R. v. Dutiaume Date:, 2015 BCPC 59

Citation: R. v. Dutiaume Date: 20150203 2015 BCPC 0059 File No: 60594-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. AARON SPENCER DUTIAUME JESSICA MARIE YOUNG REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE CHALLENGER Counsel for the Crown: M. Myhre Counsel for the Accused Dutiaume : J.V. Myers Place of Hearing: North Vancouver , B.C. Date of Judgment: February 3, 2015 [ 1 ] THE COURT: Mr. Dutiaume faces an allegation of breach of his conditional sentence by failing to report to his supervisor

"within 48 hours" of the imposition of the sentence. [2] Crown is relying on the signed written narrative of the supervisor and a single signed witness statement, also from thesupervisor, contained in the package of documents entitled "Allegation of Breach of Conditional Sentence". [3] The issue before me is whether the narrative and/or witness statement of the supervisor are sufficient to prove Mr. Dutiaumefailed to report as alleged.

The narrative states: On August 21st, 2014, at the North Vancouver Provincial Courts, Dutiaume, Aaron, was placed on Conditional Sentence Order Number60594-1 by the Honourable Judge Gedye. Condition 2 of that order reads as follows: Report to a supervisor within 48 hours at 100 233 West 1st, North Vancouver, B.C., and thereafter when required by the supervisor, andin the manner directed by the supervisor.

On August 22nd, 2014, Dutiaume, Aaron, failed to report as directed to the North Shore Community Corrections office located at 100233 West 1st Street, North Vancouver, B.C., as indicated in the office logs or any other probation officer in British Columbia, asindicated on CORNET. Records on JUSTIN and CORNET indicate the accused was not in custody on August 22nd, 2014, and current whereabouts of theaccused are unknown. The accused has not reported to any probation office since August 22nd, 2014, as indicated on CORNET. Awarrant is respectfully requested.

The witness statement states: I reviewed the North Shore Community Corrections logs dated August 21st, 2014, and August 22nd, 2014, and verified Dutiaume,Aaron's (name) is not listed among those who reported to North Shore Community Corrections office located at 100 233 West 1st Street,North Vancouver, B.C., on those days. [4] The package also contains an unsigned witness statement of a justice of the peace who reviewed the order with Mr.

Dutiaumeat the time the sentence was imposed, and a copy of the order itself. [5] The final three pages of the package are records entitled "Daily Intake Log", with a line for the date to be noted and another forthe name of the duty officer to be filled in.

There are columns below headed "Client Name (Surname)", "First", "Time In", "Intake","PO/DO", "Informed", "Seen". [6] At the bottom of the page is information identifying the source of the documents, being Ministry of Justice, CorrectionsBranch, Community Corrections and Corporate Programs Division, North Shore Community Corrections, 100 233 West 1st Street, NorthVancouver, B.C., V7M 1B3, and a telephone number and facsimile number. [7] Crown argues that the narrative and witness statement of the supervisor are clear in their meaning and summarize the evidencethe supervisor would give if called to testify. [8] Counsel for the offender says that the narrative and/or signed witness statement are incomplete as proof of the offender'sfailure to report, as that proof is to be found in the records themselves. [9] The leading authority on the nature of a conditional sentence breach hearing and the method and standard of proof required isR. v.

McIvor, 2008 SCC 11 , [2008] 1 S.C.R. 285. At paragraph 5, Mr. Justice Charron writing for the court said: . . . I conclude that the legislative scheme allows the Crown to prove the breach by adducing, in documentary form, the evidence it wouldotherwise have been required to present, in accordance with the ordinary rules of evidence, by calling witnesses to give viva voceevidence about the alleged breach.

In turn, the supervisor's report and the statements of witnesses (if any) may contain any matter inrespect of which the author of the report or of the statement could testify to if he or she were called upon to give viva voce testimony. This evidentiary shortcut, of course, is subject to any successful application under s. 742.6(8) requiring the attendance for cross-examination of the supervisor or of any of the witnesses. In accordance with Parliament's intent to keep the process simple andexpeditious, however, the supervisor and the witnesses should not routinely be required to attend the hearing.

For leave to be granted,the offender must satisfy the hearing judge that the attendance of the supervisor or of any of the witnesses for cross-examination couldserve a useful purpose. [10] At paragraph 17, the court noted that the procedures for commencement and compelling the appearance of the offender and theeffect on the offender respecting a breach of conditional sentence are similar to that for a new charge of breach of probation. [11] At paragraphs 18 to 21 and paragraph 23, the court found: [18] Parliament, however, intended that allegations of non-compliance be dealt in a simpler and more expedited fashion under theconditional sentence regime.

First, the hearing must be commenced within 30 days, or as soon thereafter as is practicable, after the

offender's arrest or the compelling of his appearance: s. 742.6(3).

Second, the prosecution of an allegation of a breach of condition is facilitated in four significant respects: (1) by allowing for documentary proof of the alleged breach of condition: s. 742.6(4); (2) by imposing a leave requirement on the right to cross-examination: s. 742.6(8); (3) by placing on the offender the persuasive burden of proving any reasonable excuse for non-compliance: s. 742.6(9); and (4) by lowering the ultimate standard of proof of a breach to a balance of probabilities: s. 742.6(9). [19] In order to appreciate how these provisions facilitate the process, it is helpful to consider what evidentiary rules would apply if Parliament had simply been silent on these matters.

Again here, a comparison to the prosecution of a non-compliant offender for breach of probation is instructive. Since breach of probation constitutes a distinct offence, the laying and prosecution of the charge proceed in the usual way. The hearing judge has the authority, upon finding the offender guilty of breach of probation (or of any other offence), to revoke the suspended sentence and impose any sentence that could have been imposed if the passing of sentence had not been suspended (s. 732.2(5)(d)). However, the Criminal Code is silent with respect to applicable evidentiary rules. This is not unusual.

In the absence of any applicable statutory provision, hearings are simply conducted in accordance with the common law rules of evidence applicable in all criminal courts. In order to prove an alleged breach of probation, the Crown must adduce admissible evidence and prove the allegation beyond a reasonable doubt. Evidence adduced by the Crown must comply with common law evidentiary rules, including the hearsay exclusionary rule. As in other proceedings, evidence is usually presented in the form of viva voce testimony, and the accused has the right to cross-examine the witnesses.

It is against this basic evidentiary backdrop that the provisions in question in this appeal must be considered, because it is these rules that would apply had Parliament not provided otherwise in respect of an allegation of a breach of conditional sentence order. [20] The sole issue here concerns the nature of the documentary proof required under s. 742.6(4). I repeat the provision here for convenience:

(4) An allegation of a breach of condition must be supported by a written report of the supervisor, which report must include, where appropriate, signed statements of witnesses.

(4) Le prétendu manquement est établi sur le fondement du rapport écrit de l’agent de surveillance, où figurent, le cas échéant, les déclarations signées des témoins. [21] As stated earlier, the Crown contends that the supervisor's report, whatever its contents, is admissible so long as the notice and service requirements set out in s. 742.6(5) have been complied with. According to the Crown, whether or not to include signed statements of witnesses is left entirely to the discretion of the supervisor or the prosecutor. I do not accept this argument. It ignores the mandatory language of s. 742.6(4).

Parliament's intent that the inclusion of signed statements of witnesses be mandatory in certain circumstances is manifest by its choice of the word "must" in the English version and the expression " le cas échéant " in the French version. The Crown's argument also fails to consider the usual evidentiary rules against which the statutory provision was enacted.

In other words, in interpreting the meaning of s. 742.6(4), one must ask to what extent did Parliament intend to depart from the ordinary rules of evidence that would otherwise apply? . . . [23] In my view, the meaning of s. 742.6(4) is plain when considered against the default evidentiary rules I have earlier described.

As I stated in my earlier remarks, subject to leave being granted requiring the attendance of any of the witnesses, the legislative scheme simply allows the Crown to prove the breach by adducing in documentary form the evidence it would otherwise have been required to present in the usual way by viva voce evidence. As such, it is an enabling provision. Of course, documentary evidence admissible under some other statutory authority, such as s. 30 of the Canada Evidence Act , R.S.C. 1985, c.

C-5, continues to be admissible. (I note in this respect that Constable Douglas's report would not be admissible under this latter provision because s. 30(10)(a)(

i) expressly excepts "a record made in the course of an investigation" from its application.) Analysis [ 12 ] As far as can be gleaned from the narrative and witness statement of the supervisor in this matter, their knowledge of the offender's failure to report as alleged is based on a review of the North Shore Community Corrections "office logs".

The logs referred to are presumably those attached to the allegation of breach package. [ 13 ] In my experience, and as has been found in many cases, those logs likely constitute business records within the meaning of s. 30 of the Canada Evidence Act , which requires that the records must be kept in the usual and ordinary course of business. In order to rely on such records, the Crown must give the offender seven days' notice of their intention to do so.

No written or formal notice is required. [ 14 ] If the meaning of the record is not clear on its face or it requires some explanation to provide a foundation for its relevance or

for the drawing of inferences, then the witness who produces the records must provide an explanation of the record. [ 15 ] I cannot accept the Crown's argument that the mere statement that the offender did not report as directed is sufficient to prove the breach. The Crown argues that unless the offender makes application for the witness to be called to be cross-examined, then that statement stands uncontradicted and anything further would be surplusage. [ 16 ] However, I find this position would lead to a result which would be directly contrary to the obiter statements of the Supreme Court of Canada in R. v.

McIvor at paragraphs 27, 28, and 29 . If this were the case, on almost every hearing the offender would be in a position to require those witnesses be provided in order to determine the foundation for the assertion. [ 17 ] I also cannot accept the Crown's suggestion that the observation of the records means that it is not hearsay evidence.

In my view, the observation of hearsay information does not and cannot create direct evidence. [ 18 ] In order to prove this offender had failed to report according to the ordinary, common-law rules of evidence in criminal proceedings, the Crown would be required to present a witness who could attest to the prerequisites of s. 30 of the Canada Evidence Act , being that the logs are kept in the usual and ordinary course of business. They would also have to explain how the records are produced and why, if an offender's name is not present, it means they did not attend the office to report.

That witness would have to produce and identify the logs as those pertaining to the date or dates in question. The logs themselves would then be the evidence of non-reporting. [ 19 ] I need not address the issue of notice in this matter, as it was not argued before me.

However, it would seem to me, based on the case law I have reviewed, that providing the records attached to the witness statement of a supervisor at the time the allegation is served on the offender would be sufficient notice under s. 30 of the Canada Evidence Act . [ 20 ] The signed statement of the supervisor in this matter does not address whether the logs reviewed are business records, does not include them as an attachment to the signed statement, or explain why the logs can be relied upon to show that an offender did not report. [ 21 ] In the result, I find the Crown cannot prove this offender's failure to report to the balance of probabilities, based on the information included in the supervisor's statement or narrative, or both taken together. (REASONS CONCLUDED)