R. v. MOHIADIN, 2024 MBCA 34, APRIL 18, 2024.
FACTS: The accused was charged with two counts of breaching a release order. The release order required that he “abide by a curfew of 10:00 p.m. to 6:00 a.m. at an address in Edmonton, Alberta, and that he remain in Alberta”.
The evidence established that “he was arrested following a traffic stop just before 8:00 p.m. in Winnipeg” (see paragraph 5). The accused pleaded guilty to breaching the order by not being in Alberta, but not guilty to breaching the curfew condition.
In convicting the accused, the trial judge stated (at paragraph 6):
[The accused] was in Winnipeg at 7:55 PM. It is highly speculative to suggest he was on his way to the airport to fly home and be there in time for a 10 PM curfew. There is no evidentiary basis for that explanation. I am satisfied he was in breach of his release order condition on that count.
The accused appealed to the Manitoba Court of Appeal. He argued that “that he had not yet breached his curfew because, when he was stopped by police in Winnipeg, it was only 6:55 p.m. in Edmonton. The accused asserts that the trial judge’s finding that he was not on his way to the airport to get home for his 10:00 p.m. curfew was unsupported by the evidence and was speculative” (at paragraph 7).
HELD: The appeal was dismissed. The Court of Appeal described the elements of the offence in the following manner (at paragraphs 11 to 13):
The elements of the offence of breaching a release order were outlined by this Court in R v Custance, 2005 MBCA 23 [Custance]. The Crown must prove (ibid at para 10):
(1) . . . that the accused was bound by [a release order];
(2) that the accused committed an act which was prohibited by that [release order] or that the accused failed to perform an act required to be performed by that [release order]; and
(3) that the accused had the appropriate mens rea, which is to say that the accused knowingly and voluntarily performed or failed to perform the act or omission which constitutes the actus reus of the offence.
The first and third elements are not at issue. There is no dispute that the accused was bound by a release order that required him to be at an address in Edmonton for a 10:00 p.m. curfew. There is also no dispute that the accused was knowingly and voluntarily in Winnipeg at the time of his arrest. The question is whether the trial judge correctly interpreted and applied the second element of the offence.
Generally, the law penalizes prohibited acts, but does not penalize failures or omissions to act unless the person is under a specific duty. Here, given the conditions of his release order, the accused was under a duty to be at his address in Edmonton by 10:00 p.m.
The Court of Appeal held that that “when someone is unable to meet the expectations of a condition, they are in conflict (and therefore in non-compliance) with the condition. The actus reus of a failure to comply with release conditions is a failure to act in a manner that leaves a person capable of complying with the condition. A court order, such as a release order, creates an affirmative legal duty that imposes obligations on an individual to act. As such, where a person under a condition puts themselves in a position where it is no longer possible to meet their obligations, they are not in compliance with the condition” (at paragraph 17).
The Court of Appeal concluded that the trial “did not err in his assessment of the elements of the offence” (at paragraphs 18 and 19):
The accused’s release order imposed the specific obligation that he be at an address in Edmonton by 10:00 p.m. every day. Section 145(5)(a) of the Code provides that failing to act in compliance with that obligation is an offence. Thus, the accused was not merely prohibited from an act (i.e., being outside a specified address after 10:00 p.m.), he was under a positive obligation to act so as to be able to be at the address by 10:00 p.m.
The trial judge did not err in his assessment of the elements of the offence. The trial judge properly found that the accused had put himself in a position where it was not possible to comply with the 10:00 p.m. curfew and, therefore, the element of the offence had been made out.
Kienapple:
The Court of Appeal asked counsel to address whether the Kienapple principle applied “such that a judicial stay of proceedings should be entered on either the curfew breach or the failure to remain in Alberta” (at paragraph 27).
The Court of Appeal noted, at paragraph 30, that “[f]or the Kienapple principle to apply, both a factual nexus and a legal nexus must be established between the offences. A factual nexus is established when the same act grounds both charges (see Prince at paras 17 20). A legal nexus is established when the offences involve the same cause, matter or delict (ibid at paras 24-26)”.
The Court of Appeal concluded that “[w]hile similar, the elements of the two offences are different. The accused committed two acts: (1) leaving Alberta, and (2) failing to be in a position to be home for his 10:00 p.m. curfew. The accused could fail to remain in Alberta without breaching his curfew; and fail to abide by his curfew without leaving Alberta. In my opinion, given the different elements of the two offences, there is not a sufficient legal nexus to justify a judicial stay of proceedings on one of the two charges…a judicial stay of proceedings pursuant to the Kienapple principle would not be appropriate in the present case” (at paragraphs 38 and 39).
