R v Beaulieu, 2015 MBCA 90

Citation: R v Beaulieu, 2015 MBCA 90 Date: 20151001 Docket: AR14-30-08247; AR14-30-08251 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Freda M. Steel Mr. Justice William J. Burnett BETWEEN : HER MAJESTY THE QUEEN ) A. K. Gowenlock ) for the Appellant ) Respondent ) N. P.

Steen ) for the Respondent - and - ) ) Appeal heard: COREY JASON BEAULIEU ) March 13, 2015 ) ) Judgment delivered: (Accused) Appellant ) October 1, 2015 STEEL JA [ 1 ] This is a sentence appeal that raises a number of issues regarding sentencing for breaches of conditional sentences. [ 2 ] The 43-year-old accused pled guilty to fraud over $5,000 and received a conditional sentence order (CSO) of two years less a day pursuant to a joint recommendation. The accused breached both the curfew and the community service requirements of the CSO. The sentencing judge terminated his CSO.

Facts [ 3 ] The accused was sentenced on January 29, 2013.

The CSO required the accused to complete 150 hours of community service work in the first 15 months of the order, and to abide by an absolute curfew for the first six months, followed by a curfew between 7:00 p.m. and 7:00 a.m. for the remainder of the CSO. [ 4 ] He was arrested for breaching his curfew on August 17, 2013 (the first breach), and released two days later, with a surety. [ 5 ] On April 30, 2014, a warrant was issued for the accused’s failure to perform community service (the second breach), however; the warrant was not executed until the hearing for the first breach, which took place on June 11, 2014. [ 6 ] At the hearing for the first breach, the accused was ordered to serve four months in custody.

However, as a result of the warrant being executed on that day in relation to the second breach, he was arrested and held in custody until August 29, 2014. He applied for bail on that day and was denied. [ 7 ] The hearing on the second breach was held on September 3, 2014, at which time the judge terminated his CSO. In doing so, she gave him credit for the period of time he was held in custody until his bail was denied. [ 8 ] The accused appeals the termination of his CSO. Alternatively, he submits that he should receive credit toward his CSO of: 1.

The time spent on judicial interim release pending the hearing relating to the first breach (August 17, 2013 – June 11, 2014); and

2. The time between the issuance of the warrant for the second breach and the execution of that warrant (April 30, 2014 – June 11, 2014). [ 9 ] The accused says that the failure to credit him with these periods unduly extended the time remaining under the CSO. The Crown says that there are no exceptional circumstances that would meet the interests of justice so as to warrant a credit for the time which the accused spent on judicial interim release pending the hearing of the first breach.

With respect to the second breach, the Crown submits that there was no evidence of unreasonable delay in executing the arrest warrant. In the Crown’s view, the accused was the author of his own misfortune, both in breaching his CSO twice and in delaying its adjudication. [ 10 ] The accused applied for, and was granted, judicial interim release pending this appeal on November 27, 2014.

Relevant Legislation [ 11 ] The pertinent portions of the Criminal Code provide as follows: Time at large excluded from term of imprisonment 719(2) Any time during which a convicted person is unlawfully at large or is lawfully at large on interim release granted pursuant to any provision of this Act does not count as part of any term of imprisonment imposed on the person. Hearing 742.6(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) [which deals with offenders who are already detained or before a court]. Powers of court

(9) Where the court is satisfied, on a balance of probabilities, that the offender has without reasonable excuse, the proof of which lies on the offender, breached a condition of the conditional sentence order, the court may (

a) take no action; change the optional conditions; (

b) suspend the conditional sentence order and direct (

i) that the offender serve in custody a portion of the unexpired sentence, and (ii) that the conditional sentence order resume on the offender’s release from custody, either with or without changes to the optional conditions; or (

c) terminate the conditional sentence order and direct that the offender be committed to custody until the expiration of the sentence. Warrant or arrest — suspension of running of conditional sentence order

(10) 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 ). Conditions continue

(11) If the offender is not detained in custody during any period referred to in subsection (10), the conditions of the order continue to apply, with any changes made to them under

section 742.4, and any subsequent breach of those conditions may be dealt with in accordance with this section.

Detention under s. 515(6)

(12) A conditional sentence order referred to in subsection (10) starts running again on the making of an order to detain the offender in custody under subsection 515(6) and, unless

section 742.7 applies [where offender imprisoned for a different offence], continues running while the offender is detained under the order. Unreasonable delay in execution

(14) Despite subsection (10), if there was unreasonable delay in the execution of a warrant, the court may, at any time, order that any period between the issuance and execution of the warrant that it considers appropriate in the interests of justice is deemed to be time served under the conditional sentence order unless the period has been so deemed under subsection (15) [which deals with situations where the breach allegation is dismissed or the accused is found to have had a reasonable excuse]. . . . Powers of court

(16) 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 subsection (10) is deemed to be time served under the conditional sentence order. Considerations

(17) In exercising its discretion under subsection (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.

Standard of Review [ 12 ] The standard of review on a sentence appeal is well-settled and applies to appeals involving the imposition of conditional sentences as well as the review of decisions made at conditional sentence breach hearings, see R v Carpentier (RJ) , 2005 MBCA 134 , 201 ManR (2d) 1 (at para 36 ): The entire hearing is a continuation of the sentencing phase of the trial, and the allegation of a breach of conditions is, in effect, an aggravating circumstance justifying a harsher or at least a possibly different form of imprisonment.

The review of the sentencing judge’s decision therefore must include findings of fact that a breach occurred, as well as his/her decision as to variation. The appeal court is entitled to be satisfied that no error in principle occurred with respect to either phase of the hearing, subject, of course, to the well-known parameters on an appeal as to sentence. Absent an error in principle, a failure to consider a relevant factor or an overemphasis on certain factors, an appellate court should not disturb a sentence unless the sentence is unfit.

Analysis and Decision Did the sentencing judge err in terminating the conditional sentence, or alternatively, was the sentence unfit if no further time is credited towards the running of the CSO? [ 13 ] The accused argues that unless he is credited for the ten months during which he was on judicial interim release, the termination of his CSO renders his sentence unfit.

This argument amounts to an indirect challenge of the sentence itself, which was jointly recommended and never the subject of a decision under review in this appeal. [ 14 ] It may be, as will later be discussed, that some credit should be given to the accused under other sections of 742.6, but the termination itself must be reviewed on its own circumstances.

This is similar to the distinction between sentencing and the judge’s discretion to grant credit for pre-sentence custody. [ 15 ] The accused argues alternatively that the termination of his CSO was an error in principle. [ 16 ] Where an offender breaches a condition without reasonable excuse, there is a presumption that the offender serves the remainder of the sentence in jail. The constant threat of incarceration gives the CSO legitimacy ( R v Proulx , 2000 SCC 5 , [2000] 1 SCR

61). [17] Since Proulx, appellate courts have emphasized that post-sentence criminal conduct will justify termination. See, forexample, R v Booh (I), 2003 MBCA 16, 170 ManR (2d) 249; R v Monaghan (BD), 2002 PESCAD 10, 212 Nfld & PEIR 261; R vFilippelli (LS) (2002), (ON CA), 165 OAC 179; R v Roberts (DP), 2003 SKCA 10, 227 SaskR 271; R c Imbeault,2011 QCCA 1676 (QL). [18] Alternatively, termination has been ordered when the accused has continually failed to comply with court orders.

Forexample, in R v Peekeekoot (SK), 2005 SKCA 143, 275 SaskR 117, the offender had a lengthy criminal record which indicated acontinual failure to comply with conditions. The events giving rise to the breach allegations occurred nine days after he received hisconditional sentence. In R v Doddridge (SJ), 2006 ABCA 125, 384 AR 96, a few months after the CSO was imposed, the accused wascharged with breach of a condition when he failed a drug test.

Several months after that, he was charged with three further breaches. [19] However, termination of the CSO has been held to be an appropriate remedy even if the breaches were not numerous anddid not involve criminal re-involvement. In R v Bright (FSM), 2009 ABCA 56, 448 AR 387, the offender received a conditional sentenceof two years less a day for her involvement in a home invasion robbery. It was alleged that she breached her conditional sentence infailing to be present for telephone checks, failing to report to her supervisor and failing to perform the required community service.

TheCourt noted that she abided by the remaining conditions of the CSO, including a more stringent reporting condition, while she awaitedthe outcome of the breach hearing. It was also observed that she was the mother of two children and caregiver to a third child.

Nevertheless, the termination of the CSO was upheld on appeal, the Court noting that “the failure to report and to perform communityservice are serious breaches” (at para 11). [20] In R v Langley (TE), 2005 BCCA 478, 216 BCAC 311, the Court helpfully reviewed the existing jurisprudence and noteda number of factors that may be taken into account in such cases, stating (at para 13): This brief review of the appellate authorities following Proulx, suggests the task of the court at a disposition hearing is to consider thenature of the offence; the nature, circumstances, and timing of the breach; any subsequent criminal conduct and sentences for thatconduct; changes in the plan for community supervision; the effect of termination on the appropriateness of the sentence for the originaloffence; 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 samefactors. I do not understand the list of factors to be closed. [21] In the circumstances of the case at bar, the offence for which the accused was first sentenced was quite serious. Hispartner at the time of the offence resided with the 73-year-old victim. This enabled the accused to secure the victim’s bank card andPIN.

The accused carried out approximately 80 transactions using the victim’s bank card, resulting in a total loss of $6,158.00, whichessentially emptied the victim’s bank account. The majority of this money went to feed the accused’s gambling addiction. The accuseddid not have a prior criminal record, showed remorse and provided restitution. Consequently, there was a joint recommendation withrespect to the conditional sentence. [22] The first breach occurred within eight months of the order and involved circumstances more serious than simply abreach of curfew.

The police encountered the accused extremely intoxicated and unconscious in the driver’s seat of a motor vehiclethree hours past his curfew. Nonetheless, the sentencing judge did not terminate his CSO, but sentenced him to four months in custody. [23] On September 3, 2014, the accused appeared before the sentencing judge and admitted that he had breached his CSO asecond time, by failing to perform a single hour of community service work.

In fact, he had never even registered for this work. [24] The accused was sent two separate registration letters on February 25, 2013, and July 29, 2013, reminding him of hisobligation to perform community service. In his submissions, Crown counsel indicated that the accused’s supervisor indicated that “hehad had a number of conversations with Mr.

Beaulieu warning him of the fact that his due date was coming up and advised of the stepsthat he could take to transfer this to a fine.” In the supervisor’s report concerning the first curfew breach, the supervisor commented that,although the accused indicated he was going to apply for a variation of his community service work hours to a monetary fine, he had yetto apply for this variation.

This was in August 2013. [25] The sentencing judge acknowledged that the accused had been relatively compliant with respect to the CSO and that hehad not re-offended in a criminal manner, but pointed out that this was his second breach. In particular, not even registering forcommunity service work after being notified showed an “utter disregard” for his restorative justice obligations.

The sentencing judgecorrectly noted that this was a mature individual who was told several times by his supervisor the consequences of not completing hiscommunity service. [26] The sentencing judge did take into account that the accused would end up serving a longer period of time in custody thanif he had done straight time but she found the accused’s utter disregard for the court order especially egregious. She noted that, althoughthe accused may have had an interest in changing his community service work to a fine, he never did. She reasonably found that this didnot mitigate the seriousness of the breach.

Instead, the sentencing judge emphasized the need for maintenance of the integrity of theCSO system: He’s a 45-year-old man. He’s not an 18-year-old. He didn’t even register. He was told several times by his supervisor theconsequences. He did nothing. I ordered 150 hours . . . because I added an aspect of restorative justice. He did absolutely nothing. If Isaw five hours, ten hours, 15, 20, half of the hours, then I think your argument would have some credibility in terms of an explanation.

But without even registering and doing nothing . . . he thumbed his nose at my order. [ 27 ] It is interesting to note that this disregard for obligations was present before sentencing as well. Although the accused was assessed as a low risk to re-offend, in his pre-sentence report, the writer listed the accused’s failure to provide the probation officer with certain collateral information and detailed the requests.

He concluded, “Considering the clients response to complying with the requests of this writer, the subject’s genuine acceptance of responsibility and accountability in this matter are questionable.” [ 28 ] In terminating the CSO, the sentencing judge was aware that termination was not automatic and that she had a duty to consider all the statutory options. She was alive to the recommendations made by counsel, and the alternatives made available under the Code . Ultimately, she found that the second breach was very serious because it demonstrated a complete lack of regard for his sentence.

She emphasized the need for maintenance of the integrity of the CSO system, which is an important consideration in deciding whether to terminate a CSO. See Filippelli at para 26 . [ 29 ] The findings of the sentencing judge were reasonable. I do not believe the sentencing judge erred in terminating the accused’s sentence and consequently, there is no ground for intervention.

Did the sentencing judge err in failing to credit the accused for any time he spent on judicial interim release pending the first breach hearing during which time his conditional sentence was suspended? [ 30 ] Parliament has legislated a comprehensive scheme designed to adjudicate breaches of conditional sentences as quickly and expeditiously as possible. Nonetheless, so as to avoid situations where CSOs expire before breaches can be adjudicated, the running of a CSO is suspended between the arrest of the accused and when the hearing is concluded (section 742.6(10)).

Accordingly, the accused’s CSO was suspended from the date he was released from custody on judicial interim release (August 17, 2013), until the first breach hearing on June 11, 2014, for a total of nine months and 25 days. [ 31 ] Parliament has granted courts the discretion to apportion some of this suspended time back to the running of an offender’s CSO. However, this discretion is limited and can only be exercised in exceptional circumstances where it is in the interests of justice (section 742.6(16)). [ 32 ]

Section 742.6(17) sets out certain factors to be considered when exercising this discretion: - the circumstances and seriousness of the breach; - whether not making the order would cause the offender undue hardship based on the individual’s circumstances; - the length of the period of suspension and whether the offender was subject to, and followed the conditions of, the CSO. [ 33 ] The accused argues that such exceptional circumstances exist and it would be in the interests of justice to credit him with the entire period of approximately ten months.

Counsel for the accused submits that the accused was overwhelmed and intimidated by the court process and that there were ongoing systemic problems with Legal Aid and the processing of applications over which he had no control. [ 34 ] The Crown disagrees, making two points. First, the Crown submits that the

section allowing the Court to credit the accused with time during which the CSO was suspended must be read in conjunction with section 719(2) of the Code , which states that , “ Any time during which a convicted person is unlawfully at large or is lawfully at large on interim release granted pursuant to any provision of this Act does not count as part of any term of imprisonment on the person.” [ 35 ] The Crown relies on the case of R v Woodhouse (DC) , 2000 MBCA 50 , 148 ManR (2d) 122, which stated (at paras 13- 14): [T]he accused remained out of custody until the appeal hearing on May 25, 2000, a period of 22 days, but is not entitled to any credit with respect thereto.

That matter is resolved by s. 719(1) and (2) of the Code . . . . By virtue of subs. (2), the accused is not entitled to any credit for the time he was on bail with respect to the breach of conditions charge. [ 36 ] It should be remembered that the current version of section 719(2) was introduced at the same time as the first conditional sentencing provisions were added to the Code in 1995. However, when first introduced, the provisions with respect to conditional sentences ended at

section 742.6(9). Subsections (10) through (17) were added in 1999 to address the consequences of conditional sentence breaches. At no time during the legislative process that brought

section 742.6(16) into being was section 719(2) expressly addressed.

[37] Moreover, the Code contains a specific provision allowing for credit for the time that the CSO is suspended pendingdetermination of the breach (section 742.6(16)). That specific and later provision should take precedence over the general provision ofsection 719(2). See Lévis (City) v Fraternité des policiers de Lévis Inc, 2007 SCC 14 at para 58, [2007] 1 SCR 591. [38] See also Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed (Markham: LexisNexis, 2014) at 363-368, whereshe states: 11.58 Implied exception (generalia specialibus non derogant).

When two provisions are in conflict and one of them deals specificallywith the matter in question while the other has a more general application, the conflict may be resolved by applying the specificprovision to the exclusion of the more general one. . . . 11.64 Implied repeal.

When two provisions are in conflict and the conflict cannot be resolved through other means, the more recentlyenacted provision prevails over and excludes the application of the earlier one. [39] Woodhouse would appear to be the only appellate case that has considered the interaction between these two sections andno other reported cases have cited Woodhouse. I do not see the two provisions as necessarily in conflict. Section 719(2) sets out theproposition that time spent on interim release does not, as a general proposition, count as part of a term of imprisonment.

Section742.6(16) allows a court the discretion in certain exceptional circumstances to credit an individual with some of that time towards therunning of his sentence as an exception to that general proposition.

See also R v Atkinson (DR) (2003), (ON CA),170 OAC 117 (at para 23). [40] In any case, I believe that Woodhouse is distinguishable from the case at bar because in that case, the bail related to timespent pending the appeal of the sentencing judge’s order, not the initial determination of the CSO breach. [41] Second, the Crown states that not only are there no exceptional circumstances here, but the accused’s situation is entirelyof his own making.

The Crown argues that the retaining of counsel is the responsibility of the accused and if Legal Aid was slow inprocessing the applications, then the accused should have retained counsel himself. [42] Rosenberg JA, although dealing with a different piece of legislation, explained the meaning of the word “exceptional” inthe following manner in the case of R v REW (2006), (ON CA), 207 OAC 184 (at para 31): The theme that runs through use of the term “exceptional” in both criminal case law and legislation, is that it is intended to describe theclearest of cases.

Such cases include those where applying the normal rules would undermine the purpose of the legislation, where theexercise of the unusual power is necessary or required, and where the exercise of the unusual jurisdiction is capable of explanation. [43] What will constitute exceptional circumstances in these types of cases is, obviously, very fact-dependent. So, forexample, in R v Hutchings, 2002 BCPC 517 (QL), the accused spent time in the local lock-up which was acknowledged by the judge tobe “difficult”. In the result, the judge credited the accused with 30 days, pursuant to

section 742.6(16), which was roughly double theamount of time he might have spent in the local correctional facility. [44] Length of time by itself will not be sufficient. Instead, the court will look to the reason for the delay. So, in the case ofDoddridge at para 5, the Alberta Court of Appeal found that a seven-month period of time between arrest and adjudication was notexcessive because on each appearance resulting in the passage of time, matters were adjourned either by consent or at the request of theoffender.

In those circumstances, the Court held that the case was not exceptional. [45] However, in the case of Bright, that same Court found that a delay of ten months did, indeed, constitute an exceptionalcase, particularly where the period of delay was due to institutional factors, among others. [46] In the case of the accused, it is true that many, if not most, of the adjournments were at his request but the reasons for therequests were institutional. Our legal system is often cumbersome and complex to negotiate, even for an individual who is legallyrepresented.

Without legal counsel, it can become an almost Kafkaesque experience. [47] For many accused before our courts, it is unrealistic to say that if the processing of their Legal Aid application is takingtoo long, they should simply hire private counsel. The true question in this case is whether the accused pursued his application for LegalAid diligently and with reasonable dispatch considering his circumstances.

A review of the almost ten-month delay reveals noindividual fault arising from the actions of the many Crown counsel, judges and defence counsel dealing with the accused as his casewas shuffled along in the system. Nor does it reveal fault on the part of the accused. Rather, in my opinion, most of the delay wassystemic and institutional. [48] The accused’s first appearance before a judge occurred on August 19, 2013, when counsel from Legal Aid appeared onhis behalf, went on the record and consented to the time beginning to run (see

section 742.6(3)). Apparently a file was opened and

counsel of record appeared, even though a Legal Aid certificate had not issued. The date of the breach hearing was set based on the availability of the Crown and counsel of record, again, even though the certificate had not issued. [ 49 ] The Crown on appeal places all of the delay on the shoulders of the accused. Yet delay by the accused and delay by the Legal Aid system is not one and the same.

As the Crown present at the time of the court appearance explained: [U]nfortunate for, for the accused, but there’s been a practice in court now, where Legal Aid has been deeming hearings commenced and then have withdrawn. So [counsel] had been on record and he deemed the commenced, the hearing commenced, essentially meaning that there was no urgency in terms of setting this down. [ 50 ] Consequently, the date set for the hearing of the breach was not until October 22, 2013. However, once counsel was notified that Legal Aid coverage had been denied, a motion to withdraw was brought.

The accused appeared and informed the Court that he was making another application based on a change of circumstances. Once again, even though the accused seemed to be doing what he was supposed to do, delays occurred based on the availability of a date in Court to bring the motion to withdraw, the Crown’s opposition to the motion and the Court’s reluctance to hear the motion until the accused’s new application was determined by Legal Aid. [ 51 ] Months passed as the accused attempted to obtain a certificate and then appeal Legal Aid’s decision to deny his Legal Aid.

His hearing on the breach kept being adjourned to allow him to obtain counsel. The whole procedure was further complicated due to the fact that in the middle of all this, the accused’s surety was surrendered and he was taken into custody, which once again changed his financial circumstances and affected his Legal Aid application. He was released once he obtained a new surety. [ 52 ] Each time he appeared in court, there was a different judge, Crown and defence counsel. Each time the matter appeared on the docket, there is some indication that Legal Aid was still pending, but would come through.

So, for example, on December 11, 2013, his counsel told the Court, “There was, had been some issues with the Legal Aid certificate. I believe they’re about to be worked out, so we’re just asking for one remand in order to sort that out.” In fact, as late as January 28, 2014, Legal Aid’s position is not clear. There was some further delay as a result of the accused’s common-law wife being hospitalized and the accused being injured in a workplace accident. [ 53 ] Finally, on February 11, 2014, his counsel withdrew. When the accused next appeared on April 15, 2014, he appeared unrepresented by counsel.

Moreover, his previous counsel had not provided him the particulars of the allegation of non-compliance, nor the supervisor’s report. The judge quite correctly adjourned the hearing again to allow the accused the opportunity to obtain and review the material. [ 54 ] The hearing on the first breach did not take place until June 11, 2014. At that hearing, he was sentenced to four months’ custody. Since he was unrepresented, the application of

section 742.6(16) was never mentioned or considered by the sentencing judge. [ 55 ] The accused did have counsel at the hearing for the second breach and did raise

section 742.6(16) at that time. The sentencing judge did consider

section 742.6(16) when dealing with the second breach on September 3, 2014. She deemed time served from the date she sentenced him on the first breach to August 29, 2014, the date when the hearing for the second breach was officially commenced, but the period of time previous to June 11, 2014, was never considered.

The failure of the sentencing judge to address the question amounts to an error in principle and a failure to consider a relevant factor and allows this Court to consider the matter anew. [ 56 ] In regard to the circumstances and seriousness of the breach, the accused violated his curfew by being outside of his home after 7:00 p.m., but it is certainly true that the circumstances surrounding the breach were serious. Although he was not prohibited from drinking alcohol, he was found passed out almost three and one-half hours past the start of his curfew.

He was so intoxicated that he was taken to the remand centre to sober up. [ 57 ] On the other hand, although the breach was serious enough to order a four-month period of custody, it was not a breach which led to termination. Without any credit, the length of the CSO is increased by approximately 40%. As I indicated, I do not regard the accused responsible for the entire length of time, as the Crown argues. Instead, I regard it as systemic delay involving Legal Aid and the courts.

Even though most of the adjournments were at the request of the accused or his lawyer, when attempting to secure Legal Aid and then after Legal Aid’s refusal, to retain counsel, there is nothing to indicate that the accused was abusing the system or delaying for improper purposes. [ 58 ] In addition, aside from the non-compliance with the community service requirement, for which he has been sentenced, he was otherwise fully compliant with his conditions and more importantly, with the conditions restricting his liberty during the period of suspension.

There were no indications of any return to criminal activity and every indication that the accused was acting like a productive member of society. In summarizing the report of the sentence supervisor, the sentencing judge noted , “The last report that I have been provided through the supervisor was that you were reporting as directed, you were employed full-time, occasionally working overtime hours.” [ 59 ] Given all of the above, I would give the accused credit for five months on his conditional sentence pursuant to

section 742.6(16). Did the sentencing judge err in failing to credit the accused for time between the issuance of the warrant for his arrest on the second breach and the execution of that warrant? [ 60 ] The accused argues that he should have been credited at least for the period of time between the issuance of his arrest warrant for his second CSO breach on April 30, 2014, and the execution of that warrant on June 11, 2014 (42 days). He relies on

section 742.6(14) of the Code , which states “if there was unreasonable delay in the execution of a warrant, the court may, at any time, order that

any period between the issuance and execution of the warrant that it considers appropriate in the interests of justice is deemed to be time served under the conditional sentence order.” [ 61 ] With respect to the second breach on April 30, 2014, the accused’s probation officer reported that the accused had failed to perform community service work as directed in the CSO. A warrant was issued for the accused’s arrest on that date, but it was not executed until the hearing regarding his first breach on June 11, 2014. [ 62 ]

Section 742.6(14) of the Code allows a judge to credit this time towards the running of the CSO if there was an unreasonable delay in executing the warrant. Unlike the power of a court under

section 742.6(16),

section 742.6(14) does not require exceptional circumstances to be established. All that is required is that there be unreasonable delay in executing the warrant, and that crediting the time be in the interests of justice. [ 63 ] The accused was represented at the hearing for the second breach which took place on September 3, 2014. At that time, counsel did not make submissions with respect to credit pursuant to

section 742.6(14) before the sentencing judge as to whether the delay was unreasonable other than to say that it was a “concern”. She was, therefore, never asked to make a finding as to whether the delay between the issuance of the warrant and its execution was unreasonable. The accused raises the argument for the first time on appeal. [ 64 ] As a general rule, new issues will not be entertained on appeal.

Beside the clear interest in supporting finality of litigation, raising new issues on appeal can raise concerns of prejudice to the other side caused by the lack of opportunity to respond and adduce evidence at trial; and the lack of a sufficient record upon which to make the findings of fact necessary to properly rule on the new issue. [ 65 ] There are exceptions, especially where it would otherwise be unjust to the accused not to deal with the issue. It is clear that defence counsel enjoy more latitude than the Crown in this regard.

See R v McPhee (EG) , 2004 MBCA 43 , 184 ManR (2d) 125; and R v Grant (IM) , 2009 MBCA 9 at paras 44-46 , 236 ManR (2d) 54, leave to appeal denied, to SCC refused, [2009] SCCA No 94 (QL). [ 66 ] However, exceptions should be permitted only where the interests of justice require it and the court has a sufficient evidentiary record and findings of fact to resolve the issue.

See Quan v Cusson , 2009 SCC 62 at paras 36-37 , [2009] 3 SCR 712; St Clements (Rural Municipality) v Zucawich , 2013 MBCA 65 at paras 92-98 , 294 ManR (2d) 146; and Samborski Garden Supplies Ltd v MacDonald (Rural Municipality) , 2015 MBCA 26 at para 27 , 315 ManR (2d) 291. [ 67 ] In this case, it is true that the accused was residing at the address required and was reporting regularly so that the police could have presumably executed the warrant at any time after April 30, 2014, and not just waited until his next court appearance. In R v Youan , 2006 ONCJ 4 (QL), the Court applied

section 742.6(14) in a situation where the warrant was not executed for 59 days and the accused appeared in court on several occasions on the matter. [ 68 ] However, if the argument had been raised, it may be that the Crown would have been able to offer an explanation. Given that the argument was not raised substantively at the hearing, it is understandable why no explanation was given, and no evidence was led as to the reason for delay. There is no record upon which to debate the merits of this argument. No foundation was laid for this Court to assess it. [ 69 ] I would dismiss the appeal except for the granting of five months’ credit pursuant to

section 742.6(16). JA I agree: JA I agree: JA