2010 QCCA 2187, 2010 QCCA 2187

Unofficial English Translation Boivin c. R. 2010 QCCA 2187 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004565-105 (505-01-074820-081 SEQ. ACC. 001/002) (505-01-082057-098 SEQ. ACC. 001/002) (505-01-082058-096 SEQ. ACC. 001/001) (505-01-082059-094 SEQ. ACC. 001/001) DATE: November 25, 2010 CORAM: THE HONOURABLE ANDRÉ FORGET, J.A. ANDRÉ ROCHON, J.A. JACQUES DUFRESNE, J.A. DAVID OLIVIER BOIVIN APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT - Prosecutrix JUDGMENT [ 1 ] THE COURT; - On appeal from a judgment rendered on February 1, 2010, by the Court of Quebec, Criminal Division, District of Longueuil (the Honourable Judge Claude Provost), which rejected a joint recommendation of counsel and sentenced the appellant as follows: · 18 months’ imprisonment for each count of robbery and for the count of disguise with intent to commit an indictable offence, to be served concurrently (file 50501074820081); · 12 months’ imprisonment consecutive with the first term, on four counts of possession for the purpose of trafficking, to run concurrently (files 50501082057098 and 50501082058096); · 60 days’ imprisonment for breach of undertaking, to be served concurrently with the term imposed for the robberies (file 50501082059094); · and, considering the pre-sentence custody of ten months that is worth double, the judge imposed a sentence of 10 months’ imprisonment, with two years’ probation. [ 2 ] On January 8, 2010, the appellant entered guilty pleas to the charges mentioned in the preceding paragraph.

In consideration for the guilty plea, the parties’ lawyers made a joint recommendation to the trial judge of 18 months’ imprisonment, i.e. 12 months on the counts of robbery and disguise, with two years’ probation, five months consecutive and concurrent to the drug trafficking counts, and one month consecutive for the breach of undertaking, minus the time served in pre-sentence custody.

They thus suggested that the appellant be credited for the time he served in remand, which was nine months at the time (now 10 months), which, according to their suggestion, came to 18 months as it was worth double, leaving one (1) day of the sentence to be served. [ 3 ] Deeming the joint recommendation unreasonable, the trial judge asked for a pre-sentence report to be drawn up. It may be useful here to review the facts that gave rise to the charges. * * * [ 4 ] On February 15, 2008, the appellant and an accomplice entered a convenience store to commit theft. Their faces were hidden

by hoods, toques and neck warmers. The appellant grabbed $300. When one of the three employees on the premises tried to intercepthim, the appellant punched her in the face. The appellant left the premises with his accomplice. They were arrested by the police about45 minutes later. [5] Subsequently, when he was on conditional release, the appellant was arrested for having on three occasions trafficked aquarter (1/4) of cocaine. At the time of his arrest, the appellant made an incriminating statement to the police to the effect that he hadbeen selling cocaine and marijuana since January of 2009.

The Crown indicated in its statement that [TRANSLATION] “the proof isessentially based on this statement”. [6] Said drug trafficking constituted a breach of undertaking and resulted in the appellant’s imprisonment. * * * [7] The appellant is 24 years old and has no criminal record. During his ten-month pre-sentence custody, he participated in 12violence-awareness meetings. The pre-sentence report prepared on January 21, 2010, is generally favourable to him. The probationofficer remarks that despite the violent acts committed during the robberies, there is nothing to indicate a violence problem.

It wasapparently an isolated act that is not consistent with the appellant's usual behaviour. He also points out that the appellant regrets hisviolent act and feels sincerely remorseful for his past conduct, which he considers unforgivable.

Without making a recommendation, theprobation officer concludes that the appellant is eligible for the community work program. * * * [8] The judge rejected the joint recommendation on the grounds that it was unreasonable because it did not sufficiently take intoaccount the objective seriousness of the offences, their subjective seriousness, and the sentencing principles. [9] The respondent's counsel has stated that she does not oppose the appeal. [10] When, on January 8, 2010, the trial judge indicated that he was not inclined to accept the joint recommendation, he wasfollowing the procedure described in Boucher-Gagnon v.

R., J.E. 2006-1422 (C.A.), 2006 QCCA 903; Sideris v. R., J.E. 2006-2149(C.A.), 2006 QCCA 1351; Henley v. R., B.E. 2007BE-891 (C.A.), 2007 QCCA 1100; see also R. v. McKenzie (2006), 2006 SKCA 13, 206 C.C.C. (3d) 569 (Sask. C.A.). [11] However, a judge can reject a joint submission only if it is unreasonable, unfit, contrary to the public interest, or would bringthe administration of justice into disrepute. Fish J.A., as he was then, wrote in R. v.

Douglas:[1] [38] I think it important to emphasize that the joint submission in this case was the object of lengthy and detailed negotiations over aconsiderable period of time by experienced and conscientious counsel on both sides, with the participation of the police officers in chargeof the investigation, and clearly contingent on a plea of guilty by the appellant. … [42] Canadian appellate courts have expressed in different ways the standard for determining when trial judges may properly reject jointsubmissions on sentence accompanied by negotiated admissions of guilt. [43] Whatever the language used, the standard is meant to be an exacting one.

Appellate courts, increasingly in recent years, have statedtime and again that trial judges should not reject jointly proposed sentences unless they are "unreasonable", "contrary to the publicinterest", "unfit", or "would bring the administration of justice into disrepute". ... [51] In my view, a reasonable joint submission cannot be said to "bring the administration of justice into disrepute". An unreasonablejoint submission, on the other hand, is surely "contrary to the public interest".

Accordingly, though it is purposively framed in strikingand evocative terms, I do not believe that the Ontario standard departs substantially from the test of reasonableness articulated by othercourts, including our own.

Their shared conceptual foundation is that the interests of justice are well served by the acceptance of a jointsubmission on sentence accompanied by a negotiated plea of guilty - provided, of course, that the sentence jointly proposed falls withinthe acceptable range and the plea is warranted by the facts admitted. [52] Moreover, I agree with the Martin Report, cited earlier, that the reasonableness of a sentence must necessarily be evaluated in thelight of the evidence, submissions and reports placed on the record before the sentencing judge (subject, of course, to amplification ofthat record on appeal in accordance with the applicable statutory provisions and the governing case law).

I believe as well that sentencingjudges are bound to ensure, by putting the appropriate questions directly to the accused, that the negotiated guilty plea is voluntary andunambiguous.

A full record in both respects will be essential to meaningful appellate review in those cases, fortunately rare, where anappeal is found to be warranted. (Emphasis added.) [12] In short, the appeal process does not consist in ascertaining whether the sentence imposed by the trial judge is reasonable, butrather determining whether the joint recommendation is unreasonable, unfit, contrary to the public interest, or would bring theadministration of justice into disrepute. [13] The joint recommendation made in consideration for the guilty plea entered by the appellant was part of the negotiationsconducted by the Crown’s experienced lawyers, who felt that the sentences imposed were reasonable.

A review of sentences imposed forrobbery convictions tends to confirm that the sentence suggested for the most serious offence here, i.e. robbery, is within the range ofpast sentences imposed in such cases.[2]

[14] Although clement, the recommended sentence of 12 months’ imprisonment for robbery is neither unreasonable nor contrary tothe public interest, and it does not bring the administration of justice into disrepute. The same holds for the aggregate sentence of 18months’ imprisonment.

There are thus grounds to allow the appeal and accept the joint recommendation of the parties. [15] FOR THESE REASONS, the Court: [16] ALLOWS the appeal and VARIES the sentences to the equivalent of: - In file 505-01-074820-081, 12 months’ imprisonment on the three counts of robbery and one count of disguise with intentto commit an indictable offence, with two years’ probation and with the same conditions as those imposed by the trial judge; - Five months, consecutive and concurrent, on the three counts of drug trafficking in file 505-01-082057-098 and for thecount of drug trafficking in file 50501082058096; - In file 505-01-082059-094, one month, consecutive, for breach of undertaking; - Considering the pre-sentence custody for which a credit of 18 months must be given, the Court IMPOSES for all thecounts a sentence of one (1) day of imprisonment from the date of the trial judge’s sentencing decision (February 1, 2010), a sentencethat has already been served in this case.

The appellant is also given a probation order of two years beginning February 1, 2010,requiring him to: - Keep the peace and be of good behaviour; - Notify the Court of Quebec, Criminal Division, District of Longueuil, of any change of address, identity or place of work,and appear before the Court of Quebec when summoned to do so by said Court; - Report within forty-eight (48) hours of this judgment to a probation officer of the probation department of the Longueuilcourthouse, attend all meetings scheduled by the probation officer and follow all his or her recommendations; - Abstain from contacting or attempting to contact Tommy Lavoie-Goupil, directly or indirectly in any manner whatsoever,or being in any place whatsoever in his presence; - Abstain from having in his possession any offensive weapon whatsoever; - Abstain from going to the business located at 2136 de Bourgogne Avenue in Chambly and refrain from going within onehundred (100) metres of said business; - Lastly, all the other orders issued on February 1, 2010, by the trial judge remain in force.

ANDRÉ FORGET, J.A. ANDRÉ ROCHON, J.A. JACQUES DUFRESNE, J.A. Mtre Patrick CozannetPatrick Cozannet AvocatCounsel for the appellant Mtre Magalie CimonCriminal and penal prosecuting attorneyCounsel for the respondent Hearing date: November 19, 2010 [1] R. v. Douglas (2002), (QC CA), 162 C.C.C. (3d) 37, J.E. 2002-249 (C.A.). [2] For information purposes only, see the analysis of case law on sentences for robbery in R. v. Legault, [2006] R.J.Q. 2986(C.Q.), 2006 QCCQ 6899, inf. (only as to compensation orders) per Legault v. R., J.E. 2008-1378 (C.A.), 2008 QCCA 1228. See also: R.v.

Rahmoun, J.E. 2009-1656 (C.Q.), 2009 QCCQ 7576; R. v. Lavoie, [2009] R.J.Q. 953 (C.A.), 2009 QCCA 662; R. v. Rheault, J.E.2007-1292 (C.Q.), 2007 QCCQ 1959; R. v. Gendreau, [2007] J.Q. no. 13735 (C.Q.), 2007 QCCQ 12799.