R v Singh, 2016 MBCA 38

Citation: R v Singh, 2016 MBCA 38 Date: 20160418 Docket: AR15-30-08439 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron BETWEEN : HER MAJESTY THE QUEEN ) T. L. Mariash ) for the Appellant Respondent ) ) N. M.

Cutler ) for the Respondent - and - ) ) ) Appeal heard: ) January 20, 2016 JUGDEEP SINGH ) ) Judgment delivered: (Accused) Appellant ) April 18 , 2016 STEEL JA [ 1 ] The accused was sentenced to 6 months’ incarceration followed by 18 months’ supervised probation for personating someone else to avoid arrest. [ 2 ] He has abandoned the ground of appeal that the six months’ incarceration was unfit, and only seeks leave to appeal the probation order. In particular, he argues that the curfew attached to the probation order is unreasonable, and was imposed for punitive purposes contrary to

section 732.1(3) (

h) of the Criminal Code (the Code ), given that when the curfew was imposed, the accused had no ties to Manitoba and no residence, and could not comply with the conditions. He submits that it is irrelevant that he could apply to have the order varied or transferred to Ontario. The issue is whether the order was reasonable at the time it was imposed.

The Crown submits that the probation order was imposed reasonably, and for legitimate purposes to protect the public. [ 3 ] The imposition of a term of probation is a discretionary order and, given the history of the accused and the reasons of the sentencing judge, I would not interfere with that order. However, the conditions attached to that order must be reasonable, and must be for rehabilitative purposes, public safety or both.

While the protection of the community may have required a period of probation and a reporting requirement for this individual, there was no evidence that the additional curfew condition had any further rehabilitative or public safety purpose, and could only be described as punitive. [ 4 ] I would grant leave to appeal and grant the appeal in part. While the probation order will remain, the condition of the curfew will be removed. Facts [ 5 ] The appellant was detained by the police when he was a passenger in a motor vehicle that the Winnipeg Police Service had under surveillance.

He initially provided a false name to the police, as well as an Ontario driver’s licence in that false name. When the police became aware that a false name had been provided, they arrested him and charged him with personation and identity theft, contrary to sections 402.2(1) and 403(1) (

d) of the Code . [ 6 ] The accused pled guilty and was sentenced to 6 months’ incarceration to be followed by 18 months of supervised probation. The probation order contained conditions that he report to a probation officer as required, notify probation services of his address prior to his release and that he was not to move without prior Crown consent or permission from the court. In addition, it

contained the condition that he follow a daily curfew from 9:00 p.m. to 6.00 a.m. daily, and answer the door if Winnipeg Police Service,Probation Services or their designate conducted a curfew check. [7] At the time of the imposition of the probation order, the accused was an Ontario resident. He had no ties to Manitoba. He had no residence in Manitoba at which he could answer the door for a curfew check. He had no landline telephone.

When he wasreleased, he was directed by Probation Services to a homeless shelter. [8] The accused has a lengthy record dating back to 1995, involving assault with weapon, theft and drug trafficking. Theaccused had previously been supervised and monitored in Manitoba through the Gang Response and Suppression Plan. He was anationally flagged, high-risk offender, and at the time of his arrest for this matter, he was pending on charges in Ontario andSaskatchewan.

Decision of the Trial Judge [9] In his reasons, the sentencing judge placed the accused on 18 months’ supervised probation because: This is an individual who causes safety concerns for the public, and the public is entitled to be satisfied that while he is in Manitoba andout of custody that there is some level of supervision being conducted. He comes before me with a lengthy criminal recordnotwithstanding the fact that he is a relatively young man. And I am told that notwithstanding his past he is still hanging around withnefarious sorts.

He is a high risk offender. [10] With respect to the imposition of the curfew, he gave no reasons. He simply stated: “Curfew 9:00 p.m. to 6:00 a.m. Curfew checks in person.” [11] The accused argues that the period of probation was not imposed for the purposes of rehabilitation as there was nocounselling or other restorative justice conditions imposed on the order. While the sentencing judge stated concerns about associatingwith “nefarious sorts”, the accused was not prohibited from having contact with any individuals, not even the target of the original policeinvestigation.

He submits further that a curfew imposed on an offender without a residence cannot be said to assist with the offender’srehabilitation into society, nor can it be said to have been reasonably imposed. He submits that there was no valid basis to bind him to aprobation order with a curfew. Analysis and Decision [12] The standard of review on an appeal against sentence is well settled. See MacInnes JA in R v Arganda (JR), 2011MBCA 54, 268 ManR (2d) 194 (at para 25): It is trite law that an appellate court must show great deference to the decision of a sentencing judge.

It can interfere with a sentence intwo circumstances only: when the sentence is demonstrably unfit, or when it has been arrived at as a result of an error in principle. Anerror in principle includes failing to consider a relevant factor, taking into account an irrelevant factor, failing to give appropriate weightto a relevant factor or overemphasizing an appropriate factor. See R. v. Ruizfuentes (H.S.) (2010), 2010 MBCA 90 , 258Man.R.(2d) 220; 499 W.A.C. 220; 2010 MBCA 90, at para. 7; R. v. Shropshire (M.T.), (SCC), [1995] 4 S.C.R. 227;188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37; and R. v.

C.A.M., (SCC), [1996] 1 S.C.R. 500; 194 N.R. 321; 73B.C.A.C. 81; 120 W.A.C. 81. [13] Mandatory and optional conditions which may be attached to a probation order are set out in sections 732.1(2) and732.1(3) of the Code. The authority to impose a curfew lies within the residual clause, which states: Optional conditions of probation order 732.1(3)(

h) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made undersubsection 738(2), for protecting society and for facilitating the offender’s successful reintegration into the community. [14] The main purpose of a probation order is to rehabilitate the offender. See R v Shoker, 2006 SCC 44 at para 10, [2006] 2SCR 399; and R v Woroby (TW), 2003 MBCA 41 at para 31, 173 ManR (2d) 178. However, as the wording of the

section indicates,protection of the community can also be a purpose of a condition of probation. See R v Voong (DM) et al, 2015 BCCA 285 at para 43,374 BCAC 166. It will be sufficient if the particular probation condition serves either one of these goals. See R v Bourque (KAN), 2013BCCA 447 at para 28, 344 BCAC 197. [15] The

section also specifies that any condition attached under this residual clause must be reasonable. In order for aprobation condition to be considered reasonable, there must be a nexus between the condition and the offender, the protection of thecommunity and the offender’s reintegration into the community. See R v Traverse (BR), 2006 MBCA 7 at paras 16-18, 201 ManR (2d)212. While it is not reasonable to attach a probation condition for a purely or primarily punitive purpose, so long as the condition meetsthe nexus requirement, it could be considered reasonable. The condition will withstand scrutiny, so long as the punitive aspect of the

condition is consequential, and not by design. In R v Bosco, 2016 BCCA 55 , Dickson JA wrote (at para 55): While a condition may serve one or both goals of protecting society and facilitating reintegration, if imposed solely to punish theoffender it will lack the requisite nexus.

Without the requisite nexus, a probation condition, punitive or otherwise, cannot be imposedlawfully. [16] A curfew certainly has punitive aspects, but if the evidence indicates that there is a nexus between the offender and theprotection of the community or the reintegration of the accused, then it is a reasonable condition in the circumstances. In R v Dunn (BJ),2011 NBCA 19, 369 NBR (2d) 271, the sentencing judge imposed a curfew upon the accused as part of a probation order, because he feltthat the objectives of denunciation and general deterrence would be met by imposing a curfew.

The curfew was struck out by the Courtof Appeal because it explained (at para 21): There was no recommendation, submission or even suggestion that a curfew was required for rehabilitative purposes. In fact, thesentencing judge expressly stated it was being imposed to punish even though he knew this was not proper. [17] When determining whether a curfew condition in a probation order for adult offenders is reasonable, it is important todifferentiate from other situations that may have curfew conditions attached to them.

For example, curfews or house arrest conditionsare very often included in probation orders relating to young persons pursuant to the Youth Criminal Justice Act (YCJA), which sets up adifferent sentencing regime. Unlike residual adult probation conditions, residual probation conditions under the YCJA do not have to beimposed for the purpose of protecting society and/or facilitating the offender’s successful reintegration into the community, but can beimposed simply to provide a meaningful consequence to the young person and provide accountability.

See R v CT, 2006 MBCA 15 atpara 29, 201 ManR (2d) 194; and R v SAC, 2007 NSCA 55 at para 33, 254 NSR (2d) 90; aff’d 2008 SCC 47, [2008] 2 SCR 675. Alsosee R v JRL, 2007 NSCA 62 at paras 54-64, 254 NSR (2d) 344, where the Court of Appeal indicated that probation conditions under theYCJA can be punitive in nature. [18] Similarly, curfew conditions attached to conditional sentences serve a different purpose. This is because the courtshave determined that, unlike probation orders, conditional sentences and the attached conditions should be utilized to effect punishment(as well as rehabilitation) upon the accused.

So, in R v Proulx, 2000 SCC 5, [2000] 1 SCR 61, Lamer CJ stated, “[C]onditionalsentences should generally include punitive conditions that are restrictive of the offender’s liberty. Conditions such as house arrest orstrict curfews should be the norm, not the exception” (at para 36). [19] As well, the focus with respect to conditions attached to a judicial interim release order is very different than thoserelating to probation conditions. Pursuant to section 515(4)(

f) of the Code, a justice releasing the accused on bail may impose acondition that the accused “comply with such other reasonable conditions specified in the order as the justice considers desirable.” However, case law has established that the “reasonable conditions” attached to an order for bail must relate to one or more of the threegrounds for detention set out in section 515(10) of the Code. That is, they must relate to ensuring attendance in court; the protection orsafety of the public; or to maintaining confidence in the administration of justice.

See R v St-Cloud, 2015 SCC 27 at paras 1-2, [2015] 2SCR 328. [20] In order to assess the purpose for which a condition is attached to an adult probation order, and hence itsreasonableness, the evidence upon which the imposition of the condition was based must be examined.

There must be some evidencebefore the sentencing judge that could support one or both of the valid purposes of a probation condition (facilitating reintegration and/orprotecting society). [21] For example, in R v Choi (JW), 2013 MBCA 75, 294 ManR (2d) 261, MacInnes JA, for the Court, considered thesentencing judge’s imposition of a condition requiring the accused to pay $12,000 in restitution and stated (at para 52): [I]t is not apparent in the circumstances of this case, nor did the sentencing judge give any explanation or appear to give anyconsideration, as to how such a condition could or would protect society or facilitate the accused’s successful reintegration into thecommunity. [22] In R v Etifier (EN), 2009 BCCA 292, 274 BCAC 24, the trial judge had banned the accused from being in Pentictonwithout the probation officer’s prior consent stating that, “[T]he probation officer should know when he is here” (at para 5).

On appeal,Groberman JA, for the Court, stated (at paras 18-19): I have carefully searched the reasons for judgment on sentencing, the pre-sentence report, and the victim impact statement, and amunable to discern the purpose of Condition 7. There is no reason, in this case, to believe that the accused will be rehabilitated morecompletely or more quickly by staying away from Penticton. Equally, there is no reason to believe that society will be safer or moresecure if the accused stays away from Penticton.

In short, there was no material before the sentencing judge that would suggest that the condition that was imposed was desirable in order to protect society or to facilitate the offender's successful reintegration into the community.

I can find no principled basis in the evidence upon which the sentencing judge could have exercised his discretion to impose this condition, nor do his reasons suggest any such basis. [ 23 ] Groberman JA had also commented earlier that, “[T]his is not a case, like most of the cases cited by the Crown, where an order has been made for the purpose of removing the accused from a place where he habitually gets into trouble, or where he has repeatedly threatened or terrorized particular individuals” (at para 16). [ 24 ] The jurisprudence with respect to when it is reasonable to attach a curfew to a probation order, and what evidence is required to support such an order, is sparse and fact based.

It will, in each case, depend upon the nature of the offence and, more importantly, the personal circumstances of the offender in all of their varied aspects.

However, there must be some evidence that such a condition will facilitate the offender’s reintegration into society, or will protect society from the offender. [ 25 ] Thus, in R v Mattice (BM) , 2003 BCCA 370 , 184 BCAC 140, the Court concluded that public safety required a nighttime curfew, given that the offender entered homes at night, and the pre-sentence report discussed the accused’s unexplained proclivity for entering occupied homes in the middle of the night.

In Bourque , psychiatric evidence indicated that a curfew was reasonable because the accused had to be closely monitored to protect the public and keep them safe from her violent fantasies and behaviour.

In R v Wesslen (AJ) , 2015 ABCA 74 , 599 AR 159, the nighttime curfew was characterized as a rehabilitative measure because the offending behaviour took place at a party being held in the evening. [ 26 ] On the other hand, curfews were not considered reasonable where there was no apparent evidence that the condition would facilitate rehabilitation or protect society; or there was some link to the behaviour of the offender. In R v Badyal (AS) , 2011 BCCA 211 , 305 BCAC 110, the accused had been convicted of assault cause bodily harm to his wife.

The offence occurred within their home, and the accused had been drinking. Besides the 14-month jail sentence, the accused was sentenced to 3 years’ probation, which included an 11 p.m. to 6 a.m. curfew, which the trial judge imposed “as part of the punitive provisions” of the probation order (at para 2). On appeal, the Crown conceded that the judge erred in imposing a curfew as a punitive measure, but argued that it nonetheless fostered the accused’s rehabilitation and helped to protect the public.

The Court struck down the curfew, noting that it had not been imposed for either purpose, and could not be supported pursuant to those purposes. With respect particularly to the protection of the public purpose, Chiasson JA stated (at paras 8-9): [T]here is nothing before us to establish a nexus between the curfew and protection of the public. The offence for which the appellant was convicted and sentenced took place during the day. He had been drinking, but this was in his home. There is little to suggest that he drinks outside his home late at night or through the night.

Conclusion [ 27 ] Conditions of probation cannot be imposed for primarily punitive purposes, although a reasonable condition may have a residual punitive aspect to it. Conditions imposed under the residual clause must be ordered either for the purpose of protecting society, or facilitating the particular offender’s successful reintegration into the community, or both. Although reasonable conditions will generally be linked to the offence, this will not always be the case, and it may be that a reasonable condition is linked to the needs of the offender.

As long as there is a nexus between the condition, the offender and the protection of the community and/or the offender’s reintegration into the community, and evidence supporting the existence of that nexus, the condition could be considered reasonable. [ 28 ] It is trite to say that a sentencing judge ought not to set up an accused for failure as part of a court order. Too often, numerous conditions are attached to probation orders, which make compliance more difficult for the accused, but whose purpose is difficult to understand on the specific facts of the case.

They are neither focussed on rehabilitation, nor does the evidence in the case substantiate their need for ensuring public safety. It appears here that the sentencing judge was under the erroneous belief that Probation Services would assist the offender with finding an address. Instead, the accused was directed by Probation Services to reside at the Salvation Army, 180 Henry Street. This is a homeless shelter, without guaranteed beds, and without a landline telephone in his room.

There does not appear to be any evidence suggesting that the curfew would be a rehabilitative measure, nor does there appear to be any evidence that a curfew would protect society from the accused.

There is no evidence that the accused’s current conviction (or previous convictions) occurred at nighttime, and there is no evidence to suggest that a nighttime curfew would prevent the accused from committing future crimes, whether similar in nature to the current conviction or similar to those contained in the accused’s criminal record. [ 29 ] The sentencing judge’s decision suggested that he wanted to prevent the accused from going “off the radar” by imposing the curfew.

However, this was already accomplished through the imposition of the compulsory conditions of probation, which require an accused to report to the court when required, and to notify the court or probation officer in advance of any change of address or employment ( subsections 732.1(2) (

b) and (c)), and by the imposition of the optional condition requiring the accused to report to a probation officer as required ( subsection 732.1(3) (a)). In this regard, the sentencing judge’s “off the radar” comments were similar to those made by the sentencing judge in Etifier , who effectively banned the accused from being in Penticton without his probation officer’s consent, stating that, “[T]he probation officer should know when he is here” (at para 5).

The British Columbia Court of Appeal held that the condition was unreasonable, as there was no reason to believe that society would be better protected, or that the accused would be more quickly rehabilitated by his “banishment” from Penticton (at para 15). [ 30 ] In addition, given the comments of the sentencing judge reproduced earlier, it would seem that the curfew was imposed as punishment, and not solely for the current offence, but for the accused’s prior record.

[ 31 ] I would grant leave to appeal the sentence, and allow the appeal with respect to the curfew condition attached to the probation order. That condition will be deleted. The probation order and all other attached conditions will remain. JA I agree: JA I agree: JA