2011 QCCA 672, 2011 QCCA 672

Unofficial English Translation Cloutier c. R. 2011 QCCA 672 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002579-105 (200-01-146573-104) MINUTES OF HEARING DATE: April 8, 2011 CORAM: THE HONOURABLE LORNE GIROUX, J.A. (JG1983) JEAN BOUCHARD, J.A. (JB3398) JACQUES VIENS, J.A. (ad hoc) (JV0201) PETITIONER COUNSEL JULIE CLOUTIER Mtre MARC DELISLE (AD0806) (ABSENT) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre RENÉ VERRET (AV2132) (ABSENT) (Criminal and penal prosecutor) Appeal from a judgment rendered on October 19, 2010, by the Honourable Judge Alain Morand of the Court of Quebec, District of Quebec.

NATURE OF APPEAL : 1. Motion for leave to appeal from the sentence heard by a panel 2. Trafficking in substances (2 counts) – Possession with intent to traffic Clerk: Michèle Blanchette (TB3352) Courtroom: 4.33 HEARING Continuation of the hearing begun on April 6, 2011: 9:39 AM Judgment (

s) Clerk PER CURIAM: JUDGMENT [ 1 ] The petitioner pleaded guilty to two charges of trafficking cannabis resin thereby committing the indictable offence set out in section 5(1)(4) of the Controlled Drugs and Substances Act . [ 2 ] The trial judge imposed a prison sentence of 18 months for each count, to be served concurrently in the community, to which he attached various orders and conditions, including house arrest for the first six months, except to perform lawful paid work or in the case of standard exceptions, and curfew between 11:00 p.m. and 6:00 a.m. for the following six months, except to perform lawful work or in the case of standard exceptions. [ 3 ] The petitioner submits that the sentence given by the trial judge is unreasonable and excessive under the circumstances and specifically, that he erroneously considered, as asserted by the respondent in its submissions on sentencing, that the quantity of cannabis resin trafficked was about 26 grams instead of 10.6 grams. [ 4 ] The principles governing a court of appeal's intervention on sentencing matters are well known: … absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. [1] ... a court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes [2] [ 5 ] Although the respondent has admitted that the quantity trafficked by the petitioner was 6.6 grams (instead of 23.7 grams) on June 3, 2010, and approximately 4 grams on May 30, 2010, and that, overall, the trial judge was misled with respect to the quantity trafficked by the petitioner, it is not the type of error likely to justify the intervention of the court to vary the sentence.

[ 6 ] The trial judge observed that the rule of thumb in cases where drugs are brought into prison is incarceration.

Despite all the mitigating factors he accepted in favour of the petitioner, he concluded that a sentence of imprisonment in the community would have to be substantial as there is a great need for denunciation and deterrence, given that drugs in prison settings are a source of problems and disruption, causing fights and difficulties for correctional officers. [ 7 ] In light of the overall reasons for the sentence, it appears clearly that the error made in the submissions to the judge regarding the quantity of drugs trafficked on June 3, 2010, was without any repercussions, especially since the sentence is identical for each count. [ 8 ] Because the offence committed by the petitioner is objectively serious, the trial judge did not err by focusing on general deterrence.

As the Supreme Court notes in R. v. M. (C.A.) , an appellate court must show deference to the trial judges serving on the front lines of the justice system; it is they who, as a result, understand their communities. Lamer C.J. describes the privileged position of the sentencing judge as follows: ... A sentencing judge still enjoys a position of advantage over an appellate judge in being able to directly assess the sentencing submissions of both the Crown and the offender.

A sentencing judge also possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system. Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender's crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be "just and appropriate" for the protection of that community.

The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly. [3] [ 9 ] More recently, in R. v.

L.M. : [15] Owing to the profoundly contextual nature of the sentencing process, in which the trier of fact has broad discretion, the standard of review to be applied by an appellate court is one based on deference. The sentencing judge has “served on the front lines of our criminal justice system” and possesses unique qualifications in terms of experience and the ability to assess the submissions of the Crown and the offender ( M. (C.A.) , at para. 91 ).

In sum, in the case at bar, the Court of Appeal was required — for practical reasons, since the trier of fact was in the best position to determine the appropriate sentence for L.M. — to show deference to the sentence imposed by the trial judge. [4] [ 10 ] The petitioner raises the concept of parity of sentencing and argues the judgment rendered by the Court of Quebec in R. v. Sourdif . [5] [ 11 ] With respect to this argument, it is relevant to recall that the role of an appellate court in achieving parity of sentences is not without its limits.

On this subject, the Supreme Court, per LeBel J., stated that this exercise should not be given priority "over the principle of deference to the trial judge’s exercise of discretion ...". [6] FOR THESE REASONS, THE COURT: [ 12 ] ALLOWS the motion for leave to appeal the sentence; [ 13 ] DISMISSES the appeal. LORNE GIROUX, J.A. JEAN BOUCHARD, J.A. JACQUES VIENS, J.A. (ad hoc)