s supervisors have directed him to attend Forensic Assessment and Outpatient Services (FAOS). He has done so on three occasions. He has met with Dr. Liya Xie on March 22, May 17 and August 15, 2016. This particular breach allegation is not that Mr. Cochrane has failed to attend counselling, but that he has failed to participate in counselling. [ 41 ] In her oral testimony, Dr. Xie gave the following evidence during her cross-examination by defence counsel: Q: Okay.

Now, so he’s going to his appointments as directed and he’s participating, correct? A: He’s participating in that he comes. Q: Right. A: He’s not participating in treatment. [ 42 ] According to Dr. Xie, Mr. Cochrane’s lack of participation is rooted in his distrust and behaviour. In her opinion, Mr. Cochrane has a thought process disorder and is likely an organized paranoid delusional. Mr. Cochrane has refused any medication recommended by Dr. Xie. [ 43 ] While this Court is aware of the various concerns about Mr.

Cochrane’s mental health, it is not prepared to find him in breach of this condition – especially when Mr. Cochrane has been attending the counselling sessions. [ 44 ] Optional condition 8 states “You shall go for assessment and participate in and complete any counselling or treatment directed by your supervisor including: ...attend FAOS...”. Since this condition only requires Mr. Cochrane to “attend FAOS” and does not further specify the meaning of “participate in”, this Court is not prepared to find that Mr. Cochrane has breached this condition. [ 45 ] Based on the evidence of Dr. Xie, Mr.

Cochrane clearly engages during these sessions – albeit negatively. He talks to Dr. Xie and tells her about how he is persecuted by the state. While the outcome of these sessions has been poor, and his conduct disrespectful, Mr. Cochrane has been participating in the sessions. Therefore, this Court does not find Mr. Cochrane in breach of this condition. Condition 9: Mr. Cochrane has failed to participate in individual counselling as directed [ 46 ] Ms. Jackson directed Mr. Cochrane to participate in counselling to address his mental health concerns.

Despite this instruction, he has failed to participate in counselling as directed. For the following reasons, this Court finds him in breach of this condition. [ 47 ] On June 24, 2016, Ms. Jackson gave Mr. Cochrane a list of counselling agencies and directed him to contact a counselling agency of his choice. Specifically, Ms. Jackson directed Mr. Cochrane to receive counselling for his mental health concerns. Mr. Cochrane later informed Ms. Jackson that he contacted a counselling agency. However, he refused to tell her the name of the counselling agency. Ms. Jackson directed Mr.

Cochrane to provide written proof of the counselling for the next appointment. Mr. Cochrane failed to produce the required written confirmation. He has still not produced any written confirmation of counselling. [ 48 ] Mr. Cochrane appears to have contacted the John Howard Society. Based on the evidence of Ms. Jackson, which this Court accepts, a caseworker at the John Howard Society received a “cryptic phone” from Len Cochrane. Mr. Cochrane requested “assistance to stop the systemic persecution against” him. Mr. Cochrane did not request assistance for his mental health concerns.

The John Howard Society does not offer mental health counselling. Additionally, the John Howard Society was not amongst the counselling agencies recommended by Ms. Jackson. [ 49 ] Mr. Cochrane received clear instruction to initiate counselling for his mental health. He was given a list of potential counselling agencies and a deadline for commencing counselling. He disobeyed the clear directions of Ms. Jackson and did not initiate counselling. Although he contacted the John Howard Society, he was cryptic and did not request assistance for his mental health. Further, based on the evidence of Ms.

Jackson, the John Howard Society does not even provide mental health counselling. Further still, Ms. Jackson gave Mr. Cochrane a Calgary Community Services Guide that explicitly stated that the John Howard Society did not offer mental health services. Nonetheless, Mr. Cochrane decided to contact the John Howard Society. Contacting the wrong agency and then failing to request mental health services, as explicitly directed by Ms. Jackson, does not constitute “initiating counselling for his mental health concerns”. As such, this Court finds find that he breached this condition of his CSO.

Second Issue: What should be done about Mr. Cochrane’s breaches? [ 50 ] Under s 742.6(9) of the Criminal Code , this Court has four options available in light of Mr. Cochrane’s breaches: (1) do nothing; (2) vary the conditions of the CSO; (3) suspend the CSO for a time; and (4) terminate the CSO. Using the Court’s discretion under this section, and based on the presumption of termination – which is not rebutted in this case – this Court terminates this CSO and orders that Mr. Cochrane spend the rest of his sentence in custody.

The Law Applicable to Determining Consequences of a Breach [ 51 ] CSOs were introduced into the Criminal Code in 1996. Subsequently, the Supreme Court of Canada, in R v Proulx , 2000 SCC

5, held that CSOs were created to achieve two objectives: (1) to reduce the use of prison as a sanction and (2) to expand the use ofrestorative justice principles in sentencing. These restorative justice principles included rehabilitation, reparations to the victims and tothe community, and the promotion of a sense of responsibility in the offender. [52] The Court’s

interpretation of CSOs in R v Proulx, 2000 SCC 5 is consistent with the CSO eligibility requirements under s742.1 of the Criminal Code.

Under s 742.1 of the Criminal Code, an offender can serve their sentence in the community where theoffender would not endanger the safety of the community and where the CSO would be consistent with the fundamental purpose andprinciples of sentencing outlined in ss 718 to 718.2 of the Criminal Code. [53] At the same time, it is important to recall that CSOs are “punitive sanctions capable of achieving the objectives ofdenunciation and deterrence”(R v Proulx, 2000 SCC 5 at para 22).

Indeed, CSOs should generally include punitive conditions, such ascurfew or house arrest, which restrict the offender’s liberty (R v Proulx, 2000 SCC 5 at para 36). In place of prison, the offender isplaced under strict surveillance in the community (R v Proulx, 2000 SCC 5 at para 21). [54] The punitive nature of a CSO informs the treatment of CSO breaches. In order to effectively enforce CSOs, “committal toprison [must] be a real threat”(R v Wismayer (1997), (ON CA), 33 OR (3d) 225 (ONCA) at para 40).

Therefore,where an offender breaches a CSO without reasonable excuse, there is a presumption that the offender will spend the remainder of thesentence in jail (R v Proulx, 2000 SCC 5 at para 39). [55] The presumption of terminating a CSO is rebuttable and the court has the flexibility to “fashion a disposition appropriate toeach offender...so that the ...purposes of sentencing can be achieved”.

However, “with that flexibility comes the obligation to explain thefactors taken into account in exercising the wide-ranging discretion and the reasons for selecting the particular disposition” (R v Langley,2005 BCCA 478 at paras 6, 7)[2]. Additionally, when dealing with a CSO breach, it is an error in law to fail to consider all of theavailable options in the context of the actual circumstances (R v Bachmeier, 2007 ABCA 374 at para 9).

At the same time, there is an“obligation on the offender...to establish that sentencing principles can be met with a disposition other than termination” (R v Langley,2005 BCCA 478 at para 7). [56] Several cases have attempted to list the various factors that the court should consider in a CSO breach.

In R v Langley, 2005BCCA 478 at para 13, the British Columbia Court of Appeal stated that: the court at a disposition hearing is to consider the nature of the offence; the nature, circumstances, and timing of the breach; anysubsequent criminal conduct and sentences for that conduct; changes in the plan for community supervision; the effect of termination onthe appropriateness of the sentence for the original offence; and the offender’s previous criminal record, in determining whether thepresumption of termination for breach is to be applied.

If the presumption is rebutted, the court then is to ask itself which of the otherthree options is appropriate, having regard to those same factors. I do not understand the list of factors to be closed. [57] Other factors include the sentencing considerations in

Part XXIII of the Criminal Code (R v Ramsaran, [2008] OJ No 3163 atpara 65), maintaining the integrity of the conditional sentence regime (R v Filippelli (2002), (ON CA), 61 OR (3d)577 (ONCA) at para 26), and proportionality – in other words, whether terminating the CSO would result in an inappropriate sentence (Rv Talman, 2005 BCCA 279 at para 12). [58] With respect to the integrity of the conditional sentence regime, it is important to remember that imposing a CSO, or alteringthe conditions of a CSO, where the offender is likely to disobey its conditions makes a mockery of the justice system.

Such behaviourshould not be tacitly condoned, nor facilitated through the imposition of unworkable CSOs. In R v Brady, 1998 ABCA 7 at paras 129 -131, Chief Justice Fraser and Justice Côté listed three reasons for not imposing a CSO where it will likely not be followed. These reasonsare also applicable when determining the appropriate option in a hearing for a CSO breach: If it is not likely that the offender will obey, then there are a number of reasons not to give a conditional sentence. First, because it willwaste everyone's time and money, and likely not produce the intended treatment or rehabilitation.

There is no point in buying medicinewhich the patient will not take. The second reason is that often it means that the convict's conduct, or his presence out of jail, wouldendanger the safety of the community: ... Third, the sentence will suggest to the offender and to those around him, that the law and the courts are a paper tiger. ... A conditional sentence which will likely not be obeyed is a slap on the wrist with pious platitudes. Crown’s Position [59] The Crown is seeking to terminate the CSO.

In the alternative, the Crown seeks to suspend the CSO for a period of 60 to 90days. [60] Based on R v Proulx, 2000 SCC 5 and s 742.1 of the Criminal Code, the Crown argues that a CSO has three components: (1)a punitive component, (2) a restorative component and (3) a requirement that the public not be endangered by the CSO. [61] First, due to Mr. Cochrane’s behaviour, the Crown argues that monitoring and enforcement of the CSO is no longer possible.Therefore, Mr. Cochrane has subverted the punitive component of the CSO. Second, due to Mr.

Cochrane refusing to undergo treatmentor participate in counselling, he has subverted the restorative component of the CSO. Third, due to Mr. Cochrane’s mental health, heposes a risk to the public. This danger to the public manifests itself in Mr. Cochrane’s hostility to justice officials. The Crown alleges thatMr. Cochrane has threatened frivolous legal action against various police officers, border officials and Crown Prosecutors. The Crownalleges that Mr. Cochrane’s behaviour could be subject to criminal charges. [62] As it is not possible to effectively enforce the CSO against Mr.

Cochrane, the Crown argues that the CSO should beterminated and Mr. Cochrane should serve the remainder of his sentence in custody. The Crown further seeks that the time between the

breach allegation and the determination of the breach allegation not be counted towards time served. Defence’s Position [ 63 ] The Defence argues that, although there is a presumption that a breach of a CSO results in the termination of the CSO, s 742.6(9) allows a court four options with respect to a CSO breach. In this particular case, the Defence argues that a variation of the conditions would adequately address the breach. However, the Defence did not recommend any specific variations to the CSO. [ 64 ] More specifically, the Defence argues that Mr.

Cochrane’s alleged breaches do not merit a collapse of the sentence. The Defence points to R v Quinn , 2015 ABPC 116 to support this contention. The Defence also argues that terminating the CSO would result in a lengthy jail sentence, and would contradict the very nature of a CSO, as terminating the CSO would be counter-productive to the rehabilitation of Mr. Cochrane. The Defence argues that Parliament sought to, amongst other things, promote rehabilitation by creating CSOs.

Law Applied to Findings of Fact [ 65 ] The Supreme Court in R v Proulx , 2000 SCC 5 outlined a three-fold purpose for CSOs: (1) reduce the incarceration rate; (2) expand the use of restorative justice principles and (3) create a punitive sanction capable of denouncing and deterring the crime. Implicit in these reasons, and explicitly outlined in s 742.1(

a) of the Criminal Code , is a fourth consideration: ensuring the safety of the community. In a sense, this fourth consideration is a constraining parameter on reducing the incarceration rate. The incarceration rate should not be reduced to the point of negatively impacting the safety of the community. In other words, the goal of reducing the incarceration rate can be stated in terms of the safety of the community.

As such, when assessing the proper remedy for a breach of a CSO, the following factors should be considered: (1) whether the offender poses a threat to the safety of the community, (2) whether restorative justice principles, including rehabilitation, reparations to the victims and to the community, and the promotion of a sense of responsibility in the offender, can be achieved through the continued use of a CSO and (3) whether the current CSO is sufficiently punitive to denounce and deter the crime.

If all these factors weigh against the offender, there is a very strong presumption that the CSO should be terminated. These three factors measure the pulse of a CSO’s effectiveness. Therefore, a court should examine these factors when trying to determine whether a CSO is still an effective sentence. Mr. Cochrane is a threat to the safety of the community [ 66 ] This Court finds that Mr. Cochrane is a threat to the safety of the community. Based on R v Proulx , 2000 SCC 5 at para 69 , two factors must be taken into account when assessing the danger posed to the community.

These two factors are (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence. These factors are not applicable to Mr. Cochrane’s situation. [3] The risk with Mr. Cochrane is not that he will re-offend by smuggling. The risk with Mr. Cochrane is that the safety of anyone attempting to enforce his CSO is threatened. Therefore, in assessing Mr.

Cochrane, it is important to recall that “the risk that a particular offender poses to the community must be assessed in each case, on its own facts....the factors...should not be applied mechanically” ( R v Proulx , 2000 SCC 5 at para 71 ). [ 67 ] In the case of Mr. Cochane, he is a three-fold threat to the safety of the community. First, he is threatening to justice officials when they attempt to enforce the terms of his CSO. Second, he does not obey the terms of his CSO. Third, he cannot be effectively supervised as he is becoming impossible to manage. [ 68 ] Mr.

Cochrane intimidates the probation office staff and also other clients at the probation office. According to the evidence of Ms. Jackson, which this Court accepts, Mr. Cochrane was aggressive, hostile and extremely abusive. He would yell, slam doors and clench his fists before, during and after meetings. He displayed a number of “threat cues” while at the probation office, such as pacing and assuming a bladed stance. [4] Based on Ms.

Jackson’s training, both of these cues are indicative that “they’re going to engage in aggressive behaviour or assaults”. [ 69 ] More specifically, on July 20, 2016, during a meeting, Ms. Jackson told Mr. Cochrane to stop threatening legal action against her. Mr. Cochrane responded, “it is not a threat, it is a promise”. On another occasion, upon leaving a meeting with Ms. Jackson, Mr. Cochrane called her a “fucking cunt”. In her oral testimony, during cross-examination, she explained: Q: When he was leaving that time, he called you a fucking cunt? A: Yes. Q: You’re sure? A: Yes.

Q: So he said, You are a fucking cunt? A: Yes. [ 70 ] According to Ms. Jackson, on May 23, 2016, while Mr. Cochrane was reporting at the probation office, he “deliberately positioned himself in front of administrative staff in an effort to intimidate her”. Further, on June 5, 2016, Mr. Cochrane sent Ms. Jackson an email stating that she was not allowing him “to work or volunteer in your in [sic] fascist lie of a country. I’ll be personally suing you for lost opportunity and income”.

On August 2, 2016, he sent an email to another probation officer stating that he had “lost out on thousands since Erin Jackson took over my harassment in June...which I am going to be wanting compensation for”. This Court accepts and finds the Crown’s evidence of Mr. Cochrane’s threats or intimidations to be fact.

[ 71 ] Ms. Jackson further testified, and this Court finds as fact, that Mr. Cochrane “no longer reports in person, so he reports by telephone contact only, to ensure the safety of staff and other clients in the building”. According to another probation officer, Barb Sexsmith, police have ceased to visit Mr. Cochrane’s house for curfew checks due to safety concerns. Further, Ms. Sexsmith stated in her signed statement that the probation officers now only perform curfew check phone calls from 10:00 pm to 10:15 pm in order to prevent Mr. Cochrane’s “hysterical” reactions. This Court accepts Ms.

Sexsmith’s evidence on this point. [5] [ 72 ] Based on the evidence of Dr. Xie, if Mr. Cochrane goes untreated, he will get worse and could potentially harm himself or someone else. This Court recalls the evidence given by Dr. Xie during her cross-examination: A: [Mr. Cochrane’s condition is] serious because of his anger. He’s on the barely, barely he still can control the anger. And now he’s also on THC. The marijuana, the THC, helps him to mellow, like it deprive [sic] his motivation to do anything...his anger could explode and you don’t know who will be harmed.

Q: So you think his anger can explode because he’s on marijuana? A: No. Because of his delusions. He’s barely controllable right now. [ 73 ] Further, in her direct examination, Dr. Xie stated the following: Mentally [Mr. Cochrane is] really sick. So he’s frustrated himself, you can see he’s so angry. And we know anger management is out of control, you know, he can be some risk to himself or others . (emphasis added) [ 74 ] As such, this Court finds that allowing Mr. Cochrane to continue to serve his sentence in the community threatens the safety of the community. Mr.

Cochrane’s behaviour has subverted the restorative justice aspect of his CSO [ 75 ] Mr. Cochrane has also subverted the restorative justice objective of his CSO. Typically, CSOs are more effective than incarceration at achieving rehabilitation, reparation of the crime and promotion of a sense of responsibility in the offender ( R v Proulx , 2000 SCC 5 at para 22 ). However, this is not the case here. Mr. Cochrane refuses to receive counselling, treatment or to deal with his mental health issues. With respect to his required community service, he refers to it as “community bullshit extortion” and “forced labour”.

He refuses to perform the required community service hours until December or January if his “neck is still under your crown boot”. His refusal to do his community service hours until December is problematic since his community service hours are due on December 6, 2016 – one month before the expiry of his CSO. [ 76 ] Further, based on Ms. Jackson’s evidence, Mr. Cochrane audio records all of his visits to the probation office for the purpose of a “criminal investigation that has been initiated” against the government. He claims that Ms. Jackson is an accomplice. In an email he sent to Ms.

Jackson on July 31, 2016, he referred to his CSO sentence as an “illegal order”. In a June 5, 2016 email to Ms. Jackson, he referred to it as a “bullshit conviction”. In a meeting with Ms. Moriarity on March 2, 2016, he stated that the probation officers were “enforcing an illegal order”. Lastly, in an email he sent to Ms. Jackson on June 6, 2016, he referred to a border official, who he cannot contact under his CSO, as a “criminally corrupt pedophile...you and your crown scum friends are protecting”. [ 77 ] As it currently stands, Mr.

Cochrane is not able to reap the restorative benefits of his CSO – a CSO that this Court specifically set up for him. Also, he has no sense of responsibility for his behaviour. Therefore, the restorative aspect of his CSO is ineffective. Mr Cochrane’s behaviour has subverted the punitive aspect of his CSO [ 78 ] Due to Mr. Cochrane’s behaviour, his CSO is no longer punitive. In order to be effective, persons sentenced to CSOs must be under tight controls and strict surveillance; otherwise, CSOs fail to effectively denounce and deter crimes.

The curfew requirement is one of the punitive conditions of a CSO ( R v Proulx , 2000 SCC 5 at para 36 ). [ 79 ] In the case of Mr. Cochrane, the curfew requirement has been effectively suspended due to his behaviour. Due to the above mentioned safety concerns in paragraph 71, police and probation officers no longer perform house checks. In order to avoid Mr. Cochrane’s vitriolic responses to their curfew check phone calls, the probation officers only perform curfew check phone calls roughly between 10:00pm to 10:15pm. This effectively imposes a very short curfew on Mr. Cochrane each night. Describing Mr.

Cochrane’s response as “vitriolic” is not exaggerating. Based on Ms. Jackson’s evidence, which this Court accepts, Mr. Cochrane will routinely answer his phone by stating “fuck off” or “fucking cunt” or “stop fucking harassing me”. He also threatens to commence legal action for calling his number. Finally, Mr. Cochrane no longer reports in-person to the probation office. He reports exclusively over the phone. [ 80 ] By his actions, Mr. Cochrane has seriously compromised the punitive nature of the CSO.

Due to his abuse of the justice system and his anger against those who administer it – as outlined in the previous 14 paragraphs – the CSO is absolutely not a remedy that suits Mr. Cochrane. This CSO breach hearing has proven to this Court that Mr. Cochrane will not comply with his CSO. Other Factors to Consider [ 81 ] The case law outlined above mentions various other factors that should be considered when determining the proper recourse for breaching a CSO. This Court incorporated the appropriate factors listed in R v Langley , 2005 BCCA 478 at para 13 into its analysis.

However, this Court can elaborate further with two factors: the effect of termination on the appropriateness of the sentence and maintaining the integrity of the conditional sentence regime. This Court will deal with these two factors now. The Effect of Terminating the CSO is Appropriate

[ 82 ] If the CSO is terminated, Mr. Cochrane will spend 171 days, or approximately 5 months in jail. Looking at other cases dealing with smuggling, this is an appropriate sentence. In R v Morin , [1993] BCWLD 1933 (BCCA) , the offender was sentenced to a four month prison sentence for smuggling six firearms and three cans of mace into Canada contrary to s 159 of the Customs Act . He was a gun collector and a first time offender. In R v Bonilla , 2015 BCSC 2395 , the offender was sentenced to a 15 month CSO for smuggling prohibited firearms into Canada. He was a gun collector.

In R v Fearn , 2014 ABPC 58 , the offender was sentenced to a 4 month prison sentence for smuggling into Canada ten over capacity magazines, two push daggers, one blow gun and one canister of pepper spray. He was sentenced after fleeing the jurisdiction. [ 83 ] Based on these cases, five months imprisonment is a proportional sentence to the original crime Mr. Cochrane committed. Terminating the CSO does not result in a disproportionally long sentence. The Integrity of the CSO System [ 84 ] The integrity of the CSO system is now compromised. Mr.

Cochrane’s behaviour shows a flagrant disregard and disrespect for the terms of his CSO, for the justice system and for those who administer it. This Court accepts the Crown’s evidence and based on it, the only proper response to these breaches is to terminate the CSO. [ 85 ] The alternatives to terminating the CSO are (1) taking no action, (2) changing the conditions of the CSO and (3) suspending the CSO for a time. All three of these options are inappropriate for the reasons that follow. [ 86 ] Taking no action would effectively nullify the CSO. Nullifying the CSO due to Mr.

Cochrane’s breaches would bring the integrity of the CSO system into disrepute. Further, using the language of our Court of Appeal, such a decision would suggest that CSOs truly are paper tigers incapable of achieving the purposes of sentencing. [ 87 ] Based on the evidence this Court has heard, Mr. Cochrane would predictably not comply with any additional changes to his CSO. This Court recalls the words of Chief Justice Fraser and Justice Côté cited earlier: “If it is not likely that the offender will obey, then there are a number of reasons not to give a conditional sentence.

First, because it will waste everyone's time and money, and likely not produce the intended treatment or rehabilitation” ( R v Brady , 1998 ABCA 7 at para 129 ). Experience has shown that Mr. Cochrane will not obey the terms of his CSO, even when the terms are relatively lax. Increasing the restrictions on Mr. Cochrane will not, in this Court’s opinion, result in his compliance. It will likely result in further breaches. Therefore, altering the terms of the CSO is not an appropriate solution. [ 88 ] For similar reasons, requiring Mr.

Cochrane to spend a period of time in prison and then releasing him to serve the remainder of his sentence in the community is not an appropriate solution. Mr. Cochrane is likely not capable of abiding by the terms of any CSO.

Therefore, allowing him to serve any portion of his sentence in the community will likely result in further breaches. [ 89 ] Lastly, based on s 718 of the Criminal Code , in order to achieve the fundamental purpose of sentencing, CSOs must “protect society and...contribute...to respect for the law and [to] the maintenance of a just, peaceful and safe society by imposing just sanctions....” CSOs must denounce and deter crime, protect the public, rehabilitate the offender, repair the harm done to the victim or community or promote a sense of responsibility in the offender.

These goals are not being met. [ 90 ] As discussed above, Mr. Cochrane’s current CSO is ineffective. Its terms are currently not being enforced. Unless the terms of a CSO are enforced, the CSO fails to achieve the fundamental purpose of sentencing outlined in s 718 of the Criminal Code . Mr. Cochrane, through his behaviour, has shown this Court that any CSO is unworkable. Others are at risk. He is unmanageable. The only way the fundamental purpose of sentencing can be achieved is through terminating his CSO and placing him in custody. To allow this CSO to persist would undermine the integrity of the CSO system.

The CSO system demands compliance. Jail is the only solution in Mr. Cochrane’s case that respects the objectives of Parliament. Conclusion [ 91 ] This Court finds that Mr. Cochrane has breached optional conditions 1 and 9 of his CSO without reasonable excuse. Further, this Court finds that the CSO should be terminated and Mr. Cochrane should spend the remainder of his sentence in custody. He should not receive any credit for the period his CSO was suspended. In coming to this conclusion, this Court has considered the three other options available under s 742.6(9) of the Criminal Code .

None of these options are acceptable based on the factors outlined in the case law and principles of sentencing in ss 718 to 718.2 of the Criminal Code . In this case, the only appropriate option is to terminate the CSO. [ 92 ] Lastly, given the actions of Mr. Cochrane towards the various officials, this Court recommends that these reasons be referred to the Attorney General for the Province of Alberta to determine whether further criminal charges should be laid in relation to those activities referred to in paragraphs 28, 36, 68, 69, 70, 75, 76 and 79.

Specifically, this Court is referring to the findings of fact that it made in this CSO breach hearing, which evidence this court accepts and relies on, including: (1) threatening legal action against various probation officers when they attempt to enforce the terms of his CSO; (2) intimidating Ms. Jackson and Ms. Moriarity during his various appointments; (3) calling Ms.

Jackson a ‘fucking cunt’ during an appointment; (4) sending intimidating emails to various probation officers; (5) referring to a border official as a “pedophile” in an email to another person; (6) referring to the CSO as an illegal order, (7) equating the probation office to a Nazi death camp and (8) hanging a saw in a visible location so as to threaten probation officers. Heard on the 2 nd day of September, 2016. Dated at the City of Calgary, Alberta this 27 th day of September, 2016.

W.A. Tilleman J.C.Q.B.A. Appearances: Shelley Tkatch Crown Counsel and Agent for the Attorney General of Canada Darren Mahoney Counsel for Leonard Cochrane