2016 QCCA 302, 2016 QCCA 302

Unofficial English Translation R. c. Larouche 2016 QCCA 302 COURT OF APPEAL CANADA PROVINCE OF QUEBEC MONTREAL REGISTRY No: 500-10-006056-152 (550-01-082384-142) MINUTES OF THE HEARING DATE: February 17, 2016 THE HONOURABLE MARIE-FRANCE BICH, J.A. APPLICANT COUNSEL HER MAJESTY THE QUEEN Mtre EMILY K. MOREAU (Director of criminal and penal prosecutions) RESPONDENT COUNSEL MARIO LAROUCHE Mtre LOUIS-PHILIPPE ROY (Montreal Legal Aid) DESCRIPTION: Application for leave to appeal the sentence rendered on November 26, 2015, by the Honourable Pierre Chevalier of the Court of Quebec, district of Gatineau. (Paragraph 676(1)(

d) and Section 678(1) Cr. C .) (Section 21 et seq . of the Rules of the Court of Appeal of Quebec in Criminal Matters )

Clerk: Mihary Andrianaivo COURTROOM: RC-18 HEARING 9:39 a.m. Start of hearing. Submissions of Mtre Moreau. 9:54 a.m. Submissions of Mtre Roy. 10:09 a.m. Reply of Mtre Moreau. 10:14 a.m. Plea of Mtre Roy. 10:15 a.m. THE JUDGE: The hearing of the application will be continued at 2:00 p.m. today for the pronouncement of the judgment. The presence of the parties is not required. Recess. 2:19 p.m. Resumption of the hearing. Mtre Roy is present in the Courtroom. THE JUDGE: Judgement – see page 3. End of hearing.

Mihary Andrianaivo Clerk THE JUDGE JUDGMENT [ 1 ] On September 9, 2015, the respondent pleaded guilty to the charge of production of cannabis, thereby committing the indictable offence set out in paragraph 7(2)(

b) of the Controlled Drugs and Substances Act . Following events that need not be recounted here, the police seized some thirty small cuttings that were ready to be transplanted from the rear bed of his pickup truck located on the property of the house that he occupies. [ 2 ] On November 26, 2015, the parties made their submissions as to sentence before the judge. The respondent testified and documentary evidence was submitted.

Counsel for the respondent suggested a fine, whereas counsel for the Crown recommended a sentence of ninety days’ imprisonment and a one-year probation order. [ 3 ] The evidence submitted before the trial judge reveals that the respondent, after a few unsuccessful attempts with physicians to obtain marijuana under licence from Health Canada, decided to produce it himself for his personal consumption to reduce some of the symptoms related to his poor health.

It is accepted that he had no intention to traffic in the substance, of which he had only a small quantity. [ 4 ] During argument, the respondent submitted that the case law in such matters favours leniency and cited several decisions in support of his position, including R. v. Prior , 2015 ONCJ 141 , R. v. Placek , 2012 BCSC 1660 , R. v. Bastien , 2014 QCCQ 2942 (by analogy), [1] and R. v. Morin , 2015 QCCQ 4528 . [ 5 ] Also during argument, the applicant submitted that the respondent engaged in an activity that he knew was illegal.

Moreover, he made only very limited efforts to obtain a licence from Health Canada and knowingly engaged in the production of a prohibited substance, which he did not clearly establish to be necessary for his medical condition, considering the medication that he takes.

[ 6 ] The sentence was delivered from the bench. In a judgment that criticized legislative policy intended to suppress marijuana- related crime, the judge, referring to the abundant case law cited by counsel for the defence, sentenced the respondent to a fine of $1 and a surcharge of $0.30, the whole payable within 45 days. To this was added a one-year probation order. [ 7 ] The applicant seeks leave to appeal this judgment. In its view, the judge ruled on the basis of his personal opinion whereas he should have put it aside and instead focussed on the criteria and conditions in sections 718 et seq . Cr. C.

He did not conduct the analysis prescribed by these provisions, and he condemned the law rather than the offender. * * [ 8 ] Despite the unsatisfactory nature of the content of the judgment, it does not warrant granting leave to appeal. [ 9 ] Admittedly, the judge should have refrained from making the comments about which the applicant complains. His judgment cannot, however, be reduced to that.

It is clear from his reasons as a whole and all of the evidence and arguments submitted [2] that the judge considered the following situation: a disadvantaged man of little means, [3] suffering from significant health problems, was unable to obtain (or even ask for) a licence from Health Canada and acquired a small quantity of cuttings to produce marijuana for strictly medical and personal purposes.

That what he did was illegal and thus particularly ill-advised does not change the fact that the judge was dealing with an individual who is not a criminal (despite a few prior convictions, which essentially incurred him fines, including one for possession of marijuana dating back to 2003) and who, above all, displayed a lack of judgment. The offence is indeed reprehensible, but it is a minor crime, to which the respondent promptly pleaded guilty, and for which even the Crown sought only a minimum sentence.

It was as a result of all of these factors, and in light of the rather lenient case law in such matters, [4] that the judge ruled that a reduced fine (with a surcharge) accompanied by a probation order constituted an appropriate sentence that is proportionate to the minor gravity of the crime and the respondent’s liability. [ 10 ] As stated in the case law, it is the entire context that must be considered to assess the judgment and its reasons as well as the appropriateness of the sentence.

The judge’s personal comments in no way modify these factors, which he took into consideration, and which, on the contrary, show why he came to the conclusion that the applicant now challenges. Moreover, the sentence he imposed does not represent a departure from those frequently ordered in similar situations, as attested by the case law cited, s upra , to which may be added R. v. Small , 2001 BCCA 91 , and R. v. Jones , 2015 ONCJ 380 (judgments submitted by the respondent during the hearing of the application). [ 11 ] As recently pointed out by the majority in R. v.

Lacasse , 2015 SCC 64 , not every error committed by a judge justifies appellate intervention. [ 12 ] During the hearing of this application, Crown counsel indicated that she would have been satisfied with a suspended sentence as set out in subsection 731(1) Cr. C. , a penalty that, in her view, would have sent a message of denunciation and deterrence not conveyed by the sentence imposed in the present case. [ 13 ] It cannot be denied that such a sentence would have been appropriate in the circumstances of this case.

That does not mean, however, that the sentence imposed by the judge is inappropriate or that the Court should intervene to substitute the lenient sentence he ordered with another slightly less lenient sentence. [ 14 ] With great respect for the applicant’s submission, I find that, in view of the applicable standard of review, the proposed appeal is certain to fail. Therefore, leave to appeal should not be granted. [ 15 ] FOR THESE REASONS , the application for leave to appeal is DISMISSED . MARIE-FRANCE BICH, J.A.