2011 QCCA 2387, 2011 QCCA 2387

Unofficial English Translation Gagné c. R. 2011 QCCA 2387 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004952-113 (450-01-067638-101) (450-01-066817-102) (450-01-066819-108) (450-01-066818-100) DATE: December 21, 2011 CORAM: THE HONOURABLE PIERRE J. DALPHOND, J.A NICHOLAS KASIRER, J.A. GUY GAGNON, J.A. ALAIN GAGNÉ APPELANT – accused v.

HER MAJESTY THE QUEEN RESPONDENT – complainant JUDGMENT [ 1 ] The appellant appeals from a judgment on sentencing rendered on June 9, 2011, by the Court of Quebec, District of St-François (the Honourable Judge Serge Champoux), which sentenced the appellant to serve an overall forty-month term of imprisonment, less eight and a half months for time served.

The judge also ordered the registration of the appellant in the Sex Offender Information Registry, authorized the taking of bodily samples, and prohibited him from being in a public park or other public place where children under the age of sixteen are found for a period of ten years.

He also prohibited him for the same period of time from seeking employment, from accepting or keeping employment placing him in a position of trust or authority with respect to persons under the age of sixteen, and from using a computer to communicate with persons under the age of sixteen. [ 2 ] For the reasons of Kasirer, J.A., with which Dalphond and Gagnon, JJ.A. agree: [ 3 ] ALLOWS the appeal in part; [ 4 ] SETS ASIDE the trial judgment with respect to the prison sentence imposed; [ 5 ] UPHOLDS all other orders in the trial judgment; [ 6 ] VARIES the sentence imposed on June 9, 2011, by ordering the appellant to serve an eighteen-month prison sentence, less eight and a half months for time served; [ 7 ] ORDERS that the prison sentence be followed by a three-year probation order subject to the following conditions:

a) the appellant must report to a probation officer within seven days of the end of his prison sentence and thereafter when required and in the manner directed by that officer;

b) the appellant must follow all the recommendations made by the probation officer, including those respecting treatment for his sexual behaviour issues in a specialized centre identified by the parties;

c) the appellant must refrain from being in the presence of minors, except his own children, in accordance with a judgment of the Court of Quebec, Youth Division;

d) the appellant is prohibited from being in possession of a computer or any other device permitting Internet access;

e) the appellant is prohibited from being in possession of a camera or any other device that takes films or photographs.

[ 8 ] ORDERS that this recognizance be entered into before a justice of the peace assigned for this purpose. PIERRE J. DALPHOND, J.A NICHOLAS KASIRER, J.A. GUY GAGNON, J.A. per Pierre J.

Dalphond, duly authorized Mtre Jean-Guillaume Blanchette FRÉCHETTE BLANCHETTE LEBLANC attorneys For the appellant Mtre Magalie Cimon CRIMINAL AND PENAL PROSECUTOR For the respondent Date of hearing: November 11, 2011 REASONS OF KASIRER, J.A. [ 9 ] Though a [ translation ] "joint submission" by the prosecution and defence has a certain persuasiveness when it results from rigorous negotiations in the context of a guilty plea, it is not binding on the sentencing judge. Because of this persuasiveness, however, case law has established a procedure for judges to follow before dismissing such a submission.

What measure of deference is owed to the decision of a judge who has complied with the preliminary procedure and rejected a joint submission because he or she found it to be unreasonable or contrary to the public interest in the circumstances? That issue is at the heart of this appeal. *** [ 10 ] On February 9, 2011, after a trial by judge alone, the appellant was convicted of voyeurism (s. 162(1)(5)(

a) Cr. C. ) and making (s. 163.1(2)(

a) Cr. C. ) and possessing (s. 163.1(4)(

a) Cr. C. ) child pornography. These convictions resulted from a police search of the appellant's home, where the officers found approximately 175 different video files containing images of child pornography, some involving very young children, on various computer devices, as well as ten photographs of the same nature. The investigator-analyst tasked with analyzing the contents of the appellant's computer also found a file showing the appellant himself installing a camera in a public washroom. With this camera, he filmed a young girl of about eight years of age urinating.

This video file had been given a name made up of numbers and English words. [ 11 ] At the start of the sentencing hearing, the appellant pleaded guilty to two more offences: uttering death threats (ss. 264.1(1)(

a) and (2)(

a) Cr. C. ) and breach of recognizance to be of good behaviour (s. 811(

a) Cr. C. ). The charge of uttering death threats stemmed from a complaint by the appellant's spouse, who caught the threat on film during a fight. Later, examining the same camera, his spouse found a video file showing images of child pornography, which she handed over to the police.

As for the breach of recognizance to be of good behaviour, it stems from a complaint by the Crown following several reports from young teenage girls, aged twelve to fourteen, who stated that the appellant approached them in public places and called out to them, saying sentences like [ translation ] "Show me your breasts" or [ translation ] "I want to see your vagina". *** [ 12 ] During submissions on sentencing, the appellant and respondent presented the judge with a joint submission for all the offences.

They proposed that the appellant be sentenced to an overall eighteen-month term of imprisonment, from which the six and a half months of prison already served would be deducted. This sentence would be followed by a three-year probation order that included an obligation to undergo treatment in a specialized centre identified by the parties, as well as several prohibitions, including the prohibition from possessing computers or any device giving access to the Internet, from possessing a camera or any device that would allow him to film or photograph, or from being in the presence of minors, except his own children.

The appellant would also be subject to the prohibitions set out in s. 161(1) Cr. C. and be obliged to comply with the Sex Offender Information Registration Act , pursuant to s. 490.012 Cr. C . [ 13 ] The judge expressed his reluctance toward the joint submission as soon as it was presented.

He explained to the parties the reasons why he felt their suggestion was inappropriate and adjourned the hearing to give them a chance to better justify their position. [ 14 ] In his final judgment, the judge rejected the joint submission, finding that it was unreasonable, mainly because of the objective seriousness of the offences, the appellant's criminal record, and his intent to distribute his files, which the judge determined was revealed by the evidence. [ 15 ] The judge also noted that the deference owed the joint submission was attenuated by the fact that it was not the result of a

guilty plea, at least not on the more serious offences. He added that the parties failed to demonstrate that their submission was the result of rigorous and conscientious negotiations, in part because they did not give him enough information about the nature of the appellant's criminal record. [ 16 ] In the end, he ordered the appellant to serve concurrent three-year prison terms for each of the counts of voyeurism, possession of child pornography, and making child pornography, as well as consecutive prison terms of one month for breach of recognizance and three months for uttering death threats.

The overall sentence was therefore forty months' imprisonment, from which the judge subtracted eight and a half months to take into account the time served prior to sentencing. [ 17 ] The appellant appeals. He maintains that the judge erred by rejecting the joint submission—which the appellant characterizes as reasonable—for reasons that are not well-founded.

He also argues that the sentence imposed by the judge is unreasonable under the circumstances. [ 18 ] The Crown agrees with the appellant and contends that the judge's dismissal of the joint submission was not justified. *** [ 19 ] With respect, I find that the judge made a mistake by dismissing the joint submission.

The initially proposed eighteen months’ imprisonment less time served and followed by probation and treatment should have been accepted. [ 20 ] The judge clearly understood that he could dismiss the joint submission only if he found it to be unreasonable, contrary to public interest, or likely to bring the administration of justice into disrepute. [1] [ 21 ] Not all joint submissions are created equal: the courts consider that a joint submission will be persuasive when it is the result of veritable negotiations that lead to a guilty plea.

In the present case, the joint submission was not the result of negotiations leading directly to a guilty plea on the counts of child pornography. There were signs of veritable negotiations, however, particularly with respect to the conditions of probation. Moreover, the appellant pleaded guilty to two charges when the joint submission was made. The negotiations leading to a joint submission are sufficient to suggest their seriousness, even if they did not concern the guilty plea on the child pornography charges.

The judge did not err in expressing his opinion on the lower level of deference owed the submission under the circumstances; in the end, however, this observation carries little weight.

As will be seen, the judge rejected the joint submission because he found it to be unreasonable, not because of the conditions surrounding its actual negotiation. [ 22 ] According to case law, before a joint submission may be rejected, the judge must notify the parties during submissions on sentencing that he or she is inclined to dismiss the joint submission, summarily explain the reasons for his or her concerns, and give the parties an opportunity to respond. [2] In this case, the judge followed the procedure established to prepare for the rejection of the joint submission. [ 23 ] That said, following the preliminary procedure is not enough to confer upon the judge's decision the deference usually applied in sentencing matters.

The judge must also provide reasons for his or her decision to reject the joint submission by explaining why it was unreasonable in the circumstances. [3] This is all the more true when the submission is within the usual range of sentences imposed for the offences charged.

This was the case here: while lenient, the sentence suggested by the parties was not prima facie disproportionate to other sentences imposed by Canadian courts in similar matters. [4] [ 24 ] While acknowledging the care with which the reasons were given, I find that the judge’s reasons for rejecting the joint submission contain two errors of principle. With respect, these errors not only led the judge to be unnecessarily harsh with respect to the appellant, but also vitiated his choice to reject the joint submission.

It is therefore appropriate to vary the sentence by restoring the submission made by the appellant and Crown during submissions on sentencing. *** [ 25 ] First, the judge faulted the appellant for criminal behaviour for which he was not charged and based himself in part on this observation to reject the joint submission. In his assessment that the parties' proposal was too lenient, the judge let it be known not only that the appellant was guilty of making and possessing child pornography, but also that he distributed or intended to distribute this material over the Internet.

On this subject, the judge wrote: [ translation ] [65] To reject the joint submission, I have, among other things, indicated to Alain Gagné's counsel that it seems to me particularly worrisome that, as indicated by exhibit P-3, the accused named the bathroom video.

He named it ... . [66] As mentioned previously, what worries me is the following element: it is illogical, even absurd, that the accused assign an English language name to the file (he is francophone) and that he assign to it an expression like "new". [67] This observation commands the conclusion that the accused has already made or was intending to make this animation video available to others. [Emphasis added.] [ 26 ] The appellant argues with reason that the judge could not infer distribution or intent to distribute child pornography based only on the file's name, since these are distinct offences (s. 163.1(3) Cr.

C. ) for which the appellant was neither charged nor convicted. At the sentencing stage, this aggravating factor would have required proof beyond a reasonable doubt. In this case, it cannot be stated with the necessary conviction that the appellant distributed or intended to distribute the film taken in the bathroom. First, the report from the investigator-analyst clearly stated that the appellant's files were not shared with other users of the Limewire software, which was installed on the seized computer. Second, this same report states that other child pornography files, which were in all likelihood

downloaded from the Internet, had been given names similar to the one given to the film taken in the bathroom. This would indicate that the appellant did not himself come up with the name of his film. Third, the mere fact that the file has an English name when the appellant is a francophone is not enough to conclude beyond a reasonable doubt that he intended to distribute it to other persons.

English is the language of the Internet, and it is not illogical that a francophone would find inspiration in English terms to name his or her own files. [ 27 ] A second error vitiating the judge's decision relates to the significance that he attributed to a fact that was never entered in evidence by the prosecution. The evidence indisputably reveals that the appellant committed the offence of voyeurism by filming the young girl in the bathroom.

With respect, however, the judge erred in his assessment of the subjective seriousness of this offence by taking into consideration, as additional evidence, another video file, which was never entered in evidence by the prosecution. The judge refers to it in the following paragraphs of his reasons: [ translation ] [73] To involve one's own children or other close relatives seems obviously aggravating to me, when compared to an individual hiding at home behind his computer looking at images created by others. [74] But Alain Gagné goes even further. He leaves his home, he approaches young girls.

He plans and produces his own video productions. He films children without their knowledge. The evidence shows at least one other voyeuristic video. [75] Knowing the type of animation files the accused chooses to collect, it seems clear to me that the acts revealed by the evidence can be deemed equivalent to predatory activities. [Emphasis added.] [ 28 ] The appellant faults the judge for erroneously crediting him with creating another [ translation ] "voyeuristic video".

In that excerpt, the judge referred to a second file found on the appellant's computer, which contained a video of a teenage girl filmed through her window. At trial, however, the respondent decided not to enter this film in evidence since it was unable to prove that the appellant had actually created it. The appellant therefore never had the opportunity to counter this evidence. The judge could not consider this second file when weighing the aggravating factors. Moreover, he could not infer therefrom that the appellant had a propensity.

Nevertheless, he relied on such a propensity to justify his decision to reject the parties' submission. [ 29 ] These two errors tainted the judge's decision to reject the joint submission and led him to impose on the appellant a harsher sentence without ordering the treatment he needs. [ 30 ] Although lenient, the joint submission must be characterized as reasonable under the circumstances.

It is true, as the judge noted, that the 2005 amendments to the Criminal Code [5] imposing minimum sentences of forty-five days and one year for the respective offences of possession and the making of child pornography must lead to a new reading of some of the decisions made in similar matters. Yet, the parties have shown that the sentence they propose is within the range of sentences imposed in similar circumstances. Furthermore, their submission includes supervised probation for three years, the maximum period authorized by Parliament (s. 732.2(2)(

b) Cr. C. ), a condition characterized as "essential" by the respondent during submissions on sentencing. The appellant would also undergo treatment during his probation, an obligation that was not included in the sentence ordered by the judge. The overall design of the joint submission therefore meets the objectives of denunciation, deterrence, and reintegration identified by Parliament. [ 31 ] I would therefore set aside the decision of the judge and accept the submission made by the parties. I would allow the appeal and impose a sentence of eighteen months' imprisonment less time served, with the conditions proposed by the parties in the joint submission. NICHOLAS KASIRER, J.A.