R. v. Sitaram, 2011 ONCJ 12

COURT FILE No. Toronto Citation: R. v. Sitaram , 2011 ONCJ 12 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Mr. S. Heeney ) for the Crown ) — AND — ) ) ANIL SITARAM ) ) Mr. I. Aisen ) for the Offender ) ) Heard: September 24, October 19, December 14, 2010, January 4, 2011 ) ) NAKATSURU J.: [ 1 ] This is a hearing into an alleged breach of a conditional sentence order pursuant to s. 742.6 of the Criminal Code . Originally, on March 5, 2010, Mr. Sitaram was sentenced on one count of attempted theft under and two counts of robbery.

A number of other robberies were admitted and treated as an aggravating factor on sentence. Mr. Sitaram received an 18 month conditional sentence followed by a period of probation for two years. [ 2 ] On August 17, 2010, Mr. Sitaram is alleged to have breached the house arrest provision of his conditional sentence order. He denies having breached this condition. For the following reasons, I find that the Crown has proven that Mr. Sitaram has breached his conditional sentence order. A. OVERVIEW [ 3 ] To enforce the house arrest condition attached to his conditional sentence order, Mr.

Sitaram was made subject to electronic supervision. The Electronic Supervision Program is operated by the Ministry of Community Safety and Correctional Services in the province of Ontario. The Ministry has entered into an agreement with Serco Geografix Ltd., a company based out of the United Kingdom, for the provision of the technologies and supporting monitoring software for electronic supervision. This system is used by the Ministry staff to more closely monitor compliance with house arrest or curfew conditions imposed upon supervised offenders serving their sentence in the community.

A Ministry operated monitoring center, the Ontario Monitoring Center, was established for which all services related to the program is coordinated including the investigation and timely responses to alerts generated by the system. [ 4 ] During the course of the hearing into the breach, which the Crown initially prosecuted by the introduction of the conditional sentence supervisor’s report and signed witness statements, Mr. Sitaram and his mother testified that he was not in breach of his house arrest condition. They testified that he was at home in his bedroom at all relevant times.

The defence suggested that a false alert was generated by the electronic monitoring system. Subsequently, in reply, the Crown called a representative of Serco Geografix Ltd., the conditional sentence supervisor, and an employee with the Ministry’s monitoring center to testify with respect to the reliability of the system and the absence alerts generated that is the subject of this breach hearing. B. THE ISSUES AND THE POSITION OF THE PARTIES [ 5 ] The Crown submits that it has established on the balance of probabilities that Mr. Sitaram was absent from his home during the evening of August 17, 2010.

He was not authorized by his conditional sentence supervisor to be away from his home. He was therefore in breach of his conditional sentence order. The electronic supervision system generated an alert which indicated he was absent from his home for about 12 minutes. The Crown argues that the evidence establishes that the electronic supervision system, designed and manufactured by Serco Geografix Ltd. and operated by the Ministry, is a reliable system. It is intended to detect absences from the home by an offender accurately.

Any malfunctions or interference of the system are identified and can be readily distinguished from a true house arrest or curfew absence. Furthermore, nothing about the alert in question suggests that this alert was anything but an accurate indication of Mr. Sitaram wilfully disobeying his house arrest condition. Finally, the testimony of Mr. Sitaram and his mother should not be believed and he should be found to be in breach of his conditional sentence order. [ 6 ] If found to be in breach, the Crown submits that his conditional sentence order should be terminated and Mr.

Sitaram should be directed to serve the remaining unexpired portion of his sentence in custody. The history of repeated absences, his indifferent attitude towards the house arrest condition, and seriousness of the original offences support this disposition. The Crown did concede that this breach hearing has gone on for quite some time. Thus, it was submitted that it was within the Court’s discretion whether to order some

of the period of the suspension be deemed time served under the conditional sentence order pursuant to s. 742.6(16). [ 7 ] The defence submits that Mr. Sitaram and his mother should be believed when they testified he was at home. It is argued that Mr. Sitaram had no reason to be absent from his home and no reason to lie. There have been a number of prior absence alerts where no action was taken by his conditional sentence supervisor even when Mr. Sitaram admitted his breach. Thus, Mr.

Sitaram would have confessed to this breach if he was not truly at home. [ 8 ] Moreover, there has been a history of prior absence alerts generated when Mr. Sitaram was at home. The defence submits that given the complaints made by Mr. Sitaram and the comments made by some monitoring officers, the Ministry should have investigated the functioning of the equipment. The defence argues it would be unfair to find Mr.

Sitaram in breach of his conditional sentence order without that investigation being completed. [ 9 ] Finally, it is submitted that the electronic supervision system is not as infallible as claimed by the representative of Serco Geografix Ltd. Serco Geografix Ltd. has a vested interest in representing its system and equipment as highly accurate and reliable. Since the system operates on radio wave transmissions, it is as subject as any other similar device such as cell phones to radio interference or transmission/reception difficulties.

As a result, the fact that an absence alert was generated on the evening in question does not prove that Mr. Sitaram was not at home. [ 10 ] If the breach is proven, the defence does not raise any reasonable excuse for the breach. It is submitted however that the termination of the conditional sentence order would not be just in all the circumstances. The breach was minor and Mr. Sitaram was lead to believe, perhaps even justifiably, that no action would be taken for the breach given his past experience with his conditional sentence supervisor.

Although the history of previous absences and absence alerts militates against taking no action, it is submitted that a return to incarceration would be detrimental to the ongoing progress Mr. Sitaram has made while on his conditional sentence and on bail while awaiting final resolution of this breach hearing. C.

SUMMARY OF THE EVIDENCE 1. The Index Offences [ 11 ] Mr. Sitaram committed a number of low level street robberies of teenage students in the vicinity of a school in the fall of 2008. He would drive up in his motor vehicle, stop the victims, and make a verbal demand that the victims empty their pockets. There were six such incidents in total. No violence was used or attempted and nothing was ever obtained except for ten dollars on one occasion. [ 12 ] At the time of the offences, Mr. Sitaram was 18 years old and had no prior youth or adult criminal record. The pre- sentence report was favourable.

It recommended him to be a suitable person for community supervision. Mr. Sitaram had family support and others had spoken well of him. He was open and cooperative in the preparation of the report. He was remorseful and was furthering his education, trying to better himself. He volunteered, attended temple regularly, and assisted his grandparents who were not well. The only negative aspect of the report was past difficulties with the consumption of alcohol which Mr. Sitaram had resolved . [ 13 ] While awaiting sentencing on these charges, Mr.

Sitaram was arrested for breaching the house arrest condition of his bail and charged with failing to comply. Mr. Sitaram had been in a motor vehicle with his brothers and his girlfriend sometime after 8 p.m. in breach of his house arrest condition since his sureties, his parents, were not in the car. On February 2, 2009, he pleaded guilty and received a suspended sentence and probation. [ 14 ] At the sentencing for the index offences, the Crown sought a jail term of 9 to 12 months with probation for 2 years. She submitted that a conditional sentence was not appropriate. In sentencing Mr.

Sitaram to an 18 month conditional sentence order, I found that the mitigating factors outweighed the aggravating factors, that the focus should be on his rehabilitation given his youth and lack of prior criminal antecedents, and that the optional condition of house arrest supervised by electronic monitoring would address the concern raised by his conviction for failing to comply with his surety release. 2. The Alleged Breach of the Conditional Sentence Order [ 15 ] Mr.

Sitaram is alleged to have breached his house arrest by being absent from his residence on August 17, 2010, from 9:54 p.m. to 10:06 p.m., an absence of some 12 minutes. Mr. Sitaram had been given authorization to be absent from his home from his conditional sentence supervisor until 8:00 p.m. that evening. [ 16 ] The electronic monitoring equipment that was installed at his home indicated that he had returned from his authorized medical appointment. However, after his return, the Ontario Monitoring Centre received two alerts indicating that he was absent from his home. The first alert was generated at 9:38 p.m.

At 9:43 p.m., the electronic monitoring system indicated that Mr. Sitaram had returned within range of the monitoring equipment at his home. This was an absence of some 5 minutes. Ms. Jennifer Rogers, the monitoring officer, attempted to telephone Mr. Sitaram at 9:45 p.m. on his home line. She left a message instructing Mr. Sitaram to contact the Ontario Monitoring Center immediately. At 9:47 p.m., Ms. Rogers tried to call Mr. Sitaram on his cell phone. However, the phone line disconnected immediately. Mr.

Sitaram had been told by his conditional sentence supervisor that he was required to answer any phone calls and to return any messages left by the Ontario Monitoring Center. [ 17 ] At 9:54 p.m., a second absence alert was generated by the electronic monitoring equipment. This second absence is the subject of this breach hearing. This alert was received by Ms. Christina Fountain, another Monitoring Center officer. After an absence of

some 12 minutes and 22 seconds, at 10:06 p.m., the equipment indicated that Mr. Sitaram had returned to his home. At 10:00 p.m., during his absence, Ms. Fountain attempted to call Mr. Sitaram’s residence but there was no answer. She left a message for him to call the Ontario Monitoring Center immediately upon receipt of the message. At 10:04 p.m. she called Mr. Sitaram’s cell phone but it rang once and disconnected. The alert cleared at 10:06 p.m. when the equipment detected Mr. Sitaram’s return home. Ms. Fountain made a third call to the residence line at 10:09 p.m. but there was still no answer.

By 10:42 p.m., the offender had still not returned her calls. Ms. Fountain called the police. [ 18 ] The police attended at Mr. Sitaram’s residence where he lived with his parents and siblings. At 1:37 a.m. the next morning, Mr. Sitaram called Ms. Fountain asking why the Toronto Police were at his residence. He was advised that Mr. Sitaram had generated an absence alert. When Ms. Fountain asked him why he had not answered the phone or attempted to return the messages, Mr. Sitaram stated first that he was home with his parents and then, according to Ms.

Fountain, he changed his story saying that his parents had gone to the movies and he was sleeping. Mr. Sitaram was arrested by the police for breaching his house arrest condition. [ 19 ] It is clear that Mr. Sitaram did not telephone the Ontario Monitoring Center that night, August 17 th , as required by the agreement he signed with the Electronic Supervision Program. However, it must be emphasized that this failure plays no substantive role at the breach hearing. The allegation is solely that he breached the house arrest condition of his sentence on one occasion.

Additionally, the conditional sentence order requires him to observe the house arrest condition for the first twelve months of his sentence; it does not require him to telephone the Ontario Monitoring Center or to answer their calls. 3. The Evidence of the Offender and His Mother [ 20 ] Mr. Sitaram testified at the hearing and denied having breached his house arrest condition. Mr. Sitaram was at an approved medical appointment that day and arrived home for dinner around 8 p.m. After dinner, he went upstairs to his room, was on the computer for a bit and then fell asleep.

The next thing he knew was his parents were waking him up and telling him that the police were there. Mr. Sitaram testified that he did not step outside his home at all that evening. What is more, he did not hear any telephone calls. Mr. Sitaram had a telephone connected to the residence land line in his bedroom. By 9:30 to 9:45 p.m., according to Mr. Sitaram, he was in bed asleep. He testified that that he did not know that the Ontario Monitoring Center had called on his cell phone as his cell phone was blocking all private number calls without his knowledge. [ 21 ] Mr.

Sitaram testified that the monitoring unit in his home had set off false alarms some 5 or 6 times while he was still in the house. In cross-examination, he acknowledged that on prior occasions the Monitoring Center had called the house phone or his cell phone before and managed to get through to him. On August 17 th , he did not know why his cell phone had blocked the Monitoring Center’s calls. He was not sure whether the blocking was due to his cell phone or whether it was the service provider.

He testified that this had never happened before and he had never previously heard from the Ontario Monitoring Center that it was a problem. [ 22 ] Mr. Sitaram told the Ontario Monitoring Center that night he had not heard the telephones ring. When he was asked why his parents had not answered the telephone, he agreed that he told the Monitoring Center that his parents had gone to the movies. This was a mistake on his part since he merely assumed that they had gone because his parents had discussed this intention earlier.

His mother overheard this comment made by her son while he was on the phone with the Monitoring Center and she came over to correct this. [ 23 ] Ms. Dayawante Sitaram, the offender’s mother, also testified and confirmed her son’s testimony. Ms. Sitaram lives at 4619 Kingston Road with her husband, the offender, and his two younger brothers. She stated that during the evening of August 17 th , the whole family was at home and her son, Mr. Anil Sitaram, never left the family home.

She did not hear a telephone ring at all that night and only later discovered that the Ontario Monitoring Center had left two messages on their answering machine. There were some six telephones in their home including a wireless portable phone and other phones directly connected to a land line. No one checked the messages until the police arrived. Ms. Sitaram agreed that all six telephones ring loudly when a call is received. [ 24 ] Ms. Sitaram testified that she came home from work at about 7:30 p.m.

The offender returned home from a medical appointment somewhere between 8 to 8:30 p.m. at which time they had dinner. After dinner, Mr. Anil Sitaram went up to his bedroom, closed the door, and never left his room. In cross-examination, she revealed that she had gone into the offender’s room twice that evening. The first time, sometime after 9 p.m., she went to his room for laundry and her son was at the computer. Another time, sometime after 9:30 p.m., she again went in for laundry and her son was in bed. Ms.

Sitaram then had a shower and remained awake until the police came. [ 25 ] The police arrived after midnight alleging Mr. Sitaram had breached his curfew. The family tried to explain to the police that he had been home all evening. Mr. Sitaram initially told the police his parents had gone to the movies. This was not true but Ms. Sitaram explained that the confusion likely arose since they had earlier discussed going out to the movies but then they decided not to.

She testified that when she heard her son’s conversation with the Monitoring Center, she went over to her son and told the Center that they in fact did not leave that evening. [ 26 ] Ms. Sitaram testified that they had had many problems with the electronic monitoring system. She testified that the Monitoring Center would call and allege that the offender was not at home when he was. They had spoken to the conditional sentence supervisor about these difficulties. Ms.

Sitaram testified that her son always obeyed the directions of the supervisor but sometimes he was not given enough time to travel from his approved commitments back home. Whenever he was going to be late, however, her son ensured he called his supervisor or the monitoring officer. 3.The Electronic Supervision System [ 27 ] Graham Cottrell is the contract director of Serco Geografix Ltd., the United Kingdom based company supplying the

electronic supervision system to the province of Ontario. Mr. Cottrell is an electronic engineer by profession who has been with Serco Geografix Ltd. for some 15 years. Serco Geografix Ltd. designs, builds, supplies and services the electronic supervision system. It has been doing so for 15 years. Mr. Cotrell gave evidence with respect to this system in general and also specifically with respect to Mr. Sitaram’s case. [ 28 ] The electronic supervision system is the third version developed by Serco Geografix Ltd. This version has been in use for 5 years.

The specific system has been modified and improved upon over the years. Mr. Cottrell described the system as essentially a simple one although it has evolved over time. It is used in Ontario, British Columbia, the United Kingdom, Italy, Poland, and a couple of Australian states. He testified that approximately 9,600 people are currently being monitored in the United Kingdom and the company has over time monitored some 300,000 people. Serco Geografix Ltd. has less than 5% of its worldwide business in Canada.

Similar devices manufactured by other companies are in use elsewhere in North America, Europe, and Israel. [ 29 ] Serco Geografix Ltd. has a contract with the Ministry of Community Safety and Correctional Services. It supplies the Ministry with the equipment, training, and support for 4 years. There is one year remaining on the contract. Serco Geografix Ltd. tests each machine for reliability before it leaves the factory. Mr. Cottrell agreed that there were no world-wide industry standards with respect to electronic monitoring devices.

However, each country has done its own form of acceptance testing before entering into a contract. He did not personally know if Ontario did so but Mr. Cottrell had been involved with the sales to Poland, the United Kingdom, Italy, and Australia and could confirm these nations did their own form of verification as to the system’s reliability. [ 30 ] There are three elements to the electronic supervision system: 1. The Personal Identity Device (henceforth “PID”), the ankle bracelet; 2. The Site Monitoring Unit, the home unit; and 3.

The Central Monitoring Unit, the unit used by the center to monitor the offenders under supervision. [ 31 ] The PID is a battery powered, radio frequency transmitter secured to the ankle of a person placed on an electronically monitored curfew or house arrest order. It is worn continuously for the duration of a curfew or house arrest order. The PID emits a regular encrypted radio signal. Any attempt to tamper with the device will trigger an alert that will be raised with the Monitoring Center.

Each PID has a unique number that is encrypted since the system may have a number of people monitored at any one time. [ 32 ] The radio signal emitted by the PID is received by the Site Monitoring Unit. The Site Monitoring Unit is the communication link between the subject who wears the PID and the Monitoring Centre. One Site Monitoring Unit is usually located in a central area of the subject's home. Fundamentally it is a radio receiver the size of a telephone with a time display on it. The Site Monitoring Unit uses a dual receiver and aerial system which places a geographic boundary around the curfew site.

There are two identical receiving systems in the box for reliability. This redundancy ensures that if one fails or does not pick up the radio emissions from the PID, there remains a back up. The Site Monitoring Unit has an integral battery that operates in the event of interference to the power supply. The Site Monitoring Unit is fully sealed and is not accessible to the subject.

The box has protection mechanisms to prevent it from being jammed or tampered with; it will raise alarm if these occur. [ 33 ] The Site Monitoring Unit communicates to the Central Monitoring Unit by means of a residential telephone land line. The Central Monitoring Unit receives the information from the Site Monitoring Unit. The monitoring console software provides a visual display of all necessary monitoring functions using logical processes and alert screens to reduce the need for lengthy training periods.

The software has three parts: The communications processor, handling all communications with each Site Monitoring Unit in the field. The main database holding all subject particulars and a complete history of all events. The monitoring console software providing data entry and the visual interface for the monitoring process . [ 34 ] All events concerning the curfew or the house arrest are recorded and backed up to provide a complete record of the order from the time of first installation to the completion of the order.

If a violation is reported, immediate attempts are made to establish telephone contact with the subject, directly followed by contacting the relevant authorities to enable any appropriate action to be taken. There is a computer console so that a monitor can observe what is occurring at any time. Violations and alerts are registered on the computer console.

If the Site Monitoring Unit cannot get through to the Central Monitoring Unit, for whatever reason including if a resident is using the telephone, the Site Monitoring Unit like other auto-dialing equipment will periodically keep trying in three minute intervals to get through. Each event or occurrence will be time stamped with the time that it has occurred. The Site Monitoring Unit will not delete or forget this information until it can pass the data onto the Central Monitoring Unit which will confirm and record the information before commanding the Site Monitoring Unit to delete it.

If a subject is absent from a place of curfew or house arrest during the hours of curfew or house arrest, a PID absence alert is reported by the Site Monitoring Unit which is received by the Central Monitoring Unit within minutes. The Ontario Monitoring Center operates the Central Monitoring Unit in the provincial Electronic Supervision Program. [ 35 ] If an absence alert is raised, the first step is to make a phone call to the offender’s residence. Mr.

Cottrell testified that useful information can be learned from the offender or someone else in the home about an alert by doing so. [ 36 ] After outlining the basics of the electronic supervision system, Mr. Cottrell provided further detail about the system in general and its operation in Mr. Sitaram’s case. Mr. Cottrell reviewed Mr. Sitaram’s file with the Ontario Monitoring Center. [ 37 ] Mr. Cottrell testified that the system is fundamentally simple in terms of its accuracy and reliability. Mr.

Cottrell described it as binary; in other words, it is either black or white; the offender is either within range or not. If an offender steps outside of the boundary that the Site Monitoring Unit can detect radio transmissions from the PID, a PID absence alert is generated and sent to the Central Monitoring Unit. Mr. Cottrell testified that in the United Kingdom of the some 300,000 individuals who have been on monitoring, there has been an 85 to 90% rate of people complying with the monitoring.

A small minority of individuals refuse to comply. [ 38 ] The Site Monitoring Unit is placed in a central location in the house. While Serco Geografix Ltd. supplies the equipment, it is the Ministry that sets it up. Mr. Cottrell testified that the calibration and set up of the machine is simple requiring little more than

plugging in the equipment and attaching the PID. Once set up, no further calibration or regular servicing is required on site. If equipment is faulty, it is replaced. The hardware is designed to be easy to use and install. While the software comes with a manual, no training guide is required for the hardware. The Ministry does not repair the equipment; rather it is sent back to the United Kingdom to Serco Geografix Ltd. for servicing. [ 39 ] Mr. Cottrell testified that the two antennas on the Site Monitoring Unit cannot be inadvertently loosened or moved by accident once set up.

They have good reception and the geographic range for transmission reception is a maximum diameter of 200 meters. The frequency used is very good at penetrating walls and buildings both vertically and horizontally. Transmissions from the second floor and basement do not pose a problem. Closing a door results in only a small loss of signal and is not an impediment to a successful transmission from the PID to the Site Monitoring Unit. Difficulty can arise from steel but most of the time the existence of steel works in favour of transmission.

For example, a metal clad mobile home would bounce radio transmissions within its confines amplifying the transmission. Problems could arise in outlying garages or sheds where there are metal vehicles or equipment contained inside. Water is also not a problem. Offenders often complain when faced with a PID absence alert that they were in the shower or bath.

However, the PID transmits well in a bath or a shower and it is only in deep water, such as depths of 5 meters or more that would cause a problem. [ 40 ] The system boundary is calibrated at installation to coincide generally with the physical boundaries of the house. In order to accomplish this, the system can set the boundary as measured by small, medium, or large settings. This setting can be done at the Central Monitoring Unit without attending the offender’s home and any change to the setting will be time stamped and recorded.

The large setting is more than adequate to cover the property of a large home and could easily cover a 4 or 5 bedroom property. The staff of the Ontario Monitoring Center is responsible for properly setting the boundary for Ontario offenders in the program. If someone steps out of the house and is still within bounds of a setting established for the radio receiver, no alert will be generated.

Conversely, if the setting is too small for the size of the house, an alert could be generated if the offender is still at home but steps outside the boundary the Site Monitoring Unit is capable of receiving the radio transmission by the PID. In his experience, Mr. Cottrell testified that some people do test the system. The system is designed not to give visible or audible feedback to offenders when they are beyond the boundary.

Nevertheless, most offenders at the beginning of their supervision commonly test the boundary by walking slowly from the box to see where they are when someone from the Central Monitoring Unit calls. In Mr. Sitaram’s case, Mr. Cottrell understood the setting to be the large setting. In cross-examination, Mr. Cottrell was referred to a report made by a monitoring officer on March 13 th that an absence alert was received and Mr. Sitaram was called. Mr. Sitaram said he was on the front lawn at the time of the alert and that he had a large house as well. It was noted in the report that Mr.

Sitaram was currently on the medium setting. Mr. Cottrell believed the setting may have been changed to large but he was not sure. [ 41 ] Since the Site Monitoring Unit communicates with the Ontario Monitoring Center with a standard telephone line, it must be free for any alert or data to be transmitted. The residence line need not be dedicated for the electronic supervision and can be otherwise used by the residents of the home. If someone is using the telephone, the Site Monitoring Unit will wait until the line is free to send the data.

If the call goes on for a time, the Site Monitoring Unit will make a tone that increases with frequency to let the caller know that the equipment is waiting to use the line. Fax or other machines that use the telephone line are prohibited. In addition, all telephone services such as call waiting, call forwarding, call privacy are also prohibited. However, if some features are still left on the telephone, this will not affect the ability of the system to record events or get the events through to the Central Monitoring Unit. Equally, the system would not interfere with any message waiting indicator or light.

Of course, Mr. Cottrell agreed that the residents would still have to check for messages and may miss observing any visible indicators of unheard messages. [ 42 ] The system is also deliberately designed to filter out brief absences from the home or the odd unexplained missed transmission. Such brief absences do not generate an alert. The PID transmits once every roughly 25 to 30 seconds although it is not 100 % consistent. The Site Monitoring Unit will not generate a PID absence alert until ten sequential transmissions from the PID are not received.

This approximate 5 minute margin is built into the system to forgive short absences. If someone leaves the house during a curfew, the system gives the offender the benefit of the doubt for 5 minutes. If the offender returns within the 5 minutes, the Central Monitoring Unit will not receive any alarm. Furthermore, if for some reason, a few transmissions are missed, no alert is generated. Mr.

Cottrell testified that for a 15 minute absence, some 30 transmissions would have to been missed and that was improbable unless the offender was truly absent. [ 43 ] The PID itself has a feature calculated to reduce the likelihood an absence alert is falsely created by a temporary hardware breakdown. Each transmission of the PID has an encrypted sequence. The Site Monitoring Unit knows what the next numbered transmission sequence should be. For instance, the PID would send out transmissions encoded sequentially 1, 2, 3, and so on.

If the PID was to stop working for a time and then start again, the sequencing would start over. However, the Site Monitoring Unit would then receive a sequenced transmission that is not the one it is expecting and an alert will be sent to the Central Monitoring Unit of a defect that needed investigation.

On the other hand, if the offender and the PID are genuinely gone from the range of the Site Monitoring Unit, the Site Monitoring Unit would expect a transmission that is coded with a number that is expected to match the number of transmissions that should have been emitted for the duration of time of the absence. In such a case, a PID absence alert will be generated. In other words, the system can detect if the PID malfunctions by stopping and starting again due to the sequencing of its transmissions. In cross- examination, when Mr.

Cottrell was asked whether the machine was infallible, he testified it was proven technology and it is designed to be foolproof. Mr. Cottrell also testified that there were no events generated in Sitaram’s case that indicated that the sequencing was not right. [ 44 ] In addition to these attributes, the equipment is designed to self-diagnose and report any defect. So if, for example, the battery is low, it will report this to the Central Monitoring Unit. If the case is broken or tampered with, it will report this to the Central Monitoring Unit. Mr.

Cottrell testified to his knowledge he could not think of an occasion where the equipment developed a fault and did not indicate it. Even if there were no events or failures to report, the Site Monitoring Unit and the Central Monitoring Unit will, typically 8 times a day, still communicate with each other to check in to determine if everything is fine. [ 45 ] Mr. Cottrell admitted that high radio signals from another source especially in a noisy radio environment could affect the successful operation of the electronic monitoring equipment.

However, the unit has a jam detection element which looks for jamming or interference and reports it as a problem to the Central Monitoring Unit when it occurs. In cross-examination, Mr. Cottrell agreed that if

there was a fault with the detection device this would affect the unit’s ability to report. However, this defect would have to disable bothjam detectors in the Site Monitoring Unit at the same time as both are independent of each other. Therefore, such a situation wasimprobable. [46] In reviewing the data in Sitaram’s case, there was nothing to suggest to Mr. Cottrell that there had been any malfunctionin his case. In his view, there was nothing on the night in question that would suggest any technical failure.

When the scenario of Mr.Sitaram going to his second floor bedroom and closing the door with his claim he remained there despite the PID absence alert, was putto him, Mr. Cottrell testified that the pattern of the alert is significant. If the radio signal was lost for the whole night while the offenderwas in bed, the alert would indicate that. In this instance, the alert ended some 12 minutes later. The absence alert did not in factcontinue throughout the night but for only one discrete period in the evening. When cross-examined whether it was possible that themachine malfunctioned once and not again, Mr.

Cottrell did not agree with this suggestion since the machine was designed to detectmalfunctions and there was a redundancy in that the second receiver would still operate. [47] After reviewing Sitaram’s file, Mr. Cottrell testified that it looked like Mr. Sitaram was being given the benefit of thedoubt many times despite valid absence alerts. When asked whether someone should have been sent to investigate Mr. Sitaram’scomplaints, Mr. Cottrell said the majority of the events were late getting home events and this would have nothing to do with thefunctioning of the equipment. Ultimately, Mr.

Cottrell testified it was up to the user of the equipment to determine if further inquirieswere warranted. 5. Evidence of the Central Monitoring Officer [48] Ms. Jennifer Rogers is employed with the Ministry of Community Safety and Correctional Services. She is an officermonitoring offenders in the Electronic Supervision Program. Both Ms. Rogers and Mr. Vasta, Mr. Sitaram’s conditional sentencesupervisor, provided evidence of other and earlier breaches. I am mindful that there is always potential prejudice in this type of non-alleged breaches being admitted. Counsel for Mr.

Sitaram did not object to their admission. Nonetheless, I remind myself that suchevidence should only be considered for that limited purposes of credibility and of assessing Mr. Sitaram’s attitude while undersupervision once the breach in question has been proven by the Crown. Also, I must be mindful of the fact that some of their evidencemay have a hearsay component to it and it should not be used for the truth of their content unless otherwise admissible for that purpose orconsented to by the parties. See R. v. McIvor, 2008 SCC 11 , [2008] 1 S.C.R. 285. [49] Ms.

Rogers testified that there are two employees on each shift at the Ontario Monitoring Center. The Center uses thesoftware program provided by Serco Geografix Ltd. There is a protocol to follow when an alert is generated. Monitoring officers do notbreach offenders but report any breach to the conditional sentence supervisor or the police depending on the protocol. A report is madeof any alert. When a PID absence alert is generated, Ms. Rogers immediately calls the residence or the offender’s cell phone to contactthe offender. [50] One of the offenders Ms. Rogers supervised was Mr. Sitaram.

Other monitoring officers also handled alerts relating toMr. Sitaram. Ms. Rogers has had contact with Mr. Sitaram a number of times including on his cell phone. Most of the alerts Mr.Sitaram’s file were PID absence alerts although there were other alerts such as a loss of contact alert. A PID absence alert is generatedwhen Mr. Sitaram was not at home as required. A loss of contact alert is generated when for whatever reason the system is unable todial out of the home to make contact with the software; for instance when the telephone is off the hook. [51] Ms.

Rogers testified she was never concerned about the proper functioning of the monitoring device. Having dealt withMr. Sitaram on a number of occasions, she came to the conclusion that Mr. Sitaram was indeed outside his home. The Site MonitoringUnit has never been replaced. The only servicing required was the battery in the bracelet was low and needed to be replaced but this wasnot relevant to any of the alerts that were generated in his file. [52] There is no dedicated phone line to the electronic supervision in Mr. Sitaram’s home and thus others are free to use it.

Still, if someone does not pick up a call from the Central Monitoring Center for an extended period of time, this could generate a loss ofcontact alert. [53] On August 17th, 2010, the notes of the Center indicated that Ms. Fountain called the Sitaram home twice. The notesindicated at 10:00 p.m. there was no answer and she left a message. Her note did not indicate there was a busy signal. At 10:09 p.m. itwas noted another call was made and there was “still no answer”. Ms.

Rogers testified that if monitoring officers called and received abusy signal, they would continue to call back until they no longer received a busy signal. If the call made by the officer went directly tomessaging, then it was the offender’s responsibility to check for messages. [54] Ms. Rogers testified that when she herself tried to call on the home line at 9:45 p.m., she did not get a busy signal. Giventhe way she made her notes, she testified that the line was clear and the telephone probably rang 4 times although she could notspecifically recall. The call then went to voicemail.

She testified that she would note the call as directly going to voicemail if it did notring and went directly to messaging. In this case she did not, so in her view the home telephones must have rung. [55] Ms. Rogers estimated over the course of their history with Mr. Sitaram there have been some 50 to 100 separate alerts.The majority of the alerts were PID absence alerts when he was late for or had left early from curfew and house arrest. If the absencealert was not about being late getting home, the PID absences were always of short duration.

There would be one or two PID absencealerts during the evening but never throughout the course of the evening. There were never alerts that continued throughout the eveningas if the machine was malfunctioning. [56] A number of alerts were confirmed by Mr. Sitaram to be caused when he was not in his home when he was required tobe. He would often, but not always, telephone the Ontario Monitoring Center when he was going to arrive home late. There wereseveral occasions Mr. Sitaram admitted he was outside having cigarette and he was told to stay closer to the house.

On a number of thealerts, about 6 or 7 times, the Central Monitoring officer called home and spoke to Mr. Sitaram who claimed he was at home when the

alert was generated. He was advised to unplug the Site Monitoring Unit and to plug it back in. This was done not because there was anything wrong with the equipment or to reboot the system. Rather, it was done simply so that Central Monitoring Unit would receive data about the event sooner in order to clear the alert from the home unit since it would otherwise take some minutes for the data to be transmitted. [ 57 ] In the file, there were some notations made about range issues. When Ms.

Rogers was asked why no one was sent out to investigate the equipment and its placement, she said generally this is not done for that type of alleged claim. She did not do so in Sitaram’s case because the alerts did not happen all night long nor were they being generated every 5 minutes; that could indicate a real problem. Here such alerts did not occur and thus there was no reason to investigate. Furthermore, Ms. Rogers explained that the absence alerts appeared to be occurring around the same time and there were times Mr. Sitaram admitted to be being outside the home having a cigarette. When Mr.

Sitaram did claim he was at home, Ms. Rogers did not believe him, thinking sometimes it was just easier for an offender to claim to be home. Ms. Rogers always believed the equipment was functioning properly. [ 58 ] A number of specific events were put to Ms. Rogers in examination-in-chief and in cross-examination: • March 13, 2010: There was a PID absence alert for 6 minutes in duration. Mr. Sitaram was called and he stated that he was outside on the front lawn at the time. The monitor noted the offender’s setting was currently on medium range.

No further action was required. • March 14, 2010: There was a PID absence alert for 7 minutes in duration. Mr. Sitaram was called and he said he was at home. It was noted that there could be possible range issues and no further action was taken. • March 14, 2010: There was a PID absence alert for 8 minutes in duration. Mr. Sitaram was called and he said he was smoking on the driveway. The monitor told him to stay as close as possible to the house to avoid an alert. Mr. Sitaram acknowledged this. • May 8, 2010: There was a PID absence alert for 5 minutes in duration after Mr.

Sitaram should have returned to his home. A call was made to his home, the call was unanswered, and a message was left. The system indicated that Mr. Sitaram had returned home even before the alert was received by the Ontario Monitoring Center. • May 30, 2010: There was a PID absence alert for 6 minutes in duration. A telephone call was made and Mr. Sitaram stated he was in the residence. A monitoring officer noted potential range issues and if problems persisted, a service call would be scheduled. • June 24, 2010: Mr. Sitaram called the monitoring officer and said he was going to be late.

He was advised that he did not have permission to be late. Mr. Sitaram stated he would not be able to get home. A PID absence alert was generated. Ms. Rogers called Mr. Sitaram on his cell phone while he was on the Gardiner Expressway. Mr. Sitaram said he would be home soon. He called another time to say again he was going to be home soon. Ms. Rogers testified that she had no difficulty contacting Mr. Sitaram on his cell phone. • June 27, 2010. Mr. Sitaram had authorized permission to be out of his home to midnight. At that time, a PID absence alert was generated. Ms. Rogers tried to call him on the home line.

A female answered and said Mr. Sitaram was running late. The female said she will try to call Mr. Sitaram and have him call. His mother later called Ms. Rogers and said that Mr. Sitaram’s cell phone had died. Ms. Rogers warned that the police may be contacted. Ms. Rogers tried to call the cell phone but received a message saying that the user was unavailable. Ms. Rogers tried to call the home line 40 minutes later but it went to voicemail. Ms. Rogers again called the residence line which was answered by Mr. Sitaram’s mother. As the phone was being passed to her son, Ms. Rogers overheard the mother say to Mr.

Sitaram she had not told Ms. Rogers anything. Mr. Sitaram took the phone and said he was home. When asked why he was late, Mr. Sitaram said his phone died and that he had used another phone to call his mother. A discussion ensued why he was late and Ms. Rogers found his explanation suspicious and his attitude unconcerned. Mr. Sitaram was late by about 50 minutes. • July 6, 2010: After a PID absence alert, Mr. Sitaram was called on his cell phone and after a few rings he answered. He said he was home. The monitor advised that Mr. Sitaram had just been called and a message left on the residence line. Mr.

Sitaram was told to unplug and plug in the Site Monitoring Unit so that the event could expeditiously be transmitted to the Center. • July 31, 2010: There was a PID absence alert. Mr. Sitaram had received authorized permission to be out but he did not return on time. There was no answer on the home line. Ms. Rogers later called on his cell phone. The cell phone rang once and disconnected. She then tried the cell phone again a couple of times but it was busy. She tried the home line and someone answered but hung up. Mr. Sitaram then called to say he was late as he was hung up in traffic as it was Caribana.

When asked why he had hung up his phone, he said he did not know what happened. He was told to call on the home line. Later, the monitoring officer, Ms. Fountain, called Mr. Sitaram at his home. Mr. Sitaram said he had call blocking on his cell phone. He was told to remove the feature on the phone first thing in the morning. Ms. Rogers testified that offenders could add or remove features to their cell phone line and that could cause a problem with communicating with the offender by cell phone. Here Mr.

Sitaram was told to remove it. • August 1, 2010: There was a PID absence alert of a duration of 1 minute 32 seconds. A telephone call was made to his home and Mr. Sitaram answered and he stated he was in the basement. He was told to go to the Site Monitoring Unit to see if the alert would clear. Mr. Sitaram went and the alert cleared. This was noted by another officer. Ms. Rogers testified she cannot say he was actually in the basement but this is what Mr. Sitaram claimed. Ms. Rogers testified that the alert should not be resolved simply by Mr.

Sitaram moving a few feet in the basement. • August 2, 2010: There was a PID absence alert for 8 minutes in duration. Mr. Sitaram’s mother called and said Mr. Sitaram was in the basement and the alert was cleared. [ 59 ] Ms. Rogers testified that to her knowledge there have never been any crashes or glitches in the operation of the system software. She did acknowledge past difficulties with hardware. Ms. Rogers testified that there have been other cases where service people have been sent to investigate equipment at the home of offenders and then equipment replaced, although she could not name any specific cases.

However, these were generally due to alerts being generated overnight consistently, hours and hours at a time. She was

crossed about potential radio interference or equipment malfunction in Mr. Sitaram’s case and why nothing was done to rule out thesepossibilities. Ms. Rogers replied that there were not enough alerts to raise an issue to require a service call or to replace the equipment. Ms. Rogers stated that Mr. Sitaram did generate PID absence alerts when he admitted to being late for an authorized curfew or when headmitted he was out of the house. Ms. Rogers testified that there were not enough alerts generated during any evening in question or thenext day such that a service call was ever warranted. [60] Since Mr.

Sitaram was charged with breaching his conditional sentence order, there have been ongoing but greatlydecreased absence alerts. The alerts were now different. The alerts occurred when Mr. Sitaram was going to be late for curfew and healmost always called to say he was going to be late. 4. Evidence of the Conditional Sentence Supervisor [61] Mr. Alnoor Vasta, Mr. Sitaram’s conditional sentence supervisor, also testified at this breach hearing. He is discouragedby Mr. Sitaram’s attitude while on his conditional sentence. [62] Mr. Vasta testified that Mr.

Sitaram’s response to community supervision has not been satisfactory. He has a history ofreturning late and violating his permission to be out of his residence. There have been a number of alerts generated by the electronicmontoring system. The Ontario Monitoring Center have filed numerous alert reports indicating Mr. Sitaram was late getting home orleaving his residence early from a few minutes to an hour without permission. He further had a history of not answering telephone callsmade to his residence by Mr. Vasta as well as by telephone calls made by the Ontario Monitoring Center. In Mr.

Vasta’s view, Mr.Sitaram did not take responsibility for his actions despite being informed time and time again of the requirements and conditionsregarding his conditional sentence order. In some alerts, Mr. Sitaram called the Monitoring Center and the alert was cleared. Anothercategory of alerts was that he was late from his various authorized appointments. However, Mr. Vasta advised him that he had to leaveearlier to allow himself time to get home. Mr. Sitaram did not seem to learn from these experiences. [63] In his opinion, Mr.

Sitaram has pushed the boundaries significantly without thinking of the consequences. Although hedid secure permission for some of his absences, he always seemed to be returning late. Mr. Vasta did not count up all the breaches, but itwas his view that there were over 20 breaches. Mr. Vasta has also spoken to Mr. Sitaram’s mother about the problems but to no avail. [64] Mr. Sitaram did complain about the operation of the machine in the past but Mr. Vasta is not aware of the date of thecomplaints.

There were complaints that the phone was off the hook or that he was in the basement or he had been outside having asmoke. He was advised to ensure the phone was properly left on and to stay close to the monitoring unit. [65] When asked why Mr. Sitaram was not breached for his absences, Mr. Vasta admitted he had been very generous and hekept giving Mr. Sitaram chances and giving him extensions of time when requested. Mr. Vasta even gave him permission to gocelebrate Canada Day with his girlfriend. [66] Mr. Sitaram was finally charged for the August 17th absence in part because on August 11th, Mr.

Vasta again cautionedhim about his adherence to the conditions and Mr. Sitaram was told this was his last chance. Mr. Vasta also spoke to his mother andthey both agreed this would not happen again. [67] Even after being charged with the breach, Mr. Sitaram has continued to be late. There have been alerts generated but Mr.Vasta has agreed for the last few months he has been better with his compliance but he would not characterize it as exceptional. Thealerts have been fewer and for less time. 4. Defence Letters Regarding the Offender’sProgress [68] The defence presented letters attesting to Mr.

Sitaram’s progress while on his conditional sentence. He has beenregistered in and taking a number of courses with the Faculty of Continuing Education of Seneca College of Applied Arts and Technology. Two letters dated August 9th and October 15th from his employer, Metro East Collision, state Mr. Sitaram has beenworking full-time from 9:30 a.m. to 6:30 p.m. doing delivery/pickup and general autobody work. He is described as a reliable,dependable and very hard worker with a strong sense of responsibility and a high future potential. The employer is aware of hisdifficulties with the law and he states the Mr.

Sitaram has a positive attitude and has taken the initiative by requesting to leave early onmany occasions when heavy traffic was forecasted. A letter from his Hindu temple was also put before me. It states that Mr. Sitaramhas a strong interest in music and is talented in that regard. Despite having limited time to offer while on house arrest, he continued tovolunteer at his temple being an active member of the youth group, doing a variety of work with the children during cultural shows, andteaching children to play the Tabla. The temple states that it is expecting big things from Mr.

Sitaram in the way of educational andcommunity leadership in the future. D. THE LAW [69] Under s. 742.6(9) of the Criminal Code, the onus of proving that the offender has breached his or her conditionalsentence order rests with the Crown. While the offender bears the burden of proving a reasonable excuse in the event that a breach isproven, in this case, Mr. Sitaram simply denies the breach. The Crown need only prove the breach on a balance of probabilities. This isthe same standard as applied in civil cases; see R. v. Fillippelli (2002), (ON CA), 169 C.C.C. (3d) 217 (Ont. C.A.) at

para. 12. [70] In H.(F.) v. McDougall, 2008 SCC 53 , [2008] 3 S.C.R. 41 the Supreme Court of Canada held that the civilstandard involves only the determination of whether it was more likely than not that an event occurred. The Court rejected any notionthat within the standard of a balance of probabilities, there were legally recognized different levels of scrutiny of the evidence dependingupon the seriousness of the case. The duty upon me, therefore, is to scrutinize the relevant evidence with care to determine whether itwas more probable than not that Mr.

Sitaram breached the house arrest condition of his conditional sentence order. While such a civilstandard is less than the criminal standard of proof beyond a reasonable doubt and the finding of a breach may have significant effectupon the offender’s liberty, this standard comports with the constitutional requirements under the Canadian Charter of Rights andFreedoms; see R. v. Casey (2000), (ON CA), 141 C.C.C. (3d) 506 (Ont. C.A.) at paras. 25 – 40. E. ANALYSIS REGARDING THE ALLEGED BREACH [71] Electronic monitoring or supervision of offenders is nothing recent.

Even before the conditional sentence provisionswere enacted, it has been in use. It was described in the case of R. v. Mcleod (1992), (SK CA), 81 C.C.C. (3d) 83 bythe Saskatchewan Court of Appeal as used in conjunction with probation in the following manner: The electronic monitoring program is not new and not unique to Saskatchewan.

It was apparently started by an American judge inAlbuquerque, New Mexico who got the idea of putting an electronic ball and chain on offenders "against the American way", from aCaptain Marvel comic book. [Footnote 22: Editorial "The Price of Tagging", 140 New Law Journal, page 1629.] It was a way to enforceorders requiring offenders to stay at home or at a specified place during certain hours.

The Saskatchewan program is designed to permitoffenders whose risk level would otherwise require them to be incarcerated, to be punished in a program in the community which has ahigh level of supervision and at the same time maintains an appropriate level of public protection. The electronic monitoring of convicted offenders in the community can serve as an alternative sanction for a number of sentences. Itcan be used as a substitute for custodial sentences in the form of supervised house arrest.

It can be used to supervise persons on pretrial orprobationary diversion programs by diverting people from prisons to a form of controlled liberty. Electronic monitoring of convictedoffenders can also be used as a complement to prison work release programs, intermittent sentences and sentences for juvenile or youngoffenders. The electronic monitoring can be used at the beginning of the probation period, a "front-end" program, which is essentially analternative to a custodial sentence. The offender must comply with the terms of the electronic monitoring as a principal condition ofprobation.

Other programs place the offender on electronic monitoring at the end of the sentence, a "back-door" program, as a means ofmaking the transition from incarceration to unsupervised freedom more effective. See also the comments made more recently about the appropriateness of electronic monitoring in the context of probation in R. v. Shoker,2006 SCC 44 , [2006] 2 S.C.R. 399 at para. 21 per Charron J.; at para. 37 per LeBel J. [72] Electronic monitoring has also been advanced as a tool to supervise accused individuals while on bail; see for exampleU.S.A. v.Pannell, (ON CA), [2004] O.J.

No. 5715 (S.C.J.) at paras. 34 – 42, R. v. Bryan, [2006] O.J. No. 5013 (S.C.J.) atparas. 25 – 26; R. v. Tse. [2008] B.C.J. No. 2828 (S.C.) at paras. 49 – 59. [73] While it has been widely and long used, nothing created by human hands is infallible. No system is free from error. However, the issue is not whether electronic monitoring is perfect.

Rather, as I see it, the issue is whether this electric monitoringsystem of Serco Geografix Ltd. is sufficiently reliable and accurate for a court to attribute significant weight to the inference that anoffender is no longer within the geographical confines required by his curfew or house arrest order when an absence alert is generated. [74] Even then, an absence alert is by no means conclusive of a breach. Electronic monitoring must be evaluated in thecontext of the specific facts of a particular case.

Where it is contended, as in this case, that a false alert has been raised due to someunknown malfunctioning of the equipment, all of the circumstances must be assessed. [75] Based upon the evidence of both Mr. Cottrell and Ms. Rogers, there are times when the equipment does malfunction orneed repair. That is an undeniable fact about any piece of hardware or software. Having said that, my role is not to make a generalinquiry into the reliability of the Serco Geografix Ltd.’s electronic supervision system.

What I must decide is whether the Crown has proven on a balance of probabilities that the system monitoring Mr. Sitaram on August 17th accurately detected an absence from hisresidence contrary to the house arrest condition of his conditional sentence. [76] In assessing this question, the whole of the evidence must be considered including the defence evidence. Nonetheless,the starting point must remain the reliability of the electronic monitoring system of Serco Geografix Ltd. I am aware that Mr.

Cottrell isa representative of the company which is in the business of selling its equipment and services to governments around the globe. As aresult, he has an inherent bias in supporting the reliability of the electronic monitoring system created by the company that he has servedfor a number of years. In addition, it is not unimportant that the contract that Serco Geografix Ltd. has with the province of Ontario isnearing the end of its term.

I am prepared to accept that the contract is of such a sum and nature that Serco Geografix Ltd. would like tomaintain its relationship with the Ministry of Community Safety and Correctional Services. It is through this lens that one must scrutinizehis evidence. [77] Keeping these qualifications in mind, I find Mr. Cottrell to be a credible and reliable witness. He was knowledgeable,helpful, and fair in the presentation of his testimony. I disagree with defence counsel’s characterization that Mr. Cottrell had suggestedthat the system was infallible.

There are limitations to the electronic monitoring system including breakdowns and errors and Mr. Cottrellwas prepared to admit to them. Cross-examination did not adversely affect his testimony. Thus, I find that the electronic monitoringsystem of Serco Geografix Ltd. operates in the manner as testified to by Mr. Cottrell. [78] The question then is whether the electronic monitoring system as described by Mr. Cottrell is a reliable detector of

unsanctioned absences by the offender from his or her residence? I find that it is. At this point, I must re-iterate that this conclusion is not synonymous with a finding that the system can never fail or send a false alert in any particular case. Rather, it is my view that the design and operation of the system is such that significant weight can be attributed to evidence that the electronic monitoring system has indicated such an absence. I have come to this conclusion for a number of reasons. [ 79 ] The electronic monitoring system composed of three essential parts is designed to be simple.

It is essentially a transmitter and a receiver. This is not new technology that is at issue. The scientific principles are well known and much relied upon in our society. The software used is a little different but for the purpose of this case, it does little more than communicate with the home unit and display the alert on the console for the monitor. The operation of the software itself is not really being challenged by the defence in this case. The challenge lies with what occurs between the PID and the Site Monitoring Unit. Again, here the system is designed to be simple.

There is no servicing or maintenance required. It is not complex or complicated. Installation is done without training manuals or guides being distributed by Serco Geografix Ltd. to its customers. Little need done but to attach the PID, locate the Site Monitoring Unit, and plug in and turn on the equipment. The opportunity for human error in the installation or ongoing maintenance is minimized. [ 80 ] There is the issue of the proper calibration of the range of the device. I agree if the range is improperly set then an offender could potentially set off an alert when he or she is in the confines of the house.

The system therefore has three settings. Nevertheless, the settings clearly cannot always exactly match the actual physical walls of any one house. This may prove to be a problem in a particular case but the existence of this fact does not detract from the overall simplicity and reliability of the design of the system. [ 81 ] There is also redundancy built into the system. All components of the receiver, the Site Monitoring Unit, have been duplicated and function independent of the other. Therefore, a defect in one would not necessarily affect the other.

In addition, if for some reason, one receiver misses a PID transmission the other operates to receive it. [ 82 ] The system requires that the absence be for a significant period of time, for approximately 5 minutes, before an absence alert is generated and reported. There may not always be a discoverable reason why a radio signal even if sent by the PID may not reach its intended target, the Site Monitoring Unit. As Mr. Cottrell testified, a person could temporarily walk into a steel chest or cabinet. There may be other random and unknown causes for a transmission not being received.

However, the system is designed not to be overly sensitive to missed transmissions. If for whatever reason a few transmissions are missed by the Site Monitoring Unit, there will be no consequence to the offender. Since a PID absence alert is only generated when there are 10 missed transmissions, this designed filter would exclude brief absences or a short period of unexplained missed transmissions. In other words, only relatively significant events are recorded and an alert raised. [ 83 ] Furthermore, the fact that the equipment may fail has been taken into account in the design and operation of the system.

The equipment will self-diagnose and report when there is a problem or a malfunction. The existence of this feature is not surprising. Even the common motor vehicle will provide alerts and information to the driver when something is not properly functioning. Clearly, no equipment could ever self-diagnose all conceivable problems that could potentially affect its operations. At the same time, this is the third version of the device made by Serco Geografix Ltd., which has been available for some 15 years.

I can reasonably infer that past problems would have been brought to the attention of the company and addressed. Further, from Mr. Cottrell’s testimony, some of the more obvious and common problems have been taken into account. For example, since the system relies on radio wave transmission, when that is interfered with or jammed, which is of course foreseeable, then such a specific alert is raised. When the machine breaks down completely, another type of alert is raised.

When there is a loss of communication between the Site Monitoring Unit and the Central Monitoring Unit, such as a loss of a telephone connection, another form of alert is raised. [ 84 ] In addition to this, the system has numerically sequenced the transmissions from the PID. Thus, again, if for some unexplained reason the PID has a momentary glitch, randomly re-sets itself, or otherwise temporarily malfunctions in its transmissions, the sequenced transmissions are intended to identify this.

A true absence from the home by being out of the range of the Site Monitoring Unit for a period of time will be detected by the Site Monitoring Unit. The period of absence is expected to match the number of sequenced transmissions that the unit would expect to go undetected during the absence. When the PID returns within range and the sequencing meets the expectation of the Site Monitoring Unit, only then is a PID absence alert generated. This is significant validation that the offender was actually out of the range of the unit.

Again, I wish to emphasize that this evidence does not mean the machine is infallible; rather it is another factor found within the design and operation of the system that supports the finding of reliability. [ 85 ] The electronic supervision system distributed by Serco Geografix Ltd. is used not only by the province of Ontario but also other provinces and countries. As Mr. Cottrell testified, each country must be satisfied as to the reliability of the system before adopting its use.

Of course, the mere fact that it is used in practice by this province and by other jurisdictions is not by itself any definitive answer to the reliability of the system. Nevertheless, the fact that it is in extensive use supports the testimony of Mr. Cottrell. In addition, it is worth noting that Serco Geografix Ltd. is not the only company providing this equipment and service. [ 86 ] Finally, some of the potential problems that can arise in false alerts have no relevance to Mr. Sitaram’s case.

For example, in cross-examination, it was pointed out that there may be some technological challenges in operating electronic supervision using a Global Positioning System which can track offenders in mobile locations. This has no application to the case at bar. In addition, at times there may be issues relating to whether the range of the Site Monitoring Unit is appropriately set. If improperly set, a person may be within the physical boundaries of his or her home but may raise an alarm if he or she wanders outside the range of the Site Monitoring Unit.

There is no issue raised in this case by the improper calibration of the setting with respect to the breach itself. While there is conflicting evidence about whether the setting was medium or large range, at the time of the alert, Mr. Sitaram claims he was in his own bedroom. This is well within the range of the Site Monitoring Unit. It has never been suggested that either setting would not have captured Mr.

Sitaram while he was in his bedroom at his computer or sleeping. [ 87 ] Having found that the electronic monitoring system generally is reliable and accurate, I shall go on now and consider the question having regard to all of the evidence whether this machine when it recorded an absence commencing on August 17 th at 9:54 p.m. was operating reliably? I find that it was.

[ 88 ] The nature of the PID absence alert on August 17 th supports the conclusion that this was not a false alert but a true absence from the offender’s home. First of all, had the system malfunctioned, the system is designed to send an alert advising that the machine had malfunctioned. No such alert came to the Monitoring Center. The alert was not for a low battery, loss of telephone line, tampering, or radio interference. It was for when the PID went out of the range of the Site Monitoring Unit. [ 89 ] In addition, the nature of the alerts that evening was inconsistent with Mr.

Sitaram’s claim that he was in or sleeping in his bedroom at all relevant times. If the system recorded an absence due to an unknown malfunction, it would have indicated that absence throughout the night since nothing was done to repair it. Mr. Sitaram does not claim he inadvertently stepped outside the boundary of the Site Monitoring Unit for a brief period only to return minutes later. It is Mr. Sitaram’s position that he remained in his bedroom from approximately 9 p.m. until the police arrived. The PID did initially detect his presence in his bedroom.

Therefore, I conclude there was no difficulty with the system accurately detecting his presence in the confines of his bedroom. There is nothing in the evidence to suggest that circumstances changed such that a temporary problem could have arisen in the detection of the offender. The only thing that changed was the entry of his mother into his room; something that would not have affected the system. In this case, there were two PID alerts: one from 9:38 p.m. to 9:43 p.m.; the other from 9:54 p.m. to 10:06 p.m. The reasonable conclusion based upon this is that Mr.

Sitaram was absent from the home in contravention of his house arrest condition; that he moved out of the range of the Site Monitoring Unit and then returned. This is a far more reasonable conclusion to draw than the speculative suggestion that the system sporadically malfunctioned for some mysterious and undetected reason for only these two discrete time periods while the external circumstances of Mr. Sitaram being in his room remained unchanged and constant. The system supposedly then reverted without any repair or investigation to proper working order.

I contrast this to a hypothetical scenario where the equipment is sending out repeated or unceasing periodic absences that persist until intervention to repair. This scenario would cause concern about malfunction; the scenario of August 17 th in the Sitaram home does not. [ 90 ] The Site Monitoring Unit and the PID has never been replaced since the date the breach was alleged. The evidence of Ms. Rogers is that while alerts have continued, they have changed in nature and frequency. They are now less frequent and happen when Mr. Sitaram is going to be late getting home.

In other words, the continuing operation of the unit since Mr. Sitaram’s arrest has been verified by the alerts and the calls made by Mr. Sitaram acknowledging that he was not going to be coming home in time. No servicing has ever been done except for the change of a battery in the PID. In short, the evidence is that the units have functioned fine since the breach. While it is always possible that up until Mr. Sitaram’s arrest, the units were malfunctioning occasionally and it stopped without any intervention of personal from the Ministry after his arrest, this is highly unlikely.

The more plausible explanation is that the units have been functioning fine throughout and there is good reason to question the legitimacy of Mr. Sitaram’s protestations that he was in the home when an absence alert was received. [ 91 ] The lack of response to the telephone calls and messages support the conclusion. None of the messages were ever returned even some three and a half hours later when the police attended. Furthermore, two cell phone calls were placed to Mr. Sitaram’s cell phone. Both rang and disconnected. This context supports an inference that Mr.

Sitaram and the residents of the home were reluctant to respond back to what they realized were calls regarding absences from the home. I appreciate that Mr. Sitaram and his mother testified that they were not aware of the messages. For reasons explained below, I find this difficult to accept. [ 92 ] The defence argues that Mr. Sitaram lives in a suburban neighbourhood and there is little motive for him to take an unauthorized absence. Unlike downtown, there are no sources of business or pleasure nearby.

Furthermore, it is argued that given the history of the past breaches whereby the conditional sentence supervisor did nothing, had Mr. Sitaram been outside his home, for example, for a cigarette, he would have simply admitted it to the Monitoring Center. I find neither argument persuasive. There are a multitude of reasons why a person may wish to be outside his home even for a brief period. The fact he resides in a suburban area does not detract from this. Further, because Mr. Sitaram had been candid in the past about breaching his curfew does not mean that he would equally be candid on August 17 th .

I note that he has not always admitted that he was outside of his home without authorization in the past. Further, Mr. Vasta testified that he had repeatedly warned Mr. Sitaram about his compliance difficulties. Indeed, on August 11 th , he went so far as to tell Mr. Sitaram that this was his last chance. In these circumstances, it is entirely plausible to me that Mr.

Sitaram would not be as candid about a breach given that he has been warned another breach would lead to action being taken. [ 93 ] To support the defence, it was argued that there have been previous complaints made by the Sitarams that the machine was not functioning. As indicated, these complaints are not relevant to the breach. Also regardless of whatever complaint was noted in these reports, the equipment continued to operate after that. There were occasions when the system correctly detected an absence as Mr. Sitaram admitted he was outside having a cigarette or advised he was going to be late.

These events confirm that the equipment was reliably detecting absences. I recognize that there were other times in the past that Mr. Sitaram denied being in breach but, frankly, one cannot immediately conclude from such a denial by the offender that there was a malfunction. If that were the case, these units would be continually replaced for no reason and breaches would be impossible to prove.

If one was required to take an offender’s word as an answer to any and all PID absence alerts, there would be little utility in ordering electronic monitoring. [ 94 ] The Ontario Monitoring Center did not check or investigate the functioning of the equipment because they believed that the machines were operating fine and that Mr. Sitaram was having little regard for carefully obeying the conditions of his house arrest. I disagree with the defence that it would be unfair to find Mr. Sitaram guilty of this breach in the absence of such an investigation.

In the circumstances, I cannot find fault with the Monitoring Center in acting in the fashion that it did. When one looks at the whole of the evidence including the history of the confirmed breaches, the lack of any reason to suspect malfunctioning of the equipment, the continued use and satisfactory operation of the equipment, and the reliable nature of the device, the mere fact that the offender claims he was present when an alert has registered in the past, does not leave a question in my mind that we have a errant machine in his home. [ 95 ] While both Mr.

Sitaram and his mother testified that he was home in his room when the alert was received at 9:54 p.m., I do not accept their testimony. There are a number of reasons why I do not find them credible. [ 96 ] With respect to Ms. Sitaram, it is clear that she loves and supports her son. This is evident from the substance of her testimony and the manner in which she testified. I am left with a concern that this understandable maternal bias for her son has lead to a less than accurate or candid account of the events that night. An example of her attitude was her responses under cross-examination

regarding the failure to comply with a bail condition conviction of Mr. Sitaram. She blames the police and does not feel her son to betruly guilty of that charge despite his guilty plea. There was a shifting quality to her testimony as she attempted to confirm her son’spresence in his room throughout the evening even though she was occupied with other activities such as showering, doing laundry, orbeing in her own bedroom. For instance, strangely, she only raised in cross-examination the fact she was in his room that night near therelevant times.

Overall, I found her testimony to provide little corroboration to the testimony of Mr. Sitaram. [97] Mr. Sitaram gave his testimony after his mother had testified. He was able to listen to her testimony in its entirety beforetaking the stand himself. In such circumstances, it is not surprising that their testimony converged on the broad outlines of the evening. [98] Neither Mr. Sitaram nor his mother ever heard the Ontario Monitoring Center calling on their residence line. They claimno one in the home ever checked the messages that night.

There were some 6 telephones in the home including one in the kitchen, one inthe living room, and one in each bedroom. All the telephones ring when a call is received. No one heard any of the calls made by theOntario Monitoring Center or any message being left. The defence has argued that no adverse inference should be drawn from this sincethere was a possibility that if someone was using the home telephone, the call from the Monitoring Center would not get through and itwould go straight to the answering machine without ringing. I find that submission difficult to accept. First of all, neither Mr.

Sitaramnor his mother ever testified that someone was using the residence line that night. Secondly, it would be a remarkable coincidence thaton each occasion that a monitoring officer called, at 9:45 p.m., 10:00 p.m., and 10:09 p.m., times separated by several minutes, thatsomeone would be using the residence line. On the second occasion, it was not as if someone was on an extended telephone call sincethe monitoring officer received an indication at 10:06 p.m. that Mr. Sitaram had returned to the home.

The Site Monitoring Unit wouldnot have been able to deliver that message at that time unless the telephone was free. Thirdly, Ms. Sitaram testified that an answeringmachine was used but there was no evidence as to how it functioned. Left unanswered is the question if someone was on the telephonewould the Central Monitoring officer receive a busy signal without any ability to leave a message? Fourthly, Ms. Rogers testified thatthe telephone must have ringed when she called and the call did not go directly to messaging. I accept her testimony on this point.

If thatoccurred, surely someone would have heard it given the number of telephones in the home. Ms. Fountain did not testify but she did notnote down in her report that her calls went directly to voicemail. I find that Mr. Sitaram and his mother’s testimony about not hearing thetelephone ring that night not worthy of belief. [99] Mr. Sitaram’s explanation of why the Monitoring Center could not get through to his cell phone that night does not makesense to me. He claims that his cell phone was blocking private numbers. He testified that he only ascertained this the next day.

However, he did agree that on previous occasions he did receive a call from the Monitoring Center and the calls were not blocked. Also,he agreed that the Monitoring Center’s telephone number was in his cell phone and would not be an unknown private number. Moreover, he could not explain how the number could have gotten blocked whether it was his phone or his service provider that did it. Mr. Sitaram does not claim to have done anyth

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