Her Majesty the Queen - v. -, 2020 SKPC 44

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 44 Date: October 22, 2020 Information: 991121672 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Shelby Megan Donald Appearing: Mr. Daniel Arnot For the Crown Ms. Julia Quigley For the Accused DECISION S.D. SCHIEFNER, J INTRODUCTION [ 1 ] On July 29, 2020, Ms. Shelby Donald was placed on a Conditional Sentence Order [CSO] after pleading guilty to certain Criminal Code offences.

The order was for a duration of six months and included the condition, as do all such orders, that Ms. Donald was required to report to a supervisor within two days and thereafter as told to do so. That same day, Ms. Donald phoned Prince Albert Community Corrections and spoke with a probation officer. The officer spoke with Ms. Donald and instructed her to report to Community Corrections by phone the next day. She failed to do so.

[ 2 ] Ms. Donald testified that she phoned Community Corrections on August 5, 2020 (6 days later) and left a message with her name and phone number. The Crown acknowledges that a call was made to their office on that date from Ms. Donald’s phone. However, Community Corrections have no record of a message being left. [ 3 ] Ms. Donald acknowledges that she failed to report on July 30, 2020 but states she was confused following her conversation on July 29, 2020 about her reporting obligations. Defense counsel takes the position that the Crown is required to prove subjective mens rea .

The Crown argues that a breach of a CSO is not the same as other criminal proceedings. [ 4 ] While a breach proceeding has many differences from a criminal prosecution, one commonality is the requirement for the Crown to prove subjective fault. [ 5 ] In the present case, I find that Ms. Donald knowingly or willfully failed to report as required by the terms of her CSO. These are my reasons for coming to these conclusions. THE EVIDENCE [ 6 ] A hearing into the alleged violation of Ms. Donald’s CSO was held on September 17, 2020. The Crown called one witness – Ms.

Kelley Muir, a supervisor with Community Corrections of the Ministry of Corrections and Policing. In addition, a copy of a written report of a supervisor dated August 13, 2020 [Supervisor’s Report] was filed with the court. The Supervisor’s Report is evidence before me as the Crown has complied with s.742.6(5) of the Criminal Code . [ 7 ] In addition, Ms. Donald testified on her own behalf. Crown Evidence – Kelley Muir : [ 8 ] Ms. Kelley Muir testified on behalf of Prince Albert Community Corrections. In preparation for her testimony, Ms.

Muir reviewed the records of her department, including the case notes by previous staff involved with the matter. In addition, Ms. Muir was knowledgeable about the record keeping practices employed by Community Corrections. These records are kept in the Criminal Justice Information Management System [CJMS] and a new program call SharePoint. [ 9 ] Ms. Muir testified that, prior to being placed on her CSO, Ms. Donald was being supervised on the Electronic Monitoring [EM] program by Ms. Brandy Bell. Ms. Bell is a probation officer with Community Corrections and, at the time, was a supervisor with the EM Program. Ms.

Muir testified that the EM program required participants to regularly report to a supervisor. In Ms. Donald’s case she was reporting to Ms. Bell. As a result, she was already active on the Community Corrections’ system before being placed on her CSO. Ms. Muir testified that all of Ms. Donald’s contacts with Community Corrections would be recorded in CJMS. [ 10 ] Ms. Muir testified that Ms. Donald spoke with Mr. Bell on July 29, 2020, and that Ms. Bell directed Ms. Donald to report to Samantha Friske by phone at 10:00 a.m. the next day. Ms.

Muir further testified that, when she reviewed both CJMS and SharePoint, she could find no record that Ms. Donald contacted their office on July 30 th as directed or that she had made any attempts to report at any time after her initial reporting on July 29, 2020. In cross-examination, Ms. Muir admitted it was possible, albeit unlikely, that someone could call their office and leave a message without it being recorded in one of their systems. On the other hand, if a person called Community Corrections and hung up without leaving a message, the details of that call would not be recorded.

Defense Evidence – Shelby Donald : [ 11 ] Shelby Donald acknowledged that she was being supervised by a probation officer on a release order for about five months prior to being sentenced to her CSO. Pursuant to her release order, Ms. Donald was required to comply with the rules of the EM program. At that time, she was living at her mom’s place and a phone had been installed for monitoring her EM equipment. As part of the EM program, Ms. Donald testified that she was essentially on “24-hour house arrest”. As Ms. Donald explained, she could not leave her mom’s house unless she had permission.

While on the EM program, she was also required to report to a probation officer. For most of that period, Ms. Donald reported to Samantha Fiske and did so on a weekly basis by calling the phone number she was provided.

[12] Ms. Donald acknowledged that she was placed on a CSO on July 29, 2020 after pleading guilty to certain Criminal Codecharges. Ms. Donald testified that she was not given a copy of her CSO at court. Rather, it arrived by mail some days later. Ms. Donald’sCSO indicates that it was read to her in court. [13] Ms. Donald testified that, after leaving court, she phoned Community Corrections using a friend’s phone. Ms. Donald knewthe number from memory. She was hoping to speak with Ms. Fiske - the probation officer she had previously been dealing with. However, she spoke with Ms. Bell. Ms. Donald told Ms.

Bell she had been placed on a new order by the court – a CSO. Ms. Bellexplained to Ms. Donald that, if she had been placed on a CSO, she was no longer required to comply with the rules of her release orderand that she could remove her ankle bracelet. Ms. Donald asked Ms. Bell whether she should report in person that day. Ms. Bell told hernot to but that she should phone the next day to speak with someone about her CSO. Ms. Donald testified that, following herconversation with Ms. Bell, she did not really understand what was going to happen next on her CSO or what her reporting obligationswould be.

However, she did understand that she was supposed to phone Community Corrections the next day to find out. [14] When asked what she did in response to the direction to call Community Corrections on July 30, 2020, Ms. Donald answered“I’m not sure”. [15] Ms. Donald acknowledged that she did not phone on July 30, 2020. The phone log from Ms. Donald’s cell phone indicate thata call was placed from that phone to Community Corrections on August 5, 2020 at 9:45 a.m. Ms. Donald testified that she called but noone answered. As a result, she left a message. Ms.

Donald testified that she could not recall the precise words, but that the message sheleft included her name, her phone number, and a request for someone to give her a call back. [16] Ms. Donald testified that she phoned Community Corrections again a couple weeks later because she had not heard from Ms.Fiske or anyone else about her CSO. Ms. Donald did not think she spoke with anyone when she called the second time. She testified thatshe called because it had been a couple weeks and she had not heard from anyone from Community Corrections. Ms.

Donald testifiedthat her probation officer knew where she was because someone had come to her residence for a curfew check during this period. ANALYSIS [17] The procedure in the event of an alleged breach of a conditional sentence order is set forth in s.742.6 of the Criminal Code. These provisions appear straight forward. They are not. [18] To begin with, the Crown is correct - a breach proceeding is not the same as a criminal prosecution. As noted by theNewfoundland Court of Appeal in R v Whitty (1999), (NL CA), 135 CCC (3d) 77 (NL CA) at para 41 & 48 [Whitty],a breach of a CSO is not a crime.

See also: R v Proulx, 2000 SCC 501 at para 27, [2000] 1 SCR 61 [Proulx]. [19] To illustrate this point, the Court in Whitty contrasted a breach proceeding with the prosecution of an alleged violation of aprobation order. The Court noted that, in the case of a breach of a probation order, a separate criminal charge occurs, and the Crownmust prove each element of that offence beyond a reasonable doubt.

As one of the possible consequences of a finding of guilt on that newcharge is a term of imprisonment, a breach of a probation order has true penal consequences - bringing with it all the protections for anaccused found in law, including the burden of proof, presumption of innocence and Charter remedies. [20] However, such is not the case with a conditional sentence order. In imposing a CSO, an offender is sentenced to a term ofimprisonment but in circumstances where a judge has determined that the offender can serve that sentence in the community rather thanbehind bars.

The judge’s determination that the sentence can be safely served in the community is reviewable upon the occurrence of abreach. A finding of a breach of a CSO does not change the nature of the original sentence - only the location and/or the conditions uponwhich that sentence is served. See: Whitty at para 45. [21] I have reviewed the following cases dealing with breach proceedings: R v W.(J.) (ON CA), 1997, 115 CCC (3d) 18 (Ont CA).

R v Whitty. R v Proulx, at paras 35, 38 & 39. R v Casey (ON CA), 2000, 141 CCC (3d) 506 (Ont CA) at para 13 [Casey]. R v Filippelli (ON CA), 2002, 169 CCC (3d) 217 (Ont CA) at paras 10, 11 & 12 [Filipelli]. R v Kitson (MB PC), 2003, 188 Man R (2d) 1 (Man Prov Ct) at para 12 & 13 [Kitson]. R v Carpentier, 2005 MBCA 134, 203 CCC (3d) 25 (Man CA) [Carpentier]. R v McIvor, 2008 SCC 11 (SCC) at paras 12, 13, 18 & 19, [2008] 1 SCR 285 [McIvor]. R v Thompson, 2014 ONCA 43 (Ont CA) at para 28, 305 CCC (3d) 218.

R v Obodzinski, 2019 QCCQ 458 at para 57 [Obodzinski]. [22] In none of these cases did the Court explicitly state the mens rea requirement for a breach of a CSO. The only case to addressmens rea was the Manitoba Court of Appeal in Carpentier. What is the Mens Rea requirement for a breach of a Conditional Sentence Order? [23] Is it strict liability - wherein the Crown need only prove the breach and then the onus shifts to the accused to demonstrate areasonable excuse for his/her non-compliance?

Is it objective mens rea - wherein the Crown would be required to prove the breachtogether with some element of mens rea, such as recklessness on the part of the accused? Or is the Crown required to prove subjectivemens rea - that he/she knowingly or willfully breached the terms of his/her CSO? [24] In Carpentier, the Manitoba Court of Appeal overturned a decision of the lower court on the basis that the trial judge did nothave sufficient evidence before him to be satisfied (on a balance of probabilities) that the accused breached the conditions of hisconditional sentence order by being in possession of a weapon.

The Court of Appeal found that the evidence during the hearing was notsufficient (even on the lower burden of proof) to demonstrate that the accused knew a gun was hidden under a mattress in the housewhere he was residing. The Court found that it was necessary for the trial judge to be satisfied that the accused knew of the presence ofthe firearm and that he had some measure of control over its location. The Court concluded that the Crown’s evidence – which wasessentially comprised of an officer’s assumption that the room was occupied by the accused – was not sufficient to establish knowledge(or control).

Absent evidence of knowledge, the Court was not satisfied that the elements of constructive possession had been satisfiedby the Crown’s evidence. [25] Carpentier stands for the proposition that the Crown is required to prove mens rea in at least some breach proceedings –proceedings involving possession of an illicit item. [26] As noted by the Supreme Court of Canada in R v Zora, 2020 SCC 14 at para 32, the starting presumption is that the mens rearequirement for any crime is subjective fault – the guilty mind. However, there are two scenarios where this presumption may bemodified.

First, in the prosecution of an offence that is not a true crime. For example, the Newfoundland Court of Appeal opined that abreach of a CSO is not a crime – rather it is something more analogous to a new aggravating fact that has come to light in a continuingsentencing process. See: Whitty at paras 41 to 43. Second, in circumstances where the presumption has been overridden by language inthe legislation that demonstrates “clear expressions of a different legislative intent”. See: Zora at para 33.

Is a breach proceeding the kind of proceeding wherein the Crown is required to prove mens rea as an element of the breach? [27] Both the Newfoundland Court of Appeal in Whitty and the Supreme Court of Canada in Proulx emphasized that a breach of aCSO is not a crime and that a breach proceeding is not a criminal prosecution. [28] On the other hand, the Supreme Court of Canada in McIvor noted that, from the perspective of an accused, a breachproceeding is much the same as any other criminal prosecution.

[17] As noted in the excerpt above, failure to comply with the condition of a probation order constitutes a distinct criminal offence under s. 733.1 of the Criminal Code , while failure to comply with a conditional sentence order does not. One should not on that basis jump to the conclusion that the initiation of a s. 742.6 breach proceeding is of less consequence to the offender. In that respect, it is noteworthy that the provisions of Parts XVI and XVIII of the Criminal Code with respect to compelling the appearance of an accused before a justice are incorporated by reference under s. 742.6(1) (a).

Likewise, for the purpose of arrest powers, the breach of a conditional sentence order is treated as an indictable offence: s. 742.6(1)(

b) and (f). In so far as interim release is concerned, the reverse onus provisions of s. 515(6) apply, requiring that the offender be kept in custody until dealt with according to law unless he or she shows cause why detention is not required: s. 742.6(2). Questions concerning the initiation of process or interim release in respect of allegations of breach of a conditional sentence order are not in issue in this appeal and I do not propose to deal with the scope or particular application of these provisions.

I find it noteworthy, however, that from a procedural standpoint the commencement of a s. 742.6 breach proceeding, in many respects, is assimilated to the laying of a new charge against the offender. Indeed, from the offender’s viewpoint, the effect is much the same . [Emphasis added] [ 29 ] Notwithstanding the comments in Whitty and Proulx , it is not obvious to me that the nature of a breach proceeding is sufficiently distinct from a criminal prosecution to overcome the presumption that the Crown is required to prove subjective fault.

In this regard, I am guided by the decision of the Manitoba Court of Appeal in Carpentier . Did Parliament intend that mens rea need not be proven by the Crown for a breach of a CSO? [ 30 ]

Section 742.6 of the Criminal Code reads in part as follow: 742.6

(3) The hearing of an allegation of a breach of condition shall be commenced within thirty days, or as soon as practicable, after … …

(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.

(5) The report is admissible as evidence if the party intending to produce it has, before the hearing, given the offender reasonable notice and a copy of the report. . . .

(8) The offender may, with leave of the court, require the attendance, for cross-examination, of the supervisor or any witness whose signed statement is included in the report.

(9) Where the court is satisfied, on a balance of probabilities, that the offender has, without reasonable excuse, the proof of which lies on the offender, breached a condition of the conditional sentence order, the court may … [ 31 ] In McIvor the Court considered Parliament’s intention with respect of conditional sentences and breach proceedings. At paras 18 and 19, the Court observed the following: [18] Parliament, however, intended that allegations of non-compliance be dealt in a simpler and more expedited fashion under the conditional 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 hearsayexclusionary rule. As in other proceedings, evidence is usually presented in the form of viva voce testimony, and the accused has theright to cross-examine the witnesses.

It is against this basic evidentiary backdrop that the provisions in question in this appeal must beconsidered, because it is these rules that would apply had Parliament not provided otherwise in respect of an allegation of a breach ofconditional sentence order. [Emphasis added] [32] In s.742.1, Parliament created an alternate sentencing regime for dealing with certain offenders – offenders meeting the criteriaset forth in that section. In doing so, Parliament also established a simpler and more expedited mechanism for dealing with breaches – amechanism distinctly different than other criminal proceedings.

In McIvor, the Court identified the four ways in which breachproceedings are different from a criminal prosecution. The Court went on to note that, if Parliament is silent on an issue, the commonlaw rules apply. [33] Having reviewed s.742.6, I am not satisfied that the language used by Parliament is sufficient to demonstrate a legislativeintent that subjective mens rea is not an element of a breach of a CSO.

While Parliament lowered the standard of proof and placed apersuasive burden on an accused with respect to excuses, it is not obvious that Parliament intended to dispense with the Crown’s need toprove a guilty mind. Certainly, there is ambiguity in the language and, in the face of that ambiguity, the presumption should remain thatsubjective fault is an element of any proceeding where the consequence of state action can so significantly affect the accused’s liberty.The Manitoba Court of Appeal appears to have come to a similar conclusion in Carpentier.

Simply put, while Parliament varied manyaspects of a breach proceeding, they did not remove the requirement for the Crown to prove mens rea - they just made it easier to do soby lowering the burden of proof. [34] For the foregoing reasons, I am satisfied that the Crown must prove subjective mens rea in alleging a breach of a ConditionalSentence Order. Has the Crown proven the breach? [35] To sustain a violation, the Crown must prove that Ms. Donald was required to report at a specific place and a specific timepursuant to the terms of her CSO and that she knowingly or willfully failed to do so.

On the other hand, the Crown need only prove theseelements on the balance of probabilities. See: Casey at para 13; Filippelli at para 12; Kitson at para 10; and Carpentier at para 9. Furthermore, the approach to proof set forth by the Supreme Court of Canada in R v W(D), (SCC), [1991] 1 SCR 742,has no application in the context of a breach of a CSO. See: Kitson at para 14 and Obodzinski at para 56. [36] There is no dispute that Ms. Donald was lawfully instructed by a supervisor to report by phone on July 30, 2020 at 10:00 a.m.There is also no dispute that she failed to do so. [37] Ms.

Donald testified that she was a little confused following her conversation with Ms. Bell on July 29, 2020. However, sheacknowledged that, when the call ended, she knew she was supposed to call the next day to speak with someone – either Ms. Fiske orsomeone else. Ms. Donald acknowledged that she did not phone the next day. She testified that she attempted to report on August 5,2020. In her testimony, she stated she did not really know why she did not call before that. [38] In the present case, I am satisfied on the balance of probabilities that Ms.

Donald understood her obligations to report byphone on July 30, 2020. She had been reporting on a release order as part of the EM program for five months prior. She was not new tothe process of reporting. In fact, she knew the phone number for Community Corrections from memory. I do not accept that she wasconfused in any material way about her obligation to report at 10:00 a.m. on July 30, 2020. She may have been confused about herfuture reporting obligations and what was going to happen next as she transitioned from the EM program to a CSO, but she was notconfused about her obligation to phone the next day.

The very purpose of the call was to begin the process of being supervised on aCSO. [39] However, even if Ms. Donald was confused about when to report (which I do not accept), she did not even attempt to reportuntil August 5, 2020. I say “attempt to report” because I find that Ms. Donald did not leave a message on August 5, 2020. Ms. Muirtestified that, if Ms. Donald had left a message on their phone, it would have been recorded in one of the two tracking systems employedby Community Corrections. While Ms. Muir testified that it was possible that a message left by Ms.

Donald might not have beenrecorded, she also testified that it was unlikely to occur. I accept that Ms. Donald phoned Community Corrections on August 5, 2020 butI find it more likely than not that she failed to leave a message.

[ 40 ] Ms. Donald testified that she next attempted to report a few weeks later. While she said she left a message on this second call, I find that she did not. While I accept that Ms. Donald called as she said, I am not satisfied that she left a message. [ 41 ] Ms. Donald’s woefully inadequate attempts at reporting are not consistent with confusion.

Rather, they are consistent with someone either knowingly breaching her conditions or willfully blind to her obligations under her CSO. [ 42 ] As a consequence, I am satisfied that she not only failed to report but she did so knowingly or at least willfully blind to her obligation to report as directed. On a prima facia basis, the breach has been made out. Did Ms. Donald have a reasonable excuse for not reporting? [ 43 ] After the Crown has established the occurrence of a breach, the accused may argue that he/she had a reasonable excuse. See: Kitson at para 12 and Carpentier at para 10 .

A reasonable excuse would include those excuses already recognized in criminal law, such as duress or necessity. However, unlike other criminal proceedings, in a breach proceeding, the accused bears a persuasive burden. See: McIvor at para 18 . In order to rely on an excuse to escape liability for the breach, the accused must prove all elements of the excuse on a balance of probabilities. [ 44 ] While Ms. Donald argued that she was confused about her reporting obligations, in my opinion, Ms.

Donald’s confusion – her understanding of her obligations (or lack thereof) is better analyzed as I have as an element of the breach not as an excuse. [ 45 ] I am not satisfied that Ms. Donald had a reasonable excuse for not reporting. CONCLUSION [ 46 ] For the foregoing reasons, I find that the breach has been made out and Ms. Donald is in violation of her CSO. Dated this 22 nd day of October, A.D. 2020, at the City of Prince Albert, in the Province of Saskatchewan. __________________________ S.D. SCHIEFNER, J