R. v. Toscano, 2011 ONCJ 155

COURT FILE No Citation: R. v. Toscano, 2011 ONCJ 155 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Applicant— and — MARIO TOSCANO Respondent ENDORSEMENT WAKE, J.: [1] This is an application brought in chambers by the applicant’s probation and parole officer, Georges D. Sirois, for an orderterminating a probation order I imposed on the applicant when he was sentenced on July 29, 2009.

The probation order was to follow atwo year penitentiary sentence. [2] Subsequently, on November 23, 2010 the applicant was sentenced by Griffin, J. in Kingston to 15 days consecutive to thesentence I had imposed, following a conviction for assault. [3] It is the submission of Mr.

Sirois that in view of the latest sentence the probation order is rendered void since the total of thetwo sentences now exceeds two years. [4] The Crown has consented to this application. [5] For the reasons set out below, I am of the view that the probation order I made on July 29, 2009 continues to be valid. [6] I find that it is unnecessary to make the Order as requested for the following reasons.

Analysis [7] S. 731(1) of the Criminal Code states that “a court may ....in addition to fining or sentencing an offender for a term notexceeding two years” impose a probation order on the offender. [8] This case involves a situation where an offender has been sentenced to a lawful sentence and a probation order and asubsequent sentence is imposed which would bring the “merged” sentences to one in excess of two years by operation of s. 139 of theCorrections and Conditional Release Act, S.C. 1992, c. 20, s. 139, s. 139(2). [9] The issue of whether the original probation order should be set aside in this situation would seem to have been answered bythe Ontario court of Appeal in R. v.

Miller (1987), (ON CA), 36 C.C.C. (3d) 100 which applied s. 139 of theCorrections and Conditional Release Act and calculated the sentence from the commencement of the first sentence rather than theremanet and set aside the original probation order. [10] Miller was not represented and the Crown did not oppose the application, as in the case before me, so that the issue was neverfully litigated. Miller must be seen in light of subsequent

interpretations of s. 139. The first is by the Ontario Court of Appeal whereCronk, J.A. in R. v. T.S.C. (Carrignan) (2003), (ON CA), 172 C.C.C. (3d) 1 restricted the effect of s. 139 to thecalculation of parole eligibility dates in merged sentences. [11] In R. v. Pickell, [2007] O.J. No. 2655 (Ont. S.C.J.) Regional Senior Judge Leitch dealt with an offender who, one month priorto commencing to serve a probation sentence following a two year sentence of imprisonment, was sentenced to a further 11 monthconsecutive sentence.

Leitch, R.S.J. rejected the application of s. 139 of Corrections and Conditional Release Act in determining the totallength of the sentence and concluded that the original probation order was still valid after adding the new sentence to the remanet of thefirst sentence. This is exactly the situation in the case before me. [12] Finally, I note that the issue presented in this case has recently been fully and exhaustively explored by a 5 – Judge panel of theBritish Columbia Court of Appeal in R. v. Knott 2010 BCCA 386 , [2010] B.C.J.

No. 1664 which concluded that s. 139 did notmerge sentences for the purpose of determining whether a term of imprisonment exceeds two years. For the purpose of determiningwhether a subsequent sentence invalidates an original validly made probation order the calculation of total sentence commenced with the

remanet of the firstsentence. [13] There are several persuasive policy reasons why this

interpretation of s. 139 is purposive and correct as set out in para. 11 ofKnott, some of which have direct application to this case. Here a carefully crafted sentence, which would enable 3 years of continuedsupervision in the community for the protection of the community and the complainant and for the rehabilitation of Mr. Toscano wouldby frustrated by a short sentence of 15 days occurring towards the end of his first sentence if the applicant’s

interpretation is permitted tosucceed. [14] I note that leave to appeal in Knott has been granted by the Supreme Court of Canada, probably because there are conflictingdecisions of other provincial courts of appeal e.g. R. v. G.E.R., (2001), 2001 NFCA 56 , 160 C.C.C. (3d) 173 (Nfld. C.A.) andR . v. Gill (1994), 1994 ABCA 404 , 162 A.R. 163 (C.A.). We will soon have the issue determined conclusively however in themeantime I am of the view that the position taken by R.S.J.

Leitch in Pickell and by the British Columbia Court of Appeal in Knott is thecorrect one. [15] This is an application under s. 732.2(3) submitted to me in chambers which is permitted by s. 732.2(4), however since the issueI have raised was not canvassed by the parties I am prepared to hear further submissions on this matter should the parties desire. For themoment, however, for the reasons stated, I am not prepared to terminate the July 29, 2009 probation order. March 21, 2011 _________________________________ The Honourable Justice J.D. Wake