) Ms. R. Lagimodiere ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. R. Amy - v. -, 2014 MBPC 67

R. v. Richard Andrew Catcheway 2014 MBPC 67 THE PROVINCIAL COURT OF MANITOBA BETWEEN: ) Ms. R. Lagimodiere ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. R. Amy - and - ) for the Accused ) RICHARD ANDREW CATCHEWAY, ) ) Sentence delivered Accused. ) July 22, 2014 _____ MOAR, P.J. (Orally) So the record is clear then, on July the 9th Mr. Catcheway entered a not guilty plea to the charged offence of break, enter from February 2nd of 2013, but entered guilty pleas to the included offences of theft under, mischief under to property, which the Crown accepted in full answer.

I heard the sentencing submissions of both counsel, and at the conclusion of those submissions I reserved to consider the issue, primarily the credit to be allotted for the time the accused has spent in pretrial custody. The Crown submits that the fit sentence for this matter is one of nine months custody, less the time that Mr. Catcheway has spent in custody, which she suggests he should only be entitled to one-to-one credit for each of those days. In support of her submissions, Crown counsel referenced the unreported decision of my brother judge, Harvey, in R. v. Adam John Perrier , from June 16th of this year.

Crown counsel also was seeking a standalone restitution order in the amount of $400. Defence counsel submitted that based on the unreported decision of R. v. Abraham Saunders , a decision of Judge Chapman from December 13, 2011, the accused should be entitled to credit of one point five to one for his pretrial custody. In terms of the fit sentence for the offence, counsel suggested a sentence of time in custody or time already spent in pretrial custody as the appropriate disposition. The facts of the offence are somewhat unusual and were considered by Crown counsel when she accepted the pleas of Mr. Catcheway.

On February the 2nd of 2013, at about twenty minutes past midnight, this accused attended to the A&W restaurant located on Main Street, here in the City of Winnipeg. It should be noted that the restaurant was closed at this time but on this date the employees forgot to lock the doors and to set the alarm. The accused entered through the unlocked doors and proceeded to the counter where it appeared he wanted to place an order for food. He remained in the counter area for a number of minutes before it appears he noticed there were no employees within the store.

It should be noted this accused has no real recollection of this incident due to excessive alcohol consumption. Much of the factual foundation comes from the surveillance video that was reviewed by police. At this point in time, the accused is observed to attend behind the counter to a back room where surveillance showed him to go onto a computer and begin a number of searches on the computer. He's then observed to damage a number of locked drawers or cabinets where he gained access to cash floats, and took $400 in cash prior to leaving the restaurant at approximately two o'clock that morning.

The incident was later discovered by employees, at which time Winnipeg Police were notified. As a result of an investigation, police were able to identify this accused from the surveillance video, and on December the 12th of 2013 he was located and placed under arrest. He did, in fact, confirm his identity in the surveillance video. He was released on a recognizance and remained on bail until being re-arrested on April the 1st of this year as a result of allegations

that he breached his bail order. That prior recognizance was formally revoked on April 11th and this accused has remained in continuouscustody since his latest arrest. The accused's criminal record was filed as Exhibit S1 in the proceedings and was supplemented through oral representations made byCrown counsel. I'm advised that this accused is 45 years of age. He has some affiliation to the Pine Creek First Nation. He's been onand off of disability for years as he suffers from circulation issues with his left leg as well as hepatitis. He has had employment over theyears, though, as a drywaller.

There is some history, I'm told by counsel, of residential school issues in the family. The accused's fatherdied when this accused was two years of age and thereafter he was raised in what was described as an alcohol and abuse-free home byhis mother. The accused himself has longstanding addiction-related issues and has attended the in-patient program of the Addictions Foundationof Manitoba on three occasions seeking help. At the time of this matter, the accused was resident in Kenora and working in Manitoba.

On this date, he drank to the point ofbecoming intoxicated, and got into an argument at the place where he was drinking and chose to leave, taking his duffel bag andpossessions. It was at that time he attended to the A&W and did not seem to realize the restaurant was already closed. Not only is the length of the sentence to be imposed at issue in reference to this matter but also the credit he is to be allotted for thenow be 122 days, 109 at the time of submission, he has spent in pretrial custody.

The Crown did not suggest that a period of probationshould be considered and defence counsel offered that it would probably be of no use in the particular circumstances of this accused. In terms of the issue of the credit to be allotted for pretrial custody, there are a number of applicable Criminal Code sections that thecourt has to consider.

Section 719(3) sets out that: "In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custodyby the person as a result of the offence but the court shall limit any credit for that time to a maximum one day for each day spent incustody." That has been expanded upon by the Summers 2014 SCC 26 , [2014] S.C.J. No. 26 case in terms of its

interpretation.

Section 719(3.1) states that: "Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless thereason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custodyunder subsections 524(4) or 524(8)." Section 515(9.1) reads: "Despite subsection (9), if the justice orders that the accused be detained in custody primarily because of a previous conviction of theaccused, the justice shall state that reason, in writing, on the record." Section 524(3) sets out: "Where an accused who has been arrested with a warrant issued under subsection (1), or who has been arrested under subsection (2), istaken before a justice, the justice shall" Under sub (a), dealing with issues dealing with a release by a superior court, or under (b): "(

b) in any other case, hear the prosecutor and his witnesses, if any, and the accused and his witnesses, if any." Section 524(8) deals with: "Where an accused described in subsection (3), other than an accused to whom paragraph (

a) of that subsection applies, is taken beforethe justice and the justice finds

(

a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertaking or recognizance, ... he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10)." I have taken the opportunity to read each of the cases that were referenced by counsel. In the case of R. v.

Abraham Saunders , Judge Chapman was dealing with an accused person who consented to the revocation of a prior form of judicial interim release in what was described by the judge as being a procedural custom. Defence counsel, on behalf of the accused, consented to the revocation of the prior release order by filling out a form entitled "Crown and Defence Agreed Bail Conditions" that was to be provided to the justice.

At the time, the accused did not elect to show cause why his continued detention was not justified under Section 515(10) and, in fact, no such application was ever brought by that accused prior to the disposition of the matters. The stated motivation for the accused consenting to the revocation of his prior order of judicial interim release was to permit his matters to be moved out of the bail court and onto a custody court docket. Counsel for the accused took the position that his act of consenting to the revocation of the prior form of judicial interim release was merely his consent to be remanded in custody.

That consent was not his consent to being detained in custody. Judge Chapman commented that in Manitoba there appears to be a procedure which allows the Crown to have the prior forms of release cancelled at the first instance, which results in an accused being remanded into custody until such time a bail application is made, if it ever is made.

Essentially, she saw 524(8) as a two-step process in which an accused person was consenting to the revocation of their prior form of release and being remanded into custody and then seeking an adjournment of the second step of the process, essentially a show-cause hearing until a future date. On this basis, she concluded the process of consenting to the revocation does not result in the accused being detained pursuant to 524(8), and as such the accused would be entitled to apply for one point five to one credit for any pretrial detention absent such a finding.

Judge Harvey considered this analysis in the unreported case of R. v. Adam Perrier on June 16th of 2014. In that case, the accused had his matter appear before my brother judge, Pollack, at which point counsel for the accused indicated their consent to the revocation. Judge Pollack then indicated that the bail order of the accused is vacated.

Although agreeing with much of the analysis of Judge Chapman, Judge Harvey did take issue with the analysis as it related to the effect of the revocation and suggests that there was a distinction, which he referenced at page 4 of his decision, lines 16 to 22: "... there is a distinction between an order that the accused be detained after bail has been revoked and a denial of bail, and the distinction is that once an accused has been on bail, the bail is cancelled or vacated, he is in custody and has to be detained until such time as he shows cause why his detention in custody is not justified." Judge Harvey referenced the 2013 Manitoba Court of Queen's Bench case of R. v.

Rhodes , which is cited at 2013 Manitoba Queen's Bench 248, where Justice Mainella spoke of the two-stage process at the revocation hearing. At paragraph forty-one, he described stage one as involving the court making a decision on the issue of whether or not to make a finding of misconduct within the meaning of 524(8) which, if done, results in the cancelling of the form of release. The court, in Rhodes , went on to indicate that if the Crown is successful at this stage, stage one, then the issue becomes whether or not the accused can show cause why his detention is not justified within the meaning of 515(10).

Judge Harvey accepted that an accused person could choose to delay the second stage of the process until a later date; however, once there is a finding under 524(8) that the accused has contravened his bail condition, that falls within the language of 719(3.1) and the accused then becomes ineligible for any credit beyond the one for one basis. This is now the second time that this issue has come before me.

In an earlier docket court scenario, when this issue was raised, defence counsel filed Judge Chapman's decision in support of their application for one point five to one credit for an accused who had consented to the revocation of their prior form of release. Crown counsel at that time did not file any cases, choosing to rely on a short oral representation in opposition of the defence request. After taking a short recess to read the case, I accepted the position of defence counsel at that time and permitted enhanced credit for the pretrial custody.

I've now taken the time to consider subsections I've indicated of 719(3), (3.1), 524(3) and (8) as well as 515(9.1), and I believe at this time that my earlier position on the

interpretation of 719(3.1) may have been erroneous. The case of R. v. Rhodes , was a case that came before Justice Mainella, as a Crown appeal of a Provincial Court judge declining to revoke the prior form of release of Mr. Rhodes upon being convicted for breaching a release order. In Rhodes , the court noted that 524(3) sets out the parameters of the revocation hearing and determines whether such a hearing should be conducted by a Provincial Court judge. 524(8) permits a court to consider an application to revoke any prior forms of release while also granting a new release order for an accused person. With respect to the process for a revocation hearing, the court in Rhodes

adopted the following from Justice Green in R. v. Parsons , which was cited in 1997, 124 C.C.C. third edition at 92, a decision of the Newfoundland Court of appeal that referenced 524(4) but was noted to be equally applicable to the proceedings outlined in 524(8). At paragraph 21 of that decision, the court stated: "' Subsection 524(4) of the Criminal Code contemplates a two-stage hearing where the Crown is initially required to present evidence to enable the judge to find either: (

a) that the accused has contravened or has been about to contravene his recognizance; or (

b) that there are reasonable grounds to believe that the accused has committed an indictable offence after recognizance was entered into. Although the burden and standard of proof applicable to such a determination is not stated, given that it is the Crown that is making the application and alleging justification for being before the court, the burden must be on the Crown to present sufficient evidence justifying the court to act. As on bail hearings generally, the standard of proof would be one of a balance of probabilities.

If, applying that burden and standard, the judge finds either a contravention of an existing recognizance or that there are reasonable grounds to believe that an indictable offence has been subsequently committed, the judge is required to cancel the recognizance and order the accused be retained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention is not justified ...

On this second stage of the hearing, the burden is on the accused to show cause on a balance of probabilities.'" From that paragraph, there are two duties imposed upon a court during the revocation hearing. The first requires a determination of whether this accused has breached or was about to breach his release order or whether there exists reasonable probable grounds to believe the accused has committed an indictable offence. As is clearly enunciated, if any of those findings are made, the court must revoke or cancel the existing release order. By doing so, the accused is then committed to remain in custody.

However, if a court concludes that neither of those scenarios exist, that ends the inquiry for the court and the accused would then be ordered released, as is dictated by 524(11). The

section goes on to read that upon the revocation of a prior release order, the accused is to be ordered detained unless the accused can show cause why his continued detention is not required. This is then a reverse application, that is being brought by the accused. The use of the language "having been given a reasonable opportunity to do so" connotes, in my view, that an accused person need not proceed with a show cause hearing “why his continued detention is not required” at the same time that the Crown is seeking the revocation of any prior forms of release.

Given that this is a two-stage process, the accused person could choose to delay, or hold in abeyance, his right to show cause until he's able to put together, perhaps, a plan for release. That decision to delay the inquiry is not prejudicial to the Crown nor can I say that it would be prejudicial to the administration of justice. As was confirmed in Rhodes , this is a two-stage process in which the second stage is essentially independent or it can be separated from the first stage where the Crown seeks the revocation of the prior forms of release.

The language of the Criminal Code does not make the revocation application dependent on the accused showing cause why his continued detention is not required nor does the

section differentiate between a finding made by the court that is contested or one where the accused consents to the revocation. As such, on a plain reading of the applicable provisions, the law is clear that once the court makes a finding under 524(8) and revokes or cancels a prior form of release of an accused, that accused then falls squarely into the language of 719(3.1) and becomes disentitled to any enhanced credit for the time he has spent in pretrial custody. That being said, he would then be only eligible to receive a credit on a one- to-one basis for the time period. As Mr.

Catcheway is the subject of a revocation order, he is therefore to be credited on a one-to-one basis for his pretrial custody served. In terms of the actual matter now before the court, it certainly has an unusual factual setting. The evidence before the court supports the inference that Mr. Catcheway's initial attendance to that restaurant was for an innocent purpose. That, I am told, is supported by the actions of the accused which was captured by the video cameras located in the restaurant.

However, after waiting for a period of time, it appears this accused realized that he was the only individual in the restaurant, and instead of leaving the store or contacting the police, his apparent criminal mindset that is demonstrated by his criminal record unfortunately took hold. He then put some effort into looking for items which is evidenced by his forceful entry into some of the drawers and cabinets in the office area. After locating a sum of money from the cash floats he then left and remained at large for a lengthy period of time before being arrested in this matter.

I'm told that the video surveillance was of a decent quality such that this accused was readily identifiable by police and by himself. The obvious aggravating factor for this accused has to be his lengthy and related criminal record. Mr. Catcheway, when one reviews his record, has done some fairly serious penitentiary time for the offences of robbery, and as recent as March of 2013 he received a four- month sentence on a conviction for mischief under. I understand that Mr.

Catcheway has long struggled with the addiction-related issues and has made a number of attempts to address those through his admission into residential treatment care facility’s. It is when he does drink that counsel suggests he gets himself back into trouble. Mr. Catcheway realizes that he needs to achieve abstinence, and at this point is not requesting the assistance of Probation Services. I think he is fairly suggesting that he knows what is required of him. The primary principles of sentencing for this accused with the criminal record before the court, has to be those of deterrence and denunciation.

I do appreciate the accused is of aboriginal descent but it is unclear to me what effect his background has ultimately had on the manner in which he has conducted himself through the years. The suggestion of a time in custody disposition would be, in my view, disproportionate to the gravity of the offence with the offender's background that is before the court. I do recognize that this offence is not being sentenced as a break and enter offence and I accept that it was essentially a crime of

opportunity in that he just happened upon a restaurant that had been inadvertently left unlocked when employees left for the evening. I do give credit to the accused for waiving his right to trial and entering a guilty plea. Based on the unusual circumstances before the court, I find that a sentence that the Crown is suggesting would be somewhat excessive in the circumstances. In my view the fit and appropriate sentence for this offence, given the background of Mr. Catcheway, along with his criminal record, is a sentence of seven months' incarceration.

He has now served 122 days of pretrial custody, which he is to be credited for. As a result, Madame, on the offence of theft under, the sentence will be reflected as 88 days going forward with 122 days of time in custody be noted. On the charge of mischief under, the sentence will be one of 60 days. That will be a concurrent disposition to the 88 days. I think both of these offences occurred prior to the change in legislation, and given the fact that he's serving a custodial disposition, costs and surcharge will be waived.

There will be a standalone restitution order in the amount of $400 payable to the A&W restaurant for the losses. And the Crown does have the form. As agreed upon between counsel, and certainly I think in this particular case, appropriately, there will be no probation order imposed upon Mr. Catcheway. Anything I neglected, Ms. Lagimodière? MS. LAGIMODIERE: I don't believe so. THE COURT: No? Mr. Amy, no? MR. AMY: No, Your Honour. THE COURT: You understand what's going on, sir? THE ACCUSED: I do. THE COURT: Okay. Good luck to you, sir. THE ACCUSED: Yeah. THE COURT: To thank you, sir. _____