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Sentencing  - Breach of conditional sentence - Sentencing considerations - Time already served - Aboriginal offenders - Family background - Family obligations - Procedure - Appeals

Thursday, July 21, 2016 @ 8:00 PM  

Appeal by the offender, McDonald, from termination of her conditional sentence order (CSO) and remand to custody. In January 2014, the offender was sentenced to an 18-month CSO for uttering threats and two counts of breach of an undertaking that required abstinence from alcohol. In February 2015, the Crown alleged the offender breached the CSO by failing to keep the peace and be of good behaviour. The allegation arose following a report the offender threatened to shoot her way into a hotel to get her kids back from her husband. In March 2015, the offender was granted bail. She had completed 13 months of the CSO prior to the breach. In June 2015, the Crown sought to collapse the CSO. The presiding judge found a breach of the CSO’s conditions and, without further submissions, ordered the offender to return to custody to complete the sentence. The judge refused to hear submissions regarding the offender’s personal circumstances, stating Gladue factors had been considered when the CSO was imposed. The offender was returned to custody for two months prior to being released on bail pending appeal. The Crown conceded the judge erred in failing to consider other available sentencing options under s. 742.6(9) and in denying defence counsel the opportunity to make sentencing submissions. The Crown submitted that the termination of the CSO was nonetheless a fit sentence.

HELD: Appeal allowed. The hearing judge’s errors included the failure to consider enumerated sentencing options, failing to permit defence counsel to make sentencing submissions, failing to consider Gladue factors relevant to a fit sentence, and the failure to grant credit for the pre-hearing time in which the CSO was suspended. The errors allowed the Court to consider the matter anew and resentence the offender. The Crown originally sought a 105-day custodial sentence for the offences underlying the CSO. Gladue factors were a critical consideration, as the offender was a childhood and adulthood victim of abuse. She struggled with addiction and serious health issues. The breach arose in the context of a violent domestic dispute in which the offender was fearful for her young children’s well-being. The offender otherwise ran a successful small business and made significant efforts to avail herself of rehabilitative services. Had the prevailing factors been considered, the collapse of the CSO was not inevitable. The termination decision was unreasonable. The offender should have been credited for time served under the CSO. The offender was granted credit for the 50 days remaining left under the CSO. Her sentence was thus served in its entirety.