2023 QCCA 469, 2023 QCCA 469

Salem c. R. 2023 QCCA 469 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007570-219 (500-73-004100-141) DATE: April 4, 2023 CORAM: THE HONOURABLE MARTIN VAUCLAIR, J.A. PATRICK HEALY, J.A. GUY COURNOYER, J.A. FADI SALEM APPELLANT – Accused v. HIS MAJESTY THE KING RESPONDENT – Prosecutor JUDGMENT [ 1 ] The appellant was found guilty of conspiracy to possess heroin for the purpose of trafficking and possession of heroin for the purpose of trafficking. At trial, he advanced a defense of duress, which the trial judge rejected.

However, in his decision that covers some 80 pages, the sentencing judge determined that the appellant’s “role in the trafficking scheme was that of the proverbial «small fry»” and that, although detention was warranted, a conditional sentence would have been in the interests of both the offender and society but “a conditional sentence is sadly out of reach to the offender”. [ 2 ] The appellant was sentenced to 2 years less a day in prison (less time served). Today, restrictions to the conditional sentence no longer exist since the coming into force on November 17, 2022, of

An Act to amend the Criminal Code and the Controlled Drugs and Substances Act , (S.C. 2022, c. 15). [ 3 ] Counsel requested a facilitation conference in criminal matters and agree to proceed without a hearing. [ 4 ] On appeal, the appellant’s arguments were that the unavailability of a conditional sentence violated his right under

section 7 of the Charter and, that the appropriate sentence would have been a conditional sentence, as determined by the sentencing judge. After careful consideration of the circumstances, counsel agree that the sentencing judge would have imposed a conditional sentence and, seeing that it is now available, it would be both fair and adequate to sentence the appellant accordingly. Counsel proposed acceptable conditions and the Court will grant the appeal. [ 5 ] The sentencing judge considered that the appropriate sentence was imprisonment sentence for two years less one day.

He considered the 33 days spent in preventive custody and credited 49.5 days (rounded up to 50 days), leaving a jail term of 22 months and ten days. Counsel agree that the conditional sentence orders should be of the same duration, served concurrently.

FOR THOSE REASONS, THE COURT: [ 6 ] GRANTS the appeal; [ 7 ] QUASHES the sentences of imprisonment; [ 8 ] SUBSTITUTES concurrent conditional sentence orders (CSO) of 22 months and ten days, followed by a three-year probation order, on both count in file 500-73-004100-141; [ 9 ] ORDERS for the duration of the conditional sentence orders (CSO) that the appellant be subjected to the following compulsory conditions 1a. to 1e., and other optional conditions: 1. For the duration of your conditional sentence order, you must comply with the following conditions: a. You must keep the peace and be of good behaviour; b.

You must appear before the court when required to do so; c. You must report to Probation Office (supervisor) (

i) within 3 working days after the making of this conditional sentence order, and

(ii) thereafter, when required by your supervisor and in the manner directed by the supervisor; d. You must remain in the province of Quebec UNLESS written permission to go outside that jurisdiction is obtained from the court or the supervisor; e. You must notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation; f. You must reside at [...], Lasalle (Québec) [...]. g.

You must maintain a landline telephone service at your residence for the duration of the CSO and provide your telephone number to your supervisor within 3 working days after the making of this conditional sentence. h. You must answer all phone calls from the supervisor during the first period of house arrest (first 11 months) and second period of curfew (11 months and 10 days) and take the necessary steps to be able to do so. i. You must provide your supervisor with your work

schedule and location of employment AND notify the latter of any change in this regard. j. You must complete 120 hours of community service within the first 18 months of the CSO. k. You must not communicate directly or indirectly with Dereck Clarke. 2. You must, as of the date of this order and for a period of 11 months (first period) , be at your residence at all times (24 hours a day), EXCEPT : a. For legitimate and remunerated work purposes, only to go to work and directly return to your residence, b. To complete required community service, c.

To purchase food or other necessary goods no more than twice per week for a maximum time of 2 hours per trip, on the days agreed to with your supervisor, d. To get exercise once per day for no longer than 1 hour, within 1 kilometer of your residence, between 9am and 4pm, e. To get therapy, as per agreement with your supervisor, f. To meet with your supervisor, g. For medical purposes, h. For religious purposes, as per agreement with your supervisor, i. To appear in court if required to do so, j. With the approval of your supervisor. 3.

You must, as of 11 months from the date of this order and for the rest of your conditional sentence (second period) , respect a curfew that requires you to be at your residence between 9pm and 7am every night, except: a. For legitimate work purposes, b. To get therapy, as per agreement with your supervisor, c. For medical purposes, d. To meet with your supervisor, e.

With the approval of your supervisor. [ 10 ] ORDERS for the duration the Probation Order for a period of 3 years, as of the end of the CSO, that the appellant be subjected to the following compulsory conditions 1 to 3, and other optional conditions: 1. You must keep the peace and be of good behaviour. 2. You must appear before the court when required to do so. 3. You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. 4. You must reside at [...], Lasalle (Québec) [...]. 5.

You must report to your supervisor or a probation officer as required, concerning the completion of your community service hours.

6. You must complete 120 hours of community service under the supervision of your supervisor or probation officer within the first 18 months of the probation order. [ 11 ] ORDERS FADI SALEM to appear at the office of the clerk of the Court of Quebec in Montreal within 72 hours of this judgment in order to sign and receive a copy of the conditional sentence order and the probation order and: a. to obtain the required explanations on the substance of subsection 742.3(1) and sections 742.4 and 742.6 as well as an explanation of the procedure for applying under

section 742.4 for a change to the optional conditions; b. to obtain the required explanations on the conditions of the order set under subsections 732.1(2) and the substance of

section 733.1 as well as an explanation of the procedure for applying under subsection 732.2(3) for a change to the optional conditions and of the substance of subsections 732.2(3) and (5). [ 12 ] MAINTAINS all ancillary orders imposed by the sentencing judge. MARTIN VAUCLAIR, J.A. PATRICK HEALY, J.A. GUY COURNOYER, J.A. Mtre Robert Israel BATTISTA TURCOT ISRAEL For the Appellant Mtre Mathieu Stanton SERVICE DES POURSUITES PÉNALES DU CANADA For the Respondent