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SENTENCING - Criminal Code offences - Other Criminal Code offences - Breach of conditional sentence

Tuesday, May 23, 2017 @ 7:50 AM  

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Appeal by Majedi from the denial of her application for a writ of habeas corpus. In the alternative, the appellant sought an order of mandamus. The appellant challenged the calculation of the end date of a conditional sentence order (CSO) she was found to have breached. She argued the calculation was in error or, alternatively, that her counsel and a judge in a subsequent hearing were led into error in respect to the calculation, with the result that her s. 7 Charter rights were infringed. The appellant was sentenced to a 23-month CSO in March 2012 followed by an 18-month probation order. She was arrested in September 2012 for breaching her conditional sentence. In April 2013, the appellant admitted the breach. At that time, the appellant’s counsel made submissions which implied that the CSO ceased to be suspended as of April 8, 2013. The Crown did not take a position with respect to the appellant’s submissions and her counsel’s explanation of the options available. Defence counsel then explicitly waived an expeditious hearing into the alleged breach and the court did not dispose of the allegation pursuant to its powers under s. 742.6(9) of the Criminal Code. The latter step was not taken until January 2014. In November 2014, the appellant was arrested on a new drug trafficking charge and remanded into custody. In December 2014, the Crown asserted a calculation of the remaining CSO as 387 days, a number that did not include the order restarting in April 2013. Defence counsel asserted the contrary, and there was some ambiguity in the Crown's response. In sentencing the appellant for the substantive offence, and addressing the effect of that sentence upon the CSO, the judge referred to his and defence counsel's understanding that the CSO restarted in April 2013, and he indicated uncertainty on the position of the Crown. In June 2015, before the November 2014 charge was disposed of in court, the appellant made the application for habeas corpus and mandamus to calculate the conditional sentence according to law. She argued that under s. 742.6(10) of the Criminal Code, the admission of the breach in April 2013 should have had the effect of ending the suspension of the CSO. She submitted that the mistake was obvious from her counsel’s submission in April 2013. She further argued that if she was wrong on her interpretation of s. 742.6(10), by not knowing about the effect of that section, the probation order was extending into a period when she would have been free of its restrictions. That, she argued, established a violation of her s. 7 rights. In dismissing the application, the chambers judge found the appellant did not raise a reasonably arguable case that her detention was unlawful, as a simple admission to an offence did not constitute a “determination” for purposes of s. 742.6(10). Rather the word “determination” in that section connoted a disposition by a court, and that event did not occur until January 2014.

HELD: Appeal dismissed. The chambers judge’s conclusions on the application for habeas corpus were correct. An admission by the appellant of a breach of her conditional sentence, even if expressed in court, did not constitute a “determination”. Section 7 of the Charter was only available in response to actions of the Crown. On the record, the misunderstanding identified was with defence counsel. The Crown did not adopt the position advanced by defence counsel and subsequently asserted a period remaining on the order which was inconsistent with that position. The fact that the judge also misunderstood the effect of the April 2013 admission was of no moment, as by the time the judge expressed his mistaken understanding, the critical period in which Ms. Majedi asserted she could have advanced her case had already passed.

R. v. Majedi, [2017] B.C.J. No. 714, British Columbia Court of Appeal, M.E. Saunders, A.W. MacKenzie and G.J. Fitch JJ.A., March 31, 2017. Digest No. TLD-May222017001