2015 QCCA 1391, 2015 QCCA 1391

Gabriel c. R. 2015 QCCA 1391 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-003416-060 ; 500-10-003417-068; 500-10-003419-064; 500-10-003420-062; 500-10-003422-068 (700-01-051263-047) DATE: 1 er septembre 2015 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. PAUL VÉZINA, J.A. CLAUDE C. GAGNON, J.A. No: 500-10-003416-060 GARY GABRIEL PETITIONER / APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix No: 500-10-003417-068 TERRY YAXLEY PETITIONER / APPELLANT - Accused v. HER MAJESTY THE QUEEN RESPONDENT - Prosecutrix No: 500-10-003419-064 HUBERT NELSON PETITIONER / APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT - Prosecutrix

No: 500-10-003420-062 BRADLEY GABRIEL PETITIONER / APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT - Prosecutrix No: 500-10-003422-068 ALLISTER NICHOLAS PETITIONER / APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT I INTRODUCTION [ 1 ] Otis, J.A. referred these five consolidated motions for leave to appeal to the Court on February 23, 2006. They arise out of the sentences imposed on the five petitioners by the Superior Court, District of Terrebonne (the Honourable Madam Justice Nicole Duval Hesler, then a judge of that court) on January 20, 2006 following their conviction by a jury on counts of taking

part in a riot ( s. 64 Cr.C .) and forcible confinement ( s. 279(2) (

a) Cr.C .). [1] [ 2 ] The facts giving rise to the charges are set out at length in the judgment being released concurrently in which the Court dismisses the appeals of the five petitioners and others against the guilty verdicts. For present purposes, however, it suffices to relate the relevant facts as the sentencing judge described them in her judgment: [3] In the fall of 2003, a majority of the Band Council governing the community of Kanesatake became concerned that there was no law enforcement in the community.

They adopted a resolution calling for the removal of the then chief of police and set into motion a police operation whereby the Kanesatake Mohawk police officers, together with officers from other First Nations, would be put in charge of policing within Kanesatake under a new Police Chief and Assistant Chief of Police, with a view to reinstating "normal" police operations and crime investigation in the community. [4] The evidence shows that asking for assistance from other native police forces is not unusual in First Nations communities. [5] News of the planned operation leaked out.

It was widely expected to occur on the day preceding its actual carrying out. Thus it is perhaps not surprising that several members of the community assembled in the immediate vicinity of the police station upon being informed of the presence of the First Nations police officers at the station on January 12, 2004. [6] Within the hour, the situation worsened. Tensions mounted. The First Nations police officers were shouted at, vilified, and virtually barricaded within the station: vehicles were brought close to the metal fence surrounding the parking area, blocking both access to and egress from that area.

Eventually, a bulldozer and a backhoe were also brought in for a while, and were used to slam the ground in an apparent and fiercely audible show of force.

The vibrations were felt throughout the building. [7] It also bears mentioning that at some point during the first hours of the siege, a group of people was seen and heard to depart with the avowed intention of burning down the Grand Chief's house, which, the evidence showed, erupted into flames soon after. [8] Although this trial was not about the charges resulting from that fire, the incident certainly serves to illustrate the mood of the crowd. [9] The standoff went on for thirty-seven hours, during which the only way out of the police station was through the front door, which would have to be exited by foot, the police vehicles being blocked at the rear.

One would have to face the protesting crowd which would not fail to converge there and did in fact so converge whenever someone attempted to bring in food to the confined First Nations officers through the front door. The Court is referring to two incidents involving attempts to order pizzas and to bring in groceries, both of which were unsuccessful and nasty.

[10] While the police officers remained confined inside, members of the Kanesatake Police Commission and elders were allowed in and out. [11] At trial, the defence basically argued that the band council resolution was not adopted in a democratic way, that it was illegal, that the planned police operation was provocative, more particularly in that the new Assistant Chief of Police was not acceptable to the community, and that the accused had a right to defend "their" police station against "invading forces" and to prevent the First Nations police officers from leaving it until their departure could be arranged on the protesters' terms.

And indeed, it was eventually arranged that the confined First Nations police officers would leave the Kanesatake police station under guard from the Kahnawake Peacekeepers in the early morning of January 14, the Sûreté du Québec having declined to intervene. [12] These defences of justification, property, trespass and reasonable force were left with the jury, which nonetheless convicted 13 out of 19 accused of either unlawful assembly as a lesser included offence in the offence of riot, or of riot and forcible confinement, as already mentioned. [ 3 ] After setting out the general purpose, principles and objectives of sentencing as enunciated in s. 718 Cr.C ., the sentencing judge mentioned that once the verdicts were rendered, she invited the petitioners and all other accused who had been found guilty of one or more offences "to explore and suggest ways in which the present sentence might tend towards restorative justice", which she defined in the following manner: [17] Restorative justice is justice geared towards reconciliation.

There can be no reconciliation without introspection, a desire to contemplate what went wrong, an acknowledgement of the undesirable consequences of one's actions as well as of the actions of others, an openness to other points of view than one's own, a willingness to accept such points of view as legitimate, in other words, a capacity for self-criticism and a will to bring about positive changes. [ 4 ] She nevertheless concluded, "regretfully", that no evidence was put before her in the sentencing process to show that "any of the Defendants is genuinely interested in demonstrating the prerequisites to restorative justice" that she had outlined. [2] [ 5 ] She next analysed the nature of the two offences for which the jury had found the various accused guilty.

She considered the offence of taking

part in a riot to be "a serious one in a democratic society" that "shows contempt for the legally constituted authorities and is an assault on public order and public peace".

She further found that the offence of forcible confinement was even more grave than that of riot, and that the very purpose of the riot in this case was to forcibly confine the 67 incoming police officers in the Kanesatake police station. [ 6 ] The sentencing judge then denounced what had happened, in particular because it was directed at police officers: [36] It is one thing to offend the rules, but attacking those who are sworn to maintain the peace and deal with transgressors of the law is quite something else. Democracies are fragile.

To allow individuals acting in their own interest to detain the very people who are supposed to uphold the law is to undermine the law itself. Officers of the law deserve respect. The legal system deserves respect. It is the legal system which protects us all, including those among us who feel excluded, as well as those who claim not to belong. [37] The legal system is the critical mass of a democracy. It must be sustained, otherwise maintaining all the other processes and benefits of a democracy becomes impossible. [38] As long as the legal system is preserved, we can find ways to deal with transgressions.

We can find ways as well to protect minorities and their uniqueness. For anyone to try to topple the legal system or parts of it for personal gain is perverse.

Undermining the legal system is heinous because it leaves us without tools to deal with transgressors, or indeed with their victims. [ 7 ] In reaching a final result, she also took account of the prior criminal records of the appellants, as she understood them, which she described as follows: • Gary Gabriel: dating back to 1988, assault with a weapon, aggravated assault, two breaches of probation, breach of a bail condition, uttering threats and another conviction for assault with a weapon in 1997; • Terry Yaxley: no prior convictions; • Hubert Nelson: failure to appear on a summons and illegal sale of cigarettes, plus a jail sentence and probation for mischief, dangerous driving and impaired driving in 1995; • Bradley Gabriel: offences involving violence and obstructing a peace officer dating back to 1992; and, • Allister Nicholas: a fine of $5,000 for contraband in 1987 and loss of his driving license as a trucker in 1992 following an impaired driving "charge". [ 8 ] The petitioners concede, however, that the foregoing description on which the trial judge relied is inaccurate in that their respective records show that as of the date of the sentence, they had been convicted of or pleaded guilty to the following offences: • Gary Gabriel: 1985 – assault causing bodily harm; 1988 – assault, assault causing bodily harm; mischief; breach of a probation order; breach of a condition of a recognizance; 1989 – assault causing bodily harm, aggravated assault, breach of a probation order; 1991 – breach of a condition of recognizance, mischief, breach of a probation order; 1997 – uttering threats (two counts), mischief in excess of $5,000, armed assault, possession of a weapon; 2005 – breach of a recognizance, obstruction of a peace officer in the execution of his duty, criminal harassment. • Terry Yaxley: 1988 – assault, mischief not exceeding $5,000; 1999 – breach of a condition of probation.

• Hubert Nelson: 1990 – aggravated assault; 1991 – failure to attend court; 1993 – illegal possession or sale of tobacco or cigars; 1995 – mischief, dangerous driving, impaired driving, refusal to supply a breath sample. • Bradley Gabriel: 1990 – causing a disturbance; 1991 – breach of a probation order, uttering threats; 1992 – obstruction of a peace officer in the execution of his duties, causing a disturbance, mischief; 1993 and 1997 – illegal possession or sale of tobacco or cigars. • Allister Nicholas: 1987 – smuggling; 1992 – driving with an alcohol level in excess of 80 mg; 1994 – uttering threats; 1995 – possession of a device to obtain a telecommunication facility or service; 2005 – impaired driving and breach of a recognizance not to trouble the peace. [ 9 ] In addition to requiring each of the petitioners to pay a victim surcharge fee as provided for in s. 737(2) Cr.C ., the sentencing judge imposed the following terms of incarceration on them: • Gary Gabriel: 15 months; • Terry Yaxley: 3 months; • Hubert Nelson: 6 months; • Bradley Gabriel: 12 months; • Allister Nicholas: 4 months [ 10 ] Her reasoning to explain their incarceration [3] is well reflected in the following extract from the judgment: [39] The jury has spoken and by its verdicts in this case, has condemned the actions of the Defendants.

To treat too leniently individuals who, in a public and blatant way, set out to forcibly confine 67 police officers, duly sworn to serve and protect all segments of society, would lower the bar for other anarchistic underminings of the legal system. To quote again Mr. Justice de Weerdt: "the primary sentencing principle to be given effect in the present instance is, quite clearly, that of repudiation of the offences in question". [40] The defence has raised

article 718.2

e) of the Criminal Code , which provides that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered, with particular attention being paid to the circumstances of aboriginal offenders. [41] Certainly, the Court recognizes that the Kanesatake community constitutes a distinct group of people, with a distinct set of problems, but the Defendants, who dismiss any point of view other than their own, and have yet to express any regret or apology, are not the sole legitimate representatives of that community. […] [44] This case is not about ethnic conflict.

It is about the rule of law. It is about the right of elected representatives to act on behalf of those who elect them. There are other means of challenging a council resolution than taking the law into one's hands, forcing one's will on the rest, resorting to lawlessness and anarchy. [45] The sentence in this case must achieve the objectives of general deterrence and denunciation and for all of the above reasons, the Court deems a period of incarceration to be justified in the case of those of the accused who were found guilty of riot and forcible confinement.

The evidence of their participation in the events was videotaped. The jury found that such participation justified a finding of guilt on those serious offences, that they had not merely taken

part in an unlawful assembly. The sentence must fit the verdict. [ 11 ] The sentencing judge did not explicitly refer to the evidence related to the conduct of each of the five petitioners between January 12 and 14, 2004, nor have they done so in their factum. In this respect, the following

summary of that conduct is set out in the Crown's factum, the accuracy of which the petitioners did not challenge: 3. Above and beyond their "mere presence" at a riot from which they had a legal duty to leave, each Appellant was quite active in instilling the terror. All five of them were front-and-centre near the fence, while several protesters were armed with sticks, during the most heated threats towards the officers. Furthermore, Gary Gabriel drove the large bulldozer that blocked the exit of the parking lot.

Bradley Gabriel drove the large truck right up to the police station's gate, blocking it, and was armed with a stick. Hubert Nelson, with and without his stick, constantly threatened the officers, vandalized the police vehicle through the fence and later threw an object over the fence. Terry Yaxley and Allister Nicholas, who wielded sticks for most of the riot, also vandalized the police vehicle through the fence. Mr.

Yaxley also threw several logs over the fence at the officers. [ 12 ] Gary Gabriel's application to be released pending the determination of his application and proposed appeal on the merits was dismissed by Doyon, J.A. on January 23, 2006, essentially because of his failure to respect conditions of release during the trial proceedings and his having committed the offences of criminal harassment on March 18, 2005 and obstruction of a peace officer on April 1, 2005.

He has therefore served the sentence the sentencing judge imposed. [4] [ 13 ] Doyon, J.A., however, granted similar applications brought by the four other petitioners on January 23, 2006. Accordingly, they were released from the incarceration the sentencing judge had imposed on January 20 pending the outcome of their appeals against conviction and sentence.

Part of their submissions in this Court invokes the delay between the imposition of the sentence in January of 2006 and the lengthy intervening period before the various appeals were set down for hearing in 2015 as a basis not to give effect to the custodial sentences. II

GROUNDS OF APPEAL [ 14 ] The petitioners' motions asserted 10 proposed grounds of appeal. Some have now been withdrawn, others have been consolidated, and the last of them has been added in their factum. As currently framed, they are as follows:

(1) The trial judge erred by ignoring both the recommendations of the Crown and defence and by departing by more than double from what the Crown counsel recommended as the appropriate range of sentence.

(2) The jail sentences imposed were unreasonable and excessive.

(3) The trial judge erred by failing to consider the possibility of conditional sentences.

(4) The trial judge erred by considering absence of remorse as an aggravating factor.

(5) The Court should take account of the time elapsed since the sentence was imposed and subsequent factors in assessing the desirability of incarceration. III ANALYSIS AND DISCUSSION

(1) The trial judge erred by ignoring both the recommendations of the Crown and defence and by departing by more than double from what the Crown counsel recommended as the appropriate range of sentence.

(2) The jail sentences imposed were unreasonable and excessive . [ 15 ] It will be convenient to deal with these two proposed grounds of appeal together. The parties acknowledge the Court's limited role: it may only intervene to vary the sentences if they disclose an error in principle, or fail to consider a relevant factor, or overemphasize a relevant factor, or are otherwise demonstrably unfit. [5] [ 16 ] As we have seen, the sentences of incarceration are 3, 4 and 6 months at the low end, and 12 and 15 months at the high end.

The appellants are not basing their contentions on the disparity between the sentences. Rather, they argue that the trial judge had a duty to alert them to her intention to sentence them beyond the recommendations of the Crown in order to give them an opportunity to persuade her otherwise, and, irrespective of the foregoing, that the sentences are intrinsically excessive. [ 17 ] The first issue to be considered is the nature of the representations Crown counsel made to the sentencing judge. The petitioners contend that the Crown submitted the judgment of this Court in R. v.

Breault [6] as a point of reference, and add in their factum that "it is clear that Crown counsel did suggest that a short, intermittent sentence would be reasonable for the Appellants." [ 18 ] In Breault , the Court allowed a Crown appeal from an unconditional discharge a Quebec Court judge had ordered. Here are the circumstances that gave rise to a majority of this Court intervening to impose a 20-day intermittent sentence and probation order, as described by Vallerand, J.A.: Il est sans doute inutile de réciter les événements de l'été 1990 à Kahnawake, à Kanesatake et dans les environs; ils font aujourd'hui

partie de notre Histoire qui se chargera sans doute d'en qualifier chacun des épisodes. Il ne convient pas que nous le fassions pour l'instant alors qu'ils sont l'objet d'enquêtes diverses et de nombreux procès criminels. La crise paraissant devoir toucher un dénouement prochain et peut-être violent, on avait convenu d'évacuer les vieillards, les femmes et les enfants autochtones dans un cortège d'automobiles protégé par un sauf-conduit, du moins le croyait-on.

Quelque deux cents personnes rassemblées le long du chemin se mirent alors à vociférer et à lancer des pierres sur les voitures, une manifestation que les forces de l'ordre ne continrent pas. Il y eut des dommages aux biens ainsi que des blessures. Le visionnement d'un vidéo par les autorités fit voir Breault alors qu'il ramassait puis lançait une pierre vers le cortège. Mis en accusation, il reconnut sa culpabilité aux accusations : A Ville Lasalle, district de Montréal, le ou vers le 28 août 1990, à la sortie Airlie du Pont Mercier, a participé à une émeute, commettant ainsi l'acte criminel prévu à l'

article 64 du Code criminel . A Ville Lasalle, district de Montréal, le 28 août 1990, a commis une nuisance publique en lançant des projectiles sur des automobiles en circulation mettant ainsi en danger la sécurité, la santé, la propriété et le confort du public, commettant ainsi l'acte criminel prévu à l' article 180(1) (

a) du Code criminel . A Ville Lasalle, district de Montréal, le ou vers le 28 août 1990, a illégalement tenté de détériorer des biens en lançant des projectiles, en direction d'automobiles, commettant ainsi l'acte criminel prévu à l'article 463b) en relation avec l' article 430(1)

a) du Code criminel . Le Ministère public, avec la permission de notre Cour, se pourvoit contre la sentence de libération inconditionnelle prononcée par le premier juge. J'estime qu'il nous faut intervenir. Breault qui est âgé de 41 ans, n'a aucun antécédent judiciaire et un emploi stable, soutient, il va de soi, la justesse de la sentence. Il n'y a pas grand-mal, plaide-t-il, à avoir simplement lancé une pierre vers des voitures en marche et, compte tenu de toutes les circonstances, la sentence est conforme aux principes et normes que propose l'

article 736 du Code criminel . [Emphasis added]

[ 19 ] Apart from the distinction that Mr. Breault, unlike the petitioners, pleaded guilty to the sole offence of participation in a riot, the circumstances that led the Court to impose a 20-day intermittent sentence on him that Vallerand, J.A. described do not remotely resemble those that led to the conviction of the petitioners for participation in a riot and forcible confinement. Moreover, unlike Mr.

Breault, the petitioners all had prior criminal records. [ 20 ] Crown counsel's comment regarding Breault before the sentencing judge were that: […] if it was only for the riot I think we should take as a reference the decision of Brault …But in this case there is also the fact that 67 peace officers were illegally confined for roughly 36 hours, and although I tried and I've asked others of my colleagues to help me in relation with this, we couldn't find any case law that would be close to this type of offence . [Emphasis added] [ 21 ] When the sentencing judge then asked Crown counsel whether he was suggesting imprisonment for 21 days intermittently, he responded that "it would be the case if the individuals had no criminal records, but some have." [7] He then added that Breault could be taken as a reference, which does not mean that he was recommending the same type of sentence this Court ordered to be served in that case, especially in light of the significant difference between the nature and extent of the offences. [ 22 ] The Crown did mention the possibility of a 20-day intermittent sentence for the petitioner Allister Nicholas, but this was based at least in part on her incorrect belief that his only criminal record was for "contraband", that is smuggling, and a driving offence for which he lost his licence. [8] In fact, Mr.

Nicholas had a somewhat more extensive criminal record, including one of uttering threats. [9] [ 23 ] Nothing in the pleading of Crown counsel, however, can be interpreted as constituting a firm recommendation that the sentencing judge impose a particular sentence on a particular accused. The fact that the sentencing judge made no mention of such a recommendation either during the pleadings or in her judgment suggests that is how she understood the Crown's position.

The Crown was also explicit in suggesting that those of the petitioners whose participation was more active in the events that led to their having been found guilty should not benefit from intermittent sentences.

It is in that context that Crown counsel spoke of "gradation rather than suggesting to you quantums", "leaving it to the wisdom of the Court" and referring to "general ranges" applicable to the accused. [ 24 ] That being said, the Crown acknowledges that the sentencing judge did exceed its general proposals with the length of the custodial terms she imposed. [ 25 ] The petitioners therefore argue that the Crown recommended a particular course of action to the sentencing judge (which is inaccurate), and that if she intended to depart from it significantly, "there seems to be a near consensus amongst appellate courts that should the trial judge decide to impose a sentence significantly above what the Crown is requesting, she should provide counsel with a fair warning and allow them to make additional representations to avoid the appearance of bias".

They invoke two appellate judgments in support of that proposition: R. v. R.R.B . [10] and R. Keough . [11] [ 26 ] It will be seen that the two judgments on which they rely, even if they were applicable, do not stand for that proposition at all. [ 27 ] In R.R.B ., the accused pleaded guilty to the sexual assault of an adolescent boy over a period of years. The Crown sought a sentence of imprisonment of 2-3 years, while the accused argued for a conditional sentence of 18-24 months. The trial judge sentenced R.R.B. to 4 years imprisonment, and also imposed 20-year prohibition orders under ss. 161(1)(a), (

b) and (

c) Cr.C . The Court of Appeal maintained the custodial sentence but varied the term of the prohibition orders. [ 28 ] As it will be seen, the petitioners have taken a remark of Prowse, J.A. on which they rely out of context. For ease of reference, the remark in question of Prowse, J.A. is italicized, while that which explains its very different context is underlined: [21] Here, there was a fundamental difference of opinion between Crown counsel and defence counsel as to whether the sentence to be imposed should be served in prison or in the community.

While there was clearly cooperation between counsel, reflected in the nature and extent of materials placed before the court, and while there was undoubtedly a give and take in terms of what positions counsel would take on sentencing, there was no consensus as to a fit sentence.

In fact, the Crown placed decisions before the sentencing judge indicating a range of sentence of between 2-5 years, albeit taking the position that a 2-year penitentiary term would be fit. [22] Further, as noted in Allen and many other decisions of this and other appellate courts, there is no requirement that, if a judge disagrees with the range of sentence proposed by one or more counsel, he/she is obliged to advise counsel that he/she is considering imposing a sentence outside that range .

While it is undoubtedly preferable for the sentencing judge to afford that opportunity to counsel in appropriate circumstances , failure to do so does not amount to an error of law or principle . [Emphasis added] [ 29 ] In Keough , the accused was convicted of two counts of possession of child pornography, one count of engaging in voyeurism and one count of copying voyeuristic materials (the latter two counts involving adults).

In considering Keough's argument that the sentencing judge erred by failing to give him and the Crown an opportunity to address the trial judge's concerns when the sentence exceeded the range counsel had recommended, Slatter, J.A. said this on behalf of the majority: [20] The case law recognizes the importance of a trial judge giving fair warning to counsel when he or she proposes to sentence outside the recommended range: R. v. Hood , 2011 ABCA 169 at para. 15 ; R. v. Abel , 2011 NWTCA 4 at para. 23 ; R. v. Beal , 2011 ABCA 35 at paras. 15 , 18, 502 AR 177, 44 Alta LR (5th) 306.

This is a component of a wider principle that the parties are entitled to reasonable notice if the judge proposes to decide the case in a way not advocated by either party: R. v. Al-Fartossy , 2007 ABCA 427 at paras. 22-5 , 83 Alta LR (4th) 214, 425 AR 336; Murphy v. Wyatt , [2011] EWCA Civ 408, [2011] 1 WLR 2129 at paras. 13-19 ; Labatt Brewing Co. v. NHL Enterprises Canada , 2011 ONCA 511 at paras. 5 , 14, 106 OR (3d) 677; In Re Lawrence's Will Trusts , [1972] Ch 418 at p. 436-7 .

Nevertheless, the sentencing judge has an obligation to impose a fit sentence, and neither exceeding the recommended range, nor failing to give counsel notice of intention to exceed the range, is, without more, reviewable error. If the sentence imposed is

not demonstrably unfit having regard to the principles of sentencing in the Criminal Code, appellate interference is not warranted.

Failingto seek the input of counsel may, however, make it more likely that the trial judge may overlook or overemphasize the relevant factors,rely on an irrelevant factor, impose a sentence based on an error in principle, or commit some other reviewable error. [Emphasis added] [30] In this instance, the majority found that there was "more" amounting to "reviewable error" that justified its intervention.Accordingly, it changed the consecutive nature of the sentences to being concurrent, thus allowing for the imposition of a probationorder. [31] In dissent, Paperny, J.A., would not have disturbed the sentence the trial judge imposed, and added this: [53] This court noted in R. v.

Ross, 2005 ABCA 231, that in the absence of a joint submission failure to sentence within a proposedrange without alerting counsel beforehand is not in itself a reversible error. Nor should it be. Where both counsel have fully argued thepoint or points raised by the sentencing hearing, including the nature of, length of and terms of an appropriate sentence, it is thenincumbent on the sentencing judge to exercise his or her discretion and impose a fit sentence. [54] That is not to say that it is not good practice to seek further submissions. It is.

Where a sentencing judge has reservations aboutthe sentence range proposed by both counsel, it is always prudent to seek further submissions before imposing sentence. That is thepreferred course, but it is not a mandatory one: see R. v. Booh, 2003 MBCA 16; R. v. Koenders, 2007 BCCA 378; R. v. Barton (2002), (ON CA), 165 OAC 294 at para. 15.

The same concerns simply do not arise where both counsel have independentlyassessed, and made full submissions on, the appropriate range and sentencing principles. [Emphasis added] [32] In this matter, we are far from a joint submission, which most often occurs in the context of a guilty plea.

Rather, the sentencingjudge had before her competing general perspectives as to what a fit sentence should be for the two categories of offenders: thoseconvicted of unlawful assembly, on the one hand, and those convicted of participating in a riot and forcible confinement, on the other.Nor can it be said, as Slatter, J.A. found on behalf of the majority in Keough, that there is "more" than a mere failure to alert counsel thatwould justify this Court's intervention.[12] [33] In that respect, the appellate authorities the Crown has submitted suggest the sentencing judge did not err in the manner thepetitioners contend, as the extracts from the following four judgments illustrate:

(1) G.D. v. R. (Quebec Court of Appeal) [14] L'appelant invoque que le juge de première a rejeté les propositions des parties relativement à la peine sans les consulter. [15] Or, en l'espèce, il n'y a pas eu de suggestion commune de la part des parties. L'appelant propose une peine maximale de deux ansd'emprisonnement assortie d'une ordonnance de probation de trois ans tandis que l'intimée suggère une peine d'au moins quatre ansd'emprisonnement. [16] La procédure préalable au rejet d'une suggestion commune en matière de peine est donc inapplicable et cet argument doit êtreécarté.[13] [Emphasis added]

(2) R. v. Noel (Court of Appeal for Ontario) [4] Although the Crown requested a global sentence of 44 months imprisonment less five months credit for time served, thesentencing judge was not bound by this position nor was he required to give specific reasons addressing the interests of theadministration of justice before departing from it. On the record before us there is nothing to indicate that this was a negotiated plea northat the appellant was specifically induced to enter pleas of guilty based on the sentencing position taken by the Crown.[14] [Emphasis added]

(3) R. v. Fizzard (Newfoundland Court of Appeal) [6] Counsel for the Appellant argues that the submissions of counsel should have been dealt with by the judge as joint submissionson sentence. He further submits that the judge failed to apply the legal framework for dealing with joint submissions as set out by thisCourt in a series of cases, most recently R. v. Oxford, 2010 NLCA 45,299 Nfld. & P.E.I.R. 327. [7] This argument must fail. While the submissions on sentence by Crown and Defence counsel were somewhat similar, they werenot the same. R. v. Spanos, 2007 ONCA 241 at para. 11.

Nor were they the result of a “plea bargain”; such an agreement betweencounsel is the foundation for a joint submission. Giving effect to plea bargains is the rationale for the special treatment of jointsubmissions. R. v. Druken, 2006 NLCA 67, 261 Nfld. & P.E.I.R. 271at paras. 9, 13-14 and 19.[15] [Emphasis added]

(4) R. v. Webb (Alberta Court of Appeal) [8] Under these circumstances, we are not persuaded that the failure of the sentencing judge to have provided a head’s up to counsel thathe was not finding the Crown position as to three years sufficient caused unfairness. For one thing, the Crown position was relativelyelastic and did not suggest that four years would be wrong. The appellant would at least have had some appreciation of his jeopardy. Theappellant’s counsel was not in a range close to any of the Crown’s range. Moreover, nothing seems to have been missing from the

appellant’s submissions. In the end, we are not persuaded that, if what the sentencing judge did was error in light of the Crown’s mobile position, it made any difference. The appeal is dismissed . [16] [Emphasis added] [ 34 ] In any event, as we have seen, the transcript of oral argument in the record does not show that the Crown argued for a specific sentence with respect to any of the petitioners.

Even if that were the case, a sentencing judge is not bound by the Crown's submissions, and ultimately the judge has the last and definitive word (subject, of course, to variation on appeal). [ 35 ] A corollary argument the petitioners submit is that the Crown is precluded from seeking a greater sentence in appeal than it did at trial. Support for this proposition is said to be found in the seventh edition of Clayton Ruby's treatise on sentencing [17] and the judgment of the British Columbia Court of Appeal in R. v. Mighton . [18] .

In Mighton , the accused pleaded guilty to possession of marijuana for the purposes of trafficking and was sentenced to a three months custodial sentence as well as a fine.

The Crown sought to appeal the sentence, which the accused had served by the time of the hearing of the appeal. [ 36 ] Although the Court thought that in the circumstances the three month sentence was inadequate, it nevertheless declined to increase the sentence since "[…] at the trial the Crown prosecutor seems to have pretty well conceded that a three-month sentence was acceptable on the basis of previous sentences by the same judge in the same area" and "[…] I do not think that the Crown should be allowed at this late stage to, in effect, take a different position than that which was taken at trial on the basis of which apparently the appellant (sic) pleaded guilty." [19] [ 37 ] The situation here is different in that at most the Crown argued that custodial sentences of varying ranges were warranted, and that an intermittent sentence such as was discussed in Breault would not be appropriate because of the various factors that distinguish it from the events of January 12 – 14, 2004 as well as the degree of implication of the petitioners in those events. [ 38 ] The general rule is described as being one where the Crown is able only in exceptional circumstances to advance an argument in a sentence appeal that was not made at trial.

As we have seen, however, Mighton [20] and Ruby's discussion are situated in the context of Crown appeals, which is not the case here. The Crown is the respondent in this Court. It is defending a trial judgment that is not at odds with its position in the Superior Court to the extent that the Crown argued for custodial sentences, leaving it essentially to the trial judge to determine their duration. [ 39 ] Independently of the foregoing, however, the real question is whether the sentences under review were excessive to the extent that they should be varied.

In the conclusions of their factum, the petitioners invite the Court to substitute non-custodial or intermittent sentences for those the trial judge imposed, or to order any other relief deemed appropriate. They do not make specific recommendations for each of the petitioners, despite the wide range between the sentences. [ 40 ] Looking at the sentences objectively, the Court concludes that they were not excessive and appear to be tailored to the degree of involvement of the individual petitioners.

The very nature of the offences in this case required the kind of denunciation and deterrence to which the sentencing judge referred in her judgment. The mitigating factors are hard to identify.

Even a sincere and indeed plausible belief that the surreptitious adoption of the Band Council resolution was effected without the Council having jurisdiction to do so could not possibly justify the violent response it generated from the petitioners. [ 41 ] Moreover, there were no pre-sentence reports prepared that might have shed a positive light on the petitioners. [ 42 ] The examples submitted by the Crown from the jurisprudence across Canada, including Quebec, show that some period of incarceration is generally warranted for participation in a riot, even in cases where there has been a guilty plea, or where there are mitigating factors, or where the offender has no prior criminal record. [21] Although conditional sentences or periods of intermittent incarceration have been ordered for some who have pled guilty to participating in a riot, they are generally found where the conduct of the offender was out of character in the circumstances, or there was genuine remorse or steps already taken towards rehabilitation.

None of those factors apply here. [ 43 ] A review of these authorities, some of which did not exist when the judgment under review was rendered, nevertheless demonstrates that the sentences fall within an acceptable range considering the evidence leading to the two offences for which the petitioners were convicted and all of the other relevant factors that a sentencing judge must consider. [ 44 ] These proposed grounds of appeal therefore fail.

(3) The trial judge erred by failing to consider the possibility of conditional sentences . [ 45 ] The objective gravity of the two offences for which the jury convicted the petitioners and the circumstances of their commission, as the sentencing judge referred to in her reasons, were obvious factors that led her to impose terms of imprisonment rather than conditional sentences.

This is implicit in her reasoning, especially when it is remembered that she merely ordered the payment of fines for those accused who had been convicted of the much less serious included offence of unlawful assembly to that of the much more serious offences of riot and unlawful confinement. [ 46 ] Despite the absence of an explicit consideration of conditional sentences for the petitioners in her reasons, the sentencing judge did not err in failing to impose such sentences on the petitioners.

The factors that would by their combined nature exclude such sentences include: • the lengthy duration of the riot and forcible confinement;

• the significant number of persons so forcibly confined; • the fact that the victims of the confinement were themselves police officers who were thus prevented from performing their sworn duties to protect the public; • the petitioners were amongst those who were leaders of the riot and forcible confinement; • their respective degrees of responsibility; • their prior criminal records; • the objective gravity of the offences for which they were found guilty. [ 47 ] As the sentencing judge noted with regret, none of the petitioners acted on her invitation to adopt an attitude aimed at achieving restorative justice, and none of them chose to testify or otherwise address the Court at the sentencing hearing.

This invitation from the judge that the petitioners unfortunately declined is consistent with an intention on her part to take account of the principles of considering the propriety of less restrictive sanctions than deprivation of liberty [22] and other available sanctions other than imprisonment that are reasonable in the circumstances, especially for aboriginal offenders. [23] [ 48 ] A conditional sentence is certainly one of the alternatives that would have been available had the petitioners chosen to act on the judge's invitation. As Iacobucci, J. noted on behalf of the Supreme Court in R. v.

Wells , [24] a case involving an aboriginal offender whose 20-month custodial sentence for sexual assault was confirmed:

In Proulx, supra, the Court determined that the conditional sentence of imprisonment, introduced with Bill C-41, represents a meaningful alternative to incarceration for less serious and non-dangerous offenders. As was the case with s. 718.2 (e) (see Gladue, supra), the conditional sentence was enacted in order to further Parliament’s goals of reducing the use of prison and expanding the use of restorative justice principles in sentencing.

At paras. 99-100 in Proulx, Lamer C.J. described how the conditional sentence incorporates traditionally punitive goals of sentencing while also providing an opportunity to further the goals of restorative justice: The conditional sentence facilitates the achievement of both of Parliament’s objectives. It affords the sentencing judge the opportunity to craft a sentence with appropriate conditions that can lead to the rehabilitation of the offender, reparations to the community, and the promotion of a sense of responsibility in ways that jail cannot. However, it is also a punitive sanction.

Indeed, it is the punitive aspect of a conditional sentence that distinguishes it from probation. As discussed above, it was not Parliament’s intention that offenders who would otherwise have gone to jail for up to two years less a day now be given probation or some equivalent thereof. Thus, a conditional sentence can achieve both punitive and restorative objectives. To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration.

Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s. 718.2 (

d) and (e), which militates in favour of alternatives to incarceration where appropriate in the circumstances. Dans Proulx, précité, notre Cour a jugé que l’emprisonnement avec sursis, sanction introduite par le projet de loi C-41, constitue une solution de rechange utile à l’emprisonnement dans le cas des délinquants non dangereux.

Tout comme l’ al. 718.2e) (voir Gladue, précité), la disposition créant l’emprisonnement avec sursis a été édictée afin de favoriser la réalisation des objectifs suivants du législateur: la réduction du recours à l’emprisonnement comme sanction et l’élargissement de l’application des principes de justice corrective en matière de détermination de la peine.

Aux par. 99 et 100 de l’arrêt Proulx, le juge en chef Lamer a décrit la manière dont l’emprisonnement avec sursis intègre les objectifs historiquement punitifs de la détermination de la peine, tout en permettant la poursuite d’objectifs de justice corrective : L’emprisonnement avec sursis facilite la réalisation des deux objectifs du législateur.

Il donne au tribunal la possibilité de façonner une peine assortie de conditions appropriées qui pourra mener - d’une manière que ne permettrait pas l’incarcération - à la réinsertion sociale du délinquant, à la réparation des torts causés à la collectivité et à la prise de conscience par le délinquant de ses responsabilités. Toutefois, il s’agit également d’une sanction punitive. De fait, c’est son aspect punitif qui distingue l’emprisonnement avec sursis de la probation.

Comme nous l’avons vu plus tôt, le législateur n’entendait pas qu’un délinquant qui aurait autrement été incarcéré pendant une période de moins de deux ans bénéficie désormais de la probation ou d’une mesure équivalente. L’emprisonnement avec sursis peut donc permettre la réalisation d’objectifs punitifs et correctifs. Dans la mesure où ces deux types d’objectifs peuvent être atteints dans un cas donné, l’emprisonnement avec sursis est probablement une sanction préférable à l’incarcération.

Par contre, lorsque le besoin de punition est particulièrement pressant et qu’il y a peu de chances de réaliser des objectifs correctifs, l’incarcération constitue vraisemblablement la sanction la plus intéressante. Cependant, même dans les cas où la réalisation d’objectifs correctifs ne serait pas une tâche facile, l’emprisonnement avec sursis est préférable à l’incarcération lorsqu’il permet de réaliser aussi efficacement que celle-ci les objectifs de dénonciation et de dissuasion. C’est ce qui ressort du principe de modération qui est exprimé aux al. 718.2d) et

e) et qui milite en faveur de l’application de sanctions autres que l’incarcération lorsque les circonstances le justifient. [ 49 ] The petitioners, in effect, chose not to provide the sentencing judge with any basis on which she could impose conditional sentences.

After having clearly envisaged such a prospect, but in the face of the petitioners' blunt refusal to help themselves, the sentencing judge had no option but to take account of the other sentencing factors that she did, namely, the subjective and objective gravity of the offences, the petitioners prior criminal records as she understood them and the need to prioritize denunciation and deterrence. [25] [ 50 ] This proposed ground of appeal is also without any merit.

(4) The trial judge erred by considering absence of remorse as an aggravating factor . [ 51 ] It is common ground that absence of remorse should not be considered as an aggravating factor, especially when the petitioners, as in this case, had appealed their convictions. [ 52 ] The judge's comment in this respect, [26] however, was not made in a context which suggests she considered such absence to be an aggravating factor justifying an increased term of incarceration.

Rather, it occurred in the context of her determination that the petitioners had not taken any steps towards achieving restorative justice and the consequential unavailability, from her perspective, of recourse to the principles of sentencing aboriginal offenders contemplated by s. 718.2 (

e) Cr.C . Thus, it simply amounts to the sentencing judge recognizing that the absence of remorse precluded her from considering it as a mitigating factor. [ 53 ] The judge therefore committed no error in the manner the petitioners argue.

(5) The Court should take account of the time elapsed since the sentence was imposed and subsequent factors in assessing the desirability of incarceration. [ 54 ] The conduct of these proposed appeals is governed by the Rules of Practice in Criminal Matters that were in force in 2006, [27] and not those that have been in force since January 1, 2007.

Accordingly, when Otis, J.A. referred the motions for leave to appeal to the Court on February 23, 2006, she specified that the documents contemplated by s. 52 et seq . of those Rules [28] were to be filed at the same time as the appellants' factum on the conviction appeals. Such, however, was not to be the case. [ 55 ] The petitioners acknowledge that not only the proposed sentence appeals but the two other appeals have proceeded at a lethargic pace.

This is all the more so when it is considered that the trial transcript was available in July of 2006, which is when the clock began to run for the production of their factum in the conviction appeals. On some occasions the files were placed on a special roll to determine the reasons for their non-prosecution, and for reasons that are inexplicable, the factum of the 10 appellants in the conviction appeals was only filed five years later.

The petitioners' counsel accept responsibility for such excessive delays in the files in which they act on their behalf. [29] Nevertheless, they argue that the Crown took none of the steps that were available to it to request a hearing date to be established, and that its own appeals against the verdicts of acquittal were also not prosecuted diligently. [30] [ 56 ] At this stage, however, the Court has no basis to attribute the otherwise unacceptable delays to the petitioners themselves, although with the exception of Gary Gabriel, they have enjoyed the benefit of being released from custody instead of having served their sentences when they were imposed.

They are the ones, however, who must live with the consequences of the Court's judgment, not their counsel. [ 57 ] Nevertheless, the Court cannot look beyond the date of the sentencing judgment and see what has transpired in the lives of some of the petitioners without the parties having sought and obtained leave to adduce new evidence in appeal, which they have not.

For example, some appellants aver that they have led crime-free and responsible lives since then, such that the sentencing objectives of deterrence and rehabilitation have become unnecessary to accomplish, while the Crown notes in its factum that three petitioners have returned before the criminal courts and been incarcerated (some, it says, on several occasions) subsequent to the sentencing judgments. [ 58 ] The appellants rely, by way of analogy, on the judgment of this Court in R. v. Martin [31] and that of the Court of Appeal for Ontario in R. v.

Boucher [32] in support of the proposition that whatever view it takes of the propriety of the sentences when they were imposed, the Court should, to paraphrase the petitioners' factum, explore options other than custodial incarceration. [ 59 ] Martin was a case in which a majority of this Court dismissed a Crown appeal from a sentence of six months of imprisonment, less time served in detention counted as double, which resulted in one day of incarceration and a three year probation order imposed on an offender who the trial judge considered to have been mentally disturbed at the time of the commission of attempted murder.

The evidence, however, showed that his post offence treatment had essentially been successful, and that his medical as well as familial milieu were such that he was no longer a risk to society or to the victim. [ 60 ] In Boucher , Simmons, J.A. held that a trial judge had erred when he sentenced a man convicted of attempted murder to only two years less a day and a probation order of two years.

Since the offender had already been released from custody for several months by the time the appeal was heard, however, she concluded on behalf of the court that it would be inappropriate to re-incarcerate him, but she did order an increase in the probationary period to three years. [ 61 ] These two cases are of little assistance to the resolution of the appeals, even by way of analogy. [ 62 ] Given all of the circumstances, the Court cannot acquiesce to the view that delays that are not of its own making should influence an assessment of the propriety of the sentences which were appropriate when they were imposed, absent some new evidence to the contrary since then, of which there is none. [ 63 ] This proposed ground of appeal accordingly fails.

IV DISPOSITION FOR THESE REASONS, THE COURT : [ 64 ] GRANTS the motions for leave to appeal; [ 65 ] DISMISSES the appeals.

ALLAN R. HILTON, J.A. PAUL VÉZINA, J.A. CLAUDE C. GAGNON, J.A. Mtre Dylan Jones Mtre Jeffrey K. Boro Boro, Polnicky, Lighter For the appellants Mtre Dennis Galiatsatos Criminal and Penal Prosecuting Attorney For the respondent Date of hearing: Hearing waived by consent, judgment reserved on June 25, 2015