2018 QCCA 1630, 2018 QCCA 1630

R. c. Diabo 2018 QCCA 1630 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006604-175 (760-73-001164-157 SEQ.002) DATE: October 5, 2018 CORAM: THE HONOURABLE LOUIS ROCHETTE, J.A. NICHOLAS KASIRER, J.A. PATRICK HEALY, J.A.

HER MAJESTY THE QUEEN APPELLANT – Crown Prosecutor TAYLOR JOSHUA DIABO RESPONDENT – Accused JUDGMENT [ 1 ] The Crown seeks leave to appeal from a judgment of the Court of Québec, District of Beauharnois (the Honourable Judge Marie-Chantal Doucet), rendered November 30, 2017, which, inter alia , sentenced Taylor Diabo to a fine of $45,944.10, one year of probation and 50 hours of community service for one count of unlawful possession of unstamped tobacco products, contrary to s. 32(1) and 216(1) (

b) of the Excise Act, 2001 , an offence prosecuted by

summary conviction. [ 2 ] For the reasons of Kasirer, J.A., with which Rochette and Healy, JJ.A. agree, THE COURT : [ 3 ] DISMISSES the motion for leave to appeal. LOUIS ROCHETTE, J.A. NICHOLAS KASIRER, J.A. PATRICK HEALY, J.A. Mtre Guillaume Lemay Mtre Marie-Eve Trudel Public Prosecution Service of Canada For Appellant Mtre Emmanuelle Rheault For Respondent Date of hearing: August 31, 2018 REASONS OF KASIRER, J.A.

[ 4 ] As a general rule, a Crown appeal against a sentence for an offence prosecuted by

summary conviction is brought before the Superior Court, the designated “appeal court / cour d’appel ” for

summary conviction offences in Quebec. [1] Exceptionally, the Crown can rely on s. 676(1.1) Cr.C . to appeal a

summary conviction sentence directly to this Court, [2] thereby skipping, in effect, the intermediate appeal to the Superior Court. [ 5 ] Section 676(1.1) Cr.C . , like its equivalent for direct appeals by

summary conviction offenders under s. 675(1.1) Cr.C. , has received scant attention in decided cases and learned commentary on criminal procedure. The provision is rarely invoked, perhaps because Parliament has set such a high bar for permitting such appeals. Statutory preconditions are imposed before the Court of Appeal can assume jurisdiction and leave must be obtained on an unstated discretionary standard. [ 6 ] In what circumstances does Parliament contemplate a direct Crown appeal of a

summary conviction sentence to a provincial Court of Appeal? *** [ 7 ] The Crown seeks leave to appeal from a judgment of the Court of Québec, District of Beauharnois (the Honourable Judge Marie-Chantal Doucet), rendered on November 30, 2017, which sentenced Taylor Joshua Diabo on a charge of unlawful possession of unstamped tobacco products, contrary to sections 32(1) and 216(1) (

b) of the Excise Act, 2001 . [3] The offence was prosecuted by

summary conviction. Mr. Diabo pleaded guilty. The judge sentenced him to the minimum fine of $45,944.10, to which she added one year of probation and 50 hours of community service. [4] [ 8 ] In the same judgment, the judge also sentenced Dylan Diabo and Joseph Kirby to pay the minimum fine of $119,000 each, accompanied by one-year periods of probation and 50 hours of community service. [5] They had been found guilty of the same offence as had Taylor Diabo at a separate trial in April, 2017. In their case, however, charges were brought by indictment. The Crown also seeks leave to appeal Dylan Diabo and Joseph Kirby’s sentences pursuant to s. 676(1) (

d) Cr.C ., the ordinary avenue for appeals of indictable offence sentences. [6] [ 9 ] Taylor Diabo, Dylan Diabo and Joseph Kirby are Indigenous persons and members of the Mohawk nation. They live on the Kahnawake reserve near Montreal. [ 10 ] In support of the appeals sought in both cases, the Crown argues that the judge misapplied s. 718.2 (

e) Cr.C . and the principles applicable to sentencing Indigenous offenders set forth notably in R. v. Gladue . [7] The Crown says that the Court of Québec erred in respect of all three offenders by declining to impose prison terms, wrongly preferring to sentence the offenders to fines, probation and community service. [ 11 ] The two motions for leave were first heard together in chambers. My colleague Schrager, J.A. referred them to the Court and ordered that they be joined for hearing.

He granted the Crown’s request to suspend payment of the fines and the probation orders until final determination of the appeals. [8] [ 12 ] The narrow question to be addressed here is whether the Crown should obtain leave to appeal Taylor Diabo’s sentence directly to this Court under s. 676(1.1) Cr.C . [9] I CONTEXT [ 13 ] While prosecutions relating to contraband tobacco are, regrettably, commonplace in the District of Beauharnois, the procedural context for these two files is unusual. [ 14 ] On February 19, 2014, Taylor Diabo was arrested in possession of 215,700 grams of unstamped tobacco.

Following a tip, the police intercepted a pick-up truck in which Mr. Diabo was a passenger. The tobacco was found in the rear of the vehicle. [ 15 ] Taylor Diabo was 18 years old at the time of arrest. After an initial plea of not guilty, he pleaded guilty to a charge for the

summary conviction offence of unlawful possession of unstamped tobacco products under the Excise Act, 2001 before St-Arnaud J. on February 21, 2017. [10] Mr. Diabo was a first-time offender. The judge ordered that a pre-sentence report as well as a “ Gladue Report” be prepared. [11] [ 16 ] On October 25, 2017, Doucet J. presided at his sentencing hearing, held at the same time as the hearing for Dylan Diabo and Joseph Kirby.

As noted, they had been found guilty of the indictable offence of possession of unstamped tobacco by the same judge, on April 28, 2017, based on different facts arising on or about April 24, 2013. [ 17 ] Separate Gladue reports were submitted for each of the three offenders, all prepared by the same consultant. For Taylor Diabo, like the two others, the consultant recommended that “restorative, rehabilitative and healing” measures be imposed as an alternative to a prison sentence.

In an additional pre-sentence report, a probation officer wrote that Taylor Diabo was relatively young and expressed regret for what he had done. The officer noted that the offender had a limited role in the smuggling. His report concluded that the young man’s conduct was more a reflection of immaturity than dishonesty as such and that there were no signs of risk that Mr. Diabo would reoffend. [ 18 ] The circumstances explaining why the hearing of his

summary conviction sentence was held together with that of Dylan Diabo and Joseph Kirby were not immediately clear in the record on appeal. What is plain is that the convictions of Taylor Diabo, on the one hand, and Dylan Diabo and Joseph Kirby, on the other hand, arose in respect of events that took place at different times. Taylor Diabo was not demonstrably involved in the commission of the offence for which the others were convicted, nor did they have any apparent connection with his wrongdoing. [12]

[ 19 ] At the hearing before this panel, counsel explained its purpose in pursuing a common hearing of the two files on sentence before the Court of Québec. The Crown sought “guidelines” for contending with what it sees as the scourge of contraband tobacco in the district. In particular, counsel had asked for a direction from the sentencing judge that the wrongful possession of substantial quantities of unstamped tobacco was deserving of a prison term, whether prosecuted under the Act by

summary conviction or as an indictable offence. II JUDGMENT ON SENTENCE OF THE COURT OF QUÉBEC [ 20 ] At the common sentence hearing held before the Court of Québec, Crown counsel submitted a single book of studies bearing on tobacco smuggling in Canada, and in the Beauharnois region in particular, in support of its argument that all three offenders deserved prison sentences. It called one witness, Patricia Eshkibok, the consultant who had prepared the Gladue reports. The defence produced no witnesses, but did file several exhibits, including a report from Statistics Canada on prison populations in 2015-16 relevant, in counsel’s view, to both the

summary conviction and indictable offence files. [ 21 ] Both parties made extensive representations regarding the appropriateness of prison sentences for both the

summary conviction offence and the indictable offences. The Crown took the view that a scourge of tobacco smuggling in the area added to the seriousness of the offences. For reasons of deterrence and denunciation, the Crown argued that prison terms were necessary for all three offenders, notwithstanding s. 718.2 (

e) Cr.C . Defence counsel answered that fines were appropriate both for the

summary conviction offence and the indictable offences, irrespective of the fact that the offenders were Indigenous, but that s. 718.2(

e) reinforced that view. [ 22 ] The judge rejected the Crown’s suggestion that Taylor Diabo be sentenced to 30 days in prison, to be served intermittently, and that Dylan Diabo and Joseph Kirby be sentenced to 90 days on the same basis.

The judge did, however, agree with the Crown that tobacco smuggling was a scourge in the district which would ordinarily require a prison sentence, “for reasons of general deterrence, in order to emphasize social denunciation and to deter other persons” (para. [18], translation). [13] [ 23 ] In the end, however, the sentencing judge disagreed with the Crown’s position that the status of the offenders as Indigenous persons was not a relevant factor.

After considering what she called “the Aboriginal reality” [14] and the individual circumstances of each of the three offenders, the judge decided that none of them required imprisonment. She wrote a single conclusion for the

summary conviction offender, Taylor Diabo, and the two others sentenced on indictment: [63] Après avoir analysé l’ensemble des circonstances spécifiques aux dossiers des accusés, le Tribunal considère que l’imposition de l’amende minimale assortie d’une probation d’une année avec l’obligation d’effectuer 50 heures de travaux communautaires est la peine juste et appropriée. [63] [TRANSL.] After analyzing the whole of the specific circumstances in the records of all of the accused, the Court considers that imposing the minimum fine together with one year of probation and 50 hours of compulsory community service is the just and appropriate sentence.

III THE CROWN’S MOTION FOR LEAVE [ 24 ] In order to ground jurisdiction for a direct appeal to this Court against the

summary conviction sentence of Taylor Diabo, the Crown relies on section 676(1.1) Cr.C . which provides: 676(1.1) Si la cour d’appel ou l’un de ses juges l’y autorise, le procureur général ou son substitut sur ses instructions peut, conformément au paragraphe (1), interjeter appel du verdict d’acquittement ou de la peine qui a été infligée à l’égard d’une infraction poursuivie par procédure

sommaire, comme s’il s’agissait d’une infraction poursuivie par voie de mise en accusation, si les conditions suivantes sont réunies :

a) l’infraction de procédure

sommaire ne fait pas déjà l’objet d’un appel;

b) l’infraction de procédure

sommaire a été jugée en même temps qu’un acte criminel;

c) l’acte criminel fait déjà l’objet d’un appel. 676(1.1) The Attorney General or counsel instructed by the Attorney General may appeal, pursuant to subsection (1), with leave of the court of appeal or a judge of that court, to that court in respect of a verdict of acquittal in a

summary offence proceeding or a sentence passed with respect to a

summary conviction as if the

summary offence proceeding was a proceeding by indictment if (

a) there has not been an appeal with respect to the

summary conviction; (

b) the

summary conviction offence was tried with an indictable offence; and (

c) there is an appeal in respect of the indictable offence. [ 25 ] In support of its application for leave, and the eventual appeal on the merits, the Crown argues that the judge erred in not sentencing Taylor Diabo to a prison term, in particular by failing to apply properly s. 718.2 (

e) Cr.C . and the relevant principles set out for sentencing Indigenous offenders in the decided cases. [15] [ 26 ] The Crown submits that a direct appeal to this Court of the

summary conviction sentence is justified under s. 676(1.1) Cr.C . because hearing and deciding the two appeals together is in the interest of the efficient administration of justice. Specifically, this appeal and the appeal of the indictable offence sentences of Dylan Diabo and Joseph Kirby should be heard together because they are said to raise the same issue relating to the proper application of s. 718.2 (

e) by the sentencing judge. The Crown recalls that the sentences were rendered in the same judgment in respect of the same offence, arising in the same Indigenous community. Deciding the appeals together in this Court would save time and resources as well as prevent conflicting judgments.

[ 27 ] At the hearing, the Crown explained further that authorizing a direct appeal to this Court would allow for a single judgment on appeal indicating that the illegal possession of a substantial quantity of unstamped tobacco justifies prison sentences rather than fines for both

summary conviction and indictable offences. The seriousness of the offence given the quantities involved, the scourge of contraband in the district, the connections of organized crime to contraband tobacco on the reserve, and the threat to public health associated with the offence have encouraged the Crown to seek a judgment of principle indicating that a prison term is the appropriate sentence to ensure deterrence and dissuasion, even for first-time offenders such as Taylor Diabo, Dylan Diabo and Joseph Kirby. In such circumstances, prison terms are necessary whether or not offenders are prosecuted by

summary conviction or by indictment. This should be the case notwithstanding the rule in s. 718.2 (

e) Cr.C . that provides that sanctions other than imprisonment should be considered for all offenders, including those who are Indigenous persons. IV DISCUSSION [ 28 ] The rules governing the jurisdiction of a provincial Court of Appeal to hear appeals from sentences rendered in respect of

summary conviction offences and sentences for indictable offences are different. [ 29 ] Taylor Diabo’s sentence would ordinarily be subject to a Crown appeal of right to the Superior Court, sitting as the

summary conviction appeal court. The judgment of the Superior Court would then be susceptible of a second appeal to this Court, with leave, on a ground that involves a question of law alone, pursuant to s. 839(1) Cr.C . [ 30 ] By contrast, the Crown appeal lodged against the indictable offence sentences imposed on Dylan Diabo and Joseph Kirby is susceptible of appeal directly to this Court, with leave, pursuant to section 676(1) (

d) Cr.C . In their case, the appeal is not limited to a question of law alone. [ 31 ] Section 676(1.1) Cr.C . establishes a distinct path for a possible Crown appeal of Taylor Diabo’s sentence. [ 32 ] Exceptionally, s. 676(1.1) provides for a direct appeal to this Court for the Crown, with leave, most typically so that the

summary conviction appeal might proceed together with an appeal in this Court of a judgment in respect of an offence prosecuted by indictment. As one author has explained, the addition of this avenue of appeal to the Criminal Code avoids a technical obstacle to deciding appeals together on the merits: “Summary conviction and indictable offences can be heard in joint trials […] Requiring such a single trial to follow two separate appeal routes was inefficient and served no particular purpose, and so s. 675(1.1) [and s. 676(1.1)], permitting a single route of appeal in such cases, was a sensible change”. [16] [ 33 ] The availability of this direct path of appeal from a sentence imposed for a

summary conviction offence requires that three statutory prerequisites be met: there has not been an appeal of the

summary conviction judgment; the

summary conviction offence was tried with an indictable offence; and there is an appeal of the indictable offence judgment. [17] The Code indicates that these conditions in ss. 676(1.1)(

a) to (

c) are cumulative. They may be thought of as statutory preconditions to the Court’s jurisdiction over the appeal. The role of the authorizing judge in respect of verifying these prerequisites is non-discretionary.

At most, he or she interprets the codal provision to determine whether, in the circumstances, the three conditions are met thereby giving this Court jurisdiction to hear the appeal directly. [ 34 ] But satisfying the three prerequisites to jurisdiction does not in itself give rise to a right of appeal. [ 35 ] Once the matter of jurisdiction is settled, the authorizing judge in chambers, or the Court, has a residual power to grant or refuse leave, as the introductory paragraph of s. 676(1.1) makes plain. [ 36 ] Thus, in order to obtain leave to appeal Taylor Diabo’s sentence directly to this Court, the Crown has the burden of showing that the three statutory prerequisites to jurisdiction have been satisfied in respect of the proposed appeal (discussed in

section IV.A, below), then it must meet the further burden of showing that leave should be granted as a matter of judicial discretion (IV.B). This latter aspect has two components. Leave turns on the applicable standard for a direct appeal to this Court under s. 676(1.1) Cr.C . It also depends on the general rules for leave to appeal from sentences under s. 676(1) (

d) Cr.C . IV.A Statutory prerequisites to this Court’s jurisdiction under ss. 676(1.1) (

a) to (

c) Cr.C. [ 37 ] Two of the three prerequisites to this Court’s jurisdiction pose no apparent difficulty – or nearly none – in respect of the Crown’s request to appeal directly against Taylor Diabo’s

summary conviction sentence. Section 676(1.1) (

a) Cr.C . is satisfied in that there has not been an appeal to the Superior Court. The requirement in s. 676(1.1)(

c) Cr.C. that there be a pending appeal in respect of the judgment relating to the indictable offence sentences is also met, or at least it will be, if the Crown’s motion for leave to appeal against the sentences of Dylan Diabo and Joseph Kirby is granted. [18] [ 38 ] Determining whether the condition in s. 676(1.1) (

b) has been met is more difficult: was Taylor Diabo’s “summary conviction offence […] tried with an indictable offence” (in French “ jugée en même temps qu ’un acte criminel ”), specifically the indictable offences of Dylan Diabo and Joseph Kirby? [ 39 ] The offenders had separate trials, but they were sentenced together in a single judgment of the Court of Québec.

Does that meet the requirement in s. 676(1) (b)? [ 40 ] The expression “tried with / jugée en même temps qu[e] ” presents an obvious interpretative difficulty in that the French and English texts do not appear to speak in a single voice. [19] [ 41 ] If “tried with / jugée en même temps qu[e] ” is interpreted narrowly to refer to the proceedings held to determine guilt along the lines of the English text, the prerequisite is not satisfied: the trials leading to guilty verdicts for the three accused were not held at the same time here. That of Taylor Diabo’s

summary conviction offence took place when he pleaded guilty before St-Arnaud J. on February 21, 2017, while the trial of Dylan Diabo and Joseph Kirby took place before Doucet J. in April, 2017.

[ 42 ] If, on the other hand, “tried with / jugée en même temps qu[e] ” is interpreted more generously in keeping with the French text, the expression might be read to include the judgment a quo on sentence. It was indeed the case that all three offenders were sentenced together, at the same time, after one hearing and in one judgment. As the Crown points out, some of the evidence was common to all three offenders – the background studies relevant to s. 718.2 (e), for example –, thus relevant to the

summary conviction sentence and the indictable offence sentences. [ 43 ] The language of the Criminal Code on this point could, in my respectful view, be clearer. I note that elsewhere in the Code , “tried” is sometimes used in the strict sense of a trial when paired with “ subir son procès ”. Other times “tried” is apparently used more broadly and paired with “ jugé ”. [20] I recognize that there is authority for interpreting “tried with / jugée en même temps qu[e] ” to include proceedings on sentence under s. 675(1.1) , the partner provision to s. 676(1.1) , at least where the same offender was sentenced following a single hearing for both indictable and

summary conviction offences committed at different times. [21] It may not be unreasonable then to interpret “tried with / jugée en même temps qu[e] ” in s. 676(1.1) (

b) to include judgments on sentence, especially in light of the fact that the provision explicitly contemplates a direct appeal from a

summary conviction sentence to this Court. I note however that at least one court has interpreted “tried with” narrowly, [22] and the shared meaning between the French and English texts does not point obviously to judgments on sentence. [ 44 ] It is not necessary to decide the matter here. I shall assume, for the purposes of this discussion only, that “tried with / jugée en même temps qu[e] ” in s. 676(1.1) (

b) is satisfied by the single judgment on sentence rendered by Doucet J., and that all three prerequisites to jurisdiction in ss. 676(1.1) (

a) to (

c) are met. The Crown still has to satisfy the Court that leave to appeal Taylor Diabo’s sentence directly to the Court is appropriate. I turn to that matter now. IV.B Whether leave should be granted [ 45 ] Once the Court’s statutory jurisdiction has been ascertained, the Crown seeking leave has two further tasks. First, it must show, as a matter of procedure, that a direct appeal of the

summary conviction judgment should be heard with the appeal of the indictable offence judgment under s. 676(1.1) Cr.C . Second, it must demonstrate that the applicable grounds for appeal are satisfied regarding the verdict or sentence, as the case may be. [23] IV.B.i Do the interests of justice justify a direct appeal of Taylor Diabo’s

summary conviction sentence to this Court? [ 46 ] The Code does not specify the standard for leave in s. 676(1.1) Cr.C . , although leave is plainly a separate requirement from that of the three prerequisites set forth in paragraphs (

a) to (c). By investing a judge in chambers with the power to grant or refuse leave even when the prerequisites are met, Parliament establishes a residual discretion to determine whether a direct appeal is suitable in the circumstances. [ 47 ] What is that standard? [ 48 ] Cases decided under s. 676(1.1) Cr.C . are few and far between, but my reading of the authorities is that leave should be granted to bring a direct appeal if, in the view of the authorizing judge, the “interests of justice” so require. [24] [ 49 ] Where there is a factual nexus between the

summary offence proceeding and the proceeding on indictment, the interests of justice suggest that a direct appeal of the

summary conviction judgment may usefully proceed, unless the direct appeal would be unfair to one of the parties. [ 50 ] To identify this first component of the standard for leave under s. 676(1.1) , I reason in part by analogy. [ 51 ] Considerations relevant to the decision allowing a

summary conviction appeal to advance directly to this Court with an indictable offence appeal are similar, in many respects, to those pertaining to the joinder and severance of proceedings at trial. [25] [ 52 ] Like joint appeals, the joinder of

summary conviction and indictable offence proceedings presents the advantage of avoiding multiple trials where the counts have a factual connection. Severance of counts can be ordered to stave off procedural difficulties or even substantive prejudice to an accused where they share an insufficient factual nexus. In this sense, the ordering of joinder and severance is best viewed as a discretionary matter based on whether the presiding judge observes a factual nexus justifying the order according to the interests of justice in the circumstances. [26] The common law authorities indicate that where

summary conviction charges and indictable offence charges are markedly different, they should not be tried together. In R. v. Clunas , [27] for example, the Supreme Court explained that the test for joinder, at common law, requires that the offences could have initially been jointly charged based on a sufficient connection between them and that joinder be in the interests of justice. [ 53 ] Recently, Moldaver J. held in R. v. Sciascia [28] that joinder under s. 591 Cr.C . will be appropriate where the

summary conviction and indictable offence charges have “a sufficient factual nexus” between them and, again, that joinder be in the interests of justice. He proposed a functional approach to decide whether the nexus justifies joinder, in a manner that privileges substance over form that pays special attention to the possible impact of joinder on the fairness of the proceedings. These considerations help indicate whether joinder under s. 591 is in the interests of justice, which involves weighing the costs and benefits of a joint trial in the circumstances. [29] [ 54 ] Reasoning by analogy from Clunas and Sciascia , for a

summary conviction judgment to be appealed directly to this Court pursuant to s. 676(1.1) Cr.C . , there should be a factual nexus between the proceedings on

summary conviction and those on indictment so that the appeals can advance together in a manner that, further, does not create unfairness to a party. [ 55 ] This requirement of a “factual nexus”, albeit expressed otherwise, is alluded to in some of the very few cases decided under sections 675(1.1) and 676(1.1) as justification for allowing a direct appeal of a

summary conviction judgment to the provincial courts of appeal. Judges have held that a robust factual connection between the

summary conviction and the indictable offence proceedings – the offences concern the same offender, for example, or they arise out of the same facts and engage the same evidence – suggests that appeals might usefully be held and decided together, and that a direct appeal of the

summary conviction offence to the Court of Appeal may be justified in the interests of justice.

[ 56 ] The importance of this element of factual connection as an indication of whether a direct appeal was in the interests of justice was explained in R. v. Thiboutot . [30] Several persons were convicted in provincial court on charges, brought by indictment, of keeping a common bawdy house. Several others were convicted of the

summary conviction offence of being present at the same time in the same bawdy house. All of the accused – those prosecuted by indictment and those by

summary conviction – were tried together in the Court of Québec and found guilty in the same judgment. [31] [ 57 ] The

summary conviction offenders sought leave to appeal directly to this Court, relying on section 675(1.1) C.Cr. , the parallel provision to that invoked here by the Crown. The statutory prerequisites were met: no appeal had been lodged in the Superior Court against the

summary convictions, the accused had all been tried together, and an appeal was brought against the convictions for the indictable offence by the other accused. [ 58 ] Sitting in chambers, Delisle, J.A. granted leave. He wrote that the fact that the

summary conviction and indictable offence charges were brought against different persons was not a bar to a direct appeal to this Court as long as the

summary conviction proceedings arose out of the same facts. He explained: L'intimée [ i.e . the Crown] plaide que l' article 675 (1.1) C.cr . n'a d'application que si les procédures par acte d'accusation et celles par déclaration

sommaire de culpabilité impliquent la même personne. L'argument doit être rejeté. Le but de l' article 675 (1.1) C.cr . est de permettre, pour des raisons de concordance et de simplification du procédé judiciaire, lorsque les mêmes faits donnent ouverture, à la fois, à des procédures par acte d'accusation et à d'autres par déclaration

sommaire de culpabilité , que ces dernières puissent être entendues en appel par le même tribunal qui doit disposer de l'appel des premières. En l'espèce, il est indéniable que l'intérêt de la justice commande que la même instance d'appel détermine si l'établissement concerné est ou n'est pas une maison de débauche au sens de l’ article 197(1) C.cr . [32] [ 59 ] I agree with Delisle, J.A. that where the same facts give rise to both the

summary offence and the indictable offence convictions, and where a single judgment was rendered for them both, it may be appropriate to grant leave for an appeal of the

summary matter directly to this Court. [33] In such circumstances, a sufficiently strong element of connection – what can be called a “factual nexus”, to borrow from Moldaver J. in Sciascia – between the files could justify the exercise of discretion contemplated by sections 675(1.1) or 676(1.1) , as the case may be. [ 60 ] I note further that Delisle, J.A. expressly found that this factual connection meant that “l’intérêt de la justice” justified the direct appeal to this Court.

This term suggests – quite rightly in my view – that the judge in chambers was not merely stating that the statutory prerequisites to direct leave were met, but that he was exercising a distinct discretionary authority under s. 675(1.1) Cr.C . to grant leave based on his sense that an appeal was appropriate in the circumstances. [ 61 ] Is there a factual nexus between Taylor Diabo’s

summary conviction sentence appeal and the indictable offence sentence appeals of Dylan Diabo and Joseph Kirby? Are the interests of justice properly served by the direct appeal of the

summary conviction sentence to this Court? [ 62 ] No compelling factual connection exists in this case. Taylor Diabo’s

summary conviction was not based on the same facts as the indictable offence convictions of Dylan Diabo and Joseph Kirby. The latter were arrested at a different time from Taylor Diabo, in respect of unconnected criminal transactions, and there was no suggestion that the offenders acted in any kind of concerted way. [ 63 ] Is there some other connection between these files that would justify granting leave under section 676(1.1) Cr.C .? [ 64 ] I note that, for some, leave may been granted where the

summary conviction judgments do not arise “on the same facts” as the indictable offence judgments. In R. v. Patriquin , [34] for example, an offender sought leave to appeal sentences from

summary convictions directly to the Nova Scotia Court of Appeal alongside his appeal against conviction and sentence relating to an indictable offence. The offences related to different facts. The offender had, however, been sentenced for both the

summary and indictable offences at the same time by the same provincial court judge. [ 65 ] In chambers, Hamilton, J.A. granted a motion to amend notice of appeal to include an application for leave for a direct appeal of Mr. Patriquin’s sentences for the

summary conviction offences. In so deciding, she expressed the view that the scenario in Thiboutot was not the only one in which a direct appeal from

summary conviction offences should be permitted under s. 675(1.1) Cr.C . [35] [ 66 ] Patriquin indeed proposes a wider berth for interpreting s. 675(1.1) , and, like our case, dealt with an instance in which sentencing of the

summary convictions and the indictable offence conviction “was done together by the same judge”. [36] In Patriquin , however, it might be said that the factual nexus resulted from the fact that the same offender committed all the offences. [37] That of course is not the present circumstance. [ 67 ] In our case, not only did the offences arise out of different facts, the offenders were not meaningfully linked. The connection between the two files appears to me to be limited to the following: (

i) Taylor Diabo, Dylan Diabo and Joseph Kirby are all Indigenous persons living on the same reserve; (ii) they were convicted of unlawful possession of unstamped tobacco under the same statute in a judicial district where tobacco contraband is perceived to be – to use the words of the sentencing judge – a “scourge”; (iii) the same consultant prepared similar Gladue reports for all three offenders, at least in respect of the descriptions of the systemic and background experiences of Mohawks on the Kahnawake reserve; and (iv) their sentences were recorded in a single judgment. [ 68 ] It is true that the charges against Taylor Diabo, on the one hand, and Dylan Diabo and Joseph Kirby, on the other, both involved substantial amounts of unstamped tobacco products, although the amount was a good deal more in the case of the indictable offences. [38] The Crown argued that the large quantities made the sentences factually comparable for the purposes of justifying Taylor Diabo’s direct appeal.

I disagree. As substantial as the amount seized from Taylor Diabo may be, the fact remains that he was not

charged with an indictable offence. Section 676(1.1) should not be deployed retrospectively by the Crown to second-guess its choice to prosecute Taylor Diabo by

summary conviction rather than by indictment with the effect of depriving him of the intermediate avenue of appeal. In any event, s. 216 of the Excise Act, 2001 already tailors the severity of sentences according to the relevant amount of tobacco for both

summary conviction and indictable offences. [ 69 ] At the hearing, the Crown suggested that the large amount of tobacco involved in both criminal transactions meant that organized crime was involved. That may or may not have been the case, but I hasten to say that the record on appeal contains no specific evidence that Taylor Diabo was part of a criminal organization.

The Crown merely produced an academic study that points to this as a problem on the reserve. [ 70 ] To my mind, these various considerations, taken together, fall short of the factual nexus required for leave in light of the facts that these were distinct criminal transactions involving different offenders. [ 71 ] It might be said there is a “legal nexus” connecting Taylor Diabo’s sentence appeal and that of the other two offenders. To be sure, they were tried in respect of the same offence and sentenced in the same judgment. The legal issues – the proper

interpretation of s. 718.2 (

e) Cr.C ., and in particular the allegation that the sentencing judge wrongly accorded the offenders a “race-based discount” on sentencing because of their status as Indigenous persons – are in some measure common to these files. But the connection between

summary conviction offences and indictable offences can be overestimated on sentence. [39] Even assuming that a “legal nexus”, as opposed to a factual one, is enough to knit together appeals for the purposes of s. 676(1.1) Cr.C ., [40] the Crown has failed to show that a direct appeal is in the interests of justice here. [ 72 ] In my respectful view, s. 676(1.1) does not entitle the Crown to obtain a direct appeal for a

summary conviction sentence so as to group together otherwise factually unconnected offenders, convicted of crimes in respect of unconnected events, simply because a disposition of a common appeal would be “efficient” or “useful” for the Crown. The danger is obvious: if different offenders are grouped together willy-nilly in respect of charges arising out of different facts, one might well find that counsel would argue for punishment of the offence, and not the offender, contrary to the basic principles of individualized sentencing.

The likelihood of unfair generalizations concerning differently situated offenders’ experiences would increase. None of this would bode well for the proportionality in sentencing mandated by Parliament in ss. 718 et seq . Cr.C . [ 73 ] In a single, joined appeal before this Court, it would be also more difficult to individualize sentencing arguments in respect of Indigenous offenders under s. 718.2 (e).

And yet, as the Supreme Court emphasized in Gladue [41] and in Ipeelee , [42] a sentencing judge has a duty to consider case-specific information relating to the offender at hand, in addition to broad systemic and background factors affecting Indigenous people generally. This is true even for offenders from the same community and who live on the same reserve.

In this case, there is a real danger of imperfect generalizations relating to the experiences of different Indigenous offenders that could do a disservice to the individualized approach on sentencing required by Parliament for fit and proportional sentences. [ 74 ] The Crown has done little but cite concerns for its own administrative efficiency and its desire to obtain “guidelines” that would result in prison terms instead of fines as a matter of course in the district. Respectfully stated, it has failed to grasp how the absence of a factual nexus might undermine the individualization of the sentencing process.

I have no doubt that the Crown found it expedient to have sentence heard on these two matters together given that the three offenders were from the same Indigenous community and that the Gladue reports were prepared by the same consultant. That said, one is hard-pressed to see any meaningful advantage of proceeding in this way from the point of view of the proper administration of justice. [ 75 ] Moreover, the Crown makes no allusion to whether a direct appeal could be unfair to the respondent here. [ 76 ] There is a significant fairness issue here.

It bears recalling that the offender, respondent in appeal, would lose the right to answer the Crown’s contestation of the matter in the Superior Court as the first level of appeal should a direct appeal be authorized to this Court. This has potentially serious consequences in light of the arguments being made. If a direct appeal is permitted under s. 676(1.1), and the Crown is successful, Taylor Diabo has no recourse to this Court to contest the judgment “on a question of law alone” pursuant to s. 839(1) .

To be sure, the ultimate avenue of appeal to the Supreme Court is theoretically available, but how many appeals on matters of

summary conviction are sufficiently important to merit the attention of that Court? [ 77 ] In sum, the Crown’s request to proceed directly to this Court may fit its own narrow understanding of administrative efficiency but is not a choice that reflects the interests of justice. [ 78 ] Finally, what importance should be given to respondent Taylor Diabo’s position on the Crown’s motion? [ 79 ] In supplementary argument on jurisdiction, counsel for Mr. Diabo first agreed with the Crown’s position that criteria for leave under s. 676(1.1) were met.

At the hearing, his counsel changed that position, recognizing that her client might lose the advantage of a further level of appeal. She retracted the decision not to contest this point. [ 80 ] It is true that there is no evidence that Taylor Diabo objected to the joint hearing on sentence before Doucet J. Further, in several instances where leave is requested pursuant to s. 675(1.1) Cr.C ., courts have considered the offender’s decision to ask for leave directly to the court of appeal as a sort of “waiver” of the right to appeal to the first-level

summary conviction appeal court. That argument, whatever its weight, carries less sway where leave is sought by the Crown under section 676(1.1). [43] [ 81 ] To be sure, the views of an offender, standing as respondent in the proposed appeal, are relevant to measuring the advantages and inconveniences of a direct appeal of the

summary conviction sentence. But an offender’s choice not to contest a Crown motion for leave does not bind the Court which, under both ss. 675(1.1) and 676(1.1), exercises its own discretion to consider whether leave should be granted. As Moldaver J. wrote in Sciascia [44] in respect to the decision whether or not to conduct a joint trial, the decision to allow a direct appeal lies with the authorizing judge. These are not consent proceedings; at best, an offender, in voicing no objection to a motion for leave to appeal, is saying to the appellate court of criminal jurisdiction “I don’t contest the motion”.

Ultimately, however, it is up to this Court, or one of its judges sitting in chambers, to decide whether granting the motion is in the interests of justice. In any event, Mr. Diabo decided to contest leave before us.

[82] Finally, any concern as to the timeliness of a Crown appeal to the Superior Court has no bearing on this motion. Withoutcommenting on the appropriateness of such a course of action or its chances of success, I note that a motion to prolong the time limit fora first-level appeal could be submitted to the

summary conviction appeal court pursuant to s. 815(2) Cr.C. IV.B.ii Does the proposed appeal meet the requirements for an appeal given the nature of the judgment a quo? [83] Strictly speaking, my conclusion that the Crown has failed to show that a direct appeal of Taylor Diabo’s

summary convictionsentence is in the interests of justice is, on its own, sufficient to dismiss the application for leave. But I think it is nevertheless useful, inparticular given the paucity of appellate consideration of the jurisdictional matter raised by this case, to complete the discussion of theleave requirement. [84] Once an authorizing judge has determined that a direct appeal can be heard according to the criteria set forth in s. 676(1.1), itremains to be decided whether the proposed appeal of the verdict or the sentence meets the requirements to proceed before this Court. [85] A Crown appeal of a sentence for an indictable offence is governed by s. 676(1)(

d) Cr.C. which requires leave, and may be ona question of fact or of law.

Summary conviction appeals from judgments of the Superior Court, however, are subject to the rule in s.839(1) Cr.C. which limits appeals to “any ground that involves a question of law alone / tout motif qui comporte une question de droitseulement”. [86] What substantive rule applies to a motion for leave to appeal against a

summary conviction judgment directly to this Court oncethe criteria in s. 676(1.1) have been met? [87] In my view, the less exacting standard of s. 676(1)(

d) Cr.C. applies, and not that set forth in s. 839(1) limiting appeals to mattersinvolving questions of law alone. [88] Once the statutory prerequisites and the leave hurdle have been satisfied, s. 676(1.1) provides that the Crown may appeal“pursuant to subsection (1) / conformément au paragraphe (1)”, i.e. s. 676(1), which is the general rule pertaining to appeals fromverdicts or sentences for indictable offences. Section 676(1.1) further specifies that the matter proceeds “as if the

summary offenceproceeding was a proceeding by indictment / comme s’il s’agissait d’une infraction poursuivie par voie de mise en accusation”.[45]Thus, the applicable requirement for an appeal from a verdict or a sentence, as the case may be, under s. 676(1) Cr.C. must also besatisfied.[46] In the present case of a Crown sentence appeal, once leave is secured according to the s. 676(1.1) criteria, the Crown mustalso meet the leave requirement under s. 676(1)(d), which is the ordinary rule for appeals against sentences in proceedings by indictment. [89] The very text of s. 676(1.1) suggests therefore that the nature of a direct appeal of a

summary conviction offence is not the sameas the second-tier appeal to this Court of the same kind of offence. Once the matter of the direct appeal is settled, the substance of theappeal resembles that applicable to an appeal of a sentence for an indictable offence pursuant to s. 676(1)(d).

In other words, unlike anappeal brought under s. 839(1) Cr.C., a direct sentence appeal would not be limited to a question of law alone but would extend to otherquestions – including questions of fact or mixed questions of fact and law – that, under the standard applicable to such appeals, would besusceptible of overturning the sentence rendered in first instance. [90] This strikes me as sensible on policy and procedural grounds and fair to both parties. If the standard of s. 839(1) were to applyin this Court to a direct first-level appeal, there would be no opportunity to contest a

summary conviction judgment on questions of factor on mixed questions. In the case of a sentence, this would preclude many appeals where a party – the offender or the Crown – seeks toimpugn the sentence for errors of fact. Section 839(1) is designed as a filter for second-level appeals from the

summary convictionappeal court. Limiting the appeal to this Court to questions of law is thought to be fair because the parties have already had the benefit ofan appeal relating to factual matters, where available, before the Superior Court. [91] Lastly, while the authorities are not uniform, the prevailing opinion appears to be that s. 839(1) does not apply to an applicationfor leave made under s. 676(1.1).[47] [92] In the circumstances, however, I need not decide that matter. An appeal best lies in the

summary conviction appeal court,subject to that court’s decision as to whether leave to extend the time limit should be granted if the Crown decides to bring a motion tothat end. *** [93] In sum, I propose that the Crown’s motion for leave to appeal pursuant to s. 676(1.1) Cr.C. be dismissed. NICHOLAS KASIRER, J.A. [39] In Clunas [ (SCC), [1992] 1 S.C.R. 595], the Court was not concerned with the spectre of separate prescribedforms. Instead, the true purpose of the first element was to ensure that the charges shared a sufficient factual nexus.

This is evident fromthe Court’s reliance on Clayton, [[1983] 2 W.L.R. 555] in which the test for joinder was articulated as requiring that “the facts aresufficiently closely connected to justify this course and there is no risk of injustice to the defendants” (p. 565). It is also reflected in thetest for severance of charges under s. 591(3) of the Criminal Code: see Last, [2009 SCC 45 , [2009] 3 S.C.R. 146] at para. 18.

[Emphasis added. It should be recalled that Thiboutot was decided in chambers]