R v Terpstra, 2023 ABCJ 192

In the Alberta Court of Justice Citation: R v Terpstra, 2023 ABCJ 192 Date: 20230829 Dockets: 230104739P1 230074221P1 Registry: Red Deer Between: His Majesty the King Crown - and - Jeremy John Terpstra Offender Reasons for Sentence of the Honourable Justice G.K.

Hatch [ 1 ] Jeremy John Terpstra (Terpstra) entered guilty pleas before me on August 29, 2023, in docket court on the following two charges: Docket 230074221P1 On or about the 22 nd day of December, 2022, at or near Red Deer, Alberta, being at large on a release order, did fail, without lawful excuse, to comply with a condition of that release order, to wit: reside at an approved residence 106 Duston Street Red Deer, Alberta, and obey house arrest 24 hours per day 7 days per week, except with the prior written permission of your supervisor approved in writing [sic], contrary to section 145(5) (

a) of the Criminal Code of Canada . Sworn: January 23, 2023 Docket 230104739P1 Between the 5 th day of January, 2023 and the 30 th day of January, 2023, both dates inclusive, at or near Red Deer, Alberta, while being at large on a release order entered into before a justice and being bound to comply with a condition of that release order requiring him to report to supervisor within 2 working days initially by telephone 780-427-4712 and thereafter as directed, did fail without lawful excuse to comply with that condition, contrary to section 145(5) (

a) Criminal Code of Canada . Sworn February 3, 2023 [ 2 ] The Crown sought a sentence of 30 days gaol on each count, consecutive to one another, having regard to Terpstra’s lengthy and related criminal record (which was marked as Exhibit S1 in the proceedings). The defence sought “modest” fines and proposed the sum of $250.00 as appropriate. [ 3 ] I sentenced Terpstra to pay fines of $10.00 together with a $3.00 surcharge in accordance with section 737(2) (

a) Criminal Code on each charge. These are my reasons for sentence.

Background facts: [ 4 ] Terpstra was released on a release order arising in Edmonton for various charges, including: assault of a peace officer, dangerous operation of a motor vehicle, flight and prohibited operation of a motor vehicle, possession of stolen property and possession of a weapon (the “underlying allegations”). He was required, inter alia , to live at a specified address in Red Deer and obey a 24-hour curfew (with certain exceptions). He was also required to be supervised by a bail supervisor and report as and when directed.

The Crown directed a stay of proceedings on those underlying allegations on February 2, 2023 . Analysis of a proportionate sentence: [ 5 ] In every sentencing decision the Court must strive to achieve a proportionate sentence [1] . Part of the analysis includes an assessment of the gravity of the offence(s).

It is my conclusion that the fact that the underlying allegations, which gave rise to the release order in the first place, were ultimately stayed, reduces the gravity of the breaches; particularly where they can properly be described as “administration of justice” offences. [ 6 ] At its core, a release order is an order against an individual – presumed to be innocent – which restricts their liberty in various ways.

A release order is only in force while the underlying charges are still before the court for adjudication. [ 7 ] There is no question that the breaches in the instant case were committed while the underlying allegations were still active, and no question that the release order was legally enforceable at the requisite times. However, the impact of the breaches upon the administration of justice is blunted significantly where, as here, the underlying allegations are stayed or otherwise withdrawn by the Crown or dismissed by the court. [ 8 ] In R . v.

Zora , 2020 SCC 14 , the Supreme Court of Canada observed (at para 27 ): Parliament also acted to address concerns regarding the over-criminalization of bail breaches, which is in part explained by the initial imposition of numerous and onerous bail conditions. Besides changes to bail revocation under s. 524, Parliament has enacted a new procedure for managing failure to comply charges under s. 145(3), called a “judicial referral hearing” (s. 523.1).

If an accused has failed to comply with their conditions of release, and has not caused harm to a victim, property damage, or economic loss, the Crown can opt to direct the accused to a judicial referral hearing. If satisfied that the accused failed to comply with their court order or failed to attend court, a judicial official must review the accused’s conditions of bail while taking special note of the accused’s particular circumstances. The judicial official can then decide to take no action, release the accused on new conditions, or detain the accused.

If the accused was charged with a failure to comply offence, the judicial official must dismiss the charge after making their decision. [ 9 ] The breach charges each went to warrant in the first instance, and eventually appeared in docket court on eight separate occasions: from the first appearance on March 18, 2023 until August 29, 2023 when the guilty pleas were entered before me. All appearances occurred after the stay of proceedings was entered on the underlying allegations. I inquired of the Crown whether the provisions of

section 523.1 Criminal Code had been considered and the Crown was unable to conclude one way or the other. [ 10 ]

Section 523.1 Criminal Code provides: Judicial referral hearing

(1) When an accused appears before a justice in any of the circumstances described in subsection (2), the justice shall (

a) if the accused was released from custody under an order made under subsection 522(3) by a judge of the superior court of criminal jurisdiction of any province, order that the accused appear before a judge of that court so that the judge may hear the matter; or (

b) in any other case, hear the matter. Circumstances

(2) The circumstances referred to in subsection (1) are the following: (

a) an appearance notice has been issued to the accused for failing to comply with a summons, appearance notice, undertaking or release order or to attend court as required and the prosecutor seeks a decision under this section; or (

b) a charge has been laid against the accused for the contravention referred to in paragraph (

a) and the prosecutor seeks a decision under this section. Powers — Judge or Justice

(3) If the judge or justice who hears the matter is satisfied that the accused failed to comply with a summons, appearance notice, undertaking or release order or to attend court as required and that the failure did not cause a victim physical or emotional harm, property damage or economic loss, the judge or justice shall review any conditions of release that have been imposed on the accused and may, as the case may be,

(

a) take no action; (

b) cancel any other summons, appearance notice, undertaking or release order in respect of the accused and, as the case may be, (

i) make a release order under

section 515 , or (ii) if the prosecutor shows cause why the detention of the accused in custody is justified under subsection 515(10) , make an order that the accused be detained in custody until the accused is dealt with according to law and if so detained, the judge or justice shall include in the record a statement of the judge’s or justice’s reasons for making the order; or (

c) remand the accused to custody for the purposes of the Identification of Criminals Act . Dismissal of charge

(4) If a charge has been laid against the accused for the failure referred to in paragraph (2)(

a) and the judge or justice, as the case may be, makes a decision under subsection (3), the judge or justice shall also dismiss that charge. No information or indictment

(5) If the judge or justice makes a decision under subsection (3), no information may be laid nor indictment be preferred against the accused for the failure referred to in paragraph (2)(a). [ 11 ]

Section 523.1 was added to the Criminal Code via Bill C-75, which came into force on December 18, 2019. Despite the almost four years that have passed since the provision came into effect, Crown referrals under subsection 523.1(2) remain rare (at least in the Red Deer Court of Justice). [ 12 ] Judge Rosborough provided a detailed review of the legislative intent of the provision (prior to its formal enactment) in R . v. Rowan , 2018 ABPC 208 (at paras 32-40 ). [ 13 ] See also the Legislative Background:

An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, as enacted (Bill C-75 in the 42nd Parliament) published by the Department of Justice Canada [2] . [ 14 ] While the decision to make a referral to the judicial referral hearing process is an exercise of prosecutorial discretion (and therefore not subject to judicial review absent a demonstrated abuse of process [3] ), the Crown’s inability to demonstrate consideration of the process is properly the subject of judicial scrutiny. [ 15 ] The Public Prosecution Service of Canada publishes a “Deskbook” designed to provide procedural guidance to federal prosecutors which is also available to the public [4] .

Section 3.20 of the Deskbook covers judicial referral hearings. While this does not bind the conduct of prosecutors employed by the Attorney General of Alberta, of course, the guidance contained therein remains valuable: 11. Exercise of Crown Discretion to Seek a Judicial Referral Hearing In considering the public interest branch of the decision to prosecute, the Crown must consider the legislative intent in creating judicial referral hearings.

In many cases, judicial referral hearings provide an opportunity to more effectively deal with failures to comply with conditions of release and failures to appear in court.

In order to reduce delay, and increase the efficiency of the justice system, the Crown should resolve minor or technical breaches by means of a judicial referral hearing without the necessity of a charge. [ 16 ] Additionally, the Decision to Prosecute: Alberta Crown Prosecutor Service – Guideline [5] published by the Alberta Crown Prosecution Service provides the following insight: The Public Interest If the evidence justifies the commencement or continuation of the proceedings, the Crown prosecutor should then consider whether the public interest requires a prosecution.

As then Attorney General for England and Wales, Lord Shawcross, expressed, the guiding principle is as follows: It has never been the rule in this country - I hope it never will be - that suspected criminal offences must automatically be the subject of prosecution. Indeed the very first Regulations under which the Director of Public Prosecutions worked provided that he should . . . prosecute 'wherever it appears that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest'.

That is still the dominant consideration…. [ 17 ] Breach allegations, like all other criminal allegations, deserve to be placed under the same litmus test: is prosecution in the public interest? Part of the analysis includes whether there are other avenues available in law to address the offending behaviour.

The same analysis applies to charges of failure to appear in court. [ 18 ] Breaches of release orders (or failures to appear) which do not “ cause a victim physical or emotional harm, property damage or economic loss ” – subsection 523.1(3) Criminal Code – should normally proceed through the judicial referral hearing process so that the Court can re-assess the sufficiency of the bail condition(

s) in question and, if necessary, cancel the release order and cause the Accused to be detained pending trial (if the prosecutor shows cause for detention). This process has the effect of reducing the over- criminalization of bail breaches while still promoting the safety of the public and the integrity of the administration of justice.

[ 19 ] Procedurally, the judicial referral process is straight forward. There are two avenues (subsection 523.1(2) Criminal Code): 1. The police may issue an appearance notice, without a charge of breach or fail to appear, for the Accused to appear before the Court for the purpose of the judicial referral hearing. Once the Crown becomes aware of the referral, the originating Information should be brought into court to be dealt with at the same time as the judicial referral hearing. 2. Where a charge of breach or fail to appear is laid, the Crown may make the referral.

The original Information which gave rise to the release order ought to be in court at the same time as the judicial referral hearing. [ 20 ] In either case, the judicial referral hearing should occur in the original jurisdiction of the underlying release order. The Court will then exercise its discretion under subsection 523.1(3) Criminal Code . Where a charge of breach or failure to appear had been laid, it is dismissed following the hearing pursuant to subsection 523.1(4) Criminal Code . [ 21 ] The procedures contained in

section 523.1 Criminal Code are an alternative to the revocation provisions contained in

section 524 Criminal Code ; but are only available in circumstances where the alleged breach or failure to appear did not “ cause a victim physical or emotional harm, property damage or economic loss. ” The Crown may also elect not to proceed with a judicial referral hearing, instead continuing the criminal prosecution for the alleged offence, but this must be a considered decision in light of all of the circumstances. [ 22 ] Where, as here, the breach (or fail to appear) offence has a diminished gravity due to a stay of proceedings (or withdrawal or dismissal of the underlying charges) and the Crown is unable to demonstrate consideration of the judicial referral process as an alternative to proceeding with the criminal charge of breach, a nominal penalty ought generally to be the norm.

This is, in part, to signal to future justice officials that something was qualitatively different about the breach of fail to appear which warrant such a sentence. See, by analogy, R . v. Omeasoo , 2014 ABPC 79 at para 36 . Heard on the 29 th day of August, 2023. Dated at the City of Red Deer, Alberta this 1 st day of September, 2023. G.K. Hatch A Justice of the Alberta Court of Justice Appearances: Manjot Dhaliwal for the Crown Rodney Clark for the Accused