R. v. Lajoie, 2020 BCPC 281

Citation: R. v. Lajoie 2020 BCPC 281 Date: 20201202 File Nos: 231455-15B, 231455-16S, 231455-17S, 237179-3B, 237179-4B, 237179-5S, 237179-6S, 237179-7S, 237179-8S, 239748-2A, 239748-5S, 239748-6S, 240180-1, 240180-2S, 240180-3S Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. TABITHA ROSEANNE LAJOIE ORAL RULING OF THE HONOURABLE JUDGE V. CHETTIAR Crown Counsel appearing by audioconference: T. Gloux Counsel for the Accused appearing by audioconference: A. Barna, articled student (agent for P. Evans) Appearing by videoconference: The Accused Place of Hearing: Surrey , B.C.

Dates of Hearing: November 26, December 2, 2020 Date of Ruling: December 2, 2020 [ 1 ] I have reviewed the submissions and the case law that you submitted, and I have the following ruling for you. Introduction

[ 2 ] Upon being convicted of the following charges, namely, on: (

a) Information No. 231455-15B - breach of probation on or about June 23, 2020; (

b) Information No. 237179-3B - breach of probation on or about May 17, 2020; (

c) Information No. 237179-4B - breach of probation on or about July 7, 2020; (

d) Information No. 239748-2A - breach of a release order between May 18, 2020 and May 19, 2020; and (

e) Information No. 240180-1 - theft under 5,000 on or about May 8, 2020; I sentenced Ms. Lajoie on July 28, 2020, to a 120-day Conditional Sentence Order (which I will refer to as the CSO), which was to be followed by a one-year Probation Order. [ 3 ] Pursuant to s. 742.6 of the Criminal Code , the Crown has applied for a hearing of the allegations that Ms. Lajoie has breached the CSO in two respects: (

a) failure to comply with the reporting condition, on or about August 7, 2020 (involving files 231455-16S, 237179-5S (3B), 237179-6S (4B), 239748-5S, and 240180-2S); and (

b) failure to comply with the house arrest condition on August 10, 13 and 16, 2020 (involving files 231455-17S, 237179-7S (3B), 237179-8S (4B), 239748-6S, and 240180-3S). (I will refer to these allegations collectively as the Breach Allegations.) [ 4 ] The Crown seeks an order terminating the CSO and have Ms.

Lajoie serve the unexpired portion of the CSO in custody, which the Crown has calculated to be 77 days. [ 5 ] The defence submits that the Crown has not complied with the requirements of s. 742.6(3) of the Criminal Code , because the CSO breach hearing only commenced on November 26, 2020, some 86 days (according to the defence's calculation) after Ms.

Lajoie's arrest on September 2, 2020, on the breach charges, whereas s. 742.6(3) of the Criminal Code requires a breach hearing to be commenced within 30 days of the offender's arrest for the alleged breach, or as soon thereafter as is practicable. [ 6 ] The defence submits that this delay is unreasonable and, as a result, the court has lost its jurisdiction to determine the Breach Allegations. [ 7 ] The defence is asking the court to make a finding that Ms.

Lajoie's CSO has been deemed served, as 122 days (according to the defence's calculation) have elapsed from the date the CSO was imposed on July 28, 2020. [ 8 ] In the alternative, the defence submits that if the court is satisfied that it has not lost jurisdiction to determine the Breach Allegations, and finds that Ms.

Lajoie breached the conditions of her CSO, with or without reasonable excuse, then the court should, pursuant to s. 742.6(16) of the Criminal Code , deem the entire period of the suspension to be time served under the CSO, as it is in the interests of justice to do so; and that a disposition, other than termination of the CSO, can meet the sentencing objectives and principles outlined in the Criminal Code . [ 9 ] In the further alternative, the defence submits that, pursuant to s. 742.6(16) of the Criminal Code , the court should grant Ms.

Lajoie credit for the 58 actual days that she has spent in custody, notwithstanding her breach of the conditions. That would leave 32 days remaining to be served in custody (that is, September 2, 2020 to September 15, 2020, and then October 14, 2020 to November 26, 2020). Issues [ 10 ] The issues raised in this case are as follows: (

a) Was the hearing of the Breach Allegations commenced within 30 days, or as soon thereafter as was practicable, after Ms. Lajoie's arrest on September 2, 2020, as required by s. 742.6(3) of the Criminal Code ? (

b) If the CSO breach hearing was commenced in accordance with s. 742.6(3) of the Criminal Code , did Ms. Lajoie commit the alleged breaches? (

c) If Ms. Lajoie committed the alleged breaches, what action should be taken under s. 742.6 of the Criminal Code ? Relevant Chronology [ 11 ] In order to determine the issues at hand, it is important to detail the relevant chronology, which I have set out below: Date Event a. July 28, 2020 CSO commences. b. August 7, 2020 Allegation of breach of CSO reporting condition. c. August 10, 13 and 16, 2020 Allegations of breach of CSO house arrest condition. d.

August 25, 2020 The Conditional Sentence Supervisor’s report and signed witness statements with respect to the Breach Allegations (collectively, the “Breach Reports”) signed off by Crown Counsel, under the notation “Crown Counsel Review”, with a check mark in the box “To Court”.

e. August 27, 2020 Warrant for the arrest of Ms. Lajoie issued for the Breach Allegations. f. September 2, 2020 Ms. Lajoie was arrested and brought into custody on the Breach Allegations. g. September 3, 2020 Defence requested the Breach Reports from the Crown. h. September 8, 2020 Defence informed the court that it intends to

schedule a CSO breach hearing at the earliest opportunity. i. September 15, 2020 Ms. Lajoie was released on bail on the CSO breach charges with a return date of October 13, 2020. j. October 13, 2020 Defence informed the court that it had not yet received the Breach Reports from the Crown, and that it intends to

schedule a CSO breach hearing at the earliest opportunity. The matter was adjourned to November 13, 2020 to allow for receipt of the Breach Reports from the Crown. k. October 14, 2020 Ms. Lajoie was arrested and brought into custody on new allegations of breach of the Release Order dated September 15, 2020 (as alleged in Information 231455-18-A). l. October 14, 2020 Defence sent a letter to the Surrey Crown intake email address reiterating its request for the Breach Reports, and also requesting particulars on the new Release Order breach allegations. m. October 15 and 20, 2020 Ms. Lajoie appeared in court.

Defence informed the court again that it had not received the Breach Reports from the Crown, and that it intended to

schedule a CSO breach hearing at the earliest opportunity. n. October 21, 2020 Ms. Lajoie consented to a detention order. Crown informed the defence that it could contact Crown Counsel, Adam Jantunen, to expedite the defence’s request for the Breach Reports, and to have a Crown counsel assigned to this matter. o. October 22, 2020 Crown Counsel Jantunen provided the Breach Reports to the defence, and indicated to the defence that a Crown Counsel would only be assigned to this matter after hearing from the defence as to whether or not Ms.

Lajoie would be admitting or denying the alleged breaches at the CSO breach hearing. p. October 23, 2020 The matter was before the court for the defence to inform the court of the time estimate for the CSO breach hearing, and it was adjourned to the Judicial Case Mangers to

schedule a CSO breach hearing. q. October 30, 2020 The CSO breach hearing was scheduled for November 26, 2020. r. November 26, 2020 The CSO breach hearing commenced. s. December 2, 2020 I would expect that we will conclude the CSO breach hearing today. Analysis 1. Was the hearing of the Breach Allegations commenced within 30 days, or as soon thereafter as was practicable, after Ms. Lajoie’s arrest on September 2, 2020, as required by s. 742.6(3) of the Criminal Code ?

The Defence’s Position [ 12 ] The defence submits that the CSO breach hearing was not commenced within 30 days, or as soon thereafter as practicable, after Ms. Lajoie's arrest on September 2, 2020. The defence submits that from September 3, 2020, it was trying to obtain the Breach Reports from the Crown and attempting to set the CSO breach hearing at the earliest opportunity.

However, it did not receive the Breach Reports until October 22, 2020, and the hearing was not scheduled until October 30, 2020. [ 13 ] The defence submits that the nearly two-month delay in receiving the Breach Reports and scheduling the hearing is unreasonable, and there is no justification for such delay. [ 14 ] As a result of the overall 86-day delay from when Ms.

Lajoie was arrested on September 2, 2020, and when the CSO breach hearing commenced on November 26, 2020, the defence submits that the court has lost its jurisdiction to determine the Breach Allegations. [ 15 ] The defence referred to three cases in support of its position, namely: R. v. McIvor , 2008 SCC 11 ; R. v. Morgan , [2017] O.J. No. 7167 ; and R. v. Webster , 2016 ABCA 140 . The Crown’s Position [ 16 ] The Crown submits that any delay that may have been caused in providing the Breach Reports was due to the Crown's systemic move to the e-delivery of documents, necessitated by the COVID-19 pandemic.

The Crown pointed out that this change in the delivery method has affected many other Crown files as well. [ 17 ] Crown counsel emphasized that he has been available to deal with this matter from the beginning of November 2020, when he was assigned to this matter. Analysis [ 18 ] I turn to the analysis of this issue. [ 19 ]

Section 742.6(3) of the Criminal Code provides as follows:

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

after (

a) the offender's arrest; or (

b) the compelling of the offender’s appearance in accordance with paragraph (1)(d). [20] In R. v. McIvor, the Supreme Court of Canada, at para. 18, said: [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 theoffender’s arrest or the compelling of his appearance: s. 742.6(3).

Second, the prosecution of an allegation of a breach of condition isfacilitated in four significant respects: (1) by allowing for documentary proof of the alleged breach of condition: s. 742.6(4); (2) byimposing a leave requirement on the right to cross-examination: s.742.6(8); (3) by placing on the offender the persuasive burden ofproving any reasonable excuse for non-compliance: s. 742.6(9); and (4) by lowering the ultimate standard of proof of a breach to abalance of probabilities: s. 742.6(9). [21] There can be no doubt from the clear language in s. 742.6(3) of the Criminal Code and the Supreme Court of Canada's directionin the passage that I just read, that CSO breaches are intended to be dealt with in a simplified and expedited manner.

It is clear that theCSO breach hearing "must” be commenced within 30 days, or as soon thereafter as is practicable, after the offender's arrest or thecompelling of the offender's appearance. [22] In Ms. Lajoie's case, the CSO breach hearing clearly did not commence within 30 days of Ms.

Lajoie's arrest on September 2,2020. [23] But, can it be said that her CSO breach hearing that commenced on November 26, 2020, took place as soon as practicable afterthe expiry of the statutory 30-day period on October 2, 2020 – in other words, 55 days after October 2, 2020 (October 2, 2020 toNovember 26, 2020)? [24] In reviewing the circumstances in this case, I find that the bulk of the delay in scheduling the CSO breach hearing was due to theCrown not providing the Breach Reports in a timely manner.

From September 3, 2020, when the defence first requested the BreachReports, it took the Crown 50 days to provide them to the defence on October 22, 2020. [25] While I recognize that the Crown was coping with a systemic change in its mode of document delivery due to the COVID-19pandemic, I do not accept that a 50-day delay in this case is justifiable for the following reasons: (

a) the Breach Reports were complete and were in the hands of the Crown for review by August 25, 2020, as the Crown appears tohave signed off on its review by the same date, resulting in the warrant for Ms. Lajoie's arrest being issued on August 27, 2020; (

b) between September 3, 2020 and October 22, 2020, this matter was in court on numerous occasions, and the defence repeatedlyasked Crown for the Breach Reports and made known to the Crown and the court its desire to

schedule the CSO breach hearing at theearliest opportunity; (

c) the Crown was clearly on notice that the defence was eager to have this matter dealt with; (

d) Crown counsel's explanation that there were delays in document delivery, not only on this file but on many other Crown files, dueto the change in the Crown's document delivery system, is not a justifiable excuse, particularly when the Criminal Code mandates thatthe CSO breach hearing be commenced within 30 days, or as soon thereafter as is practicable, after the offenders' arrest; (

e) since the Crown's change in its mode of document delivery was to e-delivery, it could have taken particular effort to email theBreach Reports directly to defence counsel, rather than leaving the defence counsel's request to be dealt with by the Crown's e-deliverysystem, which I understand was backlogged; and (

f) this delay could have easily been avoided if particular attention had been paid to this matter and the timeline in s. 742.6(3) of theCriminal Code. [26] In the end, 85 days (according to my calculation) had passed since Ms. Lajoie's arrest on September 2, 2020, before the CSObreach hearing commenced on November 26, 2020. [27] In R. v. Morgan, the Ontario Superior Court of Justice said at paras. 26 and 27: 26 In Kabosos [R. v. Kabosos, 2008 ONCA 711], the Court of Appeal reiterated its statement in R. v. Greville, (ON CA), [2002] O.J.

No. 1768 (C.A.) at para 17, that there is urgency in holding a hearing alleging a breach of a conditional sentence. 27 The reason for such urgency is obvious: the main purpose of the CSO breach provisions is to allow the judge who imposed theconditional sentence to remedy the breach while the CSO is still running. Yet the cumulative effect of the adjournments in the presentcase have created a situation where the CSO has already expired. [28] Similar to the circumstance in Morgan, it appears that based on the information before me, the 120-day CSO in Ms.

Lajoie's caseexpired on November 25, 2020, according to my calculation, and on November 24, 2020, according to the defence's calculation – that is,one or two days before the CSO breach hearing commenced on November 26, 2020. Conclusion [29] In conclusion, based on all the circumstances of this case that are before me, I find that the hearing of the Breach Allegations wasnot commenced within 30 days, or as soon thereafter as was practicable, after Ms. Lajoie's arrest on September 2, 2020, as required by s.

742.6(3) of the Criminal Code . [ 30 ] The total delay of 85 days (or 86 days according to the defence's calculation) was unreasonable in the circumstances. As a result, the court has lost its jurisdiction to determine the Breach Allegations. [ 31 ] Furthermore, as I said, based on the information before me, it appears that Ms. Lajoie's CSO expired prior to the commencement of the CSO breach hearing. It would appear that that ends Ms. Lajoie's CSO. [ 32 ] In light of my conclusion on the first issue, it is not necessary for me to address the second and third issues I listed earlier, or the defence's alternative arguments. [ 33 ] That is the end of my reasons. (RULING CONCLUDED)