R. v. Avard, 2019 NSSC 161

SUPREME COURT OF Nova Scotia Citation: R. v. Avard , 2019 NSSC 161 Date: 20190515 Docket: CRH 485847 Registry: Bridgewater Between: Michael Peter Avard Appellant v. Her Majesty the Queen Respondent Library Heading Judge: The Honourable Justice Peter P. Rosinski Heard: May 9, 2019 in Bridgewater, Nova Scotia Subject:

Summary Conviction criminal sentence appeal – ss. 813 and 822 of the Criminal Code – Collapse of Conditional Sentence Order

Summary: For a second breach on a 12 month CSO (with 6 months house arrest), the trial court ordered the entire remaining 247 days to be served as custody. The offender appealed to this court. Issues: Did the trial judge committed reversible errors in relation to: 1. giving proper credit for time post-arrest the offender spent in custody pending the hearing of the breach of CSO allegation? 2. not considering alternatives to collapsing the entire remainder of the CSO per s. 742.6(9) (

d) CC ? 3. imposing an unfit sentence? Result: The appeal was allowed - the decision of the trial court is quashed, and considering that the offender has served 78 days in custody, and three weeks on house-arrest since the breach disposition hearing by the trial court, it is ordered that the CSO in its original form will recommence immediately. No costs awarded. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. __________________________________________________________________ SUPREME COURT OF Nova Scotia Citation: R. v.

Avard , 2019 NSSC 161 Date: 20190515 Docket: CRH 485847 Registry: Bridgewater Between: Michael Peter Avard

Appellant v. Her Majesty the Queen Respondent

Summary Conviction Appeal – Collapse of Conditional Sentence Order Judge: The Honourable Justice Peter RosinskiHeard: May 9, 2019 in Bridgewater, Nova ScotiaCounsel: Nicholas Fitch for the Appellant Emma Baasch for the Respondent By the Court: Introduction [1] Mr. Avard was born March 14, 1985. He completed his business degree at St. Mary’s University in 2009. He also has certificationsin carpentry and heavy equipment operation.

Unfortunately, alcohol abuse (sometimes interspersed with cocaine) has overshadowed hisattempts to lead a pro-social life. [1] [2] As a result of a breach of a Conditional Sentence Order (“CSO”), Mr. Avard was ordered to serve the entire remaining non-custodialsentence as a custodial sentence – namely 247 days. [3] His Honour Judge Paul Scovil concluded without elaboration that on February 5, 2019 there were “remaining 247 days” to be servedon the CSO.

Counsel did not disagree with this enumeration except in relation to the “credit” for the period January 29 – February 5,2019. [4] My own review reveals that as of February 5, 2019, Judge Scovil must have calculated this 247 days amount from the September 19,2018 12 month CSO Order as follows: 365 days CSO less [time served: September – 11 days; October, November and December, 31, 30and 31 days; January and February 2019, 31 days +5 days (139 days in total) ] equals 226 days remaining +14 days and 7 days (January 7– 21 detained in custody; January 29 – February 5 detained in custody) = 247 days. [5] Thus, it is clear to me that he concluded the CSO was suspended during each day Mr.

Avard served in custody as a result of theJanuary breach disposition order and pending the February breach disposition hearing. According to

section 742.6 (10) and (12) of theCriminal Code (“CC”), upon arrest and until the breach disposition hearing the CSO is suspended; but it continues to run for any timeinterval the offender is detained in custody pending the disposition hearing -See the court’s reasons in R v Atkinson, (2003) (ON CA), 170 OAC 117. [6] Mr. Avard was arrested and detained on January 6 and ordered to serve 14 days custody on January 7. Arguably, the CSO wassuspended for January 6. More importantly the CSO was suspended during the 14 days actual custody per s. 742.6(9)(c). [7] Mr.

Avard was arrested on January 28 and detained from January 29 until February 5, causing the CSO to continue to run for those 7days (s.742.6(12))-however in his calculation of the unexpired CSO duration Judge Scovil did not give him credit for those as he shouldhave. Thus, the unexpired portion of the CSO was 240 days on February 5, 2019. [8] He appeals Judge Scovil’s decision to this court. I allow his appeal by quashing the February 5, 2019 disposition order andimmediately reinstating the CSO to run for its remaining duration.

Background [9] On September 19, 2018 the Honourable Provincial Court Judge Christopher Manning sentenced Mr. Avard on 10 counts contrary tothe CC by imposing a 12-month CSO with his first 6 months requiring Mr. Avard to be under house-arrest. [2] The Crown hadrequested 6 months custody in addition to his remand time (effectively a three-months sentence). The Defence had requested aconditional sentence order as the required punitive/deterrent sentence.

[10] Mr. Avard first breached his September 19, 2018 CSO on January 5 – 6, 2019 when he failed to “keep the peace and be of goodbehaviour” by committing an offence contrary to

section 334(b)(ii) CC in Cookville, Nova Scotia. When police visited his designatedresidence he was in breach of the condition that he “remain in your residence or on the property of 54 Publicover Road, Blandford,Lunenburg County, Nova Scotia for the first six months of the conditional sentence” (with exceptions); “prove compliance with thecurfew/house arrest condition by presenting yourself at the entrance of your residence should a peace officer attend there to checkcompliance.” [11] On January 7 he appeared in custody in Bridgewater Provincial Court.

The Honourable Provincial Court Judge Paul Scovilordered him to serve 14 days in custody after he admitted only the “fail to keep the peace and be of good behaviour” breach. [12] The disposition order regarding the breach (14 days custody) does constitute a “sentence” as defined in sections 673 and 785CC, and it appears remission would apply thereto since the CSO is suspended thereby (s. 742.6 (9)(c ))-in contrast to “remand time” (s.742.6 (12) and s. 742.6(13) CC) during which the CSO continues to run. [13] Approximately 12 days later (January 28) Mr.

Avard was arrested at his residence in Blandford Nova Scotia for: -an assault, and -breach of the “failure to keep the peace and be of good behavior” condition of his CSO. [14] Once arrested [3] it became apparent that Mr. Avard had also breached his CSO condition to “not possess take or consumealcohol or other intoxicating substances” as well as “you are not permitted to have any alcohol or alcoholic beverages or non-prescriptiondrugs in your residence or on your property”. [15] He appeared in custody before the Honourable Judge C. Brenton on January 29, 2019. [4] [16] On February 5, 2019, Mr.

Avard agreed that he had breached the alcohol consumption/possession clause of the CSO. He didnot agree that he had committed an assault. His Honour Judge Paul Scovil rendered a brief oral decision regarding the disposition for thebreach of the alcohol clause. [5] He stated: It’s his second breach – the last one was for a theft under [s. 334 (b)(ii) CC] for which he received a 14- day sentence, and then as well acollapse of the 14 days of the CSO.

He has 247 days left to serve.… I have sympathy for anyone who has the addiction issues that Mr.Avard has… However, I can’t now say… He shouldn’t have been on a condition of alcohol [abstinence].… I’m not going to go behindthat. It’s clear that the public has to have confidence in a conditional sentence regime… It appears one where the continued breaches byalcohol would likely take place, it’s a second offence, it would undermine the respect of the public in conditional sentence orders if I didnot terminate the order and order him to serve the remaining 247 days.

That is what I’m going to do.” [6] [My italicization added] The Notice of Appeal [17] Mr. Avard filed a Notice of Appeal on March 7, 2019.

As refined by his counsel, the appeal grounds are: 1. that credit for time spent on “remand” [January 29-Feb 5, 2019] ought to have been deducted from the remaining 247 days of theCSO; 2. that the sentencing judge erred in not considering alternatives to collapsing the remainder of the conditional sentence order. [7] [18] The Crown concedes the first ground of appeal as an error of law based on their reading of s. 742.6 CC in conjunction with theOntario Court of Appeal’s reasoning in R v Atkinson, (ON CA), 2003 170 OAC 117.

They say that Judge Scovilought to have deducted 7 days (grossed-up by a factor of 1.5 per s. 719 CC) from the 247 days unexpired CSO remaining. [19] While counsel did not expressly bring this “credit” to the attention of Judge Scovil, and such details may be overlooked as aresult of the often frenetic pace of proceedings in Provincial Court, it is nevertheless incumbent upon him to correctly cite, interpret andapply the applicable law which dictated credit must be given in such circumstances. [20] In my opinion, since during those 7 days, per s. 742.6

(12) CC, the CSO continued to run, therefore a claim for a grossed-up(by s. 719 CC or earlier jurisprudential underpinnings therefor) “remand” credit makes no sense. It is not consistent with the continuedrunning of the related extant CSO. I agree Mr. Avard should have received credit such that the un-expired portion of the CSO onFebruary 5, was 240 rather than 247 days.

This amounts to an error in principle committed by Judge Scovil-however is it a reversibleerror-that is, one which had an impact on his disposition order regarding the breach? [21] I am obliged to ask myself: what effect did this have on the judge’s decision to collapse the entire CSO? In my opinion it hadnone, however significantly it did affect his calculation of the unexpired portion of the CSO. [22] I must also go on to consider whether Judge Scovil failed to consider alternative options under

section 742.6(9) CC and thesentence imposed is manifestly unfit. I conclude he committed no error in relation to the former but did in relation to the latter.

The Law Applicable to

Summary Conviction Appeals [23] Appeals are creatures of legislation. They all must find their roots in soil deliberately deposited by legislators. [24] Rule 63.02 of Nova Scotia Civil Procedure Rules (Summary Conviction Appeal), reads: This Rule applies to a

summary conviction appeal under

part 27 of the Criminal Code, which includes an appeal of a decision in bothfederal

summary conviction proceedings and, by operation of the

Summary Proceedings Act (Nova Scotia) a provincial

summaryconviction proceeding. [25] Sections 813 of the Criminal Code reads: 813(1) Except where otherwise provided by law, the defendant in proceedings under this Part may appeal to the appeal court… (ii) against a sentence passed on him, [26] The "appeal court" is defined in

section 812, in the case of Nova Scotia, as "the Supreme Court". [27]

Section 822 reads: 822(1) Where an appeal is taken under

section 813 in respect of any conviction, acquittal, sentence, verdict or order, sections 683 to 689,with the exception of subsections 683(3) and 686(5) apply, with such modifications as the circumstances require. [28]

Part 21 of the Criminal Code (Appeals - Indictable Offences) includes ss. 673 - 696. [29]

Section 687 reads: [8]

(1) Where an appeal is taken again sentence, the Court of Appeal shall, unless the sentence is one fixed by law, consider the fitness ofthe sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive, (

a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or (

b) dismiss the appeal.

(2) A judgment of a Court of Appeal that varies the sentence of an accused who was convicted has the same force and effect as if it werea sentence passed by the trial court. The Standard of Review to be Used by this Court in Assessing the Trial Judge’s Sentencing Decision [30] When reviewing the jurisprudence, it is important to keep in mind the distinction between Criminal Code appeals to aSummary Conviction Appeal Court (“SCAC”), such as this Court, and those to the Nova Scotia Court of Appeal. [31] This distinction was helpfully summarized by Justice Bryson, sitting as a chambers judge in R. v.

Alkhatib 2013 NSCA 91: 13 Justice Farrar in R. v Pottie, 2013 NSCA 68 explained the standard of review for

summary conviction appeals: [15] In the recent decision of R. v. Francis, 2011 NSCA 113, Fichaud, J.A. considered the standard of review to be applied in an appealpursuant to s. 839(1)(

a) of the Criminal Code. In

summary, there are two standards of review at play in

summary conviction matters; thefirst is the standard of review to be applied by the SCAC judge when reviewing the trial decision; and the second being the standard weapply to the decision of the SCAC judge. [16] The standard of review for the SCAC judge when reviewing the trial judge's decision, absent an error of law or miscarriage ofjustice, is whether the trial judge's findings are reasonable or cannot be supported by the evidence.

In undertaking this analysis theSCAC court is entitled to review the evidence at trial, re-examine it and re-weigh it, but only for the purposes of determining whether itis reasonably capable of supporting the trial judge's conclusions. The SCAC is not entitled to substitute its view of the evidence for thatof the trial judge. [17] Our jurisdiction is grounded in the error alleged to have been committed by the SCAC judge. It is not a de novo appeal from the trialjudge.

This Court must determine whether the SCAC judge erred in law in the statement or application of the principles governing itsreview (see Francis, para. 7; see also R. v. R.H.L., 2008 NSCA 100; R. v. Travers, 2001 NSCA 71; R. v. Nickerson, 1999 NSCA 168,para. 6). This distinction is important when considering whether to grant leave; the error we must identify is in the SCAC judge'sdecision. [32] As this is a sentence appeal, more particularly the relevant jurisprudence is captured by the following cases: 1.

R v Nasogaluak, 2010 SCC 6 regarding the fitness of a sentence 46 Appellate courts grant sentencing judges considerable deference when reviewing the fitness of a sentence. In M. (C.A.), Lamer C.J.cautioned that a sentence could only be interfered with if it was "demonstrably unfit" or if it reflected an error in principle, the failure toconsider a relevant factor, or the over-emphasis of a relevant factor (para. 90; see also R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, atparas. 14-15; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 123-26; R. v. McDonnell, (SCC), [1997] 1 S.C.R.

948, at paras. 14-17; R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227). As Laskin J.A. explained in R. v. McKnight (1999), (ON CA), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35, however, this does not mean that appellate courts can interferewith a sentence simply because they would have weighed the relevant factors differently: To suggest that a trial judge commits an error in principle because in an appellate court's opinion the trial judge gave too much weight toone relevant factor or not enough weight to another is to abandon deference altogether.

The weighing of relevant factors, the balancingprocess is what the exercise of discretion is all about. [page235] To maintain deference to the trial judge's exercise of discretion, theweighing or balancing of relevant factors must be assessed against the reasonableness standard of review. Only if by emphasizing onefactor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably should an appellate courtinterfere with the sentence on the ground the trial judge erred in principle. [My italicization added] 2. In R. v.

L.M., 2008 SCC 31, LeBel, J. for the Court stated: [14] In its past decisions, this Court has established that appellate courts must show great deference in reviewing decisions of trial judgeswhere appeals against sentence are concerned. An appellate court may not vary a sentence simply because it would have ordered adifferent one. The court must be "convinced it is not fit", that is, "that ... the sentence [is] clearly unreasonable" (R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, at para. 46, quoted in R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, at para.15). This Court also made the following comment in R. v.

M.(C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 90: ... absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appealshould only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. (See also R. v. W.(G.), (SCC), [1999] 3 S.C.R. 597, at para. 19; A. Manson, The Law of Sentencing (2001), at p. 359; [15] Owing to the profoundly contextual nature of the sentencing process, in which the trier of fact has broad discretion, the standard ofreview to be applied by an appellate court is one based on deference.

The sentencing judge has "served on the front lines of our criminaljustice system" and possesses unique qualifications in terms of experience and the ability to assess the submissions of the Crown and theoffender (M.(C.A.), at para. 91). ... [My italicization added] 3. In R. v. Muise (1995), 1994 NSCA 198 , 135 N.S.R. (2d) 81 (N.S.C.A.) Hallett, J.A. described what constitutes a fitsentence: [81] The law on sentence appeals is not complex. If a sentence is not clearly excessive or inadequate it is a fit sentence assuming the trialjudge applied the correct principles and considered all relevant facts ...

My view is premised on the reality that sentencing is not anexact science; it is anything but. It is the exercise of judgment taking into consideration relevant legal principles, the circumstances of theoffence and the offender. The most that can be expected of a sentencing judge is to arrive at a sentence that is within an acceptablerange. In my opinion, that is the true basis upon which courts of appeal review sentences when the only issue is whether the sentence isinadequate or excessive. [My italicization added] [33] This passage was quoted with approval in R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227.

See also R. v. Henry,2002 NSCA 33 at para. 11. 4. In the context of a conditional sentence, the Nunuvat Court of Appeal stated in R v McDonald, 2016 NUCA 4 , 2016NUCA 04: IV.

STANDARD OF REVIEW 15 Appellate intervention in a sentence decision is warranted where there has been a clear error of principle, a failure to properlyconsider, or an over-emphasis of, a relevant factor, or where the sentence imposed is demonstrably unfit (R v M(CA), (SCC), [1996] 1 SCR 500 at paras 89-90, 105 CCC (3d) 327; R v LM, 2008 SCC 31 at para 14, [2008] 2 SCR 163). … 25 In my view, if termination of the CSO complies with relevant sentencing principles it should be made; if not, then other options underCriminal Code s 742.6(9) must be considered. 26 R v Langley (TE), 2005 BCCA 478 at para 13, 216 BCAC 311, sets out various factors a court ought to consider in determiningwhether the presumption of termination should be applied in an individual case.

These include: . . . the nature of the offence; the nature, circumstances, and timing of the breach; any subsequent criminal conduct and sentences forthat conduct; changes in the plan for community supervision; the effect of termination on the appropriateness of the sentence for theoriginal offence; and the offender's previous criminal record . . . the list of factors [is not] closed (See also R v Beaulieu, 2015 MBCA90 at para 20, 125 WCB (2d) 667 [Beaulieu]). 27 Another important consideration is the length and nature of the conditional sentence, in comparison to that which would have beenappropriate had the sentence for the original offence been custodial (R v Talman, 2005 BCCA 279 at para 10, 213 BCAC 43; Weir, atpara 18).

Where a conditional sentence may be lengthier than a conventional jail sentence for a particular offence, an accused on abreach becomes vulnerable to serving more time in jail than would have been served for the original offence had custody been imposedin the first instance. Here, the Crown originally sought 105 days in custody for the original offences for which the CSO was imposed. Inmy view, this is a relevant consideration, together with time served, in assessing the options for breaching the CSO.

28 Nothing on the record suggests that the hearing judge considered any option but to terminate the CSO and commit the appellant tocustody to serve out the remainder of the CSO. This is an error, compounded by failing to permit Defence Counsel to make sentencingsubmissions on the appellant's background and circumstances. [My italicization added] 5. I similarly recall the court’s words in R v Proulx, 2000 SCC 5 , [2000] 1 SCR 61: 38 The punitive nature of the conditional sentence should also inform the treatment of breaches of conditions.

As I have alreadydiscussed, the maximum penalty for breach of probation is potentially more severe than that for breach of a conditional sentence. Inpractice, however, breaches of conditional sentences may be punished more severely than breaches of probation.

Without commentingon the constitutionality of these provisions, I note that breaches of conditional sentence need only be proved on a balance of probabilities,pursuant to s. 742.6(9), whereas breaches of probation must be proved beyond a reasonable doubt. 39 More importantly, where an offender breaches a condition without reasonable excuse, there should be a presumption that theoffender serve the remainder of his or her sentence in jail. This constant threat of incarceration will help to ensure that the offendercomplies with the conditions imposed: see R. v. Brady (1998), 1998 ABCA 7 , 121 C.C.C. (3d) 504 (Alta.

C.A.); J. V. Roberts,"Conditional Sentencing: Sword of Damocles or Pandora's Box?" (1997), 2 Can. Crim. L. Rev. 183. It also assists in distinguishing theconditional sentence from probation [page90] by making the consequences of a breach of condition more severe. [My italicization added] An Analysis of the Trial Judge’s Decision [34] I agree with the reasoning in Atkinson. The trial judge ought to have considered the 7 days credit when he collapsed theconditional sentence and assessed the un-expired days remaining.

That the trial judge made no reference to such a credit, andmiscalculated by 7 days, fuels my conclusion that he did not turn his mind to the issue. That constitutes an error of law. [35] Nevertheless, what is the effect of that error? [36] Arguably, such an error could allow this court to intervene and reconsider the sentence entirely, if I conclude that thesentencing decision is therefore not entitled to any deference.

Our Court of Appeal has addressed this general issue in two decisions: R vBernard, 2011 NSCA 53 per Saunders JA (leave refused: [2011] SCCA No. 381) and R v Stewart, 2016 NSCA 12 per Beveridge JA. [37] In Bernard Justice Saunders stated: 21 Having found that the judge erred by not taking the proper approach when imposing sentences for consecutive offences, it falls to thisCourt to fix an appropriate sentence. 22 Before doing so I wish to dispose of a preliminary point raised by the Crown at the hearing. Mr.

Fiske suggested that before we coulddecide what we felt to be an appropriate sentence we would first have to address the fitness of the sentence imposed in the court below.In other words, we could not substitute our own sentence for the sentence imposed by the trial judge unless we had first determined thatthe trial judge's sentence was "manifestly unfit". To support his argument, Crown counsel emphasized a phrase in Justice Bateman'sreasons from Adams.

For ease of reference I will repeat it here: [28] Here, with respect, I would conclude that the judge did not turn his mind to the appropriate sentence for each individual convictionbut worked backwards from a global disposition.

Although that methodology does not necessarily produce an unfit sentence, here it wasan error in principle which, in fact, resulted in a sentence that is manifestly unfit (excessively lenient) for these crimes and this offender.[My underlining] 23 In the Crown's submission these four words, "which, in fact, resulted" oblige us to first conclude that the trial judge's legally flawedsentence was also "manifestly unfit" before we are entitled to intervene. 24 I respectfully disagree. The Crown's assertion is tantamount to saying, despite the error, the sentence is entitled to deference anyway.

I would not accept such a proposition. I do not regard the four impugned words from Justice Bateman's lengthy reasons asestablishing some kind of ancillary threshold which must be crossed before we are entitled to decide what we think is a fit sentence in thecircumstances.

On the contrary, I take the impugned phrase "which, in fact, resulted" as simply emphasizing Justice Bateman'sconclusion in Adams that the flawed approach taken by the judge in that case when sentencing for consecutive offences had produced anexcessively lenient and demonstrably unfit sentence. 25 In my opinion, once we find that a trial judge has erred in principle when imposing a sentence, any deference which might otherwisehave been paid is ignored, and we are presented with a "clean slate" to decide for ourselves what constitutes a fit sentence. 26 Our powers on appeal against sentence are set out in s. 687(1) of the Criminal Code: 687(1) Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitnessof the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive, (a)vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or (b)dismiss the appeal. 27 In R. v.

Rezaie (1996), (ON CA), 112 C.C.C. (3d) 97 (Ont. C.A.), Laskin, J.A. considered appellate variation of

sentence when a trial judge has erred in principle. He said at p. 103: ... an appellate court may interfere if the sentencing judge commits an "error in principle". Error in principle is a familiar basis forreviewing the exercise of judicial discretion. It connotes, at least, failing to take into account a relevant factor, taking into account anirrelevant factor, failing to give sufficient weight to relevant factors, overemphasizing relevant factors and, more generally, it includes anerror of law. See Re Fox and Ontario Legal Aid Plan (1977), (ON SC), 14 O.R. (2d) 668 (Ont.

H.C.); Friends of theOldman River Society v. Canada (Minister of Transport) (1992), (SCC), 88 D.L.R. (4th) 1 (S.C.C.); Reza v. Canada(1994), (SCC), 116 D.L.R. (4th) 61 (S.C.C.). If the sentencing judge commits an error in principle, the sentence imposedis no longer entitled to deference and an appellate court may impose the sentence it thinks fit. [Underlining mine] 28 This passage from Rezaie has been frequently quoted with approval. See, for example, R. v. Brunet, 2010 ONCA 781 at para. 18; R. v.Liwyj, 2010 CMAC 6 at para. 46; R. v. MacDonald, 2009 MBCA 36 at para. 25; R. v.

Kozun, 2007 MBCA 101 at para. 22; and R. v.Provost, 2006 NLCA 30 at para. 12. 29 As my colleague Justice Beveridge recently observed in R. v.

Hawkins, 2011 NSCA 7 at para. 94: [94] Having found an error in principle that impacted on the sentence order, this Court is at liberty to determine what would be anappropriate sentence in light of the factors set out in s. 745.4 of the Criminal Code, and keeping in mind the principles mandated by ss.718, 718.1 and 718.2. 30 For all of these reasons I would conclude that the judge's error in this instance obviates the deference which would otherwise be paidto the sentence he imposed.

We are free to decide the sentence we think appropriate, having regard to the principles of sentencinglegislated by Parliament, and the circumstances of this case and this offender. [My italicization added] [38] In Stewart, the court stated: 40 As explained in R. v. Aubin, the proper approach for appellate courts is to correct the error while deferring to the sentence arrived atby the sentence judge: [quotations omitted] 41 This approach is consistent with the recent direction from the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64 that deferenceis owed to a trial judge's determination of a fit sentence.

Wagner J., for the majority wrote: [42] My colleague states that a sentence may be unfit if there is a reviewable error in the thought process or reasoning on which it isbased (para. 140). For this reason, in his view, where there is a reviewable error in the trial judge's reasoning, for example where thejudge has characterized an element of the offence as an aggravating factor (para. 146), it is always open to an appellate court to interveneto assess the fitness of the sentence imposed by the trial judge.

Having done so, the court can then affirm that sentence if it considers thesentence to be fit or impose the sentence it considers appropriate without having to show deference (paras. 139 and 142). In other words,any error of law or error in principle in a trial judge's analysis will open the door to intervention by an appellate court, which can thensubstitute its own opinion for that of the trial judge. [43] With all due respect for my colleague, I am of the view that his comments on this point need to be qualified.

I agree that an error inprinciple, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor can justify theintervention of an appellate court and permit that court to inquire into the fitness of the sentence and replace it with the sentence itconsiders appropriate. However, in my opinion, every such error will not necessarily justify appellate intervention regardless of itsimpact on the trial judge's reasoning. If the rule were that strict, its application could undermine the discretion conferred on sentencingjudges.

It is therefore necessary to avoid a situation in which [TRANSLATION] "the term 'error in principle' is trivialized": R. v.Lévesque-Chaput, 2010 QCCA 640, at para. 31 . [44] In my view, an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating ormitigating factor will justify appellate intervention only where it appears from the trial judge's decision that such an error had an impacton the sentence. [My italicization added] [39] I conclude that Judge Scovil’s credit error in this case did not have an impact on his decision to collapse the CSO entirely,however it did impact how many days in custody Mr.

Avard would have left to serve. Therefore, I need not defer to his sentencingdecision. [40] Furthermore, in relation to the other suggested reversible errors, such as not considering alternative dispositions, and that thedisposition he imposed (ie.to collapse the CSO in order the remaining 247 days to be served as custody) is unfit, I find he did not err inrelation to the former, but did err in relation to the latter.

Why I Conclude that Judge Scovil Did Not Fail to Consider Alternatives to Collapsing the CSO [41] His decision is terse, but it must also be read in context of the submissions made to him by counsel that day, the extensiveinformation he had available through the PSR, and by him having previously sentenced Mr. Avard for breach of a term of the CSO onJanuary 7, 2019.

[42] Mr. Fitch suggests that the judge’s words reflect a refusal or failure to consider alternatives to collapsing the entire remainderof the days to be served under the CSO. Specifically, he references the following: “I can’t go behind the – I have sympathy for anyone who has the addiction issues that Mr. Avard has. It is difficult. However, I can’t gonow and say – which is what is essentially I’ve been asked to say – ‘that sentence [September 2018] wasn’t right. He shouldn’t have beenon a condition of alcohol’. He was. And it was a joint recommendation.

I’m not going to go behind that.” [43] I reject this argument. [44] Firstly, although he was mistaken in that he believed there had been a joint recommendation in September 2018, this mistakenbelief was based on his conversation with Mr. Avard in court. I am satisfied that this had no effect on the sentencing for the breach of theCSO. [45] Secondly, Mr. Fitch urged Judge Scovil to consider that by inclusion of a “no alcohol” clause in the CSO, Mr.

Avard wasessentially set up to fail, and since the January 28 breach was of the “no alcohol” clause, he should order “time served” (January 29 –February 5, 2019) as the s. 742.6

(9) CC disposition for that breach. Mr. Fitch’s comments might also be taken to communicate to thejudge that as a disposition he should consider changing/removing that optional condition henceforth in the CSO. [46] Thirdly, judges are presumed to know the law. Judge Scovil has had a lengthy career as a criminal lawyer, and served as ajudge for many years as well. His attention was drawn to

section 742.6

(9) CC, and he would have been very conversant with it by virtueof his position. There is no doubt in my mind that he was aware of the alternatives contained in that subsection. [47] Fourthly, Judge Scovil’s decision was responsive to the positions taken by counsel: the Crown argued for termination of theCSO; Mr. Fitch argued for “time served” or “take no action”. The only other options were for him to “change the optional conditions”(which I have addressed above) or “suspend the conditional sentence order and direct that the offender serve in custody a portion of theunexpired sentence”. [48] The onus is on Mr.

Avard to establish that Judge Scovil did not keep an open mind to alternative dispositions available in s.742.6(9) CC. I am not satisfied that he did not keep an open mind to such alternatives. Therefore, I find no such error by Judge Scovil. [49] Mr. Avard is also arguing that Judge Scovil’s disposition order was an unfit “sentence” option.

Was the Trial Judge’s Decision to Convert the Remaining 240 Days to be Served in the Community into a Custodial SentenceDemonstrably or Clearly Unreasonable Rendering it an Unfit Sentence? [50] The Crown argues that Judge Scovil’s decision is reasonable, primarily because: [9] 1. as the Supreme Court of Canada stated in R v Proulx, 2000 SCC 5 , [2000] 1 SCR 61: 36 Accordingly, conditional sentences should generally include punitive conditions that are restrictive of the offender's liberty.Conditions such as house arrest or strict curfews should be the norm, not the exception.

As the Minister of Justice said during the secondreading of Bill C-41 (House of Commons Debates, supra, at p. 5873), "[t]his sanction is obviously aimed at offenders who wouldotherwise be in jail but who could be in the community under tight controls" (emphasis added). 37 There must be a reason for failing to impose punitive conditions when a conditional sentence order is made.

Sentencing judges shouldalways be mindful of the fact that conditional sentences are only to be imposed on offenders who would otherwise have been sent to jail.If the judge is of the opinion that punitive conditions are unnecessary, then probation, rather than a conditional sentence, is most likelythe appropriate disposition. 38 The punitive nature of the conditional sentence should also inform the treatment of breaches of conditions. As I have alreadydiscussed, the maximum penalty for breach of probation is potentially more severe than that for breach of a conditional sentence.

Inpractice, however, breaches of conditional sentences may be punished more severely than breaches of probation. Without commentingon the constitutionality of these provisions, I note that breaches of conditional sentence need only be proved on a balance of probabilities,pursuant to s. 742.6(9), whereas breaches of probation must be proved beyond a reasonable doubt. 39 More importantly, where an offender breaches a condition without reasonable excuse, there should be a presumption that theoffender serve the remainder of his or her sentence in jail.

This constant threat of incarceration will help to ensure that the offendercomplies with the conditions imposed: see R. v. Brady (1998), 1998 ABCA 7 , 121 C.C.C. (3d) 504 (Alta. C.A.); J. V. Roberts,"Conditional Sentencing: Sword of Damocles or Pandora's Box?" (1997), 2 Can. Crim. L. Rev. 183. It also assists in distinguishing theconditional sentence from probation by making the consequences of a breach of condition more severe. [My italicization added] 2. Mr. Avard has had a significant criminal record build up since 2015, and many opportunities for rehabilitation as demonstrated inthe PSR; 3. Mr.

Avard committed his first breach of the (September 19, 2018) CSO conditions on January 5 – 6, 2019, and the 14 days custodywas ineffective in preventing the second breach on January 28, 2019 a mere two weeks later. Moreover, Judge Scovil concluded that: “itappears one where the continued breaches of alcohol would likely take place… It would undermine the respect of the public in

conditional sentence orders if I did not… order him to serve the remaining 247 days.” [ 51 ] Mr. Avard argues that: the first breach did not involve alcohol, and the second one did – but not involve any incidental criminal offence; through no fault of his own, he has not been able to consistently access mental health and substance abuse counselling since being subject to the conditions of the CSO; he has excellent employment opportunities and the continued support of his partner Ms. Martin.

He suggests that collapsing the entire remaining 247/240 days into a custodial sentence (even if only two thirds thereof will likely be served in light of remission) [10] is disproportionate to his breach of the alcohol condition. [ 52 ] I agree with the following approach suggested by Justice Ryan in R v Langley , 2005 BCCA 478 : 13 This brief review of the appellate authorities following Proulx , suggests the task of the court at a disposition hearing is to consider the nature of the offence; the nature, circumstances, and timing of the breach; any subsequent criminal conduct and sentences for that conduct; changes in the plan for community supervision; the effect of termination on the appropriateness of the sentence for the original offence; and the offender's previous criminal record, in determining whether the presumption of termination for breach is to be applied.

If the presumption is rebutted, the court then is to ask itself which of the other three options is appropriate, having regard to those same factors.

I do not understand the list of factors to be closed. [ 53 ] Through that lens, was Judge Scovil’s disposition order demonstrably or clearly unreasonable? [ 54 ] I am hesitant to interfere with the sentencing decision of the local judge who is much closer to the community in question and has a much finer appreciation for the sentencing approaches that might suit a particular community, in light of the Purpose and Principles of sentencing as generally set out in sections 718 , 718.1 and 718.2 CC . [ 55 ] However, with the greatest of respect, I conclude that the disposition order in this case is demonstrably unreasonable.

I conclude that the presumption that the entire CSO be collapsed ( Proulx) has been rebutted. [ 56 ] The outcome is disproportionate to Mr. Avard’s moral blameworthiness, associated as it is with no independent criminal offence, and as the “maximum” punishment available in the circumstances was imposed, it stretches the required consideration of the “restraint” principle to the point of breaking, while also keeping the parity principle in mind.

Moreover, the original CSO only contained 6 months of house arrest, which would have ended on approximately March 20, 2019. [ 57 ] I also consider that: there are quite limited opportunities and choices regarding rehabilitative programs in provincial correctional facilities; Mr. Avard’s rehabilitation would likely be better served accessing such services in the community; in jail he will be necessarily associating with a negative peer group. [ 58 ] Having concluded that the trial judge erred, it falls to me to make a determination of an appropriate disposition for the January 28, 2019 breach of the CSO.

Conclusion [ 59 ] The appeal is allowed. [ 60 ] I keep in mind that, as a result of his breach of the CSO, Mr. Avard has served 78 days in custody (between February 5 and April 23, 2019) and that since then he has been on bail pending appeal according to the strict conditions imposed by Justice Lynch which mirror his CSO conditions, including house arrest (for approximately another three weeks which have passed without incident). [ 61 ] I quash Judge Scovil’s disposition, and order that the CSO recommence immediately in the same form until its duration has run its course. [ 62 ] No costs are awarded. Rosinski, J.