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CONDITIONAL SENTENCE

BREACH HEARING

R. v. LeBorgne, 2005 NSCA 156 (CanLII)



[1]              This appeal raises a narrow issue of considerable practical importance: When an offender is alleged to have breached a conditional sentence order, may hearsay evidence be used to prove the breach?  Chisholm, P.C.J. answered this question in the affirmative.  I agree.

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[18]         In my view, the judge was on firm ground in relying on s. 742.6(5).  It expressly makes admissible the report of supervisor, which by virtue of s. 742.6(4), must include, where appropriate, signed statements of witnesses.  Even if, contrary to my view, the word “witnesses” is interpreted to mean persons with first-hand knowledge of the relevant facts, the section clearly contemplates that their evidence be placed before the court in writing and therefore in hearsay form.  In my view, s. 742.6(5) provides a full answer to the appeal.

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[27]         Moreover, this flexible approach to admissibility is consistent with the intent to make breach hearings relatively simple and expeditious.  This intent is underlined, for example, by s. 742.6(7) which leaves it to the discretion of the Court as to whether the supervisor or witnesses will be required to attend for cross-examination. In addition, a requirement that only first-hand information may be admitted at a breach hearing would make the procedure inflexible, which is not in keeping with the intention of Parliament.  The breach of conditional sentence hearing is not meant to be an overly legalistic procedure.  The offender is entitled to a fair hearing, not a technically intricate one.  Thus, and with respect, I see no support in the legislative text or purpose for the Valentine approach.

[28]         However, the generous admissibility of evidence contemplated by s. 742.6(5) must always result in fairness to the offender.  This calls for careful attention by the presiding judge to the weight that should fairly be given to the evidence in all of the circumstances of the particular case. Despite the simple and expeditious nature of the procedure, an allegation of a breach of conditional sentence is a serious matter.  The decision as to whether an offender will serve the sentence in the community or in custody is, as I have said, a decision that affects the vital interests of both the offender and the community.  Clearly, the Criminal Code provisions and our criminal law traditions require a scrupulously fair hearing.   Therefore, on the facts of each case, the judge must evaluate the evidence presented by the Crown and the offender and determine whether the Crown has discharged its burden of proof by evidence which is sufficiently reliable in all of the circumstances. The fact that evidence is admissible by statute in no way diminishes the obligation of the judge to assess the proper weight, if any, to be given to such evidence.

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[29]         This, in essence, was the approach taken by Chisholm, P.C.J. in this case.  As he wisely pointed out:

The weight to be given to such evidence will depend on the nature of the information, the source of the information, the circumstances with respect to the receipt of that information.  Obviously first-hand information is likely to be given more weight than second - or third - or fourth-hand information.

Jim O'Neil, LL.B.

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