2023 QCCQ 10022, 2023 QCCQ 10022

Agence du revenu du Québec c. Glidden 2023 QCCQ 10022 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF RIMOUSKI LOCALITY OF Monfff MONT-JOLI « Criminal and Penal Division » N° : 135-61-011422-223 DATE : November 17, 2023 ______________________________________________________________________ PRESIDING : HONOURABLE ANNE-MARIE SINCENNES, P.J.P. ______________________________________________________________________ AGENCE DU REVENU DU QUÉBEC Prosecutor c.

ROBERT MATTHEW GLIDDEN Defendant ______________________________________________________________________ SENTENCING JUDGMENT ______________________________________________________________________ [ 1 ] On September 21, 2023, the day of the trial, the prosecution witnesses were present, while the defendant was absent, but his lawyer was present. After discussion, the parties informed the court that a partial settlement had been reached. [ 2 ] A guilty plea is drafted and signed by the defense lawyer.

However, the defendant is contacted by telephone to confirm the contents of the written guilty plea and to attend the closing arguments.

The guilty plea is finally entered. [ 3 ] The defendant pleads guilty to the first of four counts against him, as follows: In Ste-Jeanne-d’Arc, judicial district of Rimouski, or elsewhere in Quebec, between August 4 and August 6, 2021, by act or omission, aids Michael McNaughton (1952-04-11) and Stephen Christopher Wrabko (1964-12-11) to commit the following offence: In Ste-Jeanne-d’Arc, judicial district of Rimouski, or elsewhere in Quebec, between August 4 and August 6, 2021 sells, delivers or has in his possession [of] tobacco intended for retail sale in Québec and contained in a package which is not identified in accordance with

section 13.1 of the Tobacco Tax Act (CQLR, c. I-2 ), thereby committing an offence under

section 14.2(

b) of that Act. [ 4 ] Following this guilty plea, the court accepts the plea and the prosecutor requests and obtains a conditional stay of proceedings on counts 2, 3 and 4. [ 5 ] On the first count, a joint partial suggestion is made by the parties to the court concerning the sentence to be imposed. Considering this suggestion to be reasonable and in accordance with the Act, the court immediately condemns the defendant to pay the minimum fine of $119,200 with costs. The defendant is given three months to pay the amounts owing.

He may ask to make an arrangement with the fine collector if he is unable to pay within this period. [ 6 ] Still according to the joint suggestion, the truck used to transport tobacco, a 2015 Ford F350, owned by Glidden Holdings Inc. whose sole director is the defendant, is confiscated, as are the tobacco products seized. [ 7 ] In addition, the suspension of the defendant's licence to drive a road vehicle and his right to obtain one in Quebec is ordered, for a period of six months from the end of the prison sentence, if any. [ 8 ] In fact, the prosecution is asking for a sentence of 12 months' imprisonment, which the defence opposes.

The court must determine whether a sentence of imprisonment is appropriate and, if so, for how long. ISSUES IN DISPUTE [ 9 ] Should a sentence of imprisonment be imposed? [ 10 ] If yes, what will be the term of imprisonment? ANALYSIS

[ 11 ] The facts of the case can be summarized as follows: [ 12 ] On August 6, 2021, around 9 :30 a.m., Michael McNaughton (driver) and Stephen Christopher Wrabko (passenger) are intercepted on Route 132 in Ste-Jeanne-D’Arc, in a white Ford F-350 pickup truck registered in New Brunswick and owned by the defendant’s company, Glidden Holdings inc. following a high-risk police operation involving one of the passengers. [ 13 ] The driver, Mr McNaughton makes an incriminating written statement in which he acknowledges having transported boxes of unidentified tobacco at the request of his boss and brother-in-law, Mr Glidden, the defendant, for a remuneration. [ 14 ] Mr Glidden gave Mr McNaughton a document entitled Straight bill of lading, signed by himself and Mr Kelly Martin and the transport was to be carried out by Mr McNaughton and Mr Wrabko according to the terms and conditions of the Straight bill of lading. [ 15 ] On August 9, 2021, following the issuance of a search warrant, a complete search of the vehicle is conducted.

A total of 600 000 cigarettes will be seized of which the defendant admits to having delivered or had in his possession 200 000 units. [ 16 ] The defendant was hired by Mr Kelly Martin to carry the tobacco from the Kahnawake Reserve to the Listuguj Reserve. He did not plan the transportation. He was a trucker hired to deliver cigarettes. He did not pay for the cigarettes.

That was done by Mr Martin. [ 17 ] It appears from a permit application that Glidden Holdings inc had started its unidentified tobacco transportation business since January 1 st , 2021. [ 18 ] On August 6, 2021, no permit had been issued by proper authorities and Mr Glidden had received no return of his permit application. A refusal was finally issued five months later, on January 22, 2022. [ 19 ]

Article 229 of the Code of Penal Procedure (CPP) provides that a judge who finds a defendant guilty of an offence must impose a sentence within the limits prescribed by law, taking into account the particular circumstances of the offence or the defendant. [ 20 ] With regard to imprisonment,

article 14.2 of the Tobacco Tax Act [1] provides that in addition to a fine, the court may sentence the defendant to imprisonment for up to two years. [ 21 ] It is appropriate to reiterate the penological principles already discussed by the undersigned in the file Agence du revenu du Québec c. Wysote [2] where the defendants were charged with offences relating to the transport of unstamped cigarettes. [ 22 ] The study of these particular circumstances is different for regulatory and criminal offences. Indeed, these two regimes (regulatory and criminal) pursue different ends.

The criminal regime seeks to "condemn and punish past conduct that is reprehensible in itself," while regulatory measures are generally aimed at preventing future harm through the application of minimum standards of conduct and prudence. [3] [ 23 ] The offence of selling, transporting or possessing unidentified cigarettes, i.e. cigarettes for which the applicable taxes have not been paid, is tantamount, in the court's view, to fraud. It deprives the State, and therefore society, of considerable revenue.

Accordingly, the court will be guided by the following principles applied by the Superior Court [4] and retained as principles applicable, but not mandatory, in matters of securities and offences amounting to fraud: 1) sanctions should change the behaviour of the offender. 2) sanctions should ensure there is no financial benefit obtained by non-compliance. 3) sanctions should be responsive and consider what is appropriate for the particular offender and the particular regulatory regime . 4) sanctions should be proportionate to the nature of the offence and the harm caused . 5) sanctions should aim to restore the harm caused by the regulatory non-compliance . 6) sanctions should aim to deter future non-compliance. [5] [ 24 ] Among the factors to be considered, the prosecutor points to the large quantity of tobacco involved.

The defendant acknowledges liability for 200,000 units of tobacco. [ 25 ] The defendant is responsible for transportation, which requires a certain degree of planning. [ 26 ] In April 2021, only a few months before the present infraction, the defendant was intercepted in possession of 47 cases of illegal tobacco.

In the present case, he pays people with no previous record to transport the goods for him, using a commercial vehicle rather than a personal vehicle, which would demonstrate a certain evolution in his way of doing things. [ 27 ] The April 2021 event cannot be considered a recidivism since it was not until 2022 that the defendant was finally found guilty by default. [ 28 ] The prosecution is of the opinion that the defendant’s late guilty plea cannot be considered a mitigating factor, to which the defense replies that although it is not a mitigating factor, it can nevertheless be taken into account. [ 29 ] In this regard, the Court quotes the Court of Appeal in its November 3 rd , 2023, decision Berlingieri c .

R . [6] : En ce qui concerne le plaidoyer de culpabilité, il s’agit d’un facteur atténuant. Toutefois, un plaidoyer de culpabilité enregistré tardivement ne se verra pas accorder autant de poids qu’un plaidoyer enregistré à la première occasion. Dans l’arrêt Lacelle Belec [7] , la Cour écrit :

[65] Il est indéniable que la tardiveté d’un plaidoyer peut amoindrir la force de ce facteur atténuant. Il n’existe aucune règle ou barème prédéterminé qui atténue le poids d’un plaidoyer tardif. Tout est question de circonstances et le juge est tenu de prendre une décision raisonnable à la lumière de la preuve dans chaque dossier. L’importance accordée au plaidoyer sera donc tributaire des circonstances de l’affaire en cause [8] . [ 30 ] A reading of the preceding excerpts leads to the conclusion that although the plea was late, it is still a mitigating factor, albeit with relative weight.

It must be remembered, however, that in the present case, up to September 21, 2023, the defendant faced four charges. As soon as it was understood that a conditional stay of proceedings would be sought on three of the four counts, the defendant entered a plea of guilty. [ 31 ] The defendant reiterates that he had applied to Revenu Québec for a permit to transport tobacco, thereby disclosing all his assets. [ 32 ] The prosecutor retorts that the defendant should have known that the permit would be refused.

To this, the court replies that if it had been so obvious that the permit would be refused, Revenu Québec would not have taken five months to render its decision. [ 33 ] However, what could be considered as evidence of cooperation with the authorities on the part of the defendant, rather demonstrates that the defendant knew full well that he could not transport unstamped tobacco without a permit and that he flouted the law. [ 34 ] That said, the appropriate sentence is imprisonment. [ 35 ] How long will the prison sentence last? [ 36 ] A study of recent case law shows that a 12-month prison sentence is ordered most of the time when the defendant has several previous convictions [9] and it is clear that previous monetary condemnations have had no effect whatsoever. [ 37 ] In the defendant's case, considering the elements previously studied and the fact that he aided to commit an offence involving a large quantity of tobacco, a sentence of 60 days is deemed sufficient to achieve the penological objectives and to respect the principle of harmonization of sentences.

FOR THESE REASONS, THE COURT: [ 38 ] CONDEMNS the defendant to serve a sixty (60) day prison sentence; [ 39 ] ORDERS the suspension of the defendant's driver's licence and his right to obtain one in Quebec for a period of six (6) months from the date on which the defendant completes his prison sentence. __________________________________ ANNE-MARIE SINCENNES, PRESIDING JUSTICE OF THE PEACE M e Gabrielle Audrey Cimon M e Alexe Bérubé For the prosecutor M e Mikael Bernard For the defense Date of hearing : September 21, 2023