The Supreme Court of Canada has agreed to determine whether a probation order can be imposed on a defendant with an effective sentence of more than two years, after provincial appeal courts have released conflicting rulings on the issue.
The Supreme Court granted leave on Feb. 8 to a Crown appeal of a Quebec Court of Appeal decision in R v. Mathieu that struck down an 18-month probation order imposed by the trial judge.
The defendant received a total sentence of 54 months, less 36 months for credit for pre-trial custody. While the custodial term was upheld, the probation order was struck down in a very brief ruling by the Quebec Court of Appeal. The panel found that s. 731(1)(b) of the Criminal Code does not permit probation to be imposed for sentences exceeding two years.
The Quebec decision is contrary to a ruling last year by the B.C. Court of Appeal in R v. Goeujon. It found that pre-trial custody should not be included when determining if the total sentence is more than two years and whether a probation order can be imposed.
In Ontario, the Court of Appeal has also left probation orders undisturbed in cases where the pre-trial detention and the custodial sentence exceed two years, although it has not provided any detailed legal analysis about its conclusions.
The Supreme Court decision to hear the Crown appeal in Mathieu comes less than two years after it ruled in R v. Fice that pre-trial custody is a factor to consider when determining if a defendant is eligible for a conditional sentence.
“The time credited to an offender for time served before sentence ought to be considered part of his or her total punishment,” wrote Justice Michel Bastarache for the 5-2 majority in Fice. “A conditional sentence cannot become available to an offender who otherwise deserves a penitentiary term solely because of the time the offender spends in pre-sentence custody.”
The treatment of pre-trial custody in the Supreme Court decision in Fice and the B.C. appeal ruling in Goeujon appears to be inconsistent, says Toronto defence lawyer Heather McArthur.
“In both cases, the rulings work to the disadvantage of the defendant and the advantage of the state,” says McArthur.
The B.C. court distinguished Fice on the grounds that it related to the “unique concerns” involving a conditional sentence. Ursula Botz, who successfully argued Goeujon for the Crown, disagrees that there is an inconsistency in the two decisions.
“Time served in pre-sentence custody has never been considered a bar to the availability of a probation order,” says Botz. “Unlike a conditional sentence, which addresses both punitive and rehabilitative objectives, a probation order is primarily rehabilitative in nature and should be available for the type of offender who otherwise deserves a penitentiary sentence.
“Probation is an important individualized measure available to a sentencing judge in exercising his or her discretion in sentencing,” adds Botz, a lawyer in the criminal appeals and special prosecution branch of the B.C. Ministry of the Attorney General.
But the availability of a probation order, even after lengthy pre-trial custody, may reduce the incentive for the Crown to resolve matters that do not need to go to trial, suggests McArthur. She recently represented Stephen Papadopoulous, who was sentenced to one day in jail and three-years probation after his manslaughter conviction by a jury in the 2001 beating death of 19-year-old Matthew Daly after a dispute at a party in Burlington, Ont.
Papadopoulous, 27, who had no prior criminal record, spent more than five years in pre-trial custody in one of the most high-profile proceedings in that region.
Superior Court Justice Fletcher Dawson rejected the Crown’s submission that Papadopoulous, who was not found to have participated in the fatal beating, should receive an additional two years in jail in addition to a probation order.
McArthur says her main concern was her client’s release from custody and because of the length and notoriety of the case she successfully contested some of the terms, but did not oppose the probation order.
Papadopoulous and four other defendants were charged with first-degree murder. Two defendants were ultimately convicted of manslaughter and the other three of second-degree murder. The preliminary hearing alone lasted 84 days.
Papadopoulous first offered to plead guilty to manslaughter in December 2001. The Crown rejected the plea numerous times, including at the beginning of the trial last year.
McArthur notes that the need for rehabilitation and the lack of programs in pre-trial custody were cited as reasons for a probation order. If the Crown had accepted the plea, McArthur says her client would have received a federal sentence and been subject to the supervision of correctional officials after his release on parole.
