R. v. Groothuis, 2010 ABCA 73 and R. v. Ermine, 2010 SKCA 47 – Does the Court have the Power to Review a Conditional Sentence or Probation?

The Alberta Court of Appeal in R. v. Groothuis, 2010 ABCA 73 appears to directly contradict the Saskatchewan Court of Appeal decision in R. v. Ermine, 2010 SKCA 47 on the issue of whether a sentencing Court has the power to schedule a review of the original sentence.

In the Groothuis case the Alberta Court of Appeal, after canvassing the prospect of probation with counsel who ultimately acceded to the realization that such an order would go, the sentencing judge, in addition to a term of incarceration, also imposed a term of probation of two years concurrent on all charges. On her own motion, she further directed that the Appellant’s probation be reviewed by her at specified times.

The Appellant accused challenged the jurisdiction of the sentencing judge to personally review the Appellant’s progress on probation. The Alberta Court of Appeal rejected the challenge, holding, at para. 9, that the jurisdiction was based on the mandatory clause:

We cannot accede to the argument that the sentencing judge exceeded her jurisdiction by ordering a review of the probation on her own motion. While s. 732.2(3) of the Criminal Code contemplates changes to probation orders brought about on application by the offender, the Crown and the probation officer, the order in this case accords with the provisions of s. 732.1(2)(b) of the Criminal Code which states:

 (2) The court shall prescribe, as conditions of a probation order, that the offender do all of the following:

 (b) appear before the court when required to do so by the court.

In R. v. Ermine, the Court was dealing with a similar case, where conditions contained in a Conditional Sentence Order included an optional condition that the accused return to Court so that the learned sentencing judge could conduct “a review of the conditional sentence in light of that assessment”. The offender in that case had many challenges, difficulties and disabilities. The Saskatchewan Appeal Court found that in substance the order was aimed at requiring a third party or the sentence supervisor to complete a specified assessment by a certain date if necessary to enable the offender to apply for the Cognitive Disabilities Strategy that the sentencing judge felt could provide some supports to the offender. The date set for that to take place was the date set for a further review.

In my view, the original sentencing Court in Ermine was permitted to schedule a review, so long as the review was only for the prurpose of determining whether further intervention was required. Subsection 742.3(2) of the Criminal Code sets out the optional conditions a Court may order. These conditions are similar to the conditions that may be included in a probation order. Paragraph (f) gives the court a broad discretion to impose such other reasonable conditions as the court considers desirable for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or committing another offence.

The Honourable Mr. Justice E.G. Ewaschuk, of Ontario Superior Court of Justice, in Criminal Pleadings and Practice In Canada, (Criminal Spectrum) the “conditions appropriate” to a conditional sentence must ensure the safety of the community: see Ewaschuk at 18:3374.  Comments from Lebel J. in the Supreme Court of Canada decision in R. v. Shoker, [2006] 2 S.C.R. 399 apply to the use of discretion in a case where the Court wishes to schedule a review:

[36] To hold otherwise might well cause unforeseen and undesirable effects, as the inflexibility of such an interpretative approach would likely require Parliament to attempt to foresee a wide range of individual situations and to address them in minute detail. A drafting technique such as this would hardly be consistent with the canons of sound legal drafting, even if it were feasible.

Encouraging creative conditions, particularly where the accused is in agreement, ultimately protects society and ensures the community is a safer place.

According to Justice Ewaschuk, the Court must consider that the optional conditions be tailored to fit the particular circumstances of the offender and the offender must be capable of abiding by the conditions: see Ewaschuk  at 18:3374. 

It is also notable that reviews are common under the Youth Criminal Justice Act, and should be optionally imposed by the Court pursuant to s. 742.3(2), particularly for youthful offenders.  In the case of Ermine, although he was no longer a youth, many of the same principles were contemplated by the Sentencing Judge in making her recommendations.  Furthermore, a “report to Court when required to do so by the Court” condition is a statutory condition in adult probation orders, and therefore contemplates that the offender can be required to return to Court as a term of their sentence.

In the end, these two decisions do appear to be in conflict. Application of the Groothuis decision in Saskatchewan may occur, as the factual distinction between probation orders and CSO’s is notable. Hopefully reviews can be deemed approproiate, as failure to allow reviews may lead to limitations in the application of CSO’s for offenders with higher supervision needs.