2019 QCCA 87, 2019 QCCA 87

Tremblay v. R 2019 QCCA 87 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 500-10-006747-180 (700-01-152622-166) DATE: January 23, 2019 ______________________________________________________________________ CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. MARK SCHRAGER, J.A. MARIE-JOSÉE HOGUE, J.A. ______________________________________________________________________ ERICK TREMBLAY APPELLANT - Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutor ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [UNOFFICIAL TRANSLATION BY CENTRE DE TRADUCTION ET DE TERMINOLOGIE JURIDIQUES] [ 1 ] Where a person is convicted of an offence referred to in s. 109 Cr.C . , must the court, upon granting an absolute discharge, prohibit that person from possessing any weapon?

That is the question raised by this appeal against a judgment of the Court of Quebec, district of Terrebonne (the Honourable Marc-André Dagenais), rendered on April 12, 2018. THE FACTS [ 2 ] In August 2016, the appellant was going through a difficult separation with his spouse. Having difficulty accepting the end of

their relationship, he multiplied phone calls and text messages. [ 3 ] On September 17, 2016, while she was in a café in Montreal with a friend, he entered the premises. An altercation ensued. [ 4 ] Since it was a place that she had never visited before, she wondered how the appellant knew that she was there.

She feared for her safety, and decided to go to the police station. [ 5 ] The police officers then checked her vehicle and found a geolocation tracking device, which was shown to have been installed by the appellant. [ 6 ] The appellant was charged with having engaged in conduct directed at his former spouse for the purpose of harassing her or recklessly as to whether she was harassed, by committing an indictable offence referred to in s. 264(2) Cr.C . that caused her reasonably to fear for her safety or the safety of her acquaintances, thus committing the indictable offence referred to in s. 264(1) Cr.C . [ 7 ] On April 12, 2018, the appellant pled guilty.

The parties suggested that the judge grant him a discharge.

The Crown, however, asked for a conditional discharge – since it wished to keep the appellant from communicating with the victim – while the appellant sought rather an absolute discharge. [ 8 ] During the discussions between the parties, the appellant’s counsel suggested that he be granted an absolute discharge, but that he enter into a recognizance, under s. 810 Cr.C . , to keep the peace and be of good behaviour for a period of one year, and that any conditions sought by the Crown be added to this recognizance. [ 9 ] The Crown agreed with this proposal, but considered that an order prohibiting the appellant from possessing any weapons also had to be made, since criminal harassment is among the offences mentioned in s. 109(1) (

b) Cr.C . [ 10 ] The judge accepted the suggestion and granted the appellant an absolute discharge. He also accepted the Crown’s request and ordered the appellant to enter into a recognizance to keep the peace, to refrain from communicating directly or indirectly with the victim and with members of her immediate family, and to refrain from going to her place of residence or to her place of work.

He added the mandatory prohibition order provided under s. 109(1) Cr.C . [1] for a period of ten years. *** [ 11 ] On June 12, 2018, the appellant requested an extension of the appeal period as well as leave to appeal to this Court to challenge the order prohibiting the possession of weapons. His application for an extension was granted, and his application for leave to appeal was referred to this Court [2] . [ 12 ] Given its novelty, the Court considers that the appeal [TRANSLATION] “raises grounds that have sufficient merit and importance to warrant [its] intervention” [3] .

Leave to appeal should be granted, and the issue raised should be decided. *** THE POSITION OF THE PARTIES [ 13 ] The appellant’s position is simple: on the basis of the wording of s. 109 Cr.C . , he argues that the order that is referred to need not be made when an absolute discharge is granted. [ 14 ] He argues firstly that, by referring specifically to “[…] any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge […]”, Parliament clearly expressed its intent to treat discharges differently from those cases where a punishment is imposed. [ 15 ] But, he then writes, the portion of the introductory wording in the French version − “[…] ou de toute autre condition qu’il lui impose dans l’ordonnance d’absolution […]”, and the equivalent portion in the English version − “[…] or any other condition prescribed in the order of discharge […]”, lead to the conclusion that, in cases where a person is discharged, the order is to be made only where the discharge is conditional. [ 16 ] Moreover, he adds, the very idea of an absolute discharge is incompatible with the making of a prohibition order. [ 17 ] The Crown, for its part, argues that Parliament’s purpose, in enacting s. 109 Cr.C . , was to reduce the risk of future violence [4] .

By specifying that the order was to be made “in addition” to any other punishment or any other condition of discharge, it makes clear that it should be made even where a similar restriction was already imposed as a condition of discharge, probation or conditional sentence of imprisonment. [ 18 ] Moreover, although the purpose of the record suspension granted under the Criminal Records Act [5] is to favourably broaden the effects of a discharge, s. 2.3 (

b) specifically provides that an order made under s. 109 Cr.C . remains in effect. There is therefore nothing, it writes, that is inconsistent with imposing upon a person who is granted an absolute discharge a prohibition on the possession of any firearm. [ 19 ] What is the situation in this case? ANALYSIS

[ 20 ] The Court is of the view that the literal

interpretation suggested by the appellant cannot be accepted. Here are the reasons why. [ 21 ] We must first remember that in matters of statutory

interpretation, “the words of a statute must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”, and the analysis of the text must be complemented by the context and the object of the Act [6] . [ 22 ] Furthermore, if, in criminal matters, it is not possible to overcome a difficulty by using the ordinary rules of construction, then the statute is to be interpreted in a manner that is favourable to the accused [7] . [ 23 ] The Court considers that neither the wording of s. 109 Cr.C . nor its object allow a finding that the obligation imposed on the court to make an order prohibiting the possession of weapons is to be set aside in cases where the accused person who has been convicted is, otherwise, absolutely discharged.

The wording of

section 109 Cr.C. [ 24 ] Section 109(1) Cr.C . requires the court that finds an accused person guilty of certain offences, or directs that that person be discharged, to make an order prohibiting that person from possessing any weapon. This provision specifies, moreover, that the order is to be imposed “in addition” to any other punishment imposed upon the accused or “in addition” to any other condition prescribed in the order of discharge.

Other than the appellant’s argument on the wording, there is nothing else in the wording of s. 109 Cr.C . that would suggest that it does not apply in cases of absolute discharge, on the contrary. [ 25 ] Firstly, Parliament makes no distinction between an absolute discharge and a conditional discharge when it writes that “Where a person is convicted, or discharged under

section 730, […] the court […] shall […] make an order prohibiting the person from possessing any firearm […]”. [ 26 ] Yet, it would have been easy to make this distinction, if that had been its intent. [ 27 ] In referring to

section 730 Cr.C . , which allows the court to grant both absolute and conditional discharges, Parliament expresses, on the contrary, its intent that the order be made in both of these eventualities. [ 28 ] The point that it makes – requiring that the prohibition order be added to any other condition imposed in the decision to discharge – does not imply that a condition has been imposed, i.e. that a conditional discharge has necessarily been directed. The sole purpose of this point is to confirm that the existence of conditions, whatever they may be, has no impact on the obligation to make that order.

The prohibition on the possession of weapons is simply added to the order. [ 29 ] The English version of

section 109 Cr.C . suggests the same idea. Parliament begins, in fact, by indicating in which situation the obligation, set out further on, applies: “ Where a person is convicted, or discharged under

section 730 , of […]”.

Here again, it does not distinguish between a conditional discharge and an absolute discharge. [ 30 ] It then enacts that this order is in addition to any other punishment or any other condition that may have been imposed, without suggesting, however, that a condition need necessarily have been imposed: “ the court that sentences the person or directs that the person be discharged, as the case may be, shall, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge […]”. [ 31 ] The Court therefore considers that the wording of s. 109 Cr.C . does not suggest that the obligation to make an order prohibiting the possession of weapons exists only where an accused person who is found guilty of an offence is conditionally discharged. [ 32 ] However, should this textual

interpretation be rejected, in the light of the context and the objective sought by Parliament? [ 33 ] The Court is of the view that it should not, considering the history of this statutory provision and its object. The history and object of

section 109 Cr.C. [ 34 ] Initially, the prohibition order only applied to a person “ convicted of an indictable offense in the commission of which violence against a person is used, threatened or attempted ” [l’auteur d’un acte criminel commis avec emploi, tentative ou menace d’emploi de violence] [8] . In 1985, Parliament amended

section 98 Cr.C . to include situations where the accused is discharged, using in French, however, the word “libère”, then in use:

(1) Le tribunal qui déclare coupable ou libère en vertu de l’article 662.1 un contrevenant relativement à un acte criminel punissable d’un emprisonnement de dix ans ou plus perpétré avec violence contre la personne, de même que celui qui déclare coupable ou libère un contrevenant en vertu de l’article 662.1 relativement à un acte criminel prévu à l’article 83, doit, et en sus de toute autre peine qui peut être imposée pour cet acte criminel , rendre une ordonnance interdisant au contrevenant d’avoir en sa possession une arme à feu, des munitions ou une substance explosive pour une période, devant être indiquée dans l’ordonnance, courant à compter du jour où elle est rendue et expirant au plus tôt : […] [9] 98.

(1) Where an offender is convicted or discharged under

section 662.1 of an indictable offence in the commission of which violence against a person is used, threatened or attempted and for which the offender may be sentenced to imprisonment for ten years or more or of an offence under

section 83, the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence , make an order prohibiting the offender from having in his possession any firearm or any ammunition or explosive substance for any period of time specified in the order that commences on the day the order is made and expires not earlier than […] [Emphasis added.] [ 35 ] In 1988, it replaced, in the French version, the word “libère” with the word “absout” [10] . [ 36 ] The present version essentially comes from the amendment enacted by Parliament in 1995, on the enactment of Bill C-68, An Act respecting firearms and other weapons, the object of which was “the preservation of the safe, civilized and peaceful nature of Canada” [11] . [ 37 ] The mandatory prohibition set out in this provision “relates to a recognized sentencing goal – the protection of the public, and in particular, the protection of police officers […]” [12] .

In this regard, the Supreme Court draws attention to the following: […] The state interest in reducing the misuse of weapons is valid and important. The sentencing judge gave insufficient weight to the fact that possession and use of firearms is not a right or freedom guaranteed under the Charter , but a privilege. It is also a heavily regulated activity, requiring potential gun-owners to obtain a licence before they can legally purchase one.

In Reference re Firearms Act (Can.) , [2000] 1 S.C.R. 783 , 2000 SCC 31 , this Court held that requiring the licensing and registration of firearms was a valid exercise of the federal criminal law power. If Parliament can legitimately impose restrictions on the possession of firearms by general legislation that applies to all, it follows that it can prohibit their possession upon conviction of certain criminal offences where it deems it in the public interest to do so. […] [13] [ 38 ] Moreover, the

preamble to Bill C-68 indicates that it provides “[a] scheme for prohibiting, as a result of criminal conduct, a person from future possession of firearms” [14] . The order referred to in s. 109 Cr.C . is one of these protective measures. The order is necessary because of the “criminal conduct” adopted by the person against whom it is made. [ 39 ] But, a discharge, even when it is absolute, does not eliminate the accused’s guilt and his “criminal conduct”. On the contrary, a discharge presupposes his guilt and his criminal conduct [15] .

As the Court indicates, [TRANSLATION] “the absence of a conviction does not make the guilty plea disappear retroactively, no more than rehabilitation (or a pardon) retroactively wipes out the conviction” [16] . [ 40 ] Moreover, the position put forth by the appellant is supported neither by case law nor by legal doctrine. [ 41 ] It is interesting to note that trial courts regularly make such orders when they grant absolute discharges [17] , although the question of whether a prohibition order must be made in the case of an absolute discharge has not been discussed. [ 42 ] The Court of Appeal for Ontario also seems to have implicitly found, in Shia , that s. 109 Cr.C . applies where an accused person convicted of an offence that is mentioned therein is granted an absolute discharge [18] .

In that case, police officers came to the accused’s home following a complaint of domestic violence. Upon arriving on the premises, they discovered several marijuana plants. The accused pleaded guilty to the offence of production of marijuana.

However, he was given an absolute discharge [19] . [ 43 ] Although the judgment contained no order prohibiting the possession of firearms, the police refused to return the weapons that were seized during its intervention because “[…] as a person found guilty of production of marijuana, he was prohibited from possessing firearms under s. 109 (1) (c) ” [20] . [ 44 ] The case was brought before the courts. Commenting on the procedural context of the case, the Court of Appeal wrote the following: The circumstances surrounding the offence charged are unremarkable.

But the procedural history of the prosecution is littered with errors and omissions. An election of a mode of procedure that was unavailable. Faulty legal advice about the consequences of an absolute discharge on a charge of production of marijuana. Failure to make a mandatory firearms prohibition order . And insistence that such an order was in place. [21] [Emphasis added.] [ 45 ] The Court also pointed out that the parties had made a joint submission for an absolute discharge but that they had made no

comment with respect to s. 109 Cr.C . : […] Neither reminded the presiding judge about the mandatory firearms prohibition under s. 109(1) (

c) of the Criminal Code for anyone convicted or discharged of a production offence under s. 7(1) of the CDSA . [22] [Emphasis added.] [ 46 ] This decision of the Court of Appeal for Ontario is not a precedent, since there is a complete absence of discussion on this point; it does, however, show that the distinction put forth by the appellant is not obvious. [ 47 ] Moreover, the various authors do not make this distinction either. [ 48 ] In his book on sentencing, Clayton C. Ruby merely mentions the following: […]

section 109 sets out a mandatory prohibition applicable upon conviction or discharge in three circumstances […] [23] [ 49 ] In the same way, Jean-Paul Perron notes that s. 109 Cr.C . : [TRANSLATION] […] sets out the obligation for a court that convicts or discharges an offender under s. 730 Cr.C . to make, in addition to imposing any other punishment, an order prohibiting the offender from possessing any firearms, if it convicts or discharges the offender either of an indictable offence in the commission of which violence against a person was used and for which the offender may be sentenced to imprisonment for ten years or more, or of certain offences relating to firearms, or of certain offences under the Controlled Drugs and Substances Act. [24] [ 50 ] Professor Hélène Dumont, for her part, points out that: [TRANSLATION] […] the court that convicts or discharges a person of a prescribed offence […] must, in addition to any punishment imposed for that crime, make an order prohibiting that person from possessing firearms, ammunition and explosive substances. [25] [ 51 ] It is not possible, either, to argue that the order prohibiting the possession of weapons made under s. 109 Cr.C . is equivalent to the imposition of a condition, which is incompatible with the very idea of an absolute discharge. [ 52 ]

Section 730 Cr.C . in fact allows the court to discharge an accused person who is found guilty of an offence, either absolutely or conditionally. In the latter case, a breach of the conditions that have been imposed, that are part of a probation order under s. 731(2) Cr.C . , can lead to the setting aside of the discharge. [ 53 ] A breach of an order prohibiting the possession of weapons made under s. 109 Cr.C . may, for its part, result in the imposition of a sanction under s. 117.01 Cr.C . It does not allow for revoking or otherwise setting aside the discharge granted.

Therefore, this order prohibiting the possession of weapons is not a condition within the meaning of s. 730 Cr.C . and is not incompatible with the granting of an absolute discharge. [ 54 ] In conclusion, the Court is of the opinion that the distinction made by the appellant is not warranted and his proposition cannot be accepted. An order prohibiting the possession of weapons must be made even where the accused person who has been found guilty of an offence is granted an absolute discharge.

FOR THESE REASONS, THE COURT: [ 55 ] GRANTS leave to appeal against the judgment of the Court of Quebec dated April 12, 2018; [ 56 ] DISMISSES the appeal. ___________________________________ FRANCE THIBAULT, J.A. ___________________________________ MARK SCHRAGER, J.A. ___________________________________ MARIE-JOSÉE HOGUE, J.A.

Gilles Doré For the appellant Alexis Marcotte Bélanger DIRECTOR OF CRIMINAL AND PENAL PROCEEDINGS For the respondent Date of Hearing: September 28, 2018 [10]

An Act to correct certain anomalies, inconsistencies, archaisms and errors and to deal with other matters of a non-controversial and uncomplicated nature in the Statutes of Canada , S.C. 1988, c. 2, s. 27 (Schedule I, No. 5). The number of the

section is also changed from 98 to 100. [25] Hélène Dumont, Pénologie: le droit canadien relatif aux peines et aux sentences , Montreal, Thémis, 1993, p. 512.