HER MAJESTY THE QUEEN — v. —, 2018 ONCJ 330

ONTARIO COURT OF JUSTICE CITATION: R. v. Grandbois, 2018 ONCJ 330 DATE: 2018 05 15 COURT FILE No.: Kenora 173889 BETWEEN: HER MAJESTY THE QUEEN — AND — NICHOLAS RICHARD GRANDBOIS Before Justice Pieter Joubert Heard on January 29, 2018, February 22, March 2, 2018 Reasons for Judgment released on May 15, 2018 Kristen Wiersema/David Allan......................................................... counsel for the Crown Ryan Amy.............................................. counsel for the defendant Nicholas Grandbois JOUBERT J.: A.

INTRODUCTION [ 1 ] Nicholas Grandbois stands charged with offences of assault with a weapon, uttering threats, and mischief under five thousand dollars, contrary to ss. 267 (a), 264.1(1) (a), and 430(4) of the Criminal Code , respectively. He also faces an allegation of breaching the terms of his conditional sentence order, to wit: failing to “keep the peace and be of good behaviour”. The criminal charges and the alleged breach both arise from events that occurred on November 29, 2017. [ 2 ] At the outset of Mr.

Grandbois’ trial on January 29, 2018, the parties indicated that the criminal charges were being withdrawn in exchange for Mr. Grandbois admitting that he breached the conditional sentence order. Mr. Grandbois formally admitted the breach and acknowledged the facts which are summarized below. I accepted this and found Mr. Grandbois to have breached the aforesaid condition. [ 3 ] For reasons set out below, the proceedings were not completed on January 29, 2018.

They continued on February 22, 2018 and March 2, 2018, upon which date the parties ultimately agreed on how this Court should exercise its authority under s. 742.6(9) of the Criminal Code . I accepted their proposal and changed the optional conditions. I indicated, however, that I could not accede to their position that this Court need not determine, in this case, when the conditional sentence was suspended, when that suspension was terminated, and whether the time ran during any of the suspension period, in accordance with s. 742.6 of the Criminal Code .

I indicated that a brief endorsement would issue, with written reasons to follow. [ 4 ] These are my written reasons. B. FACTS [ 5 ] The facts are not in dispute and may be summarized as follows.

[ 6 ] On June 30, 2017, Mr. Grandbois was sentenced by Hoshizaki J. in relation to one count each of sexual assault and failure to comply contrary to s. 271 and s. 145(3) of the Criminal Code , respectively. He was placed on a nine-month conditional sentence, to be followed by eighteen months of probation. One of the conditions of the conditional sentence required that Mr. Grandbois “keep the peace and be of good behaviour”.

Ancillary orders were also made in respect of DNA and SOIRA. [ 7 ] On November 29, 2017, at approximately 4:00 AM, a telephone call was placed to the Ontario Provincial Police requesting their assistance in relation to a domestic dispute underway at the Nicholas Grandbois residence in Kenora. It was understood that a verbal argument had taken place between Mr. Grandbois and his partner, Brooke Markham. Ms. Markham had quitted the residence for a neighbouring residence. Mr. Grandbois’ two children remained in his residence and were believed to be asleep. [ 8 ] Police attended at the scene and spoke with Ms.

Markham, who told them that Mr. Grandbois may have taken too many sleeping pills and was acting out of character. She indicated that nothing physical had happened between the two, but a verbal argument had ensued and had escalated to a point where she felt it necessary to leave. Police then attended at Mr. Grandbois’ residence to assess the situation. They found him to be in a state of agitation. Refusing to open the door, Mr. Grandbois proceeded to yell and holler at police, who observed several household items strewn about the yard. Mr. Grandbois then proceeded to throw more household items out of a window.

Some of those items appeared to be broken. Mr. Grandbois then told police that Ms. Markham was to “stay the fuck away” or he would “put a bullet through her head”. Mr. Grandbois was not taken into custody at that time and a warrant was sought for his arrest. [ 9 ] Mr. Grandbois’ lawyer, Mr. Amy, provided the following additional facts which were accepted by the Crown and by this Court. In January, 2017, Mr.

Grandbois was charged in Manitoba with one count of impaired driving causing bodily harm contrary to s. 255(2) of the Criminal Code following a motor vehicle collision in which he sustained injuries to his neck. Mr. Grandbois is allergic to the drug codeine, and he was therefore prescribed hydromorphone to address issues of pain. In September, 2017, the medical prescription was cancelled but Mr. Grandbois continued struggle with pain, eventually turning to other medication and sleeping pills. On the evening in question, Mr. Grandbois consumed such a quantity of pills as to become intoxicated. C.

EVENTS LEADING UP TO THE HEARING [ 10 ] On November 30, 2017, a warrant was issued for Mr. Grandbois’ arrest. The warrant did not allege a breach of his conditional sentence but only referred to the Criminal Code allegations. It was executed by police later the same day. Mr. Grandbois was taken into custody, brought before a Justice of the Peace and remanded to appear in person before the Bail Court in Kenora the following morning. [ 11 ] On December 1, 2017, a “Conditional Sentence Order Allegation of Breach” was signed and dated the same date and placed before the Bail Court. Mr.

Grandbois was remanded in custody on both the Criminal Code allegations and the allegation of breach, to appear before the Bail Court on December 4, 2017. The purpose of the adjournment was to permit him to retain counsel. From there, Mr. Grandbois was variously remanded in the Bail Court until December 11, 2017, at which time his lawyer, Mr. Amy, secured Mr. Grandbois’ release at a contested bail hearing. He was placed on a judicial undertaking with conditions, and the hearing on the conditional sentence breach was noted to have commenced. Mr.

Grandbois’ matters were adjourned to December 21, 2017, in Judge’s Court for continuation. [ 12 ] On December 21, 2017, the Criminal Code allegations were set for a trial on the merits on January 29, 2018. The allegation of breach of the conditional sentence scheduled to be heard the same day. D. THE HEARING [ 13 ] As I have already noted, on January 29, 2018, the case resolved with Mr. Grandbois admitting the breach of his conditional sentence and with submissions commencing and then continuing on February 22, 2018, and March 2, 2018. The proceedings on those dates may be summarized as follows. 1.

Proceedings on January 29, 2018 [ 14 ] On January 29, 2018, after this Court found that the breach had occurred, the parties were asked to make submissions on the suggested disposition and on the number of days that, in their respective views, remained to be served by Mr. Grandbois on the conditional sentence.

a) Submissions on Disposition [ 15 ] On behalf of his client, Mr. Amy asked that no action be taken, a reference to s. 742.6(9) (

b) of the Criminal Code . Mr. Amy submitted that the deterrence called for in the present case was met by Mr. Grandbois’ having served twelve days in pre-trial detention, followed by a month and a half on judicial interim release during which his conditional sentence was suspended but the conditions remained in effect. Mr. Amy indicated that Ms. Markham had not sought the criminal charges and was supportive of Mr. Grandbois. He submitted that Mr.

Grandbois deeply regretted his actions; had been doing well for the five months preceding the breach; and had not breached since being released on bail on December 11, 2017. Mr. Amy submitted that these events have had a significant impact on his client. He noted that two of Mr. Grandbois’ children, who are young in age, presently reside with him; that Mr. Grandbois had at one point while on bail been arrested in circumstances where he had not breached his bail conditions; and that Mr. Grandbois had a job opportunity available for him. In taking no action, Mr. Amy submitted, this Court could accept that Mr.

Grandbois’ experiences to that date were sufficiently punitive to ensure his continued compliance with the terms of the conditional sentence. [ 16 ] On behalf of the Crown, Ms. Wiersema asked that the conditional sentence be terminated and that Mr. Grandbois serve the remainder of his sentence in custody, a reference to s. 742.6(9) (

d) of the Criminal Code . Ms. Wiersema drew this Court’s attention to the underlying convictions which are serious in nature, being convictions for sexual assault and for failing to comply contrary to s. 271 and s. 145(3) , respectfully. She referred this Court to the record of Mr. Grandbois, which Ms. Wiersema submitted reflects a history of violence as evidenced by convictions for assault causing bodily harm in 2009, assault in 2012, and the aforementioned sexual assault

conviction in 2017. She submitted that the facts in this case were concerning. They involve a domestic incident that occurred in the early morning hours, and by such subsequent behaviours as hollering to police, throwing household items out of the residence, and making the remarks that were made toward Ms. Markham. Ms. Wiersema noted, court orders are made for a reason. Stepping back from her initial position somewhat, Ms. Wiersema submitted that at the very least a portion of the unexpired conditional sentence ought to be served in custody, a reference to s. 742.6(9)(

c) of the Criminal Code .

b) Submissions on Time Remaining [ 17 ] In terms of the time remaining on the conditional sentence, Mr. Amy referred this Court to the Conditional Sentence Order Supervisor’s Report on an Allegation of Breach dated December 1, 2017, which indicates that as of the date of Mr. Grandbois’ arrest on November 30, 2017, 119 days remained to be served. Ms. Wiersema subsequently indicated that an error in the math had been discovered by the supervisor, Mr. Gilfix, and that in fact 108 days remained to be served as of November 30, 2017. Both parties were of the view that the number of days remaining to be served as of that date, January 29, 2018, were 108 days.

c) Adjournment Request [ 18 ] I stood the matter down briefly to deliberate. On reconvening, I asked whether Mr. Grandbois is of indigenous descent. Mr. Grandbois replied and indicated he is of Métis descent. I also asked, in light of concerns about addictions issues, what programming if any Mr. Grandbois had taken since he was placed on his conditional sentence. It was understood that a brief period of time was spent at the Morningstar Detox Centre in Kenora immediately following release of Mr. Grandbois from custody on December 11, 2017. Mr.

Amy indicated that his client had been seeing an addictions counsellor and was also signed up, along with Ms. Markham, for a course on addictions run by Northwestern Health Unit in Kenora. [ 19 ] Ms. Wiersema then advised that Mr. Gilfix wished to relay information pertinent to the two questions that I had raised. Mr. Gilfix, in turn, advised that two presentence reports were available, whose contents would be of likely assistance. The first was a presentence report prepared for the sentencing proceedings before Hoshizaki J.

The second was a presentence update report recently submitted to the Court in Winnipeg for the s. 255(2) count which was in sentencing. Mr. Amy candidly indicated that this Court is entitled to consider both reports. He indicated that the original presentence report included information touching on Mr. Grandbois’ indigenous heritage. He had not been aware of the update report. The matter was, therefore, stood down to permit copies to be provided to the parties and to the Court. [ 20 ] Upon reconvening, it became clear that an adjournment was needed.

There were concerns raised in the presentence update report concerning the level of Mr. Grandbois’ engagement with probation and parole and the self-reporting that he had been making specifically relating to treatment and counselling. Mr. Amy indicated that it would be in Mr. Grandbois’ interest to apply to Del-Art Manor, a recovery home for men in Kenora, to see if he could gain admission there. Ms. Wiersema indicated that the presentence update report was not positive. She wished an opportunity to prepare further submissions in support of termination of the conditional sentence.

I granted the parties’ request to adjourn, and upon their mutual request I varied the terms of Mr. Grandbois’ judicial undertaking to permit communication with Ms. Markham while on interim release. 2. Adjournment on February 22, 2018 [ 21 ] The matter next returned before me on February 22, 2018, at which time Mr. Amy indicated that it had become clear that substance abuse was a concern for his client. Mr. Amy indicated that he had spoken with Doug Brown of the Del Art Manor and that there was a possibility of an admission to that program, although a treatment plan would need to be prepared. Mr.

Amy indicated that a second treatment possibility was being explored through the Dryden Crisis Response Unit. He indicated that attempts had been made to contact Mr. Grandbois’ lawyer on the Winnipeg matter. Mr. Amy’s best information was that Mr. Grandbois was facing a custodial disposition. However, this was not known for certain and, regardless, Mr. Grandbois’ serving a conditional sentence with a treatment component might nevertheless be beneficial. [ 22 ] Mr. Amy requested a further adjournment to permit Mr.

Grandbois to demonstrate his commitment to engage in treatment and to permit him to continue to try to reach counsel. Mr. Amy indicated this was no small matter. He submitted that four months remained on the conditional sentence and that Mr. Grandbois’ participation in treatment might conceivably have a bearing on the proceedings underway in Winnipeg. Mr. Allan, for the Crown, indicated that he would defer to the Court on the request to adjourn. However, he was clear in stating that that the Crown was not resiling from its request to terminate the conditional sentence at that time.

The adjournment request was granted. 3. Completion on March 2, 2018 [ 23 ] On March 2, 2018, Mr. Amy advised that his further attempts to make contact with Mr. Grandbois’ lawyer in Winnipeg had been unsuccessful. He was unable to say what would be happening on the next Court date of March 19, 2018, and was unable to indicate how the present proceedings might impact those proceedings. Mr. Amy nevertheless indicated that Mr. Grandbois had completed his application to the Dryden Crisis Response Centre and had a bed available for him on March 23, 2018. He urged this Court to permit Mr.

Grandbois to continue serving his conditional sentence by making an order pursuant to s. 742.6(9) (

d) of the Criminal Code , amending the optional conditions to permit attendance at the Dryden Crisis Response Unit on March 23, 2018.

a) Questions Raised on the Time Remaining [ 24 ] It was at this time that this Court sought clarification from the parties as to the time remaining on the conditional sentence order. As Mr. Allan was not the Assistant Crown Attorney who appeared on January 29, 2018, the facts and procedural history were reviewed at that time. I also provided counsel with copies of two decisions which I felt might be helpful for their consideration, namely: R. v. Atkinson , [2003] O.J. No. 1068 (O.C.J.) , and R. v. Kirilow , [2011] O.J.

No. 5294 (O.C.J.) . [ 25 ] The concern of this Court was to know the position of the parties on whether Mr. Grandbois’ conditional sentence was suspended for some or all of the following: the period of time between December 1, 2017, and December 11, 2017, while Mr. Grandbois

was remanded in custody by the Bail Court; the period of time between December 11, 2017, and January 29, 2018 while Mr. Grandbois was out of custody and on release; and the period of time between January 29, 2018, and March 2, 2018 while Mr. Grandbois, having admitted the breach and having been found to have breached, awaited the outcome of the hearing. The matter was held down to permit an opportunity for the parties to respond.

b) Position of the Parties [ 26 ] Upon recommencement, counsel indicated that a joint proposal had been reached. Mr. Amy indicated that he had received word from Mr. Grandbois’ lawyer in Winnipeg who confirmed that the Crown was seeking a sentence of fifteen months’ custody on the s. 255(2) matter. Mr. Amy indicated that the parties were jointly submitting that Mr. Grandbois be permitted to continue on his conditional sentence order but that one condition be added requiring that he attend Court in Winnipeg on March 19, 2018, 10:00 AM.

The parties indicated that if this Court would permit it the parties preferred not to make any submissions on the time remaining that remains on Mr. Grandbois’ conditional sentence. I accepted the position of the parties as to disposition. In accordance with s. 742.6(9) (b), the optional conditions to Mr. Grandbois’ conditional sentence were amended in the manner requested.

However, I respectfully disagreed that it need not make findings on when the conditional sentence was suspended in this case. [ 27 ] It was my view that the calculations involved are significant and it was my position that I am duty-bound to make the findings necessary to ensure that the time remaining is appropriately calculated. I indicated that a brief endorsement would be made with written reasons to follow. G.

ISSUE FOR DECISION [ 28 ] The issue of disposition having been agreed upon by the parties and accepted by this Court as discussed on March 2, 2018, the only issue that needs to be addressed in these reasons is how to calculate the time remaining on Mr. Grandbois’ conditional sentence order. To answer this question, it is necessary to determine the following:

(1) When the conditional sentence which began to run on June 30, 2018, was suspended;

(2) When that period of suspension terminated;

(3) Whether, for any of the period of the suspension, the clock ran; and

(4) Whether, notwithstanding the above, some or all of the period of suspension is to be deemed time served. H. LAW [ 29 ] The answer to the issues in this case is found in the language of s. 742.6 of the Criminal Code as applied by the Court of Appeal for Ontario in R. v. Atkinson , supra . The decision in R. v. Kirilow , supra , is also helpful in how R. v. Atkinson is applied by the Ontario Court of Justice, albeit in a different context. 1. Commencement of the Suspension Period [ 30 ]

Section 742.6(10) provides as follows: The running of a conditional sentence order imposed on an offender is suspended during the period that ends with the determination of whether a breach of condition had occurred and begins with the earliest of (

a) the issuance of a warrant for the arrest of the offender for the alleged breach, (

b) the arrest without warrant of the offender for the alleged breach, and (

c) the compelling of the offender’s appearance in accordance with paragraph (1)(d). [ 31 ] It may be noted that the three events referred to in subparagraphs (

a) through (

c) mirror those referred to in sub-section 742.6(1) (c), dealing with commencement of proceedings. Thus, upon commencement of proceedings, the running of the clock on the conditional sentence stops. As Rosenberg J. writes in R. v. Atkinson , supra at para. 15: The effect of s. 746.6 (10) is that the conditional sentence stops running between the time when a warrant is issued, the offender is arrested without a warrant, or the offender is given certain process requiring his or her attendance in court, and the time when the determination is made of whether a breach of a condition occurred.

Thus, s. 742.6 contemplates that the conditional sentence would stop running even though the offender is in custody. [ 32 ] Rosenberg J. provides the rationale for suspension at para. 16: As I understand it, the paramount purpose of s. 742.6(10) was to meet the problem that, where a person is alleged to have breached the conditional sentence, the sentence may very well have expired before the person was brought before the courts and the breach allegation determined. For example, a warrant might be issued but the person never arrested until after the sentence had expired.

Alternatively, the person might have been released on a promise to appear but not actually dealt with for the breach allegation until after the sentence had expired. In both those cases, there would be no effective sanction remaining despite the breach of the conditional sentence.

Section 742.6(10) stops the sentence running to avoid these consequences. However, the s. also catches within its terms persons who are in custody because they have been arrested without a warrant or the warrant has been executed. 2. Termination of the Suspension Period [ 33 ]

Section 742.6(10) provides that the suspension period “ends with the determination of whether a breach of condition had

occurred”. [ 34 ] There is some discrepancy in the jurisprudence as to what constitutes a determination, e.g., whether an admission by the accused without a clear statement of acceptance by the Court is sufficient for purposes of s. 742.6(10). That issue is not raised in this case. On January 29, 2018, the admission of Mr. Grandbois was accepted and a formal finding was made in respect of the facts and the breach. 3.

Running of the Clock within the Period of Detention [ 35 ] Between the points of suspension and termination of the suspension, it is possible for the conditional sentence to run by virtue of the operation of s. 742.6(12), which provides as follows: A conditional sentence order referred to in s. (10) starts running again on the making of an order to detain the offender in custody under s. 515(6) and, unless

section 742.7 applies, continues running while the offender is detained under the order. [ 36 ] The reference to section 515(6) is to the reverse onus bail provisions. Indeed, t he main issue in R. v. Atkinson , supra , was how to interpret the phrase, “on the making of an order to detain the offender in custody under s. 515(6)”. The issue is of great importance, and in R. v. Atkinson the Crown and defence took opposing views. The Crown argued that a detention order within the meaning of s. 515(6) and 742.6(12) means the formal order detaining the offender after a show cause hearing.

In other words, until a formal detention order is made the suspension triggered by s. 742.7(10) remains in effect. The defence, on the other hand, argued that as soon as the offender is brought before a justice and is not released a detention order is made for purposes of s. 742.6(12). In other words, unless the offender who appears in custody before the Bail Court shows cause and is released the suspension is temporarily lifted and the conditional sentence begins to run again. See paras. 18-19. [ 37 ] In deciding the issue, Rosenberg J. observed at para. 17:

Section 742.6 (12) relieves against the harshness of the result of the offender being in custody by providing that the conditional sentence begins to run again "on the making of an order to detain the offender in custody under s. 515 (6). The sentence continues to run while the offender is detained under that order. However, pursuant to s. 742.6 (13), which refers to the Prisons and Reformatories Act , the offender does not receive any remission for any time spent in custody on the detention order.

Once the judge makes the breach determination and decides that the offender should serve some or the balance of the sentence in custody, the Prisons and Reformatories Act would apply and the offender would get remission on that part of the sentence remaining to be served in custody. [ 38 ] He held at para. 20: In my view, for the purpose of s. 742.6 it does not matter whether there has been a formal show cause hearing.

I do not find it helpful to distinguish between the order made detaining the offender pending his attempt, if any, to show cause why he should be released and the "formal" detention order made after the show cause hearing. In either case, the justice makes an order detaining the offender in custody. The main purpose of the reference to s. 515(6), in my view, is a procedural one, to place the burden on the offender to show cause for his release.

Whether he is detained in custody while he is given an opportunity to do so or whether he is detained after he has been given the opportunity, he can fairly be said to be detained under s. 515(6). [ 39 ] In support, Rosenberg J. at para. 21 referred to the purpose of s. 742.6(10) and companion provisions in the following way: Parliament was concerned that persons would be at large and their sentence expire before the conditional sentence breach allegation was dealt with.

As the appellant observes the purpose of these provisions, which were enacted in 1999, "was to ensure that an offender receives his or her original punishment when a condition of release failed and justified detention, not to create an artificial gap through which an offender would be further punished". Parliament's purpose does not require that an offender who is already in custody as a result of the breach allegation get no credit for that time in custody. I simply cannot see any legitimate reason why Parliament would distinguish between an offender in custody before or after the bail hearing.

In either situation, the offender is no longer in the community. [ 40 ] Rosenberg J. was aware that a certain extent of statutory ambiguity may well exist in the way that

section 742.6 is drafted. In that event, Rosenberg J. held at para. 25: The

interpretation that favours the liberty of the subject in this case is the

interpretation that requires the sentence to start running again immediately upon the offender being brought before a justice and detained in custody either to await the show cause hearing under s. 515(6) or to be dealt with in according to law in accordance with s. 515(6). [ 41 ] The decision in R. v. Atkinson , supra , was applied in R. v. Kirilow , supra . Six months after being placed on a fifteen month conditional sentence for offences of fraud, Ms. Kirilow was arrested on a singular count of theft. Ms.

Kirilow opted not to apply for bail, and one day later she pleaded guilty and was sentenced to one day in jail. Her conditional sentence was noted suspended for that two day period. She was charged with breaching the conditional sentence, in respect of which approximately eight months of time remained at the time of the breach hearing. At the hearing the Crown asked that four additional months of the conditional sentence be served in custody, and the defence asked that Ms. Kirilow be released to resume her conditional sentence with changes made to the optional conditions.

At the time that the Court delivered its reasons, Ms. Kirilow had served 33 days in custody. The court ultimately sentenced Ms. Kirilow to serve 30 days of the unexpired portion of the sentence and then serve the balance in the community, with a change to one of the optional conditions. Forsyth J. noted that no formal detention order had been made by the Bail Court pursuant to s. 515(6) of the Criminal Code . Citing R. v. Atkinson , supra , at paras. 15, 17, 20, 21, and 25, Forsyth held that Ms.

Kirilow's conditional sentence began to run as soon as her one day sentence in Hamilton was completed, noting in addition that she was not entitled to any remission of the custodial time served. [ 42 ] It must be noted that the running of the clock under s. 742.6(12) is circumscribed by the phrase, “while the offender is detained”. I interpret that phrase to mean that, if the offender, who is detained within the meaning of s. 742.6(12), is subsequently released on conditions of bail, be it a contested bail hearing or a consent release, then upon release of the offender, the running of the

clock under s. 742.6(12) once again stops and the conditional sentence is suspended until the determination referred to in s. 742.6(10) is made. 4.

Deeming Some or All of the Period of Suspension “Time Served” [ 43 ] S. 742.6(16) provides as follows: If a 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, in exceptional cases and in the interests of justice, order that some or all of the period of suspension referred to in s. (10) is deemed to be time served under the conditional sentence order. S. 742.6(17) in turn provides: In exercising its discretion under s. (16), a court shall consider (

a) the circumstances and seriousness of the breach; (

b) whether not making the order would cause the offender undue hardship based on the offender’s individual circumstances; and (

c) the period for which the offender was subject to conditions while the running of the conditional sentence order was suspended and whether the offender complied with those conditions during that period. [ 44 ] In R. v. Atkinson , supra , the Crown, in an effort to persuade the Court to accept its

interpretation of s. 742.6(12), argued that the period of time in which Mr. Atkinson was remanded in custody before the bail court could be considered under s. 742.6(16). Rosenberg J. disagreed, and his so doing noted the following as regards the purpose of s. 742.6(16): I am not persuaded that s. 742.6(16) should lead to a different result. First, s. 742.6(16) applies only "in exceptional cases". It seems to me that Parliament must have had in mind an unusual case where the offender was not in custody but should nevertheless be given some credit for that time, even though he or she was found to have breached the condition. It seems to me that this

interpretation is borne out by the terms of s. 742.6(17) which set out the factors the court must consider in the exercise of the discretion under s. 742.6(16). H. APPLICATION TO THE FACTS [ 45 ] In applying the provisions and cases referred to above to the present case I find as follows. [ 46 ] First, I find that the time on the conditional sentence began to run on the date that the conditional sentence order was made, June 30, 2017. [ 47 ] Second, I find that the conditional sentence was not suspended as a result of the events of November 29, 2017, when Mr. Grandbois committed the breach.

Nor was the conditional sentence suspended on November 30, 2017, when the warrant for Mr. Grandbois’ arrest was issued and executed. The conditions precedent for suspension of the conditional sentence provided for in s. 742.6(10) of the Code had not yet been met. [ 48 ] Third, I find that the conditional sentence was suspended on December 1, 2017, when the signed allegation of breach of the conditional sentence of Mr. Grandbois was placed before the bail court. At that point, Mr. Grandbois was in custody on the conditional sentence breach allegation.

I find, as submitted by the parties, and in accordance with s. 742.6(10), that the running of the conditional sentence was suspended at that time. [ 49 ] Fourth, I note that on December 1, 2017, Mr. Grandbois was remanded in custody for purposes of retaining counsel and showing cause. I find that the order made on December 1, 2017, remanding Mr. Grandbois in custody for show cause purposes was an order of detention for purposes of ss. 742.2 (6) and (12), and I find that although the conditional sentence of Mr.

Grandbois remained suspended under s. 742.6(10), the clock on the conditional sentence started to run by virtue of s. 742.2(12). [ 50 ] Fifth, I find that on December 11, 2017, a contested show cause hearing was held at which time Mr. Grandbois was released on conditions of bail. I interpret the phrase “while the offender is detained” in s. 742.6 (12) to mean that the running of the conditional sentence of Mr. Grandbois stopped running once he was released on bail. At that time, the conditional sentence remained suspended under s. 742.6(10). [ 51 ] Sixth, on January 29, 2018, Mr.

Grandbois acknowledged the breach allegation and his acknowledgement was accepted by this Court. Submissions commenced concerning this Court’s powers under s. 742.6(9) . I find that the suspension of the conditional sentence terminated at that time as provided for in s. 742.6(10). The conditional sentence, in other words, started to run again at that time and the conditional sentence has been running ever since. [ 52 ] Finally, the issue of s. 742.6(16) was only briefly addressed in Court, and no submissions were made in relation to that provision.

Nonetheless, to be clear, I am not satisfied given all of the circumstances that the requirement of “exceptional circumstances” has been met in this case. I decline to order that any the period of suspension referred to in s. (10) is deemed to be time served under the conditional sentence order in accordance with s. 742.6(10). Released: May 15, 2018 Signed: Justice Joubert