Her Majesty The Queen Respondent v. Doreen McDonald, 2016 NUCA 4

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R. v. McDonald , 2016 NUCA 04 Date : 2016-05-31 Docket: 21-15-004-CAP Registry : Iqaluit Between: Her Majesty The Queen Respondent -and- Doreen McDonald Appellant _______________________________________________________ The Court : The Honourable Madam Justice Frederica Schutz Memorandum of Judgment Appeal from the Order by The Honourable Mr. Justice C.N. Herold Dated the 17th day of June, 2015

(Docket: 12-12-33, 08-13-147, and 12-13-20) MEMORANDUM OF JUDGMENT (NOTE: This document may have been edited for publication) I. OVERVIEW [ 1 ] The appellant was sent to prison following a finding that she had breached a Conditional Sentence Order [CSO], and was not given credit for the time during which the CSO was suspended. [ 2 ] The sentencing judge’s decision to remit the appellant to prison upon her breach of a CSO warrants appellate intervention; further, the appellant ought to have been granted some credit for the period of time during which the conditional sentence order was suspended. II.

INTRODUCTION [ 3 ] The appellant appeals the sentencing judge’s decision to terminate her 18-month CSO and commit her to custody for the remaining five months.

She submits that the sentencing judge erred in refusing her application to adjourn the CSO breach hearing and further erred in law by: 1. failing to give meaningful or any consideration to any other sentencing option for breach of a CSO as set out in the Criminal Code of Canada , RSC 1985, c C-46 [Criminal Code], s 742.6(9) other than collapsing the order; 2. failing to allow Defence Counsel any opportunity to make sentencing submissions concerning her personal circumstances and relevant Gladue [1] factors; and 3. failing to consider the factors listed in Criminal Code s 742.6(17) before denying any credit for the period of time during which the CSO was suspended - 3 months and 17 days. [ 4 ] Appellant’s Counsel confined oral argument to the latter three grounds but did not abandon the complaint of refusing an adjournment. [ 5 ] This appeal is allowed.

The appellant is granted 50 days’ credit for the 50 days remaining to be served under the CSO; consequently, the appellant has served her entire conditional sentence order. III. BACKGROUND [ 6 ] On January 21, 2014, the appellant was initially sentenced to an 18-month CSO for offences of uttering threats and two counts of breaching an undertaking by consuming alcohol. On February 28, 2015, the Crown alleged that she violated the CSO by failing to keep the peace and be of good behaviour, upon being charged with another uttering threats offence.

The threats consisted of phone calls made to a hotel in Resolute Bay where a witness alleged that the appellant made two statements to the effect: “if I do not hear from my husband, I will come with a rifle and shoot up my way in and shoot at the police to get my kids back.” On March 1, 2015, the appellant was granted bail on the CSO breach allegation and the uttering threats offence.

Accordingly, prior to the breach allegation, the appellant had successfully completed more than 13 months of her CSO, including 12 months of stringent conditions, including house arrest. [ 7 ] June 17, 2015, was the next regular circuit date in Resolute Bay. This date was the appellant’s first appearance on the CSO breach allegation. [ 8 ] The appellant sought to adjourn the CSO breach hearing for a further four months – to a date upon which the uttering threats charge could be set down for trial. The Crown opposed the adjournment, submitting that under s 742.6(3)(

a) of the Criminal Code, a breach hearing must commence within 30 days of the date of the offender’s arrest, or as soon as practicable thereafter. Because more

than three months had already passed since the appellant’s arrest, it was not reasonable to further delay the CSO breach hearing. [9] The adjournment request was refused, the Court expressing dismay that bail had been granted, and finding that a seven-monthdelay was not an adjournment for a “reasonable period” under s 742.6(3.3) of the Criminal Code. [10] The Crown submitted that the CSO should be collapsed.

The appellant did not challenge the evidence, but through DefenceCounsel, she submitted that the ultimate issue at trial on the uttering threats offence would be whether criminal intent could be provenbeyond a reasonable doubt, in light of her intoxication at the time of the offence. [11] On the requisite balance of probabilities, the presiding judge then found that the appellant had breached the CSO conditions.Without the benefit of further submissions, the presiding judge then decided that “[the appellant] is now going to have to return tocustody to finish the conditional sentence.

I see no other option.” [12] Defence Counsel nonetheless sought credit for the time during which the appellant had to wait for the Resolute Bay regular circuitdate; urging the Court to “tighten” the conditions of the CSO, rather than collapse the entire order. Twice Defence Counsel attempted toprovide details about the appellant’s personal circumstances; twice the hearing judge denied Defence Counsel permission to make thosesubmissions.

Relying upon his stated assumption that Gladue factors had been considered when the original CSO was imposed, thepresiding judge reiterated that he saw no other option, but to remit the appellant to custody to finish the CSO. [13] On August 15, 2015, the appellant was released on bail pending appeal.

Thus, between sentencing on June 17, 2015, and herinterim release pending appeal on August 15, 2015, the appellant served 60 days in custody and earned 30 days of remission, for a totalof 90 days served of the 140 days left on the CSO (Appellate Counsel for the appellant noted that the Crown had only initially asked for105 days for the triggering offences).

There are 50 days left to be served under the CSO. [14] The Crown respondent conceded that the sentencing judge erred in failing to consider any of the enumerated sentencing optionsunder Criminal Code s 742.6(9), other than terminating the appellant’s CSO, and also erred in denying Defence Counsel the opportunityto make sentencing submissions. At the hearing of this appeal, the respondent further conceded that the sentencing judge should havespecifically considered Gladue factors at the CSO breach hearing.

Notwithstanding these concessions, the Crown submitted thatcollapsing the entire CSO was a fit sentence, and that no error was made in refusing the adjournment or denying any credit for the timeperiod during which the CSO was suspended. IV. STANDARD OF REVIEW [15] Appellate intervention in a sentence decision is warranted where there has been a clear error of principle, a failure to properlyconsider, or an over-emphasis of, a relevant factor, or where the sentence imposed is demonstrably unfit (R v M(CA), (SCC), [1996] 1 SCR 500 at paras 89-90, 105 CCC (3d) 327; R v LM, 2008 SCC 31 at para 14, [2008] 2 SCR 163).

V. ANALYSIS [16] The hearing judge committed four errors: 1) failing to consider any enumerated option under Criminal Code s 742.6(9), other than terminating the CSO; 2) failing to permit Defence Counsel to make sentencing submissions; 3) failing to consider Gladue factors relevant to a fit sentence; and 4) failing to grant any credit for the period of time during which the appellant’s CSO was suspended pre-hearing. [17] These errors allow this Court to consider this matter anew and resentence the appellant to a fit and proper sentence in considerationof all the relevant facts and sentencing principles.

There was no error in refusing the adjournment. A. Refusing the adjournment request [18] A trial judge has discretion to grant or refuse an adjournment, reviewable on appeal only to determine whether the decision was“well-founded in law” (Barrette v The Queen, (SCC), [1977] 2 SCR 121 at 125, 68 DLR (3d) 260). Under theconditional sentence regime of the Criminal Code, a breach hearing is to commence within 30 days following the offender’s arrest or assoon thereafter as practicable (Criminal Code s 742.6(3)).

This timing is subject to a court’s discretion to grant adjournments “for areasonable period” (Criminal Code s 742.6(3.3)).

Until a determination is made as to whether or not a breach has occurred, theoffender’s CSO is suspended (Criminal Code s 742.6(10)). [19] R v McIvor, 2008 SCC 11 at para 18, [2008] 1 SCR 285, confirmed Parliament’s intention that allegations of CSO violations are tobe dealt with in a simplified and expedited process. [20] The hearing judge did not err in refusing to grant an adjournment - a delay of seven months is not a “reasonable period”. [21] The four errors can be dealt with under two main headings.

(i). Terminating the CSO and committal to custody [ 22 ] The hearing judge was required to consider all of the options set out in Criminal Code s 742.6(9). Upon finding a CSO breach, a judge can: (

a) take no action; (

b) change the optional conditions; (

c) suspend the conditional sentence order and direct (

i) that the offender serve in custody a portion of the unexpired sentence, and (ii) that the conditional sentence order resume on the offender’s release from custody, either with or without changes to the optional conditions; or (

d) terminate the conditional sentence order and direct that the offender be committed to custody until the expiration of the sentence. [ 23 ] In R v Proulx , 2000 SCC 5 at para 39 , [2000] 1 SCR 61 , Chief Justice Lamer said that where an offender breaches a CSO condition without a reasonable excuse, “there should be a presumption that the offender serve the remainder in jail.” There is some debate in the jurisprudence as to whether these comments were obiter dicta. [ 24 ] For example, in R v Weir , 2000 ABPC 62 at paras 12-13 , 263 AR 365 [Weir] , Fradsham PCJ says: . . . I do not read R. v.

Proulx , supra , as directing that any breach of a conditional sentence must result in the offender serving the rest of his or her sentence in custody. I say this for a number of reasons: (1) such a pronouncement would, in effect, repeal subsections (a), (b), and (

c) of

section 742.6(9) of the Criminal Code ; (2) the Supreme Court of Canada spoke in terms of “a presumption” which indicates that such a result is not inevitable [which is more in keeping with the content of

section 742.6(9)]; (3) requiring an offender to serve the remaining portion of his or her sentence in custody is the maximum punishment possible (see: R. v. Proulx , supra , at p. 469), and it is illogical to conclude that all offenders should have imposed on them the maximum punishment permitted; (4) such an

interpretation could result in a sentence being imposed which failed to comply with the purpose, objectives, and principles of sentencing set forth in sections 718 to 718.2 of the Criminal Code . [ 25 ] In my view, if termination of the CSO complies with relevant sentencing principles it should be made; if not, then other options under Criminal Code s 742.6(9) must be considered. [ 26 ] R v Langley (TE) , 2005 BCCA 478 at para 13 , 216 BCAC 311 , sets out various factors a court ought to consider in determining whether the presumption of termination should be applied in an individual case.

These include: . . . the nature of the offence; the nature, circumstances, and timing of the breach; any subsequent criminal conduct and sentences for that conduct; changes in the plan for community supervision; the effect of termination on the appropriateness of the sentence for the original offence; and the offender’s previous criminal record . . . the list of factors [is not] closed (See also R v Beaulieu , 2015 MBCA 90 at para 20 , 125 WCB (2d) 667 [Beaulieu] ). [ 27 ] Another important consideration is the length and nature of the conditional sentence, in comparison to that which would have been appropriate had the sentence for the original offence been custodial ( R v Talman , 2005 BCCA 279 at para 10 , 213 BCAC 43 ; Weir , at para 18 ).

Where a conditional sentence may be lengthier than a conventional jail sentence for a particular offence, an accused on a breach becomes vulnerable to serving more time in jail than would have been served for the original offence had custody been imposed in the first instance. Here, the Crown originally sought 105 days in custody for the original offences for which the CSO was imposed.

In my view, this is a relevant consideration, together with time served, in assessing the options for breaching the CSO. [ 28 ] Nothing on the record suggests that the hearing judge considered any option but to terminate the CSO and commit the appellant to custody to serve out the remainder of the CSO. This is an error, compounded by failing to permit Defence Counsel to make sentencing submissions on the appellant’s background and circumstances. (ii).

Matters relevant to sentencing [ 29 ] Sections 723 , 726 , and 726.1 of the Criminal Code provide that a court shall, prior to imposing sentence, ask whether an offender has anything to say, give both sides an opportunity to make submissions on relevant facts, and consider any relevant information placed before it, including the representations made by or on behalf of the prosecution or the offender. The record reveals that these statutory obligations were not respected.

[ 30 ] Counsel should be afforded sufficient, and reasonable, latitude to make submissions relevant to their client’s circumstances, as those may bear upon sentence. A sentencing court ought to avoid the appearance of impatience about the content or quality of counsel submissions, and ought to avoid conveying a disinclination to allow counsel to be heard: “this strike[s] at the core of fundamental fairness in the sentencing process” ( MacFarlane v R , 2014 NBCA 35 at para 25 , 114 WCB (2d) 585 ; R v Irvine , 2010 ABCA 212 at para 10 , 88 WCB (2d) 721 ). [ 31 ] Further, the record reflects no meaningful consideration of s 718.2(

e) of the Criminal Code or the general or particular circumstances of the appellant’s aboriginal heritage. R v Ipeelee, 2012 SCC 13 at paras 81-86 , [2012] 1 SCR 433 , makes clear that there is no discretion as to whether such factors are to be assessed on sentencing. The principles established in Gladue must be considered in every case involving an aboriginal offender.

The appellant did not waive this requirement, nor did the sentencing court satisfy its duty by assuming that Gladue factors had been assessed at the imposition of the CSO. [ 32 ] The Addendum to the appellant’s factum makes plain that Gladue factors were a critical consideration that bore upon any sentencing decision in this matter. [ 33 ] Briefly, the appellant is now in her mid-40s, born and raised in Resolute Bay. After being sexually abused at school while a young child, she was fearful of school and ultimately quit in grade six. Sexual assaults also occurred in adulthood.

She was also involved in abusive domestic relationships. She struggles with alcohol addiction and drug abuse, and has serious health issues including arthritis, depression, and a personality disorder. In addition, she suffered a traumatic brain injury in a car crash. She has been hospitalized for various mental health issues, including instances of attempted suicide. [ 34 ] The appellant and her husband have five children and three grandchildren – the three youngest children (ages 15, 10 and 4) live at home.

The threats in breach of the CSO began as a domestic dispute in which the appellant was drunk, her husband became angry and punched her in the face. He was not charged, but removed from the home, with the children, to the local hotel.

When her phone calls to the hotel were not put through to her husband, she eventually uttered the threats, fearful for her children’s well-being. [ 35 ] Despite this background, the appellant has made substantial and sustained personal efforts to avail herself of all available addiction and mental health rehabilitation in Resolute Bay, a small northern community which is vastly under-resourced in this regard.

She runs a successful small business at the local airport, but the needs of her children and her work are barriers to her ability to travel to other communities to seek additional treatment and counselling. [ 36 ] It may be helpful to compare this case to the (unrelated) case of R v McDonald , 2015 ABCA 108 at para 27 , 599 AR 300 , dealing with an offender’s efforts at rehabilitation through a drug court system; the offender failed by re-offending.

The Court there noted that “[t]he objective of rehabilitation still remains even where an offender’s lengthy criminal history, coupled with a durable addiction, means the hope of effective rehabilitation may be fading . . . .” In that case, the Crown had proposed that the entire potential sentence which had been shelved when the offender entered the drug court program should be imposed by reason of failure well into the process.

At para 45 the Court added, in relation to breaching offenders, that: “[b]y signaling that society will not simply write them off because of a lack of success this time around, it reinforces in offenders the ultimate goals of the program.” [ 37 ] Here the sentencing judge opined that there was no alternative to collapsing the order. That is not necessarily so. In my view, had the foregoing factors been properly considered by the sentencing court, it would not have inevitably led to the conclusion that the only available option was terminating the CSO and committal to custody.

The decision of the sentencing judge to terminate the order was therefore not reasonable. [ 38 ] Finally, in assessing whether any of the period of suspension between February 28 and June 17, 2015, should have been credited as time served under the CSO, the sentencing judge failed to refer to or consider any of the factors specifically set out in the legislation when such a determination is made ( Criminal Code ss 742.6(16) and 742.6(17)).

A sentencing court retains the discretionary power to apportion some or all of the suspended time back to the offender’s credit on the CSO, if it is determined that there are “exceptional” circumstances and it is “in the interests of justice.” As with any discretionary power, it must be exercised judiciously and in keeping within the parameters of the law. [ 39 ] The factors which must be considered in determining whether to exercise discretion to grant credit are set out in Criminal Code s 742.6(17), as follows: (

a) the circumstances and seriousness of the breach; (

b) whether not making the order would cause the offender undue hardship based on the offender’s personal circumstances; and (

c) the period for which the offender was subject to conditions while running of the conditional sentence order was suspended and whether the offender complied with those conditions during that period. [ 40 ] While some of the circumstances of the breach were before the sentencing judge, and Defence Counsel was able to provide particulars as to the appellant’s strict compliance with the terms of the CSO during the suspension, the sentencing judge erroneously disallowed all submissions relevant to the issue of “undue hardship based on the offender’s personal circumstances.” Again, these

circumstances would undoubtedly have entailed Gladue considerations. [ 41 ] Moreover, the record and the Addendum t o the appellant’s factum indicate a significant collateral consequence to fully collapsing the appellant’s CSO and ordering her into custody. That is, her resulting separation from her three young children while in custody and uncertainty associated with their care. Defence Counsel submitted that the substitute caregiver, the grandmother, may not have the stamina to handle all three children.

The Addendum includes confirmation by the local social worker that the appellant’s children “were devastated” and their mood change was noticeable while the appellant was incarcerated following the termination of her CSO. [ 42 ] A sentencing court may take into account collateral consequences of a sentence “as personal circumstances of the offender” and adjust the sentence accordingly, in keeping with the principles of proportionality and individualization ( R v Pham , 2013 SCC 15 at paras 11-14 , [2013] 1 SCR 739 [ Pham] ). [ 43 ] I echo R v Stanberry , 2015 QCCQ 1097 at paras 16-26 , 18 CR (7th) 87 , where the Court found that it was incumbent on the sentencing judge to consider whether the separation of the appellant from her children “…will entail what can only be described today as incalculable adverse effects both for the offender and her children.

They are properly regarded, as the Court said in Pham , as “personal circumstances of the offender” (para 20)”. [ 44 ] In light of the Addendum information put before this Court, it appears that the adverse effects upon the children of a custodial sentence may have magnified the severity of the sentence imposed here. Not every circumstance, of course, will warrant an adjustment in sentence. Nonetheless, the sentencing judge ought to have allowed submissions, and considered this aspect.

There is no legal principle of which I am aware that would preclude such consideration. [ 45 ] The appellant waited three months and 17 days for her CSO breach hearing; delay that was neither the fault of, nor consented to by, the appellant. Rather, the delay was institutional or systemic in nature, sufficient to constitute an “exceptional case” ( R v Bright , 2009 ABCA 56 at para 11 , 448 AR 387 , Beaulieu , at paras 43-59 ).

It seems that if more than three months’ delay to the first hearing date provided a basis for denying the appellant’s adjournment application, perhaps it ought equally to have been considered a relevant basis upon which to grant credit to the appellant. This balancing was not considered. [ 46 ] Very recently, R v Webster , 2016 ABCA 140 at para 6 , [2016] AJ No 481 (QL) , said that there must be a “principled reason to deny credit” for a period of institutional delay.

Nothing in the record provides any reason as to why credit should not be granted. [ 47 ] The interests of justice warrant granting some credit for the period of suspension in this case, particularly where the appellant was fully compliant with the conditions of the CSO during that period.

While failing to keep the peace and be of good behaviour by being charged with uttering a threat is serious conduct, as was admitted by the appellant, such conduct must be balanced against any undue hardship to the appellant and the fact that she abided by the conditions of the CSO and her bail conditions during the period of suspension, and that the period of suspension was lengthy. VI. CONCLUSION [ 48 ] For the reasons given, this appeal is allowed. Fifty days remain left to be served by the appellant under the CSO.

The appellant shall receive credit for those 50 days, as time served when the appellant’s CSO was suspended prior to the breach hearing. Accordingly, the appellant has completed her CSO and has served her entire sentence. Appeal heard on May 9, 2016 Memorandum filed at Iqaluit, Nunavut This 31st day of May, 2016 ______________________ Schutz J.A. Appearances:

B. Flight for the Respondent G. Magee for the Appellant