R. v. Majedi, 2015 BCSC 1242

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Majedi, 2015 BCSC 1242 Date: 20150622 Docket: 26810 Registry: Vancouver Regina v. Michelle Majedi Before: The Honourable Madam Justice B.J. Brown Oral Reasons for Judgment In Chambers Counsel for the Crown (Respondent) F. Zaltz (as Agent for N. Carnegie) Counsel for the Accused (Applicant): T.B. Magder Place and Date of Trial/Hearing: Vancouver, B.C. June 18, 2015 Place and Date of Judgment: Vancouver, B.C. June 22, 2015 [ 1 ] THE COURT: Ms.

Majedi applies for an order granting relief in the nature of habeas corpus with or without certiorari in aid and, in the alternative, an order of mandamus . [ 2 ] Her notice of application provides: That due to a system error, it appears that [the] Applicant's admission to a breach of conditional sentence on April 8, 2013 was not communicated to the provincial sentence management clerks.

As a result, the Applicant's remaining conditional sentence length was not reduced by the number of days between the admission to the breach and the sentencing therein, contrary to s. 742.6(10) of the Criminal Code ; [ 3 ] She argues that the continuation of the supervision of the applicant under a conditional sentence order is arbitrary and is a restriction of the residual liberty of the applicant, and she brings her application pursuant to s. 742.6(1)(c)(ii) of the Code , and ss. 7, 9, 10(

c) and 24(1) of the Charter . [ 4 ] In support, Ms. Majedi relies on the affidavit of Donna Turko, whose office currently represents Ms. Majedi. That affidavit attaches various materials, including the calculation of time left to serve on Ms. Majedi's conditional sentence, 91 days as of May 21, 2015. As that decision implies, Corrections Branch have made this calculation on the basis that the conditional sentence order was suspended from April 2013 to January 2014, that the breach had not been determined pursuant to s. 742.6(10) of the Criminal Code . [ 5 ] Ms.

Majedi argues that this calculation is incorrect, that it does not give her credit for the period of April 2013 to January 2014, when the conditional sentence order should not have been suspended. She says that she received a conditional sentence on March 23, 2012, of 23 months for possession of a controlled substance for the purpose of trafficking. On April 8, 2013, she appeared at a conditional sentence order hearing relating to the four alleged breaches that occurred on September 14, 2012. She admitted the breaches. The matter was not dealt with at that time. On April 24, 2013, Ms.

Majedi perfected bail on the CSO breach and other matters and was released from the B.C. Correctional Centre. [ 6 ] On January 29, 2014, the breach of the CSO hearing was before Judge MacLean. Judge MacLean ordered: Regarding the conditional sentence order, I am suspending the conditional sentence order for a period of one month which will be time to be served in custody. . . .

On her release, the portion remaining of her conditional sentence order which I have calculated to be approximately seven months, she will be released on -- and the same conditions will apply on the conditional sentence order as are included in that order today . . . [ 7 ] It appears from those reasons and from the submissions of Ms. Majedi that defence counsel, Judge MacLean, and possibly the Crown understood that Ms.

Majedi was continuing to serve her conditional sentence order, that it was not suspended from April 8, 2013, when she admitted her breach, until January 29, 2014, when Judge MacLean concluded the matter. [ 8 ] Ms. Majedi says that, but for this understanding, she would not have waived the requirement to hold the hearing with respect

to her breach within 30 days, as required by the Code . She argues that the proper

interpretation of “determination” in s. 742.6(10) of the Code should include an admission of a breach of a CSO by the offender. [ 9 ]

Section 742.6(10) provides: The running of a conditional sentence order imposed on an offender is suspended during the period that ends with the determination of whether a breach of condition had occurred . . . [ 10 ] She says that to interpret the

section otherwise creates an injustice and would be a breach of her s. 7 and 9 Charter rights. She refers me to the decision of R. v. Atkinson , [2003] O.J. No. 1068 , a decision of the Ontario Court of Appeal, where the court considered the

interpretation of s. 742.6(10), although in a different context. There the court said: As I understand it, the paramount purpose of s. 742.6(10) was to meet the problem that, where a person is alleged to have breached the conditional sentence, the sentence may very well have expired before the person was brought before the courts and the breach allegation determined. For example, a warrant might be issued but the person never arrested until after the sentence had expired.

Alternatively, the person might have been released on a promise to appear but not actually dealt with for the breach allegation until after the sentence had expired. In both those cases, there would be no effective sanction remaining despite the breach of the conditional sentence.

Section 742.6(10) stops the sentence running to avoid these consequences. However, the subsection also catches within its terms persons who are in custody because they have been arrested without a warrant or the warrant has been executed. [ 11 ] The issue before the court in Atkinson was the meaning of the phrase, "on the making of an order to detain the offender in custody under subsection 515(6)".

The accused argued that as soon as the offender is brought before a justice, a detention order is made and therefore, unless the offender shows cause, he is in custody and the sentence begins to run again. [ 12 ] The accused took the position that it should not matter whether there had been a formal show cause hearing, as long as the offender remained in custody and was not serving any other sentence.

By contrast, the Crown took the position that there must be a formal order detaining the offender after a show cause hearing to come within the meaning of ‘the making of an order to detain the offender in custody under subsection 515(6).’ [ 13 ] The court concluded that the provision should not be so narrowly construed, saying: In my view, for the purpose of s. 742.6 it does not matter whether there has been a formal show cause hearing.

I do not find it helpful to distinguish between the order made detaining the offender pending his attempt, if any, to show cause why he should be released and the “formal” detention order made after the show cause hearing. [ 14 ] Ms. Majedi argues that I should take a similar wide

interpretation of the word "determination" to include not only a determination by a judge that there has been a breach, but to include the admission by the accused that there has been a breach. She says that to interpret the

section otherwise works an injustice and is unreasonable. [ 15 ] The Crown takes the position that the review of the decision of the correctional authorities is to be determined on the standard of correctness, as it is a decision as to the proper

interpretation of the Code . The Crown argues that the proper

interpretation of s. 742.6(10) is that the word "determination" means the determination by the court. [ 16 ] The Crown refers me to the decision of the Court of Queen's Bench for Saskatchewan, Favel v. The Queen , 2005 SKQB 526 . In that decision, Mr. Justice Allbright considered circumstances very like those before me. Mr. Favel admitted a breach of his conditional sentence order on April 26, 2005. The breach was not dealt with until July 7, 2005. The issue before Judge Allbright, as it is before me, was the proper

interpretation of the word "determination" as found in s. 742.6(10) of the Code . [ 17 ] As before me, the Crown in R. v. Favel argued that the determination occurred when the matter was disposed of by the court on July 7, 2005. Mr. Justice Allbright concluded the matter saying: In considering the matter, I am of the view that the phraseology found in s. 742.6(10), when considered within the broader context of s. 742.6 per se militates in favour of the

interpretation placed upon the matter by the Crown. While the applicant in this instance, from the court record, admitted to the allegation of the breach, I am satisfied that the phrase “the determination” contemplates some concluding administrative function of the presiding judge. In this instance that occurred on July 7, 2005, and not on the court date of April 26, 2005 when the matter was adjourned to July 7, 2005 “for disposition”. [ 18 ] I agree with the Crown that the standard of review is correctness. I am also persuaded by the reasoning Mr. Justice Allbright and my own review of s. 742.6 of the Code that the proper

interpretation of the word "determination" is the disposition by the judge. [ 19 ] In my view, an admission by an accused of a breach of a conditional sentence order is akin to a guilty plea. A judge may or may not accept a guilty plea. It may or may not be withdrawn. The matter is not determined by the admission of a CSO breach. It is not determined until the matter is dealt with by the judge. [ 20 ]

Section 742.6 provides in subsection (17) that the court may consider 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.

That is the very circumstance before me and supports the conclusion that "determination" means determination by the court, not an admission of breach by the offender. [ 21 ] Indeed, this circumstance is mentioned in Atkinson as a reason to suspend the CSO, where the court says: Alternatively, the person might have been released on a promise to appear but not actually dealt with for the breach allegation until . . . the sentence had expired. In [that case], there would be no effective sanction remaining despite the breach of the conditional sentence.

[ 22 ] Counsel drew to my attention the provisions of s. 742.6(16), which permits the court to order that some or all of the period of suspension is deemed to be the time served under the conditional sentence order. I am not persuaded that I have the jurisdiction to deal with that on the application before me. However, it may be open to Judge MacLean, who I understand is dealing with a further breach application on July 2, 2015 to consider this provision. [ 23 ] I do think that it is unfortunate that apparently Ms.

Majedi, her counsel, and possibly the Crown and Judge MacLean, were under the apprehension that the running of the conditional sentence was not suspended from April 8 through January 29, 2014. However, unfortunate as that may be, I am not persuaded that the error of Ms. Majedi's counsel and the misinformation provided to the judge constitute a breach of Ms. Majedi's Charter rights. [ 24 ] The application is dismissed. B.J. Brown J.