2012 QCCA 18, 2012 QCCA 18

Unofficial English Translation R. c. Provencher 2012 QCCA 18 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002745-110 (415-01-019027-091) DATE: January 10, 2012 CORAM: THE HONOURABLE LOUIS ROCHETTE, J.A. LORNE GIROUX, J.A. GUY GAGNON, J.A. HER MAJESTY THE QUEEN Petitioner – Prosecutrix v. NANCY PROVENCHER RESPONDENT – accused JUDGMENT [ 1 ] The petitioner seeks leave to appeal from two judgments rendered on November 22 and 24, 2011, by the Court of Quebec (Criminal and Penal Division), District of Arthabaska (the Honourable Guy Lambert) changing the optional conditions of the conditional sentence handed down on October 13, 2011, (subsections 742.4(1) and

(5) Cr. C. ). This motion was referred to the Court and, in light of the urgency, the case was heard quickly and without facta. 1. BACKGROUND [ 2 ] On June 1, 2009, the respondent was arrested in her home, where she was growing cannabis. She was there with the head of the operation, who was eventually sentenced to 33 months' imprisonment. [ 3 ] On the premises, police officers seized 1407 cannabis plants, about 1200 of which were cuttings and 162 were flowering. They also seized 23 grams of buds and $1100. The grow-op was set up in a first-floor room and in the basement.

The following specialized equipment was also seized: 24 lamps and ballasts, 19 ventilators, 1 carbon filter, 4 air conditioners, and 3 thermostats. A system by which electricity was diverted and thus stolen was also seized. [ 4 ] That same day, the respondent was charged with production of cannabis and possession with the intent to traffic. She was released on recognizance. [ 5 ] On July 25, 2011, the respondent pleaded guilty to the two charges. A pre-sentencing report was then requested.

It was filed on September 2, 2011. [ 6 ] On August 7, 2011, a two-week vacation package including a cruise (the first week) and a hotel stay in the Dominican Republic (the second week) was purchased through an agency for the respondent, her spouse, her mother and her father to travel between January 16 and 30, 2012. [ 7 ] The sentencing hearing was held on October 13, 2011, at the same time as that of an accomplice who was handed an eight- month prison sentence followed by a one-year probation order. [ 8 ] As for the respondent, the prosecution suggested a twelve-month prison sentence, whereas the respondent, relying on the pre- sentencing report, among other things, suggested a prison sentence to be served in the community.

The judge ordered the following sentence: [ translation ] Twelve months' imprisonment to be served in the community with twenty-four hour a day house arrest for the first four (4) months,

except December 24 to 26, 2011, and December 31, 2011 to January 2, 2012, and Tuesdays between 7:00 a.m. and 8:00 p.m., or to perform legitimate, paid work for medical reasons or health emergencies, or for humanitarian reasons with the prior written authorization of your sentence supervisor for a period not exceeding three days.

Subsequently, a curfew for six (6) months from 11:00 p.m. to 6:00 a.m. except to perform legitimate, paid work or for humanitarian reasons with prior written authorization of your sentence supervisor for a period not exceeding three days. [ 9 ] At the hearing of October 13, 2011, immediately after sentencing, counsel for the respondent suggested that the respondent be allowed to go on the Caribbean cruise booked with her parents instead of taking the leave the judge had just granted for the 2011-2012 Holiday season.

The cruise would last only one week, and the judge had already given her an equivalent period of leave for the holidays. The judge refused this request categorically, as the following excerpts from the transcript reveal: [ translation ] THE COURT: Look, I find, I find that when a person... when a person is on recognizance, a promise or an undertaking ... Mtre DENIS LAVIGNE: I understand. THE COURT: ... and that they come and that it has been one (1) year, maybe even a year and a half (1 ½), I would be more open.

But when someone receives a conditional sentence and then says [ translation ] "Your Honour, I would like to go down south this winter", they should be in prison. So, I am sorry, but you know... Mtre DENIS LAVIGNE: Yes, because it is... but it is because it was only one week from January 17 to 24, 2012. It was only one week. You have already given Ms. Provencher one week for the holidays... THE COURT: Well yes, I granted that time for the holidays, not to go down south. Mtre DENIS LAVIGNE: All right. ... THE COURT: Listen, Mtre Lavigne... Mtre DENIS LAVIGNE: I am not asking you to dismiss it...

THE COURT: ...the conditional sentence is already a sentence that is difficult for society to accept because we got off to a bad start, we were ill- equipped, we weren't enforcing the curfews. And now, public opinion being what it is, Parliament is withdrawing conditional sentences just when they are starting to work, when there is supervision, when it is working well. I have always found, as a judge, that since the Department gave itself the right tools to supervise, it is a good sentence to impose. First, it does not take away any established privileges Ms. Provencher may have, she can continue working.

I am not taking away any established privileges. She can continue working and it is sufficiently deterrent. But if we start sending people down south while they are serving a conditional sentence... Mtre DENIS LAVIGNE: Your Honour, I will explain to Ms. Provencher. THE COURT: ... there will no longer be any credibility attached to these sentences. I would prefer never to order such sentences than to do that. [ 10 ] In early November of 2011, arguing subsections 742.4 (1) and

(5) Cr. C. , the respondent [1] sought to

schedule a motion to change the conditions of the conditional sentence rendered on October 13, 2011. [ 11 ] That motion was heard on November 22, 2011, by the sentencing judge. The respondent filed a document she drafted herself, the invoice from the travel agency dated August 7, 2011, and her mother's medication record. The respondent also had her mother testify about her health. She suffers from myasthenia gravis, [2] an auto-immune disease.

[ 12 ] The respondent argues that she has grown close to her family since the arrest. Her parents are celebrating their 45th wedding anniversary and wanted to [ translation ] "go on a trip" for the first time in their lives. They are sick and asked the respondent to go with them since she has trained as a nurse. Looking forward to the trip improved the health of her mother, whose doctors cleared her for travel. If they have to cancel the trip, the financial and moral consequences would be serious.

Her mother's days, she claims, are numbered. [ 13 ] The respondent asked the judge to change the optional conditions of her conditional sentence to allow her to make this trip. She suggested that the Court impose community work or a longer sentence upon her return. [ 14 ] The judge granted the respondent's request. Reiterating the reasons he had previously dismissed this petition, he claimed to be moved by the respondent's mother's condition, by the progress made in rehabilitation, and by the fact that the respondent's mother had already paid for the trip.

It is appropriate to quote the following passages from the judge's reasons: [ translation ] ... I must tell you that your mother's physical health shook me just now. And in particular, she is a sixty-nine (69) year old woman who has never been down south and wishes to go before it's too late. And obviously with you, she would be safer. And the sentence I imposed allows me to... while maintaining the twenty-four hours a day, to redistribute it because there are two (2) months at the end where there is no curfew, so it would allow me to impose the same sentence.

And in humane terms, I can see that you have made great efforts these last years to regain control of your life, you know, and I think that it is truly important to you. NANCY PROVENCHER: Yes. THE COURT: You have cried every time you have come to a hearing. NANCY PROVENCHER: Yes. THE COURT: And so, quite exceptionally, without changing the sentence I imposed, I will allow you to go on the cruise with your mother and that is why I asked your mother the question about whether she had also paid, because, if she had not paid, I would not have granted your request. She paid hoping that the trip would happen.

So the condition will be as follows... When are the dates? [ 15 ] The judge changed the optional conditions of the conditional sentence rendered on October 13, 2011, by adding the following exception: [ transaction ] "exemption from curfew from January 15 to 31, 2012, to go on a cruise with her mother; however, the curfew is extended for 17 days". [ 16 ] Two days later, at the request of the respondent's probation officer, the judge once again changed the conditions of the sentence to specify that the cruise would take place in the Dominican Republic. 2.

ANALYSIS [ 17 ] In support of its motion, the petitioner argues that the judge, having dismissed the respondent's petition during the sentencing hearing held on October 13, 2011, should have first asked himself if any new facts had since occurred. Pointing out that the humanitarian grounds had been submitted by counsel for the respondent on October 13, the petitioner maintains that, absent a change of circumstances, the judge sat in appeal from his own decision. [ 18 ]

Section 742.4 Cr. C. allows changes to the optional conditions of a conditional sentence when "... a change in circumstances ..." makes it desirable. The respondent has not demonstrated that such circumstances exist. [ 19 ] Every circumstance raised by the respondent before the trial judge on November 22 could have been raised on October 13 since they already existed at the time. These circumstances have not evolved since the sentencing, but have remained exactly the same.

The first time the request was submitted, at the hearing, counsel for the respondent either chose or neglected to present evidence in support of the request he presented orally. [ 20 ] The judge could not review the decision to dismiss the request based on additional evidence that consisted in arguing the original request all over again.

We would add that the request presented on October 13 had less impact than that presented on November 22 since the change of the optional conditions was sought for a single week whereas, in truth, the trip that was booked was set to last twice that time, a fact that would be revealed only later. [ 21 ] If the respondent disagreed with the decision of October 13, she had no choice but to attempt an appeal before the Court based on the record as constituted and, if appropriate, petition for leave to file "new evidence". Subsection 742.4(3) Cr.

C. does not give rise to what our English-speaking colleagues would describe, quite colourfully, as a "second kick at the can". Without a significant change in circumstances since the date of sentencing, [3] which has not been demonstrated here, this provision is of no help to the respondent and the judge should have dismissed the request.

[ 22 ] Moreover, a consideration of the merits of the impugned decision forces us to conclude that it is both erroneous in law and unreasonable, even when taking into account the respondent's mother's sworn statement dated January 5, 2012, which attests to the facts that were not submitted to the judge on October 13 or November 22, 2011, or that have taken place since. [ 23 ] A prison sentence to be served in the community must serve the objectives of Parliament, which are both restorative (the social reintegration of the offender, reparations for harm done to the community and the promotion in the offender of a sense of responsibility) and punitive (denunciation and deterrence). [4] [ 24 ] Maintaining a balance between these two objectives depends on the nature of the optional conditions that may be imposed by a court exercising the discretion conferred upon it pursuant to paragraph 742.3(2)(

f) Cr. C . [5] [ 25 ] Essentially, the petitioner argues that the change to the conditions ordered by the judge on November 22 and 24 was unreasonable in that it disrupted the balance by undermining the punitive aspect that must be retained in a sentence to be served in the community.

The petitioner is correct. [ 26 ] In the present case, the objective and subjective seriousness of the offences, the significant quantities of drugs seized in the respondent's home, [6] the length of the violation (the respondent admitted to gathering three harvests prior to her arrest), and the theft of electricity needed for the operation require a sentence that meets the objectives of denunciation and deterrence, a requirement that the conditional sentence had satisfied.

It is this punitive aspect that distinguishes conditional sentences from probation. [7] [ 27 ] In his October 13 decision, the judge went so far as to refer to the situation as a scourge. [ translation ] This has become a scourge on society and furthermore, the courts are strict with respect to matters involving the production of narcotics where the criteria of denunciation and deterrence should be given full expression. . [ 28 ] This concern was set aside on November 22. [ 29 ] The Supreme Court teaches us that a conditional sentence should generally include punitive conditions restricting the offender's freedom.

Among these conditions, house arrest and the imposition of strict curfews should be the rule, not the exception. [8] And this Court has not hesitated to intervene when the conditions of a conditional sentence, particularly in the context of drug-related offences, do not sufficiently reflect the restrictive and freedom-depriving aspect of this measure [ translation ] "... which must remain an imprisonment in more than just name ... ” [9] as well as the need for denunciation and deterrence, which is required under the circumstances. [10] [ 30 ] The sentence, as varied, does not give enough weight to these fundamental concerns.

Considered as a whole, it must be characterized as unreasonable and likely to bring the administration of justice into disrepute. [11] [ 31 ] We reiterate that the conditions imposed on October 13, 2011, were not very restrictive. The twenty-four-hour house arrest applied only to a third of the twelve-month sentence and did not apply Tuesday between 7:00 a.m. and 8:00 p.m. or for six whole days during the holidays. For the six following months, the curfew was only from 11:00 p.m. to [should read 6:00] a.m. the next day.

During that period, the respondent's situation is closer to a person living a regular life without any restrictions, since these hours are those during which most people are home. [12] Finally, there are no conditions for the last two months of the sentence. [ 32 ] We add that the respondent pleaded guilty to the charges brought against her on July 25, 2011, and that the tickets for the hotel- cruise package were bought on August 7 of that same year.

At the time of purchase, the respondent and her relatives could not have been unaware that, in all likelihood, she would have to serve a sentence that would deprive her of her freedom. They were therefore fully aware of the situation when they booked the trip and placed the judge before a fait accompli. [ 33 ] Moreover, there was no medical evidence indicating the stage of advancement of the respondent's mother's illness. One thing is certain: she has been cleared to take a two-week trip since last summer, a decision that was made in June of 2011.

Nor can we ignore the fact that the places where the respondent's mother intends to travel generally have medical services available, or that her spouse or any other person could offer the care required during the trip. The respondent worked for a few years as a practical nurse. [13] She is not irreplaceable. [ 34 ] On November 22, 2011, the judge also relied on the fact that the respondent's mother had already paid for a portion of the trip to justify his decision. He stated: [ translation ] "... if she had not paid, I would not have granted your request".

Obviously, the respondent's mother's situation compelled him to be lenient. This consideration should not have taken priority over the sentencing principles referred to above. [ 35 ] In this context, considered as a whole, the fact that the respondent's house arrest was extended by 17 days did not restore balance between the punitive and restorative sentencing objectives.

FOR THESE REASONS, THE COURT: [ 36 ] ALLOWS the motion for leave to appeal the sentence; [ 37 ] SETS ASIDE the judgments rendered on November 22 and 24, 2011, and QUASHES the changes to the optional conditions authorized by the trial judge; [ 38 ] The motion for a stay of enforcement is stricken from the roll since it is now moot.

LOUIS ROCHETTE, J.A. LORNE GIROUX, J.A. GUY GAGNON, J.A. Mtre Louis-Charles Bal Criminal and penal prosecutor For the petitioner Mtre Guy Boisvert Landry, Boisvert For the respondent Date of hearing: January 6, 2012