In R. v. Potoreyko, 2022 SKCA 71, June 10, 2022, the accused was convicted of the offence of resisting arrest, contrary to section 129(a) of the Criminal Code. The trial judge granted the accused a conditional discharge, with ten months of probation. The probation order contained the following condition:
Prepare a written apology to Cst. Matt Dowden approved by your probation officer and deliver that apology as told to do so by your probation officer.
On appeal, the accused sought to have this condition deleted from his probation order.
The appeal was allowed and the condition was deleted. The Saskatchewan Court of Appeal held that “the apology condition that was imposed on Mr. Potoreyko is the product of an error in principle that invites judicial intervention. As noted in Serafino, the “plain language of [s. 732.1(3)(h)] instructs, ‘before a probation condition can be imposed, it must be “reasonable” in the circumstances and must be ordered for the purpose of protecting society and facilitating the particular offender’s successful reintegration into the community’” (at paragraph 25).
The Court of Appeal indicted that there were “several reasons why the apology condition fails to meet the requirements” of section 732.1(3)(h) of the Criminal Code (at paragraphs 26 to 29):
First, the trial judge was aware that Mr. Potoreyko had already apologized to Cst. Dowden at the hospital for not pulling over. The need for another apology was not explained in his reasons. Second, while the Crown had suggested the inclusion of this sort of condition, it was not advanced with any vigour. After raising this condition as a possibility, Crown counsel’s submission was decidedly tepid: “I know that there might be some appetite, or maybe not some appetite for this. … Crown is not fixated on whether or not that apology does take — or does occur”. Third, the trial judge noted that “[p]erhaps Constable Dowden was more aggressive in pursuing this arrest than he absolutely needed to be …”. Given this unusual finding, and the circumstances as a whole, I find it hard to fathom how forcing Mr. Potoreyko to prepare a written apology was reasonable.
Further, as noted by the Supreme Court in Shoker, there must be a nexus between the offender and the purpose served by the condition: that is, “for protecting society and for facilitating the offender’s successful reintegration into the community”. At the time of the offence, Mr. Potoreyko was 73 years of age and suffering from serious health issues. He had no prior criminal record. How society needed to be protected in circumstances such as this was not explained by the trial judge or the Crown on appeal.
In addition to the protection of society purpose, s. 732.1(3)(h) requires there to be a nexus between the offender and their successful reintegration into the community. The Criminal Code does not define this word. One definition of reintegration includes, “Re-establishment or restoration of a previous condition … Restoration of a person to a previous status, condition, etc.” (Oxford English Dictionary Online (Oxford University Press, March 2022) sub verbo “reintegration”). Since the issue was never argued, I leave for another day whether it is appropriate to attach a condition of the sort made here in circumstances where an accused was never incarcerated and, arguably, was not in a position where he needed to be reintegrated back into society.
In my view, the error in principle had an impact on sentence that warrants judicial intervention. In the result, Mr. Potoreyko’s appeal from sentence is allowed to the limited extent of deleting the apology condition.