R. v. Denny, 2014 NSPC 58

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Denny , 2014 NSPC 58 Date: 2014-07-28 Docket: 2569704 Registry: Pictou Between: Her Majesty the Queen v. Maurice Julian Denny DECISION ON APPLICATION TO VARY INTERMITTENT SENTENCE Restriction on Publication: No one shall publish any information that might identify the complainant in this matter Erratum: August 15, 2014 Judge: The Honourable Judge Del W. Atwood Heard: 28 July 2014, in Pictou, Nova Scotia Charge:

Section 271 of the Criminal Code of Canada Counsel: Jody McNeill, for the Nova Scotia Public Prosecution Service Stephen Robertson, for Maurice Julian Denny ERRATUM: [ 1 ] In paragraph 12, the sentence “In that event, it might be argued that an application to vary report-in and release times could be advanced under sub-s. 732.2 (2) of the Code as an application to vary a probation order” should read: “In that event, it might be argued that an application to vary report-in and release times could be advanced under sub-s. 732.2 (3) of the Code as an application to vary a probation order.” PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v.

Denny , 2014 NSPC 58 Date: 2014-07-28 Docket: 2569704 Registry: Pictou Between: Her Majesty the Queen v. Maurice Julian Denny

DECISION ON APPLICATION TO VARY INTERMITTENT SENTENCE Restriction on Publication: No one shall publish any information that might identify the complainant in this matter Judge: The Honourable Judge Del W. AtwoodHeard: 28 July 2014, in Pictou, Nova ScotiaCharge:

Section 271 of the Criminal Code of CanadaCounsel: Jody McNeill, for the Nova Scotia Public Prosecution Service Stephen Robertson, for Maurice Julian Denny By the Court: [2] On October 9 2013, I found Maurice Julian Denny guilty of a single count of sexual assault. On 18 February 2014, Isentenced Mr. Denny to a 90-day term of imprisonment, to be served intermittently, and to a three-year term of probation. [3] Mr.

Denny makes an application before the court today, seeking to have the court amend the warrant of intermittent committalin order to change the time he is required to report to the prison to serve his weekends. The sentence administrator has determined thatMr. Denny’s warrant-expiry date will be 15 September 2014. Unfortunately, that will conflict with Mr. Denny’s community-collegeschedule. Mr. Denny’s counsel proposes that the warrant of committal be changed to allow Mr. Denny to report to prison on Fridays,rather than Saturdays; this would accelerate the warrant expiry and allow Mr.

Denny to get to his classes on time at the start of theacademic year. [4] I have declined to grant these sorts of applications in the past, as our Court of Appeal made it clear in R. v.

Germaine that thereexists no jurisdiction in law allowing a court to vary a warrant of committal it made for an intermittent sentence.[1] [5] Defence counsel argues very ably that the jurisdiction to vary a warrant of committal to change the report-in or check-outtimes may be found in sub-s. 732(2) of the Code, which provides: An offender who is sentenced to serve a sentence of imprisonment intermittently may, on giving notice to the prosecutor, apply to thecourt that imposed the sentence to allow it to be served on consecutive days. [6] It is the submission of defence counsel that this provisions does not state that an order for consecutive service under sub-s.732(2) must include the entire remanet of the intermittent sentence.

Accordingly, I ought to be able to order that Mr. Denny serve threeconsecutive days this weekend—that is, this Friday, Saturday and Sunday—followed by the same three consecutive days next weekend,and so on, allowing him to wrap up his jail time two weekends early. Or so the argument goes. [7] I have considered the argument of defence counsel, as it would appear to be one of first impression. When Germaine wasdecided, there was no equivalent of sub-s. 732(2) in the former revision of the Criminal Code. [8] While I am sympathetic to Mr.

Denny’s predicament, and while the argument of counsel—which was not opposed by theprosecution—is certainly ingenious, I am unable to accept it. [9] In my view, the wording of sub-s. 732(2) is clear: if an order for intermittent service is to get collapsed on the application ofthe offender, then the resulting warrant of committal must provide that the entire remanet be served on consecutive days. This is theplain meaning of the statute. Normally, a jail sentence starts when it is imposed, and runs, without interruption, until the warrantexpires, less earned or statutory remission.

Indeed, sub-s. 719(1) of the Code states that a sentence commences on the date it isimposed. There is nothing in s. 719 that provides for the intermittent cessation and recommencement of a sentence. The only provisionin the Code allowing for that sort of thing is sub-s. 732(1), which gives a sentencing court the jurisdiction to make intermittent sentences. [10] If I were to apply sub-s. 732(2) in Mr. Denny’s case, I would have to order that he start serving his remanet right now, to runcontinuously on consecutive days until the expiry of the warrant.

That is what “consecutive days” means. [11] I have reviewed the decision of Gorman J.P.C. of the Provincial Court of Newfoundland and Labrador in R. v. Crocker whichdealt with this very issue.[2] I agree entirely with his ultimate conclusion: 18 I conclude that once a trial judge imposes an intermittent sentence he or she is functus, except for applications made pursuant tosection 732(2) or

section 732.2(3) of the Criminal Code. In the absence of a statutory provision providing the jurisdiction to vary thetime at which an intermittent sentence is to be served, this Court cannot do so. To apply the doctrine of implied jurisdiction to create astatutory authority which Parliament decided not to create would extend that doctrine well beyond the scope delineated in Cunningham.It would result in the judicial creation of substantive and procedural rights and would constitute an order which would extend wellbeyond the court's ability to control its own process (see United States of America v. Wilson, (ON SC), [2001] O.J.No. 3806 (S.C.J.), at paragraph 10).

[ 12 ] Regrettably, I decline to grant Mr. Denny’s application. [ 13 ] I suppose the argument could be made that a warrant of committal in an intermittent-sentence case might be crafted to read as follows: “ninety days to be served intermittently, with the offender to report to prison and to be released at times specified in a probation order made under para. 732(1)(

b) of the Code .” The concurrent probation order would then include the report-in and check-out times. In that event, it might be argued that an application to vary report-in and release times could be advanced under sub-s. 732.2 (2) of the Code as an application to vary a probation order. The problem with dealing with intermittent sentences in such a fashion is that I am not sure para. 732.1(3)(

c) would allow a sentencing court to include in a probation order conditions setting out times an offender must report to prison to serve an intermittent sentence. However, this is an issue to be decided another time. JPC