2011 MBPC 6, 2011 MBPC 6

Citation No. 2011 MBPC 6 Hearing Date: January 12, 2011 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Scott Cooper, for the Crown ) - and - ) ) Reginald D. Laporte ) Philippe Richer, for the Accused ) ) Judgment delivered: ) January 21, 2011 CARLSON, P.J. Introduction [ 1 ] On April 17, 2009, Mr. Laporte pleaded guilty to a charge of assault with a weapon. On that date, I convicted Mr. Laporte on that charge and sentenced him to imprisonment for two years less a day, to be served in the community, pursuant to a Conditional Sentence Order (“CSO”), on the mandatory statutory conditions set out in

section 742.3(1) of the Criminal Code , as well as a number of optional conditions. [ 2 ] One of the mandatory conditions imposed on Mr. Laporte pursuant to

section 742.3(1) of the Criminal Code was that he, during the entire term of his CSO, “keep the peace and be of good behaviour”. [ 3 ] A report compiled by Mr. Laporte’s Conditional Sentence Supervisor dated November 25, 2010 (the “Supervisor’s Report”) has been provided to the court, based on which the Crown alleges Mr. Laporte has breached the “keep the peace and be of good behaviour” condition of his CSO. [ 4 ] Mr. Laporte contests the breach alleged. He is now in custody. [ 5 ] A date for the hearing of the alleged CSO breach has been set for January 28, 2011.

I am advised by counsel that at that time the Crown will produce witnesses to give viva voce evidence as to the alleged breach. [ 6 ] Defence counsel has raised a preliminary issue which was argued before me on January 12, 2011. Defence counsel says the allegation that Mr. Laporte breached his CSO should be dismissed because the Supervisor’s Report is not sufficient to comply with the requirements of

section 742.6(4) of the Criminal Code . The Supervisor’s Report in this case [ 7 ] Under the heading “Circumstances of the Alleged Breach”, the Supervisor’s Report says the following: “This offender was arrested without warrant by Winnipeg Police on November 24, 2010. Police report #C100268481 refers”. [ 8 ] Attached to the Supervisor’s Report is a copy of Mr. Laporte’s CSO and a one page document headed “Allegation of Non- Compliance with a Conditional Sentence Order” (the Allegation Form”). [ 9 ] The Allegation Form is a printed form.

The form indicates that the allegation is “Police initiated” (as opposed to “supervisor initiated”) and that Mr. Laporte was arrested on November 24, 2010. The form then contains some basic information about Mr. Laporte

(name, address, birthdate, original sentencing date, and original police report number). There is then the typed statement: “I allege that the offender has breached the following condition or conditions of the conditional sentence order: …1. Fail to keep the peace and be of good behaviour - November 24, 2010” [ 10 ] Immediately below that statement is the name “Cst. J. Santos”, with his business information (address, phone number, police agency, rank/name/badge number) and date. There is then a handwritten signature under which is typed “Cst. B. Harriott for Cst. J. Santos”.

The handwritten signature appears to be “Harriott”. [ 11 ] The Allegation Form goes on to reference police report number c100268481. There is an “x” in a box beside the words “domestic violence – yes”.

There is an “x” in the box beside the statement “faxed/sent to probation services”. [ 12 ] Although the Allegation Form contains instructions, within the form itself, for a police initiated complaint, that a report on the circumstances of the alleged breach is to be attached, and that a copy of the Allegation Form and the report are to be immediately sent to Probation Services, there is no report attached to the Allegation Form. [ 13 ] The Allegation Form is not signed by the officer whose information is contained in that form, but by another officer for him. [ 14 ] Other than the completed Allegation Form and a copy of the CSO, there are no other attachments to the Supervisor’s Report. [ 15 ] There are no facts or circumstances of the alleged breach contained in the Supervisor’s Report, apart from the reference to a numbered police report.

No facts or circumstances of the alleged breach are contained in the Allegation Form. [ 16 ] There are no signed witness statements attached to the Supervisor’s Report. [ 17 ] The police report referenced in the Supervisor’s Report under “Circumstances of the Alleged Breach” is not attached to the Supervisor’s Report. [ 18 ] I am advised by the Crown, and defence counsel agrees, that upon Mr. Laporte being arrested, defence counsel did receive signed witness statements relative to the incident that allegedly constitutes the breach of the CSO.

Crown counsel further advises that signed witness statements were taken before the Supervisor’s Report was compiled. The Issues [ 19 ] The issues to be decided are: 1) First, does the Supervisor’s Report comply with the requirements of

section 742.6(4) of the Criminal Code ? 2) Second, if the Supervisor’s Report does not so comply, should the allegation of the CSO breach be dismissed at this stage? The Supervisor’s Report – What is required? [ 20 ]

Section 742.6 of the Criminal Code sets out the procedure that is to be followed on an allegation of breach of a CSO. The

section contains a number of “short cuts” that allow for an expeditious and straightforward determination where there is an allegation of a CSO breach. [ 21 ] One of these short cuts is provided by sections 742.6(4) and 742.6(5). The Crown is able to adduce, in documentary form, the evidence to prove a CSO breach that it would otherwise be required to present by calling witnesses to testify viva voce in accordance with the ordinary rules of evidence.

The documentary evidence required is a report of the conditional sentence supervisor, which is admissible provided the offender has been given reasonable notice and a copy of the report (section 742.6(5)). While the Crown can prove the breach based on the report, it is still open to the offender, but only with leave of the court, to require the attendance for cross examination of the supervisor or of any witness whose signed statement is included in the supervisor’s report (section 742.6(8)). [ 22 ]

Section 742.6(4) sets out what is required in a supervisor’s report. It reads as follows: “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.” [23] The attachment of signed witness statements is not absolute. But it is mandatory, “where appropriate”. [24] The question then is when is it “appropriate” for signed witness statements to be attached to a supervisor’s report? [25] The Supreme Court of Canada has addressed the Crown’s obligations in terms of the contents of a supervisor’s report in R. v.McIvor (2008 SCC 11).

In that case, the supervisor’s report did not include signed witness statements, but instead contained an unsignedpolice report prepared by an officer who did not witness any of the events upon which the alleged breach was founded. The SupremeCourt of Canada upheld the decision of the British Columbia Court of Appeal that the hearing judge had no admissible evidence beforehim upon which to base his finding the offender had breached the CSO. [26] In R. v. McIvor, Justice Charron said: “In my view, the meaning of s. 742.6(4) is plain when considered against the default evidentiary rules I have earlier described.

As Istated in my earlier remarks, subject to leave being granted requiring the attendance of any of the witnesses, the legislative schemesimply allows the Crown to prove the breach by adducing in documentary form the evidence it would otherwise have been required topresent in the usual way by viva voce evidence. As such, it is an enabling provision. … The contents of the supervisor’s report and of any witness statement should likewise be defined in terms of what the author of the reportor the statement could testify to if called to give viva voce testimony.

Indeed, the supervisor or witness may well end up before the courtif leave is granted under s. 742.6(8) requiring their attendance for cross –examination. The contents of the documents adduced under. S.742.6(4) and (5) should mirror what their testimony would be.” (paragraphs 23 and 24) [27] Justice Charron goes on at paragraph 35 to say that in some cases, a supervisor will be in a position to provide all the requiredinformation to prove a breach. This may be the case if the breach is, for example, a failure to report to the supervisor.

But in a casewhere the supervisor could not provide admissible testimony about the facts alleged to constitute a breach if called on to testify vivavoce, it would be “appropriate” and is therefore necessary, to include with the report, the signed statements of witnesses from people whocould provide admissible evidence about the facts of the alleged breach. [28] Defence counsel filed three other cases. None of them are binding on me, and the facts are different than in this case, but theyare still of interest. The decisions in those cases all reflect the same rationale as set out in R. v.

McIvor, namely that the requirement thatsigned witness statements be attached to a supervisor’s report must be followed in cases in which the supervisor himself or herself doesnot have personal knowledge of the facts constituting the alleged breach. [29] In R. v. Hansen [2008] B.C.J. No. 814, the British Columbia Provincial Court, relied on the Court of Appeal decision in R. v.McIvor decision (which was later upheld by the Supreme Court of Canada). The court said in R. v. Hansen, at paragraph 11: “… the documents upon which the supervisor relies must be attached to the supervisor’s report.

Otherwise, on what basis was the breachallegation made? It is somewhat of a rhetorical question when the reports are not attached to the supervisor’s report.” [30] In that case, attached to the supervisor’s report were some witness statements but they were not signed. There were also threeReports to Crown counsel prepared by police officers, which were not attached to the supervisor’s report at the time the supervisor’sreport was prepared, and were added later. The court, in considering whether the requirements of

section 742. 6(4) had been met, lookedat what the viva voce testimony would have to be on the part of the supervisor if there were no written supervisor’s report. Thesupervisor would have to say she relied on information provided by witnesses. But the supervisor could not give that evidence based onthe supervisor’s report because that report did not say upon which statements or documents she concluded a breach of the CSO had beencommitted. Without being able to do so, the supervisor’s report did not comply with

section 742.6(4) and was not admissible to prove thebreach. [31] In R. v. Cruz [2001] O.J. No. 3756, a decision of the Ontario Superior Court of Justice, that pre dates R. v. McIvor, it wasalleged the offender had breached the “keep the peace and be of good behaviour” condition of his CSO by committing another offence. There were no witness statements attached to the supervisor’s report which alleged the breach. The judge points out that while asupervisor or a peace office can trigger an allegation of breach of CSO, it is the supervisor who controls the submission of the evidencethrough his or her report.

Despite police arresting someone for a new offence, it is still up to the supervisor to decide whether he or shewill pursue the breach, having reviewed the information provided by way of signed witness statements (police officers or otherwise). The judge says at paragraph 38: “It is the supervisor who is responsible for incorporating the signed witness statements into the supervisor’s report. He or she should doso at the time of signing the report.” [32] In R. v. Barnes (ON SC), [2009] O.J. No. 2351, the Ontario Superior Court of Justice dismissed anallegation of breach of CSO due to non compliance with

section 742.6(4). In that case the allegation was that an offender had breached a

number of conditions of his CSO, including the “keep the peace” condition by committing another offence, namely possession of cocaine. There were no signed witness statements attached to the supervisor’s report, nor provided at all. A certificate of analysis confirming the substance in issue to be cocaine was not received until after the supervisor’s report was submitted. The Crown had given defence a copy of the officers’ notes, and the officers were produced for cross examination. The court held that the Crown could not avoid

section 742.6 by proposing to follow a different procedure, namely producing police notes and the certificate of analysis after the fact, and producing the witnesses to give viva voce evidence. Judge Horkins said at paragraph 21: “The failure to attach signed statements to the written report ignores the simple and expeditious procedure for dealing with alleged breaches of a conditional sentence.” [ 33 ] In my view, Justice Charron in R. v. McIvor makes it quite clear that the “where appropriate” reference in

section 742.6(4) means where the supervisor cannot himself or herself, provide information that would be admissible viva voce , and is relying on information provided by others to allege the breach. If, in such situations, it is “appropriate” to provide signed witness statements with the supervisor’s report, it is then mandatory to do so, given the language of

section 742.6(4) . Have the requirements of

section 742.6(4) been met in the case of Mr. Laporte? [ 34 ] The Crown’s position is that it is “not appropriate” for signed witness statements to be attached to the Supervisor’s Report in this case, and that it is therefore not required in order for

section 742.6(4) to be complied with. [ 35 ] The Crown says that that in this case, referring to the police report by number in the Supervisor’s Report is sufficient to comply with

section 742.6(4) , given that there are signed witness statements to the incident based on which Mr. Laporte was breached on his CSO, and that a hearing is arranged at which viva voce evidence will be given by those witnesses. [ 36 ] The Crown says that the wording of

section 742.6(4) allows for a process that makes sense, and ensures the best evidence is before the court. He says that the process of having the police report referentially incorporated into the Supervisor’s Report, providing defence counsel with the signed witness statements at the outset, and having a viva voce hearing, addresses the concern of Parliament reflected in the section, which is that a CSO breach cannot be proved simply by a supervisor making an assertion of which he or she does not have personal knowledge.

The Crown says that in this case, because we know there are signed statements which have been in the possession of defence counsel from the outset, and because defence counsel will be able to cross examine witnesses on their statements, there is no prejudice to Mr. Laporte and there is no danger that he will be found to have breached his CSO just on the bald assertion of a supervisor without knowledge of the incident constituting the breach. That potential risk or danger to an offender, the Crown says, is what Parliament intended

section 742.6(4) to address. The Crown says that because the process it proposes to follow will provide the court with the best evidence available, it is not “appropriate” to require the signed statements be attached to the Supervisor’s Report, and therefore is not required. [ 37 ] It is true that by following the process of calling the witnesses to testify viva voce at a hearing about the allegations that presumably are contained in the signed witness statements that the supervisor presumably (although the supervisor does not say this in his report) reviewed before deciding to breach Mr.

Laporte, the evidence of people with the knowledge of the facts upon which a breach may be founded will be properly before the court. [ 38 ] But the fact is that

section 742.6 does not provide for an automatic viva voce hearing. The whole purpose of

section 742.6 is to have a court make a decision on a CSO breach based on documentary evidence in most cases. It is only where defence counsel asks for leave to cross examine witnesses, and where the court grants that leave, that there is to be a viva voce hearing. [ 39 ] In R. v. McIvor , Justice Charron specifically says that

section 742.6(8) should not be interpreted in a way that defeats the legislative scheme put in place by Parliament: “If, for example, leave were to be granted routinely upon request, thereby requiring the attendance of the supervisor and witnesses in all cases, Parliament’s intent to streamline the conditional sentence breach process would be defeated. The hearing judge performs an important gate- keeping function, limiting cross- examination to those situations in which it is appropriate in the interests of fairness”. (paragraph 29) [ 40 ] The Crown cannot assume there will be a viva voce hearing.

Section 742.6 does not offer the Crown a choice of proving the breach either by the documentary evidence specified in

section 742.6(4) or by a hearing with oral evidence. The only route to proof of the breach is by the documentary evidence, unless defence counsel seeks leave to cross examine on the documentary evidence (the supervisor’s report and any signed attached witness statements), and the court is persuaded that such cross examination is required in the interests of fairness. [ 41 ] There is no statutory exception to the process set out in

section 742.6 . Nor is there any provision that, if there is a viva voce hearing, there can be non-compliance with the requirements for the supervisor’s report set out in

section 742.6(4) . [ 42 ] The words “where appropriate” in

section 742.6(4), in my view, do not mean “only if there is not going to be a viva voce hearing”. I read “where appropriate” to mean where the supervisor does not have knowledge or information himself or herself of the facts upon which the breach allegation is made. That meaning is consistent with Justice Charron’s comments in the R. v. McIvor case. [ 43 ] In this case, because the alleged breach by Mr. Laporte of a condition of his CSO is that he committed another offence, the supervisor needed to do more than just provide the police report number in the Supervisor’s Report.

He needed to attach signed witness statements attesting to the facts upon which the breach is alleged. It was appropriate in this case to do so, and accordingly was required.

[ 44 ] The Allegation Form, which would appear to be signed by a police officer other than the officer that prepared that form, and presumably other than the officer that prepared the police report referenced in the Allegation Form and in the Supervisor’s Report by number (although even that is not clear from the documents) does not suffice to meet the requirement of a signed witness statement. The Allegation Form alone, with no attachments, certainly could not have given the supervisor sufficient particulars to permit the supervisor to make a decision about whether or not Mr.

Laporte should be breached on this CSO. Decision [ 45 ] The Supervisor’s Report does not comply with the requirements of

section 742.6(4) of the Criminal Code . [ 46 ] Accordingly, there is no admissible evidence before the court of the CSO breach, and I hereby dismiss the allegation of Mr. Laporte’s breach of his CSO. CARLSON, P.J.