2011 QCCA 2171, 2011 QCCA 2171

Unofficial English Translation Girard c. R. 2011 QCCA 2171 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002658-115 (150-01-026518-093) DATE: November 23, 2011 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. JULIE DUTIL, J.A. PAUL VÉZINA, J.A. GABRIEL GIRARD APPELLANT – accused v. HER MAJESTY THE QUEEN RESPONDENT – prosecutrix JUDGMENT [ 1 ] The appellant appeals from an order rendered on May 6, 2011, by the Superior Court, District of Chicoutimi (the Honourable Mr. Justice Jacques J. Lévesque), which obliges him to serve half of a thirty-month prison sentence before being eligible for full parole, in accordance with

section 743.6(1.2) of the Criminal Code . [ 2 ] For the reasons of Vézina J.A., and the concurring reasons of Hilton J.A., with which Dutil J.A. agrees, the COURT: [ 3 ] DISMISSES the appeal. ALLAN R. HILTON, J.A. JULIE DUTIL, J.A. PAUL VÉZINA, J.A. Mtre Véronique Robert Roy & Robert For the appellant Mtre Mélanie Dufour Criminal and penal prosecutor For the respondent Date of hearing: September 15, 2011

REASONS OF VÉZINA, J.A. [ 4 ] The appellant appeals from an order rendered by the Superior Court, District of Chicoutimi (the Honourable Mr. Justice Jacques J. Lévesque) whereby he must serve half of a thirty-month prison sentence before being eligible for full parole, in accordance with

section 743.6(1.2) of the Criminal Code . [ 5 ] According to this provision, this type of order is made when a prison sentence of two or more years is imposed for one of the offences listed therein. In this case, the thirty-month sentence was imposed following a guilty plea to five offences, of which only the last is included in those offences listed in that section. [ 6 ] The present dispute arises from the fact that the judge imposed a prison sentence of over two years for the fifth offence, resulting in his order.

In the appellant's view, the judge came to this conclusion after erring in his method of computing the period of detention following the offence (the "pre-sentencing custody"); if it is to be considered the way the appellant suggests, it would result in a sentence of less than two years for the fifth offence, thus making any such order impossible. [ 7 ] The matter warrants a closer look. [ 8 ] The appellant pleaded guilty to the five following counts: - conspiracy to traffic drugs (sections 465(1)(

c) and 5(1)(3)(

a) Cr. C. ); - conspiracy to possess stolen goods valued at over $5,000 (sections 465(1)(

c) and 355(

a) Cr. C. ); - drug trafficking (section 5(1)(3)(

a) Cr. C. ); - possession of stolen goods valued at over $5,000 (section 355(

a) Cr. C. ); - offence benefiting a criminal organization (section 467.12 Cr.

C. ). [ 9 ] In light of all the sentencing principles, save that concerning pre-sentencing custody, the judge considered a seventy-six month prison sentence to be appropriate, which he broke down as follows: - 1st count: forty-six months - 2nd count: twenty-four months, concurrent; - 3rd count: forty-six months, concurrent; - 4th count: twenty-four months, concurrent; - 5th count: thirty months consecutive to any other sentence. [ 10 ] According to this breakdown, the sentences imposed are separated into two terms of imprisonment: a forty-six-month term for the first four offences, to be served concurrently, and a thirty-month term for the fifth offence, to be served consecutively. [ 11 ] The judge then took into account the pre-sentencing custody, reducing the sentence by forty-six months, which took the proposed sentence from seventy-six months down to the thirty-month sentence imposed. [ 12 ] According to the judge, the credit applied only to the first period of forty-six months, reducing it to nothing, but not to the second, which is consecutive and remains full. [ 13 ] There can be no doubt regarding the judge's intention on the matter.

In a conversation with counsel that was held after sentencing, he reiterated his decision: [ translation ] ...on count five (5), it is thirty (30) months... sentence to be served consecutively to the other sentences and the accused will only be eligible for parole after half has been served, that is, after fifteen (15) months. [ 14 ] The appellant raises two grounds in support of his appeal. [ 15 ] The first addresses the credit granted for pre-sentencing custody. The appellant contends that the judge should have applied the pre-sentencing time to the thirty-month sentence, not the seventy-six-month sentence.

Doing so himself, following a [ translation ] "rule of three applied to the judge's calculations regarding the number 76", he obtains the following results, rounded off: - 1st count: 18 months - 2nd count: 9.5 months, concurrent - 3rd count: 18 months, concurrent - 4th count: 9.5 months, concurrent

- 5th count: 12 months, consecutive [ 16 ] This way, the sentence on the fifth count is reduced to less than two years, thereby excluding the possibility of making an order whereby at least half of the sentence must be served: 743.6(1.2) Power of court to delay parole –... where an offender receives a sentence of imprisonment of two years or more ... [for] an offence under

section ... 467.12... the court shall order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years ... [ 17 ] The second ground addresses the absence of sentence on the first four counts. The appellant observes that, according to the judge’s reasoning, the thirty-month sentence was imposed for the fifth count only.

As it is the only sentence imposed, there was no sentence for the first four counts, which cannot be; moreover, the sentence for the fifth count cannot be consecutive as there is nothing for it to be consecutive to. [ 18 ] In my opinion, the appellant's first ground is without merit and the sentence should be upheld. As for the second ground, it is a mere technicality that does not require this Court's intervention.

Credit for pre-sentencing custody [ 19 ] The appellant's first ground is based on the premise that credit for pre-sentencing custody is a sentencing principle that should have been applied to the thirty-month sentence in this case. Consequently, the sentence should be broken down between the five counts based on the number 30, not the number 76, as the judge did. [ 20 ] The premise is valid. Since the Supreme Court's decision in Mathieu , [1] there has been a consensus that the "term of imprisonment is the term imposed by the judge at the time of sentence.

Pre-sentence custody is not part of the sentence, but is only one factor taken into account by the judge in determining the sentence". [ 21 ] In my opinion, the judge did not contradict this teaching. The breakdown he outlined was an aspect of his deliberations when determining the sentence that should be imposed. [ 22 ] Before granting credit for pre-sentencing custody, judges must establish the appropriate length of the sentence prior to reduction. [ 23 ] They must also bear in mind the total length when imposing a first term of imprisonment followed by a second to be served consecutively.

The Code makes this an explicit obligation: 718.2 Other Sentencing Principles – A court that imposes a sentence shall also take into consideration the following principles: ... (

c) Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; ... [ 24 ] The same is true of similar sentences for similar offences, also provided for in this same section: (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; To make this determination, judges must compare the sentence they are considering to those imposed in other cases before credit for pre- sentencing custody was applied, since credit is not an element to be considered when comparing "similar offences committed in similar circumstances". [ 25 ] The breakdown of the sentence is also very useful. It states publicly and notes in the offender's file the sentence that is considered to be appropriate for each offence committed.

Recording only the sentence after credit for pre-sentencing custody is granted would send out an abbreviated and misleading message in cases where short prison terms seem absolutely disproportionate to the seriousness of the offences. [ 26 ] This was the judge's reasoning, which is correct. His breakdown of the seventy-six months outlines the sentences for the first four counts, to be served concurrently, and the additional sentence, for the fifth count, to be served consecutively.

It allows for an assessment of whether each sentence is appropriate and whether the judge avoided imposing an "unduly long" overall prison sentence. [ 27 ] The rule of three, cleverly suggested by the appellant, questions the judge's choice of applying the forty-six months’ credit only to the sentences on the first four counts and not to that on the fifth, leaving the consecutive sentence for this last count whole. [ 28 ] Was it possible for the judge to do this?

Absolutely. [ 29 ] The Code does not circumscribe the exercise of a judge's discretion with respect to the way in which such credit is applied: 719. (3) [Determination of sentence] In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence. [2] [ 30 ] There is nothing to prevent a judge from applying the credit to a first sentence before applying it to a second, consecutive sentence, if appropriate.

This method has the merit of being logical since the first term of imprisonment must expire before the second one can begin.

[ 31 ] In 2005, the Court came to this very conclusion in Beauchamp , [3] where one of the reasons of Doyon J.A., with which his colleagues agreed, addressed this very point: [ translation ] [85] I do not, however, agree with the appellant's claim that the time spent in interim detention should be subtracted from each of the sentences. In this respect, he cites the decision of this Court in Major v. R. , [2003] J.Q. No. 11487 , which states that the period must be subtracted [TRANSLATION] "from the sentences imposed for each count, and not simply from the one imposed for the fifth".

The import of the above excerpt becomes clear, however, when it is recalled that in that case, the sentences were to be served concurrently. A reduced sentence with respect to a single count would be an academic exercise, with no discernible effect. The present case is different, however, as it involves consecutive sentences. If the appellant's argument were accepted, he would benefit twice from the granting of credit, and the interim detention would, in effect, be given quadruple credit.

That is not what this Court decided in Major . [ 32 ] In 2009, two examples of this method appeared in a Court of Appeal judgment, [4] which describes the sentences imposed by the lower court: [ translation ] [8] On February 21, 2007, petitioner Pierre-Antoine was sentenced to an overall sentence equivalent to six years of imprisonment, which includes four years for trafficking and conspiracy offences and two years to be served consecutively for the offence of trafficking for the benefit of, or in association with, a criminal organization.

Taking into account pre-sentencing custody equivalent to twelve months of detention, the sentence to be served is sixty months, which can be broken down to three years for the counts of trafficking and conspiracy and two years for trafficking for the benefit of, or in association with, a criminal organization. Pursuant to

section 467.14 Cr. C ., this last sentence must therefore be served consecutively. Furthermore, under

section 743.6(1.2) Cr. C. , the petitioner Pierre-Antoine will not be eligible for parole before he has served half of his sentence. [9] On this same date, the petitioner Mathieu was sentenced to an overall sentence equivalent to ten years of imprisonment, which includes seven years for trafficking and conspiracy offences and three years to be served consecutively for trafficking for the benefit of, or in association with, a criminal organization.

Taking into account pre-sentencing custody equivalent to forty-five months, he must serve a sentence of thirty-nine months for the offences of trafficking and conspiracy and a sentence of thirty-six months for the offence of trafficking for the benefit of, or in association with, a criminal organization, the second to be served consecutively, pursuant to

section 467.14 Cr. C . Moreover, in accordance with

section 743.6(1.2) Cr. C. , the petitioner must serve half of his sentence before being eligible for parole. [ 33 ] The appellant's first ground is without merit; applying credit for pre-sentencing custody to only the first four concurrent sentences and not to the consecutive sentence for the fifth count is consistent with the judgments of this Court. Thus, according to law, the order to serve at least half the sentence was mandatory. [ 34 ] There remains the appellant's argument that the sentence on the fifth count cannot be consecutive because no sentence was imposed for the first four counts.

Strictly speaking, he is right, but this is a technicality. [ 35 ] In courthouse jargon, the judge sentenced the appellant to "time served" for these four counts. It would have been preferable for him to formally hand down a sentence, if only for a single day of prison. But, failing a cross-appeal, there is no reason to correct the conclusions of the sentence, which in any event are in no way confusing. [ 36 ] For these reasons, I would dismiss the appeal. PAUL VÉZINA, J.A. REASONS OF HILTON, J.A. [ 37 ] I have read with interest the reasons of my colleague Vézina, J.A.

I agree with his proposed disposition of the appeal, but for slightly different reasons. [ 38 ] With respect to the appellant's first submission, I agree with my colleague's analysis. I do not consider it necessary, however, to take account of comments the trial judge made after he had imposed the sentence on the appellant to interpret what the trial judge meant. [5] In this case, a written version of the judgment has been produced in the record, which the trial judge signed. In principle, a judge speaks only by way of a judgment.

A trial judge should avoid commenting about the judgment after it has been rendered orally, even if it is to be later prepared in written form. Nevertheless, my reading of the written judgment allows me to reach the same conclusion as my colleague without reference to the judge's comments. [ 39 ] Second, I do not consider that the right of the trial judge to fix a period of ineligibility for parole pursuant to subsection 743.6(1.1) Cr. C. depended on the sentence for the offence under

section 467.12 Cr. C . being consecutive to any other. Here, the trial judge imposed no other sentence on the day of sentencing within the meaning of

section 719 Cr. C . [6] [ 40 ] That being said, the requirement provided for in

section 467.14 Cr. C . that the sentence for an offence under

section 467.12 Cr.

C . shall be served consecutively to any other punishment in the circumstances mentioned in

section 467.14 Cr. C. applies if there is such a sentence. That fact that there was no such sentence does not mean that the trial judge was precluded from providing for a period of ineligibility for parole under subsection 743.6 (1.1.) Cr. C . [ 41 ] Although the trial judge considered, wrongly in my view, that he was imposing a sentence consecutively for the offence under

section 467.12 Cr. C. , subsection 743.6(1.1) was properly applied to the appellant. [ 42 ] Like my colleague Vézina, J.A., I would dismiss the appeal. ALLAN R. HILTON. J.A.