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See R. v. Atkinson.

Court File No. C37997

COURT OF APPEAL FOR ONTARIO

Between:

HER MAJESTY THE QUEEN

respondent

and



DARREN RICHARD ATKINSON

appellant

Appellant's counsel
Kenneth W. Golish,
Barrister and Solicitor
380 Ouellette Ave Suite 302
Windsor, Ont. N9A 6X5
Telephone: 519-252-7867
Fax: 519-252-8652
www.golishlaw.com

Dated: October 2002

APPELLANT'S WRITTEN ARGUMENT


I. Nature of the Case
(Appeal in Writing, Rule 24, No Factum Filed)

A. Facts:

(1)  Statutory Background Necessary to Understand Facts

1.  A sentenced served in the community as a conditional sentence will be served in its entirety. Apart from a discretionary provision provided for in s. 742.6(16), three circumstances, however, will automatically effect the length of the conditional sentence.

2.  The first circumstance, not applicable to this matter, is that the running of a conditional sentence will be suspended if the offender begins serving another prison term pursuant to s. 742.7.

3.  The next circumstance is that under s. 742.6(10), the running of a conditional sentence is suspended if a proceeding begins in which a breach of the conditional sentence is alleged and later proved. The running of the sentence is suspended even though, pursuant to s. 742.6(11), the offender is still bound by its conditions if he or she remains out of custody. This has the effect of extending the end of the sentence.

4.  However, it is to be noted that s. 742.6(12) provides and exception to 742.6(10) in that the running of the conditional sentence begins again as follows:

(12) A conditional sentence 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, continues running while the offender is detained under the order.
5.  The third circumstance that may effect the length of the sentence occurs if the offender is found to have breached a term of his conditional sentence. If so, and the offender receives a disposition involving a period of incarceration, the offender will then earn remission one month for every two months in prison or otherwise on a pro-rated basis for that time, pursuant to s. 6 of the Prisons and Reformatories Act.

(2)  Specific Facts Relating to this Case
(See transcript evidence pages 6 to 23, and Exhibits 1 and 2 in Appeal Book pages 32 to 39)

6.  The appellant was sentenced on April 14, 2000, after entering a guilty plea to a charge of sexual assault. He was given a conditional sentence of two years less a day to be served in the community.

7.  The appellant's sentence of two years less a day would have otherwise ended on April 12, 2002.

8.  The appellant had three prior breaches. In each case, he was arrested, appeared before a justice of the peace within 24 hours of his arrest and was not released. In each case, a bail determination was not conducted at his first appearance before a justice of the peace.

9.  The three prior breach dispositions resulted in the appellant receiving respectively seven days, 60 days, and four months in jail. For jail time, the appellant earned no less than 62 days remission pursuant to s. 6 of the Prisons and Reformatories Act.

10.  Windsor police arrested the appellant on February 19, 2002 for an alleged breach of a conditional sentence. On that date, Ministry of Correctional Services records had the end date of his sentence adjusted to April 14, 2002. This date gave credit for earned remission, but was otherwise calculated on the basis that the entire period in custody between arrest and breach determination on each breach suspended the running of the conditional sentence. See trial exhibit #2.

11.  On March 4, 2002, Mr. Justice Gordon I. A. Thomson of the Superior Court, conducted a fourth breach determination hearing. The supervising officer, Katie Bosveld, testified that after the appellant's last arrest, the Ministry recalculated the periods for which the running of the sentence was suspended. The Ministry's revised calculation now fixed the end date of the sentence to be March 17, 2002. See trial exhibit #1.

12.  This revised calculation now used the dates of two bail determinations on prior breaches as the only dates when the running of the sentence began again under s. 742.6(12).

13.  Using the date of determination of bail as the date upon which a detention order is made, within the meaning of s. 742.6(12), the Ministry calculation is that the sentence for the appellant would have ended on March 17, 2002. However, the appellant's position is that the date of the first appearance before a justice of the peace is the date upon which a detention order is made and therefore the Ministry should have credited the appellant with at least an additional 30 days. The sentence would then be over four days before the arrest. The following table sets out the history of the prior dispositions:

Breach Date of Arrest Date of first appearance before Justice of the Peace Date of determination that offender has not shown cause Date of disposition on breach allegation
1 2000/05/13 2000/05/14 2000/05/23 2000/05/31
2 2001/04/19 2001/04/19 (No date) 2001/04/27
3 2001/09/30 2001/10/01 2001/10/15 2001/11/06

(3)  Specific Findings Made by the Hearing Judge

14.  The learned hearing judge held that when a person is not released under s. 515(6), a "detention order," within the meaning of s. 742.6(12), occurs only after a formal bail hearing. He ruled that the end date of the sentence was thus March 17, 2002, agreeing with the Ministry's position. He then revoked the conditional sentence and ordered the appellant to serve 13 days, the remainder of his sentence as he found it, in custody.

15.  The learned hearing judge determined that the appellant had breached the term of his house arrest: Having been given permission to leave his residence for the purpose of purchasing groceries, he was found in locations that were not directly between his place of residence and the one grocery store he was permitted to attend. The appellant does not dispute the correctness of this determination. (See transcript evidence pages 52 to 53)

16.  The prosecution also alleged that the appellant violated a term of his sentence by being in possession of ______. The learned hearing judge found this allegation was not satisfactorily made out.

17.  The appellant also submitted that if his sentence was not served as of the date of the breach allegation, it had been served as of the date of the hearing, namely March 4, 2002. The appellant's counsel submitted that an earlier breach determination before Justice Carl Zalev, of the Superior Court of Justice, had given the appellant an adjustment of his sentence pursuant to s. 742.6(16). Mr. Justice Thomson did not find any such adjustment intended in the prior ruling of Justice Zalev. The appellant does not intend to argue this issue as it may be moot.(See transcript evidence of prior hearing in Exhibit 3 in Appeal Book pages 22 to 31)

(A) Issue on Appeal

18.  The appellant maintains that the issue on this appeal is limited to the interpretation of s. 742.6(10), namely when is a detention order made within the meaning of s. 515(6). Is the detention order made at the time the offender is first remanded into custody or only after a formal bail hearing when the offender has not shown cause for his or her release?

(B) Argument on Appeal

(1) Historical development of provision

19.  When conditional sentences became part of the Criminal Code, it was unclear what the effect of a breach was. A divergence of opinion existed, but the more common view appears to have held that a breach resulted in the offender being unlawfully at large and therefore the running of the sentence was suspended. See s. 719 and cases, R. v. Morris, 1997 CarswellOnt 5621, Ontario Court of Justice (Provincial Division) per Cole Prov. J. and R. v. Arthur,1998 CarswellBC 3008, British Columbia Provincial Court per Gove Prov. J.

20.  Parliament clarified the problem in 1999 amendments which remain in effect as enacted. Section 742.6 provides a complete code of procedure. If an allegation of breach arises, proceedings may be instituted in a number of ways, including issuing a warrant, a summons or arresting the offender without a warrant. The procedures available are all the procedures available for compelling the appearance of an accused on any criminal charge. It thus includes the authority for the police to arrest the offender, but then release him or her without proceeding before a justice of the peace under s. 515. Under s. 742.6(10), upon any of the occurrences that start the proceedings, the running of the sentence is suspended. Reading this provision alone, no distinction is made between the offender who is in custody and the one who is not: The running of the sentence is still suspended, although the conditions of the sentence still apply to an offender who is not in custody.

21.  A complimentary provision is s. 742.7. It provides for the suspension of the running of the conditional sentence while another sentence of imprisonment is being served. We need to note that the offender who is merely detained pending trial on another charge is not imprisoned and therefore, s. 742.7 has no application. However, a typical situation will be see an offender facing a breach allegation and a criminal charge arising at the same time, either because the criminal charge alone also constitutes a breach of the conditional sentence or because the offender has breached a specified term of the sentence.

22.  A breach allegation is not an independent charge and the worst consequence an offender may face is to serve the remainder of the original sentence in jail. If the running of the sentence is not suspended, the remaining sentence can be one day or almost two years. Since the breach allegation needs to be heard within 30 days or as soon as practicable, the sentence, if the running is not suspended, can end before the allegation is heard. If that happens, unless he or she is detained on any other matter, the offender must be released. Although the issue of the breach does not become moot, (see R. v. Greville, 2002 CarswellOnt 1458, 158 O.A.C. 183.) there appears to be no authority to detain the offender any longer.

23.  If an offender is arrested on a breach allegation, he or she is still entitled to a hearing to determine the issue of bail. However, the reverse onus provisions of s. 515(6) apply. In theory, if a person is also charged with an offence, the offender could be detained on the breach, but released on the criminal charge. What is crucial in all this, is that the running of the sentence resumes under 742.6(12) if the person is detained under s. 515(6):

(12) A conditional sentence 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, continues running while the offender is detained under the order.

(2) Approaches to Interpretation

24.  We then come to the main question of this inquiry: When exactly is a person detained under s. 515(6)? At first blush, as lawyers, we may answer that a detention order is made following a show cause hearing or when the offender consents to "no bail." As lawyers, we equate the judicial ruling with the making of an order. Assuming this theory, if the offender or the prosecutor requests an adjournment and the bail hearing is delayed or not held at all, the running of the sentence remains suspended.

25.  An example of this being the assumption may be seen in the Court of Appeal of Manitoba decision of R. v. Currie, 2001 CarswellMan 34, 2001 MBCA 14, 153 Man. R. (2d) 120, 238 W.A.C. 120. In that case, the offender on his first breach of a nine-month sentence spent from February 7, 2000 to May 26, 2000 without a bail hearing. The suspension periods for both, as assumed by the court, are set out as follows:

As a result of the warrant being issued on January 28th and the subsequent disposition on May 26, 2000, the appellant's conditional sentence was extended to January 1, 2001, an additional period of four months. Again on July 11, 2000, a warrant was issued for an alleged breach by the appellant of his conditional sentence. Again, the conditional sentence was suspended as of that date. The appellant was arrested and detained in custody on August 13, 2000. He applied for bail on September 21st. Bail was denied, and the conditional sentence began to run again. See s. 742.6(12). The suspension period for the conditional sentence on this occasion was approximately two and one-third months.

26.  In that case, the offender spent a number of months out of custody while the running of the sentence was suspended, but also spent some 39 days in custody during which the court assumed the running of the sentence was suspended. Clearly, all parties, including counsel, were operating on the assumption that the bail hearing was the turning point that triggered the provisions of s. 742.6(12).

27.  However, the better answer, the fairer answer, is that a detention order is made when the offender first appears before a justice of the peace, is not released and is remanded into custody. In other words, it doesn't matter when or if a bail hearing is held as long as the offender remains in custody and is not under any other sentence.

28.  In coming to this conclusion, we may take three approaches to this interpretation, namely:

i.  Consider the plain meaning of the language of the section;
ii.  Determine what Parliament's intention was;
iii.  Determine if the Charter is of any assistance.

(a) Plain Meaning

29.  In the first approach, we look only at the language of s. 515(6) which is incorporated by s. 742.6(2). The subsection provides that where an accused is brought before a justice:

the justice shall order that the accused be detained in custody until he is dealt with according to law, unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified, but where the justice orders that the accused be released, he shall include in the record a statement of his reasons for making the order.

30.  The subsection does not specifically refer to a hearing upon which an order is made. When the offender is remanded in custody to a jail, he or she is remanded with a Form 19. The same form will be used whether the remand is before the show cause hearing or after. Further, a literal reading of the provision, shows us that the first duty of the justice of the peace is to detain the accused in custody. If the accused does not show cause for a release, whether on his first court appearance or later, nothing happens because the justice of the peace has already detained the individual and nothing has occurred to justify a release. Section 742.6(12) refers to a detention order, not a bail hearing and the proper interpretation of s. 515(6) is that a detention order is mandatory: A show cause hearing is a right that may result in a release order, but the bail hearing does not result in a detention order when the offender hasn't shown cause: He or she simply remains in custody under the original warrant.

31.  In this analysis, we must consider the relationship between a remand in custody and a detention order. Under s. 516, a justice of the peace has the authority to remand a person in custody in any proceeding under s. 515. The warrant will be under Form 19. Where the onus is on the prosecutor to justify a release, the prosecutor may request an adjournment and if granted, the remand in custody is mandatory. The accused may also request an adjournment on a reverse onus matter and under s. 516, there will also be a remand in custody:

Remand in custody

516. (1) A justice may, before or at any time during the course of any proceedings under section 515, on application by the prosecutor or the accused, adjourn the proceedings and remand the accused to custody in prison by warrant in Form 19, but no adjournment shall be for more than three clear days except with the consent of the accused.

32.  Obviously, a remand in custody is not a detention order because the authority to remand in custody applies to both the situation where the onus is on the prosecutor and where it is not. Thus an accused who is remanded in custody only so the prosecutor can show cause, is not under a detention order. Of course, that person is not under a release order either. However, it does not follow that under s. 515(6), the accused is not under a detention order: The remand in custody and detention may occur simultaneously. For an illustration, we only need to look at s. 515(11) :

Detention in custody for offence listed in section 469

515 (11) Where an accused who is charged with an offence mentioned in section 469 is taken before a justice, the justice shall order that the accused be detained in custody until he is dealt with according to law and shall issue a warrant in Form 8 for the committal of the accused.:

33.  Simply put, the remand in custody is a mechanism allowing an accused to be received by a local jail. Thus under s. 515(11), the accused is formally detained in custody before his bail hearing in Superior Court. This section provides for both an order for detention in custody and a remand to appear in a different court. The formal provisions for making orders of release and detention are separate matters.

34.  It is respectfully suggested that other provisions of Part XVI (Compelling Appearance of an Accused Before a Justice and Interim Release) are of assistance. For instance, in looking at s. 525 regarding reviews, we find that the counting of the days permitting a review does not run from the date of the bail hearing, but from the date the accused first appears before a justice of the peace:

Time for application to judge

525. (1) Where an accused who has been charged with an offence other than an offence listed in section 469 and who is not required to be detained in custody in respect of any other matter is being detained in custody pending his trial for that offence and the trial has not commenced
(a) in the case of an indictable offence, within ninety days from
(i) the day on which the accused was taken before a justice under section 503, or
(ii) where an order that the accused be detained in custody has been made under section 521 or 524, or a decision has been made with respect to a review under section 520, the later of the day on which the accused was taken into custody under that order and the day of the decision, or
b) in the case of an offence for which the accused is being prosecuted in proceedings by way of summary conviction, within thirty days from
(i) the day on which the accused was taken before a justice under subsection 503(1), or
(ii) where an order that the accused be detained in custody has been made under section 521 or 524, or a decision has been made with respect to a review under section 520, the later of the day on which the accused was taken into custody under that order and the day of the decision,
the person having the custody of the accused shall, forthwith on the expiration of those ninety or thirty days, as the case may be, apply to a judge having jurisdiction in the place in which the accused is in custody to fix a date for a hearing to determine whether or not the accused should be released from custody.

35.  Thus, an accused arrested on a charge of robbery on Day 1, who does not get a bail hearing until day 40, is still entitled to a review of bail on day 90.

(b) Parliament's Intention

36.  The next approach is to endeavour to determine what Parliament intended in enacting this provision. Obviously, Parliament did not want an offender to wait out his or her time at large in the community, or for that matter, while serving a sentence on another charge, and avoid the consequences that should rightfully flow from a breach. The purpose in making amendments in the Code in 1999 was to clarify the judicial pronouncements that had determined that a breach caused the offender to be considered unlawfully at large. Under that jurisprudence, the offender was no longer unlawfully at large once he was arrested.

37.  Further, is there any reason why Parliament would want to differentiate between the time spent in custody before a full bail hearing or after? Section 719(3) of the Criminal Code recognizes that credit may be given for time spent in custody awaiting disposition on criminal charges. Judges regularly give credit, typically on a two for one basis. In fact, it may be an error in law to give only credit for actual time in custody. The Court of Appeal for Ontario decision in R. v. Thompson 2000 CarswellOnt 2097, 146 C.C.C. (3d) 128, 133 O.A.C. 126, [2000] O.J. No. 2270, illustrates that principle in this passage where the court substituted the one-for-one credit given by the trial judge:

[81] The trial judge gave no reasons for only crediting Wilmot with the actual amount of time served in pretrial custody (14 months). The record indicates that Wilmot served the 14 months at the Toronto Jail, despite his request that he be transferred to a federal institution. Accordingly, in addition to losing the benefit of the remission mechanisms contained in the Corrections and Conditional Release Act, S.C. 1992, c. 20, he was deprived of the opportunity to engage in education, retraining or other rehabilitative programs. In the circumstances, absent cogent reasons, of which there are none, we think that Wilmot should have received credit on a two for one basis (28 months) for the time served in pretrial custody.

38.  Moreover, this court has also held that time in custody should be credited on the same basis toward time to be imposed on mandatory minimum sentence. See R. v. McDonald,1998 CarswellOnt 3025, 17 C.R. (5th) 1, 111 O.A.C. 25, 127 C.C.C. (3d) 57, 40 O.R. (3d) 641, 54 C.R.R. (2d) 189, [1998] O.J. No. 2990.

39.  Another illustration of Parliament's intention to give credit for time in custody is found in s. 6(1) of the Prisons and Reformatories Act which provides that once a parolee is back in prison, he or she earns remission again. The only instance where the running of the parolee's sentence is suspended is when parole is suspended and the parolee is at large.

40.  We can consider a conditional sentence to be like a parole, a parole that is granted immediately. Thus, the purpose of the 1999 correcting amendments 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.

(c) Using Charter for Assistance in Interpretation

41.  It is respectfully submitted that the first two approaches to this interpretation problem are sufficient to deal with this appeal. However, the third approach is worthy of consideration, that being the approach of using the Charter in interpreting this provision. In Willick v. Willick, [1994] 3 S.C.R. 670, the Supreme Court of Canada made the following comment about the Charter and statutory interpretation:

52. The impact of the Charter on judicial law and policy making provides further support for the acceptance and consideration by courts of independently obtained social authority. It has been firmly established by this Court that statutory interpretations consistent with values embodied in the Charter must be given preference over interpretations which would run contrary to Charter values.

42.  So how does the Charter come into play in deciding whether the detention order referred to in s. 742.6 means the first remand into custody or the finding that the offender hasn't shown cause for release? Well, here may be an uncommon instance in which the equality provisions of s. 15 of the Charter apply to a criminal law question. Equality before the law means that like cases should be treated similarly and unlike cases are treated differently. We can see how both these considerations may be demonstrated in a contrary interpretation. On the one hand, if s. 742.6(12) means that the offender who has had a bail hearing has an advantage over the offender who hasn't, can this be consistent with s. 15. On the other hand, is it fair for the offender who is in custody prior to a bail hearing to be in the same position of having the running of his or her sentence suspended as the offender who is not in custody?

43.  While much of the Canadian jurisprudence under s. 15 concerns the enumerated categories of discrimination, the application of s. 15 is not limited to those categories. The section reads as follows:

Equality before and under law and equal protection and benefit of law

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

44.  Some cases have touched upon the issue of discrimination where distinctions are made based on a ground not enumerated. For instance, in Miron v. Trudel, [1995] 2 S.C.R. 418 the court dealt with the different treatment accorded to unmarried partners compared to married ones. The court concluded that in order to establish discrimination, the claimant must show that the denial rests on one of the grounds enumerated in s. 15(1) or an analogous ground and that the unequal treatment is based on the stereotypical application of presumed group or personal characteristics, per Sopinka, Cory, McLachlin and Iacobucci JJ.

45.  We must bear in mind that this analysis may not fit when we seek to interpret a legislative enactment as opposed to deciding whether it is constitutional. For guidance it will be helpful to look at R. v. S.(S.) [1990] 2 S.C.R. 254. In that case, the court found that neither the section of the Young Offenders Act that allowed a province to establish an alternative measures programme or the decision by a province not to implement one, violated the equality provisions of the Charter. The court found that the distinction in question was not based on a personal characteristic, but did not rule out the possibility that other distinctions based on provincial residence could be suspect.

46.  In finding that the province did not violate the Charter, the court noted that it "is necessary to bear in mind that differential application of federal law can be a legitimate means of forwarding the values of a federal system." The court also noted that geographical distinctions were also important: "Alternative measures programs can be adaptable to the particular needs of the communities in which they are set up, whether the community is rural, urban, native, etc."

47.  In this analysis, the court, without purporting to use the American approach to equal protection, in essence, does use that approach. Under that method of analysis, where a classification does not involve a suspect category, for instance, race or religion, it is sufficient if a rational relationship exists between the government objective and the classification in question. Thus in R. v. S.(S.) , the court was able to identify at least two reasons why differences based on provincial residence might be valid.

48.  Turning to the classification in question here, respectfully, this court may wish to ask if such a rational relationship could exist to entitle Parliament to differentiate between persons who have had a bail hearing and those who have not. It is submitted that considering this issue involves criminal law and the liberty interests of the individual, some further heightened scrutiny is in order. It is further submitted that the only way such a classification could withstand even minimal scrutiny is if we can find a possible justification the Crown may have in a speedy determination of bail.

49.  It appears no such justification exists. Practitioners of criminal law know prosecutors do not object to adjournments in bail proceedings. Any such objection would usually be based on having a multiplicity of proceedings for bail involving more than one accused. Except when the prosecution may have concern about the duplication of the same process for more than one accused or more than one charge, a circumstance could not arise in which the prosecution could be prejudiced by a delay in this procedure. The main reason is that the prosecution usually simply relies on written reports or summaries and does not require any live testimony of witnesses. If prejudice were to occur, it could be remedied on a case-by-case basis and the prosecution could have a speedy determination of bail nonetheless. Moreover, it is clear that the right to a speedy bail hearing belongs to the accused, not the prosecutor. This is evident in s. 516, where an adjournment of more than three clear days only requires the consent of the accused, not the prosecutor. Finally, if the Crown can be said to have a legitimate interest in the early determination of bail issues, the interest in most instances, cannot be said to be pressing, certainly not an interest that can outweigh the objective of crediting time served on equal basis among all detained persons.

50.  Of course, we know that the prosecution has a bargaining advantage when an accused does not gain his or her release. However, this is not a legitimate basis for the Crown to assert an interest: The denial of bail may unfairly force a guilty plea that would not otherwise have been obtained freely and voluntarily. Again, it is hard to conceive of a reason why the prosecution would have a legitimate concern about resolving the issue of bail early. In any event, bail is an on-going process, entitling the accused not only a higher court review, but periodic reviews as well. See s. 525 of the Criminal Code.

51.  In considering whether the Crown truly has an interest in the early determination of bail, it is respectfully suggested that it is appropriate to view matters from the prospective of the accused and his or her interest in an early determination of bail. Unlike the situation at trial, an accused's interest would always appear to be to have a quick determination of bail. The passage of time, could bring forward favourable information, but just the opposite could occur and thus this factor is at best, neutral. That bail hearings are often delayed or not held at all, is not necessarily reflective of an accused's interest in the earlier determination of this issue. Such delays are most often attributable to court scheduling problems, including scheduling problems of defence counsel. In this circumstance, respectfully, it is not fair to make an accused responsible for his or her counsel's scheduling problems.

52.  Returning to the matter of the Crown's perspective, can the Crown be heard to complain if an accused chooses not to deal with the issue of bail? For the time, the Crown has what it wants, the continued detention of the accused.

53.  It is respectfully suggested that we must finally conclude there is no rational basis for treating detained persons differently based on whether a bail determination has occurred. At best, the question of when a detention order is made can be answered in two different ways. The constitutionally-preferred approach is thus to favour the interpretation that puts all formally detained persons in the same position.

54.  It is therefore respectfully suggested that the court find for the appellant and allow the appeal.

Dated: October 2002

The respondent submitted a written argument in December.

APPELLANT'S REPLY SUBMISSIONS

1.  The appellant disagrees with a number of submissions made by the respondent. Firstly and respectfully, the respondent has incorrectly characterized the appellant's appeal. Contrary to the Respondent Factum Paragraph 1, it is not the submission of the appellant that the sentence continued to run from the date of each prior arrest, but that the sentence resumed when the appellant was detained in custody under s. 515(6). Further, while the issuance of an arrest warrant would suspend the running of the conditional sentence, contrary to Respondent Factum Paragraph 3, the appellant was not arrested pursuant to a warrant, but was arrested without a warrant. In these instances, the arrests suspended the running of the sentence, but only until a formal detention occurred under s. 515(6).

2.  The appellant takes issue with the Respondent Factum Paragraph 10 that this appeal is moot. This court in R. v. Greville, 2002 CarswellOnt 1458, 158 O.A.C. 183, determined that such appeals are not moot as a breach finding would remain on a person's record.

3.  The appellant respectfully also takes issue with the Respondent Factum Paragraph 11 which purports to characterize this appeal as an attempt to re-litigate the appellant's prior breaches. If anything, it is the respondent who is asking this court to review the appellant's prior breach history by seeming to imply that the appellant should not have had the opportunity to breach his sentence as many times as he did. See Respondent Factum Paragraph 18. That the appellant was permitted to continue with his conditional sentence on the three prior occasions speaks for itself. It does not mean he is undeserving of having his sentence calculated according to law.

4.  No issue is taken with any of the provisions of s. 742.6. Respectfully, the central concern of this appeal has nothing to do with the personal circumstances of this appellant, but with the precise determination of when a detention order is made under s. 515(6). However, it is to be noted that this question would never have had any importance until s. 742.6(12) was enacted. Further, none of the cases cited as authority dealt with the issue raised by this appeal. That the judges and counsel in Currie, and even counsel in this appeal, assumed that the meaning of detention order was something other than what is suggested by this appeal, is respectfully not determinative of the issue.

5.  When Parliament introduced these amendments in 1999, it was to clarify or correct the law relating to when the running of a conditional sentence would be suspended upon the occurrence of a breach of the sentence. It appears nothing prevented Parliament from enacting a provision making the suspension run from the occurrence of the breach, arguably what the law was at the time. Instead, Parliament set the suspension point under s 742.6(10) at the time the proceedings for the breach commence.

6.  Parliament could have set the recommencement point under s. 742.6(12) to be the time of arrest, but since the offender in those circumstances has a right to reasonable bail--unlike a parole violator, whose starts his or her sentence again on arrest--instead, chose the point at which formal detention was ordered. Further s. 742.6(12) clearly contemplates that if the offender is subsequently released from custody, the suspension begins again. It is respectfully submitted that the contemplated release from custody is not limited to circumstances of release on a bail review, but would more often cover a release after an offender has shown cause.

7.  The respondent places some reliance on the availability of a relief under s. 742.6(16), but viewing the exceptional circumstances requirement of that provision, and in light of 742.6(17)(c) and 742.6(11), it is respectfully suggested that the relief available is limited to periods when the running of the sentence is suspended while the offender is out of custody.

8.  Respectfully, why should formal detention mean "after a hearing when the offender has not shown cause?" Why shouldn't the first appearance before a justice of the peace count as the point of formal detention? It is respectfully noted that the respondent, in written argument, had the opportunity to explain why the sentence should continue to be suspended between these points. Why is such an interpretation fair? What interest does the Crown have in an early determination of bail? Is an offender not entitled to credit for time served between these two points? These questions and this issue were not addressed at all.

9.  All of which is respectfully submitted.

Dated: January 2003



Name, address and telephone number of appellant's solicitor.

Kenneth W. Golish, Barrister and Solicitor
380 Ouellette Ave Suite 302
Windsor, Ont. N9A 6X5
Telephone: 519-252-7867
Fax: 519-252-8652
www.golishlaw.com

Note: This appeal was decided in reasons released on 2003/03/27. The Court of Appeal for Ontario accepted that the running of a conditional sentence, upon a breach, commences again on the first appearance before a justice of the peace, not when a formal bail hearing is conducted. See R. v. Atkinson.