) ) HER MAJESTY THE QUEEN ) Janice Barclay ) for the Crown - v. - ), 2013 MBPC 40

2013 MBPC 40 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Janice Barclay ) for the Crown - and - ) ) ELVIS CHRISTOPHER BRASS ) Roy Dawson ) for the Accused Accused. ) ) Judgment Delivered: ) August 13, 2013 ) HARAPIAK, P.J. [ 1 ] Elvis Brass agreed to be bound by conditions of a s. 810.2 recognizance on January 18 th , 2012.

This type of recognizance is one of a special category of preventative orders codified in sections 810.1 and 810.2 of the Criminal Code , designed to manage the risk that certain offenders might commit sexual or violent offences in the community. [ 2 ] Mr. Brass breached this order in late November and early December of 2012. He has pleaded guilty and the Crown proceeded by indictment. The maximum penalty for each breach is two years imprisonment. This is not Mr. Brass’s first breach of this order.

He was released from custody October 5 th , 2012 after serving approximately two-thirds of an effective seven month sentence and substantially complied with the terms of the recognizance until late November. He then moved, without permission, and stopped complying. [ 3 ] Crown counsel seeks a custodial sentence of 1 year. Defence counsel, who minimizes these breaches, framing them as simply not making a phonecall and moving home, takes issue with the 810.2 regime and raises concerns about proportionality. Mr. Dawson’s original position, in April, was for a 3 – 6 month sentence.

Later, in July, he suggested that time served is appropriate. My task is to determine an appropriate sentence. [ 4 ]

Section 810.2 allows “[a]ny person who fears on reasonable grounds that another person will commit a serious personal injury offence…[to] …lay an information before a provincial court judge” and seek to have a person bound by a recognizance for up to two years. This is not a routinely sought or granted order. The definition of serious personal injury offence is a helpful starting point when considering the type of harm that has to be feared before a court considers making such an order. [ 5 ] “A serious personal injury offence,” according to s. 752 of the Criminal Code of Canada “ means (

a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving

i) the use or attempted use of violence against another person, or ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person, and for which the offender may be sentenced to imprisonment for ten years or more, or

b) an offence or attempt to commit an offence mentioned in

section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).”

THE JURISPRUDENCE [6] Defence counsel is not the first to raise concerns about the seeming disparity between the sometimes minor-appearingviolations of 810.1 or 810.2 recognizances and the significant jail terms these violations routinely attract. Has Mr. Brass not beenpunished enough, seems to be the argument. [7] In R. v.

Budreo ( (ON CA), 183 D.L.R. (4th) 519), where the Ontario Court of Appeal considered theconstitutionality of these provisions, that Court wrote about the validity of orders that prevent rather than punish crime, reminding us that“[t]he criminal justice system has two broad objectives: punish wrongdoers and prevent future harm. A law aimed at the prevention ofcrime is just as valid an exercise of the federal criminal law power under s. 91(27) of the Constitution Act, 1867, as a law aimed atpunishing crime.” [8] In R. v.

Labbe ( (ON CA), [2006] 214 C.C.C. (3d) 362) the Ontario Court of Appeal held that thesentencing court in an 810.2 breach case should focus on general and specific deterrence with the protection of the public in mind,without losing sight of proportionality. The court also agreed with the sentencing judge that, “in assessing the seriousness of the breach,the criminal history of the offender must be taken into account.” [9] In R. v. Bateman ([2006] O.J.

No. 2219) Justice Masse of the Ontario Court of Justice described the difference between an“ordinary” recognizance and an 810.2 recognizance, as follows: “…It is certainly to be distinguished from a recognizance of bail meantto guarantee good conduct of an accused person while awaiting trial, or a

section 810 recognizance which deals with a situation where aparticular citizen fears for their safety or property or the safety or property of relatives, or a common-law recognizance to keep the peaceand be of good behavior. The recognizance that Mr. Bateman breached falls within a special class of recognizances that is reserved forterrorists and organized criminals, pursuant to s. 810.01 or sexual offenders, pursuant to

section 810.1 and violent offenders, pursuant tosection 810.2. In other words, this recognizance and others in the same class, are meant for those persons who pose the greatest risk toall other members of society.” [10] Defence counsel in this case was critical of the short leash Mr. Brass is on with the 15 enumerated conditions of his 810.2recognizance. Justice Masse in R. v.

Bateman (supra) saw this as the point of the 810.2 regime, writing that: “[t]hose persons who aresubject to this special kind of recognizance must understand that they are already considered by society to be dangerous and to be verylikely to reoffend unless restrictions are placed upon them. They must be made to know they are on a very short leash and that societywill not tolerate any breach no matter how insignificant and that any breach will result in the offender being separated from society forthe protection of society.” [11] In R. v. Helary [2006] N.J.

No. 333 Judge Gorman, later upheld on appeal, extensively reviewed 810.2 breach sentencing caselaw, and then suggested the following sentencing principles applied: - the protection of the public is the Court’s primary concern; - particular emphasis must be placed upon both specific and general deterrence and the separation of the offender from society wherenecessary; - rehabilitation will be of a much lesser concern than in sentencing for other offences; (note – this should be assessed carefully in light ofR. v. Ipeelee (infra) and R. v.

Gabriel (infra)); - the proportionality principle must be applied, but the Court must also consider the nature of the order that was breached and thepotential danger to the public that the offender poses; - a breach of a

section 810.2 recognizance is a signal or warning to the Court that the monitoring and controlling of the offender’sbehavior and actions, so as to protect the public from him or her, cannot be achieved in the community; and - the appropriate sentence will normally involve lengthy periods of imprisonment and probation. [12] Manitoba’s Court of Appeal dealt very recently with an 810.2 sentencing appeal (R. v. Gabriel [2013] M.J. No. 164). In thatcase Mr.

Gabriel missed his bus and his curfew and seemingly just gave up on trying to comply resulting in, as Justice Steel put it – “acascade of bad choices designed to avoid the potential consequences.” The nature of the breaches in that case is very similar to Mr.Brass’s situation. [13] In Gabriel (supra) the Court reduced the 16 month global sentence for the four breaches as the sentencing court had not givenappropriate consideration to the Gladue factors outlined. The Court discussed the information necessary for the court to fulfill its dutiesunder 718.2(

e) of the Criminal Code:

What has been difficult in many cases is that, while judges have taken judicial notice of the broad systemic and background factors affecting aboriginal people generally, additional case-specific information which must come from counsel and from the pre-sentence report has often been lacking. It is only through the presentation of the historical context linked to the case-specific information and presentation of a restorative plan that a judge can fully evaluate how best to sentence an accused and fulfill his/her duties under s. 718.2(e).

This is particularly important where, as in this case, the history of the accused includes significant violence such that important issues of public safety are engaged. [ 14 ] In the Gabriel case such information was available. In this case it has to be gleaned from counsel’s submissions, various transcripts and corrections reports. No Gladue Report was prepared and no restorative plan is proposed. Counsel did provide a letter from the Chief of Wuskwi Sipihk First Nation indicating that Mr. Brass is welcome in the community. In Gabriel Mr.

Gabriel’s sentence was reduced, on appeal, to a 1 year sentence. [ 15 ] I have reviewed all cases provided by counsel and can conclude that sentences for even single breaches of this type of recognizance are consistently substantial (in the 9 – 18 month range, sometimes higher and very rarely lower) and are often followed by three year probation orders with similar conditions to the original 810.2 recognizance. CRIMINAL AND CORRECTIONAL HISTORY [ 16 ] So why was Mr. Brass seen as requiring such stringent controls on his behavior?

It is important, prior to determining an appropriate penalty for these two breaches, to review Mr. Brass’s criminal record and correctional history, to put the imposition of this recognizance and his subsequent breaches, into the context of his criminal and correctional history. My review includes some important details from his correctional history which give more meaning to the bare criminal record and put the concerns about his risk in context. [ 17 ] Mr. Brass served every day of his 3.5 year penitentiary sentence for sexual assault and assault.

He chose not to participate in parole hearings where early release was considered and was firm, from the beginning of his sentence, that he would serve his time until his warrant expiry date, as he did not want to be bound by conditions on his release. [ 18 ] It seems, from my review of the caselaw, that seeking an 810.2 order on violent offenders who serve their entire sentence and are being released into the community without condition is fairly common. Manitoba’s Court of Appeal, in R. v. Stonefish (infra) adopted the following comment from Clayton C. Ruby, Gerald J. Chan & Nader R.

Hasan’s text Sentencing, 8 th ed. (Markham: LexisNexis Canada Inc., 2012) (at para. 13.39) which illustrates what a small proportion of prisoners serve their entire federal sentence: About half of all of those serving determinate federal-length sentences are released at the two-thirds – or “statutory release” point of their sentence. The other 50 per cent are released by way of parole. Only 2 to 3 per cent of federal prisoners serve every day of their sentences before being released. [ 19 ] Mr. Brass’s criminal record began in 1991 at age 13.

Prior to turning 18 he’d amassed 16 convictions for break and enter, an arson, a theft under, two counts of escape lawful custody and a handful of breaches. [ 20 ] After reaching the age of majority on October 15 th , 1995 his property offences continued and he began to add some crimes of violence to his record. His string of break and enters barely continued into his adult years.

He has a single count of break, enter and theft, for which he received a six month incarceratory term on August 6 th , 1997. [ 21 ] In 1999 he committed two counts of mischief, for which he received three month concurrent sentences, and caused a disturbance, which attracted a consecutive one month sentence. [ 22 ] In 2000 he assaulted a peace officer and committed mischief under $5000, drawing a $250.00 fine on each charge and probation for one year. On that occasion when the police arrived at a house party Mr.

Brass came out, holding two beer bottles in the air, saying he knew where the officer lived and he was coming to get him. When he refused to put down the bottles and attempted to swing at an officer he was pepper sprayed and later broke the rear window of the police cruiser.

[ 23 ] Mr. Brass clearly struggled, in 2001, to comply with that probation order. He was sentenced to time served of 9 days for breaching it in April of 2001 and by June of the same year he was back in custody again for not comply with probation, once again receiving time served. [ 24 ] In March of 2003 Mr. Brass was convicted of two counts of assault and failing to complying with conditions of his undertaking. He received three months custody on each count, to be served concurrently, and probation for 18 months.

Those were spousal assaults on his pregnant partner (centred, corrections reports indicate, around his fear of her infidelity) which involved a blow to the mouth, a foot chase pursuit as she tried to escape by taxi and another occasion where she was kicked, slapped, and pinned to the bed. [ 25 ] The next month he was back in court again and was fined $400 for committing mischief under $5000. He also received a two year probation order. [ 26 ] That probation order as well was difficult for Mr. Brass to comply with.

In January of 2005 he was convicted on two counts of assault and failing to comply with probation, receiving three months on each count, concurrent. On this occasion Mr. Brass assaulted a different common law partner and her six year old daughter. After a verbal argument with the victim he struck her in the face and kicked her in the stomach – 15 days after she had given birth to Mr. Brass’s child via c-section. The victim then told her six year old daughter to call the police. The child fled the home only to be chased down by Mr. Brass and thrown into a ditch.

He left the scene after threatening to return to burn the home down. [ 27 ] In August of 2007 Mr. Brass was convicted of theft under and fined $250. [ 28 ] By December 19 th of 2007 Mr. Brass had never been sentenced to penitentiary time. On that date he was sentenced to an effective sentence of 4 years in custody for a sexual assault and a simple assault. This incident occurred in July of 2007. Mr. Brass and Tina McKay were celebrating their engagement with friends and family. At some point Mr. Brass became fixated on concerns that Ms McKay was unfaithful to him.

He began physically attacking her, pushing her down, striking her and grabbing her by the throat. Her sister June rushed to her sister’s defence. She was punched by Mr. Brass and lost consciousness. She awoke to find Elvis Brass dragging her through the grass and noted a wetness between her legs. At first she thought she had wet herself but then realized at some point that it was blood. She had been cut by some unknown object from her vulva to her cervix, and came very close to dying that day.

Her injuries were so severe that she will never be able to have children. [ 29 ] The Crown, in justifying the joint recommendation, advised it was going to have difficulty proving that Mr. Brass caused those injuries. They could prove that he knocked June McKay out, and that he was dragging her through the grass once she was already injured, but there were no witnesses to what happened in between.

At the very least, the Crown submitted, he bore culpability as a party to this crime and the joint recommendation for an effective four year sentence was endorsed with that in mind. [ 30 ] It was very soon after he began serving this sentence that Mr. Brass denied any responsibility for the assault on his fiancé or the sexual assault of her sister and also denied the existence of a substance abuse problem. He suggested, alternately, that he had consensual sex with June McKay, that Ms McKay’s sister had assaulted her, and that he had never touched either of them.

He steadfastly refused to accept any sexual offender programming. [ 31 ] In May of 2009 Corrections Psychologist Dr. Fisher wrote that he suspected “that long-standing problems with substance abuse, early maladjustment, and problems within the context of interpersonal relationships have all created situations in which when [Mr. Brass] is in an inebriated state, he demonstrates significant behavioural disinhibition, and acts out with a high degree of violence potential.” [ 32 ] Mr.

Brass, when encouraged to take sexual offender programming, both for the sexual assault offence and his earlier convictions for assault of domestic partners, insisted that he did not require assistance in this area and could “control himself” upon return to the community. [ 33 ] Corrections also noted concerns about Mr. Brass’s institutional behavior and involvement in gang activity. He was identified as an instigator on an assault on another inmate. [ 34 ] On the positive side Mr. Brass completed the National High Intensity Substance Abuse Program in October, 2008 and received

a very favourable report from his worker. [ 35 ] In July of 2010 Mr. Brass was involved as an instigator again, this time in a serious security incident leading to the conclusion that he could no longer be managed in a medium security environment and should be reclassified as a maximum security offender. He was involuntarily transferred to the Edmonton Institution. The incident started when Brass and others refused direct orders to lock up. The inmates began barricading the range, covering cameras, retrieving broom handles, setting a fire and setting off projectiles which breached an outer window.

The Riot Proclamation was read and use of force was required to regain control of the range. [ 36 ] The final time the National Parole Board considered continued detention for Mr. Brass they had this to say about the year that had just passed on October 25 th , 2010: “The Board has considered the rationale for detention in the first instance – your violent behavior, your lack of responsibility, your use of weapons. Your behavior has not been positive over the last year since detention was imposed, and in fact is considered to have increased the risk you pose of violent offending and seriously harming someone.

As a gang member/affiliate, you have been involved in assaults and serious security incidents since your detention as ordered.” They continued his detention, this time until his warrant expiry date. [ 37 ] Mr. Brass was released on June 17 th , 2011, the day before his warrant expiry date. He was originally subject to conditions of release pending the hearing of the 810.2 application – the exact same conditions that the 810.2 ultimately ended up containing. He breached those release conditions three times that summer - by being out past his curfew, by being in possession of marijuana and by failing to abstain.

He was picked up on August 22 nd , 2011 and remained in custody until January 18 th when he was sentenced on those charges and agreed to be bound by the 810.2 recognizance. [ 38 ] Those breaches began less than a month after he was released. On July 13 th he was not available for his curfew check and he was given a warning. On July 24 th he was permitted to go home to Indian Birch but did not answer the phone for curfew checks. He was again warned. On July 27 th , back in Winnipeg, he was to be living at the Salvation Army, but was not home for curfew checks by police – they issued a warrant for his arrest.

On August 17 th he once again wasn’t in for curfew checks. On August 22 nd , he brought a backpack with 12 one gram packages of marijuana in it to his meeting with his probation officer. The police were there to arrest him for his breaches, searched him incidental to arrest and charged him with possession of marijuana. [ 39 ] Mr. Brass stayed in remand custody until January 18 th , when he pled to 3 counts of breach recognizance and possession of marijuana. He received 6 months on the breaches and a day on the possession.

That was thirty five days going forward on January 18 th , 2012, the same day he entered, by consent, into the two year s. 810.2 recognizance. [ 40 ] On May 1 st of 2012 Mr. Brass’s community corrections workers went to his residence to perform a curfew check. He wasn’t in. He was arrested on May 3 rd and stayed in custody until his sentencing, on the single breach of curfew, on June 18 th . The joint recommendation was for 7 months custody, which translated to an effective sentence of 164 days going forward. Mr. Brass’s counsel submitted that Mr. Brass had been sober for eight years as of June 2012.

This is obviously inconsistent with evidence and submissions that he had been drinking heavily in 2007 when the sexual assault occurred, and raises concerns for me about whether he is being honest with himself and others about his addiction issues and risks, and is continuing to seek assistance. [ 41 ] Mr. Brass was released from custody on October 5 th , 2012. Upon release he had been reporting in person and by telephone regularly. He then requested to visit family in Indian Birch from November 2 nd to November 6 th .

He made changes to his travel itinerary without notifying his worker and failed to make required phone calls to his worker on November 3 rd . He was warned and reminded of the consequences of failing to comply with his recognizance. [ 42 ] Mr. Brass had also missed appointments October 16 th and November 2 nd . He missed required daily phone calls on November 3 rd and November 21 st . He was warned about possible consequences for all of these missed commitments and he indicated he understood. [ 43 ] On November 30 th his curfew check was unsuccessful.

On November 30 th , December 1 st and December 2 nd he failed to make contact during the designated hours as required. He missed an arranged December 3 rd appointment with his worker and he was then breached. He basically moved to Indian Birch and stopped complying with the conditions of the 810.2 recognizance around the time he was denied permission for a second visit home in late 2012. A province-wide warrant was issued for his arrest on December 4 th of last

year and it wasn’t executed until April 13th of this year. He’s been in custody ever since. [44] On April 23rd he pled guilty and I asked counsel for further materials. Some of those materials were not prepared by the next date and a further adjournment was required. Submissions were made by counsel on June 25th and I reserved my decision until today. OFFENDER’S BACKGROUND [45] Sentencing is an individualized process. In R. v. Shoker 2006 SCC 44 , 2006 S.C.J.

No. 44, the Supreme Courtindicated that the “purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code make it clear that sentencing isan individualized process that must take into account both the circumstances of the offence and of the offender.” [46] Mr. Brass is a 35 year old aboriginal man with a Grade 6 education and functional illiteracy who was raised primarily by hisgrandparents. Those grandparents and both of his parents attended residential schools. His father has spent most of Mr.

Brass’s life as asentenced prisoner and his mother struggled with addiction issues and was unable to care for him. In his grandparents’ home Mr. Brasswas exposed to the heavy drinking lifestyle of his uncles and began smoking marijuana at 8 and drinking at 10. [47] School was a struggle for Mr. Brass and counsel have suggested in the past that he suffers from an undiagnosed learningdisability or FASD. He frequently acted out to avoid embarrassing situations in school and was often suspended as a result. [48] Over the years Mr.

Brass has developed some carpentry skills and has also participated in commercial fishing. [49] Mr. Brass is the father of five children. In his successful work on the substance abuse program he identified his children as amotivating factor for him to move toward an alcohol-free lifestyle. [50] It is important to give Mr. Brass credit for pleading guilty to these two breach charges and consider the delays since April 23rd when he accepted responsibility. I am also mindful of the challenges that life in modern society is for a person who is functionallyilliterate.

It is unfortunate that earlier warnings about the importance of complying had been ignored and that he simply abandoned anyattempts at complying once breached. PRINCIPLES OF SENTENCING [51] I am conscious that the principle of proportionality does not lose its importance, even with the specialized type of recognizancecreated by s. 810.2. The Supreme Court, in R. v. Ipeelee (2012 SCC 13 , [2012] S.C.J.

No. 13) reviewed the principle ofproportionality as follows: “The fundamental principle of sentencing (i.e. proportionality) is intimately tied to the fundamental purpose of sentencing – themaintenance of a just and peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish toaccord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle ofproportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity ofthe offence.

This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in thejustice system. As Wilson, J. expressed in her concurring judgment in Re BC Motor Vehicle Act: It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentenceproportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishmenthe received and feel a confidence in the fairness and rationality of the system.

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness ofthe offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender.

In the Canadiancriminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense ofthe other.” [52] With this principle in mind, the caselaw is clear that courts must, in light of the preventative nature of these orders and the typesof offenders that are bound by them, give primary, but not exclusive, consideration to the sentencing principles of denunciation anddeterrence when crafting an appropriate sentence.

ANALYSIS [ 53 ] I have considered Mr. Brass’s status as an aboriginal offender and my obligation under s. 718.2 (e). Although there is limited case-specific information before me and I am unaware what resources might be available for him in the community the fact that two generations of caregivers who tried to cobble together a childhood for him went through the Indian residential school system is note- worthy.

His father was absent from his childhood due to criminal involvement, his mother was absent due to addictions and his grandparents were unable to keep his childhood home free from excessive alcohol consumption and alcohol availability to pre-teens. Although a report would have been desirable, it is not required, in light of Corrections’ file material and counsel’s submissions, to infer that there is likely some connection between all of these factors and Mr.

Brass’s functional illiteracy and criminal involvement. [ 54 ] There is a bridge to be crossed, however, to confidently get from an inference such as that to an “available sanction other than imprisonment” without further case-specific details. Here, as usual, the court faces the 718.2(

e) task with relatively scant information. [ 55 ] The Supreme Court, in Ipeelee , ( supra) rejected the assertion that Gladue considerations will result in “remission of a warranted period of incarceration.” (para 72) Rather, the court pointed out, “[t]he methodology set out by this Court in Gladue is designed to focus on those unique circumstances of an Aboriginal offender which could reasonably and justifiably impact on the sentence imposed. Gladue directs sentencing judges to consider: (1) the unique systemic and background factors which may have played a

part in bringing the particular Aboriginal offender before the courts; and (2) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection. Both sets of circumstances bear on the ultimate question of what is a fit and proper sentence.” [ 56 ] I have considered Mr.

Brass’s background, life circumstances and lengthy separation from his home community while paying particular attention to paragraph 73 of Ipeelee (supra) where the Court wrote that “Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development.

While this rarely—if ever—attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that constrained circumstances may diminish their moral culpability.” It certainly appears that Mr.

Brass, illiterate in Grade 6, required a level of parental support in his childhood that wasn’t available to him and I have considered how that may have contributed to his life path since then. [ 57 ] Sentencing on this type of breach requires an assessment of the “potential danger to the public that the offender poses.” ( Helary (supra) ) The danger that Mr. Brass poses to the community centres around his abuse of alcohol and his difficulty controlling his anger, particularly against women.

Brass’s Warrant Expiry Release package outlined a non-exhaustive list of possible destabilizing factors which could indicate a return to his offence cycle, including – “relapsing to substance abuse, associating with peers who are involved with substance abuse/misuse and involved in a criminal lifestyle, inability to find and/or maintain steady employment, inability to utilize supports and ask others for help and not attending AA/NA meetings.” [ 58 ] Although the breaches involved, as counsel suggested, failing to make a phone call and simply living where he wanted to live Mr.

Brass does not have the luxury of making those choices. He has been determined to be one of those rare offenders who requires a preventative court order to contain the potential risk he poses to the rest of the community. Missing the phone call is the breach, but the danger is he is no longer being monitored and the list of possible destabilizing factors are no longer being assessed by the professionals charged with monitoring this order and his behavior. [ 59 ] The offence that preceded this order was a brutal attack which very nearly resulted in the victim’s loss of life.

Corrections raised concerns, particularly in Mr. Brass’s 2009 detention review, that past incidents “resulted in the victims being physically assaulted by the subject, regardless of whether they chose to engage in this conversation or not. This indicates that the subject is escalating his own behavior, regardless of the situation or the victim’s reaction.” [ 60 ] The concerns about Mr. Brass’s behavior are well-founded.

They are based upon his past offences against women, his resistance to sexual offender counseling while incarcerated, his aversion to being placed on conditions in the community, his inclination towards violence and non-compliance in the institution and his limited periods of compliance prior to breaching once released. These conditions are in place to prevent harm coming to anyone else. Simply walking away from the recognizance is not an option for Mr. Brass. A sentence which will make this clear to him, by way of specific deterrence, is required.

SENTENCE [ 61 ] Considering the caselaw, the statute, nature of the breaches, lack of further criminal involvement, Mr. Brass’s prior history of breaching and the type of risk this particular recognizance was designed to address I find that a period of custody in excess of his last seven month sentence is required to remind Mr. Brass of the importance of complying with his order. I am sentencing him to a 10 month period of incarceration, to be served concurrently on each count. I note the Crown has not sought a period of probation to prolong the 810.2 conditions. I expect that if Mr.

Brass breaches this order again that they will do that in the future, so that is part of the risk he runs if he does not comply this time. TIME SERVED [ 62 ] Mr. Brass was arrested on April 13 th and appeared in court on April 23 rd to enter his guilty pleas. He was prepared to be sentenced on that day, but I was not satisfied with the material and the matter did not proceed. The matter appeared on May 28 th , June 11 th and June 25 th , when counsel made further submissions.

Written submissions on a certain case were directed and the matter was put over to today for sentencing. [ 63 ] Crown counsel suggests one for one credit should be granted for time spent in custody and opposes enhanced credit post-plea.

Defence counsel makes a request for enhanced credit. [ 64 ] The Criminal Code allows, at s. 719(3) that “in determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.” [ 65 ] The

section goes on, at 719(3.1) to allow that, “[d]espite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).” The noted exceptions do not apply in this case. [ 66 ] Section 719(3.1) has been a controversial section. I outlined the nature of the debate on October 19 th , 2012 in R. v. Kennedy and Murdock 2012 MBPC 60 , as follows: [ 67 ] 97) It appeared, when the

section first began being applied, that credit of more than one day for every day spent in custody would be relatively rare. Then Justice Green of the Ontario Court of Justice wrote R. v. Johnson, 2011 ONCJ, 268 C.C.C. (3d) 423 and the landscape shifted. He wrote, at paragraph 162, that “[a]s I see it, the central issue comes down to the meaning of those five words that span the 1:1 and the 1.5:1 regimes: “if the circumstances justify it.” Applying appropriate canons of statutory

interpretation, and read in the sentencing framework in which it is embedded, the word “circumstances” in this phrase includes the loss of remission and delayed parole eligibility which, in turn “justify” a credit enhancement beyond a maximum ratio of 1:1.” [ 68 ] 98) Justice Green’s decision set off an avalanche of caselaw interpreting those five words across the country. There are two general competing schools of thought. One group agrees with Justice Green and has been routinely granting 1.5:1 credit to almost all prisoners.

Another group is of the view that interpreting the provision that broadly makes nonsense of s. 719(3) and subverts Parliament’s intention. [ 69 ] Since October of last year three more courts of appeal have weighed in on this controversial issue. Most importantly for this court, Manitoba’s Court of Appeal released R. v. Stonefish 2012 MBCA 116 December 13 th , 2012, which helped clarify to trial courts the term “if the circumstances justify it”. [ 70 ] The circumstances justifying enhanced credit, according to Justice Steel, writing for a unanimous court, “need not be exceptional.

However, they do need to be individual to the accused.” The court goes on to note that “the legal burden lies on the accused to establish, on the balance of probabilities, circumstances that would justify or warrant deviation from the general rule and attract enhanced credit.” [ 71 ] The evidentiary burden is not meant to be an onerous one, and “should not overly complicate the sentencing process and exacerbate the problems currently facing the prison system.” Credible information and hearsay evidence are acceptable. In Manitoba,

loss of statutory remission or early parole availability can be a basis for enhanced credit if “the accused can bring evidence to the courtthat, had he or she been a sentenced inmate, they would have most probably received remission and/or statutory release.” [72] In this case there is no information about Mr. Brass’s prospects for early release. His penitentiary record speaks against such apossibility, but his behavior at the end of that time had been improving and he was released after serving two-thirds of his June, 2012sentence.

Defence has not made an argument or provided any evidence respecting this and I am not persuaded that enhanced creditshould be granted for the 10 days time served pre-plea. [73] After entering his plea on April 23rd, 2013 Mr. Brass spent a further 112 days in custody. Counsel made a bare assertion thathe should get enhanced credit for this time.

Is this enough to meet the onus of proof on defence? [74] Justice Steel noted that during Parliamentary debates factors that were identified by the Minister of Justice as circumstancesthat might warrant enhanced credit included “unnecessary delay in proceedings not attributable to the accused”. She then reviewedcases, illustrating that loss of remission is not the most frequent reason for enhanced credit. Other reasons have included delays causedby “the court – e.g. R. v. Dingwell (D.A.), 2012 PESC 13, 321 Nfld. & P.E.I.R. 263; R. v.

B.R.S., 2011 ONCJ 484 (QL); and R. v.Sabatine, 2012 ONCJ 310 (QL) (request for further submissions and time spent drafting reasons); …and multiple court appearances forthe purposes of sentencing – e.g., R. v. Przybyla, 2012 ABPC 183 (QL).” [75] As mentioned, the law across the country is not yet settled on this point. The allowance of enhanced credit for delay notattributable to the accused seems to be a point of agreement, however. The British Columbia Court of Appeal released R. v. Bradbury2013 BCCA 280 , [2013] B.C.J.

No. 1261 earlier this summer finding that enhanced credit must be based on something morethan the near-universal loss of remission or ability for early parole. Justice Smith, writing for the majority, said that “circumstances thatwould justify enhanced credit must have a qualitative characteristic; that is, a characteristic that is individual to the offender but alsodistinct from those characteristics that are universal to, or almost universally held, by other similarly situated offenders.

Examples ofcommonly held circumstances might include the lack of programs, the conditions of the remand institution, and the loss of remission orparole eligibility. Individual qualitative circumstances might include the imposition of segregated or protective custody through no faultof the accused, or a delay in the proceedings that is not attributable to the accused.” (emphasis added). [76] The fact that the proceedings in this matter dragged on from April 23rd for reasons other than the accused delaying sentencingis a matter of public record.

Counsel made submissions on April 23rd, relying on transcripts from earlier sentencing hearings. I wantedto see the exhibits from those hearings so I could understand the type of risk Mr. Brass posed. The crown obtained further transcripts butthe exhibits were not obtained so we adjourned again for that to occur. Finally, arguments were made just prior to my departure onannual leave. None of these delays were attributable to Mr. Brass. Although it would have been preferable for counsel to be clearer onthe basis for enhanced credit it would have added little to the decision making process.

I am satisfied that the circumstances justify enhanced credit from April 23rd until today’s date. [77] Mr. Brass’s sentence of 10 months will be noted as 300 days, less 10 days pre-sentence custody at 1:1 time, and 112 dayscustody at 1.5:1 time for a net sentence going forward of 122 days, subject to counsel’s review and correction. As Mr. Brass is beingsentenced to custody costs and surcharge are waived. ________________________ Harapiak, P.J.