2011 NBCA 112, 2011 NBCA 112

Editor’s note: A correction judgment released on May 17, 2012, and appended to the original decision. The corrections were not integrated in the original judgment. COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 112-10-CA FERNAND ROBICHAUD APPELLANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT Robichaud v. R., 2011 NBCA 112 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Deschênes The Honourable Justice Quigg Appeal from a decision of the Court of Queen’s Bench: August 10, 2010 History of Case: Decision under appeal: Unreported

Preliminary or incidental proceedings: N/A Appeal heard: September 15, 2011 Judgment rendered: December 15, 2011 English version of the judgment of the Court delivered by DESCHÊNES, J.A. I. Introduction [ 1 ] At issue in this case is the meaning of the expression “ property of an offender” found in s. 462.37(3) of the Criminal Code . Can this expression include stolen cash?

The question was argued in the following context: the trial judge imposed prison sentences for two offences under s. 348(1)( b ) (break, enter and theft) but he dismissed the Crown’s application for the imposition of fines instead of forfeiture pursuant to s. 462.37(3) on the ground that the cash the appellant stole was not his property but rather that of the victims. For the reasons that follow, I am of the opinion that the judge erred in law in dismissing the application. II. The facts [ 2 ] The appellant, a hardened criminal (see

Schedule A), broke into the homes of two residents of northeastern New Brunswick a few months apart to steal safes that were inside. The first one contained $19,400.00 in cash while the other had more than $500,000.00. Two accomplices accompanied the appellant in both instances, but everyone agrees that he played a predominant role in the commission of the offences. [ 3 ] Following a trial before judge and jury, the appellant was convicted of the offences described below and sentenced to 11 years and 4 months imprisonment, reduced to 7 years and eight months for time served prior to sentencing. The warrant of committal upon conviction reads as follows: [TRANSLATION]

a) Breaking and entering in Mr. Jean-Guy Kenny’s home on October 18, 2008 (348(1)( b )): a sentence of 7 years and 4 months to be served consecutively to any other sentence;

b) Breaking and entering in Mr. Alvida Robichaud’s home on August 18, 2008 (348(1)( b )): a sentence of 4 months to be served consecutively to any other sentence, the sentence of 4 months was fixed after the trial judge had given a credit of 44 months for the 22 months served prior to sentencing;

c) Two counts of failure to comply with a condition of an undertaking given to a peace officer (s.145(5.1)( a )): a sentence of 15 months imprisonment for each count, each sentence to be served concurrently with the other sentences. [ 4 ] The warrant of committal also has a

schedule with provisions prohibiting the appellant from communicating with his accomplices and from being on his victims’ property. In addition, it specifies that the appellant must [TRANSLATION] “immediately turn over to the authorities, for the benefit of Jean-Guy Kenny, any money in his possession or under

his control which he illegally obtained on October 18, 2008, when he broke into Jean-Guy Kenny’s home”. Everyone agrees that the conditions contained in the

schedule should not be part of the warrant of committal and that the

schedule should be deleted. I agree. I note that the trial judge rendered two orders on May 26, 2010, pursuant to ss. 738 and 739 of the Criminal Code , ordering the appellant to compensate the victims and directing that a civil judgment be entered in their favour for any amounts unpaid by August 10, 2010. These orders for compensation are not part of the appeal or cross-appeal. [ 5 ] Mr.

Robichaud claims that the overall sentence of 7 years and eight months is excessive and seeks a reduction of a few years. [ 6 ] In constrast, the prosecutor has filed a cross-appeal, maintaining that the above-mentioned overall sentence is insufficient and seeking a significant increase. He disputes, inter alia, the judge’s refusal to apply s. 462.37(3) and to impose a fine instead of forfeiture as well as a prison term to be served consecutively to the term of 7 years and eight month in accordance with s. 462.37(4). For the sake of convenience I have reproduced the relevant provisions of s. 2 and

Part XII.2 of the Code pertaining to the proceeds of crime: 2. In this Act, […] “property” includes (

a) real and personal property of every description and deeds and instruments relating to or evidencing the title or right to property, or giving a right to recover or receive money or goods, (

b) property originally in the possession or under the control of any person, and any property into or for which it has been converted or exchanged and anything acquired at any time by the conversion or exchange, and […] 462.3

(1) In this Part, […] “proceeds of crime” means any property, benefit or advantage, within or outside Canada, obtained or derived directly or indirectly as a result of (

a) the commission in Canada of a designated offence, or (

b) an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence.

[…] 462.37

(1) Subject to this

section and sections 462.39 to 462.41, where an offender is convicted, or discharged under

section 730, of a designated offence and the court imposing sentence on the offender, on application of the Attorney General, is satisfied, on a balance of probabilities, that any property is proceeds of crime and that the designated offence was committed in relation to that property, the court shall order that the property be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law. […] 462.37(3) If a court is satisfied that an order of forfeiture under subsection (1) or (2.01) should be made in respect of any property of an offender but that the property or any part of or interest in the property cannot be made subject to an order, the court may, instead of ordering the property or any part of or interest in the property to be forfeited, order the offender to pay a fine in an amount equal to the value of the property or the part of or interest in the property.

In particular, a court may order the offender to pay a fine if the property or any part of or interest in the property (

a) cannot, on the exercise of due diligence, be located; (

b) has been transferred to a third party; (

c) is located outside Canada; (

d) has been substantially diminished in value or rendered worthless; or (

e) has been commingled with other property that cannot be divided without difficulty. 462.37(4) Where a court orders an offender to pay a fine pursuant to subsection (3), the court shall (

a) impose, in default of payment of that fine, a term of imprisonment […] (ii) of not less than six months and not exceeding twelve months, where the amount of the

fine exceeds ten thousand dollars but does not exceed twenty thousand dollars, […] (

v) of not less than two years and not exceeding three years, where the amount of the fine exceeds one hundred thousand dollars but does not exceed two hundred and fifty thousand dollars, (vi) of not less than three years and not exceeding five years, where the amount of the fine exceeds two hundred and fifty thousand dollars but does not exceed one million dollars, or […] […] [ 7 ] It is also useful to reproduce the judge’s comments regarding his reasons for refusing to apply s. 462.37(3) : [TRANSLATION] As for the prosecution’s application for an order under

Part 12.2 with respect to proceeds of crime, although the prosecutor’s objective was noble, this part of the Criminal Code has no application in this case. First, Parliament’s goal was the seizure and appropriation of proceeds of crime, for example, the seizure of a Mercedes received in exchange for cocaine, a house bought with money from the sale of drugs, and the provisions and the intention of Parliament. Although we might give [this meaning] to money that is still under the control of several offenders, in the case of the crime committed at Jean-Guy Kenny’s home, it is not proceeds of crime within the meaning of

Part 12.2 of the Criminal Code. First of all, the application by the prosecutor should not have been pursued when it became clear that the efforts to recover the money would not succeed. There is no basis for asking that Jean-Guy Kenny’s money be seized and given to the Attorney General. This is Jean-Guy Kenny’s money and the Attorney General has no claim to it. If the prosecutor had the money now, what would we do with it? It would be returned to its owner, Jean-Guy Kenny, and not to the Attorney General. How and why make such an order if it is not in our possession?

We cannot even if it has been, – we cannot, even if it has been stolen, change the nature and quality of this money, which is stolen money, and not the proceeds of crime. This is Mr. Kenny’s money and not the Attorney General’s. Proceeds of crime is not money that belongs to the victims of crime. Proceeds of crime is or, pursuant to the legislation, becomes the property of the Crown because there is no legitimate owner. And, the Criminal Code provides for notices of seizure to be given to ensure that the application is legitimate. No notice was given to this court. Finally, paragraphs 3 and 4,

section 462.37(1) of the Criminal Code cannot be used to lengthen a sentence, as the Crown is suggesting. To do so, we would have to read the Code backwards to arrive at paragraph 1 for forfeiture of proceeds of crime. In the present case, the only thing that seems to apply is compensation under s. 738, and given last week’s discussions, the hope of reimbursement seems improbable. Nevertheless, in my order, I have provided for compensation and the return of the money if one or several of the offenders are still in possession of it or of what is left of it. [Transcript, August 10, 2010, pages 40-42] III.

The grounds of appeal and cross-appeal [ 8 ] As I indicated, the appellant argues that the overall sentence is too severe while the respondent maintains that it is much too lenient. [ 9 ] The standard of review on appeal against sentence is now well established and our Court has ruled on this matter several times. Intervention on appeal is inappropriate “unless at least one of the following questions is answered affirmatively :

(1) Is the sentence the result of an error of law?

(2) Did the sentencing judge err in principle in the exercise of his or her discretion?

(3) Is the sentence clearly unreasonable having regard to the fundamental purpose and objectives of sentencing (s. 718), as well as the principles enunciated in sections 718.1 and 718.2 of the Criminal Code ?” ( R. v. LeBlanc , 2003 NBCA 75 , 264 N.B.R. (2d) 341 , at para. 17 , per Drapeau, C.J.N.B. for the Court) . See also Steeves v. R., 2010 NBCA 57 , 360 N.B.R. (2d) 88 , paras. 27-28 . [ 10 ] Given the circumstances surrounding the perpetration of these crimes and the appellant’s

lengthy criminal record (almost 100 criminal offenses over a period of two decades, including some twenty break and enters, one of which earned him a term of 6 years in prison), and taking into account the applicable standard of review, I would grant leave to appeal but would dismiss the appeal. [ 11 ] However, the cross-appeal is not without merit with respect to the application of s. 462.37(3) . The prosecution’s application should have been allowed and it is because of an error in law that the judge dismissed it. The Court’s intervention is appropriate with respect to this issue. IV.

Analysis and decision [ 12 ] We do not need to review all of the details surrounding the perpetration of the break and enters. Suffice it to say that the following findings made by the judge are completely supported by the evidence adduced at trial and at the sentencing hearing:

a) The appellant was for the most part the one responsible for the planning of the Robichaud and Kenny break-ins.

b) A safe containing $19,400.00 was stolen from Mr. Robichaud’s home. Another safe containing more than $500,000.00 in cash was stolen from Mr. Kenny’s home.

c) At the time of trial, the appellant and his accomplices had squandered all of the money contained in the safe stolen at Mr. Robichaud’s home.

d) A significant amount of Mr. Kenny’s money was recovered and the judge set at $475,000.00 the amount to be returned to him. The judge was satisfied that the appellant still had in his possession or under his control an amount of $475,000.00 in cash. It bears repeating that the judge was in a position to set the amount owed to Mr. Kenny on the basis of all of the evidence presented at trial or at the sentencing hearing.

In fact, the judge was able to make this finding based on the appellant’s own testimony in the course of the proceedings held before sentencing. [ 13 ] At trial, the Crown prosecutor formally requested that the judge impose a fine pursuant to s. 462.37(3) , given that it was impossible to recover the cash, that the appellant had the money in his possession or under his control and that he was refusing to turn it over. According to the prosecutor, s. 462.37(3) was enacted by Parliament to deal with this kind of situation, among others.

In my view, the prosecutor was right and he should have brought to the judge’s attention the Supreme Court of Canada decision in R. v. Lavigne , 2006 SCC 10 , [2006] 1 S.C.R. 392 , which might have eased the judge’s concerns. [ 14 ] In Lavigne , the accused had pocketed at least $150,000.00 from the crimes he was charged with (trafficking in cannabis among others) but he no longer had this money in his possession as he had squandered most of it. Taking into consideration the accused’s ability to pay, the trial judge imposed a fine of $20,000.00.

The Quebec Court of Appeal’s decision dismissing the prosecution’s appeal on the amount of the fine imposed at trial was appealed before the Supreme Court of Canada. [ 15 ] As in the present case, the prosecution was seeking a fine instead of a forfeiture order pursuant to s. 462.37(3) . [ 16 ] Although the appeal before the Supreme Court concerned the discretion of a trial judge who imposes a fine instead of forfeiture, Deschamps, J., for the Court, discussed the scope of several of the

Part XII.2 provisions that we are concerned with here. In my opinion, these are the relevant principles derived from the Supreme Court’s analysis in Lavigne :

a) The property that is liable to forfeiture under s. 462.37(1) is property that is “proceeds of crime” (s. 462.3(1) and s. 2 of the Code ). There is thus a wide range of “property” that could be proceeds of crime; it may be real or personal, corporeal or incorporeal. Moreover, forfeiture may apply to the original property, or property acquired in exchange for or by conversion of the original property

and it is enough that the designated offence be committed “in relation to” the property. The link need not be direct (para. 13).

b) A court imposing sentence on a person convicted of an offence involving the proceeds of crime shall, on application of the Attorney General, order the forfeiture of the property where the offence was committed in relation to that property. There is simply no discretion at this stage (paras. 14-15). In short, provided the prosecution is able to establish the above-mentioned conditions precedent on a balance of probabilities, the forfeiture order is mandatory.

c) There may be instances where forfeiture of the proceeds of crime is not practicable because the property may have been used, transferred or transformed or may simply be impossible to find.

Section 462.37(3) provides that the court may impose a fine instead of forfeiture of the proceeds of crime (para. 18).

d) Although s. 462.37(3) provides that imposing a fine instead of forfeiture is a discretionary power, an analysis of the context and of the wording of the

section itself indicates that the discretion is nevertheless very limited. The discretion applies to the decision on whether or not to impose a fine and to the determination of the value of the property. As far as the decision to impose a fine is concerned, it should always be consistent with the spirit of the provisions on proceeds of crime as a whole (para. 28). In any event, the court must not take into account the accused’s ability to pay when it must decide whether or not to impose a fine instead of forfeiture. The amount of the fine must be equal to the value of the proceeds of crime (paras. 34-35-37).

Once the decision is made that a fine instead of forfeiture is warranted and the value of the proceeds of crime is established, there is no discretion other than the terms of imprisonment in relation to the amount of the fine and the time allowed to pay the fine (para. 52).

e) The sentence imposed for an offence under

Part XII.2 consists of two elements: the penalty for committing a designated offence (s. 462.3(1)), and forfeiture of the proceeds of crime (s. 462.37(1)). A fine instead of forfeiture is seen as a separate component of the sentence and is not regarded as punishment specifically for the designated offence.

The fine or imprisonment imposed as the primary sentence punishes the commission of the designated offence, while forfeiture or a fine instead of forfeiture deprives the offender of the proceeds of his or her crime and deters potential offenders and accomplices (para. 10). [ 17 ] As we can see from reading the reasons for judgment at trial, the judge’s main concern with respect to the prosecution’s application for a fine instead of forfeiture was obvious: the stolen and unrecoverable cash belonged to the victims and did not constitute “property of an offender” within the meaning of s. 462.37(3) .

I believe that the definition of “property” is very broad and encompasses the stolen cash that the appellant had in his possession or under his control (see s. 2). On this particular point it is worth noting that the Court in Lavigne referred to the cash that the accused had squandered as “property of an offender” within the meaning of s. 462.37(3). [ 18 ] The meaning of the words “property of an offender” in this provision was an issue argued in R. v. Smith , 2008 SKCA 20 , [2008] S.J. No. 97 (QL) .

I adopt the following words of the Court: Counsel for the respondent adds some fuel to the debate by pointing out the unique and distinctive use of the term “property of the offender” which, he says, appears only in the fine in lieu of forfeiture provisions in s. 462.37(3), whereas other subsections refer more generally to “any property”.

He submits that as an offender can never have a lawful interest in monies found to be proceeds of crime, a point the Crown made in support of other aspects of its argument, then that money can never constitute “property of an offender” for the purposes of the section, and it follows that it can never be made the subject of a fine in lieu of forfeiture. The subject matter of s. 467.37(3) is more extensive than suggested, when read in context. The material words are “Where a court is satisfied that an order of forfeiture under subsection (1) should be made in respect of any property of an offender ...”.

Subsection (1) says an order of forfeiture shall be made in respect of “any property” that is proceeds of crime, and s. 462.3(1) defines “proceeds of crime” to include “any property, benefit or advantage ...”, direct or indirect. Even if these provisions were not as functionally interrelated as they are, I would not be convinced that the use of the words “property of the offender” was intended to capture attributes of unimpeachable or indefeasible title, in any pure sense.

As counsel for the respondent readily acknowledged in his factum, it is often necessary in these scenarios to refer to an offender’s acquisitions and possessions “somewhat loosely”. [paras. 100-102]

V. Application of these principles to the present case [ 19 ] In my view, all of the conditions precedent to the application of s. 462.37(1) had been established by the Crown prosecutor: (1) the application for forfeiture was made on behalf of the Attorney General; and (2) the cash stolen from Messrs. Robichaud and Kenny and never recovered undeniably constituted “proceeds of crime” (see s. 462.3(1)). This is so because a “designated offence” was committed in relation to this money (see s. 462.3(1)).

In these circumstances, if the cash had been available, the judge would have had to make an order of forfeiture in accordance with s. 462.37(1) . [ 20 ] However, since the cash could not be found despite the investigators’ best efforts, the judge had to grant the prosecution’s application and impose a fine equal to the value of the stolen and unrecovered money. In this case, the judge should have imposed a fine instead of forfeiture and his refusal to do so is obviously inconsistent with the provisions dealing with proceeds of crime in

Part XII.2. [ 21 ] The judge was satisfied that the appellant had spent the $19,400.00 stolen from Mr. Robichaud and that he still had in his possession or under his control an amount of $475,000.00 stolen from Mr. Kenny. In accordance with s. 462.37(3), the judge should have ordered the appellant to pay: (1) a fine of $19,400.00 with respect to the break and enter and theft at Mr. Robichaud’s home; and (2) a fine of $475,000.00 with respect to the same offence at Mr.

Kenny’s home. [ 22 ] After imposing these fines, the judge then had to comply with ss. 462.37(4)( a ) ( ii ) and ( vi ); it was incumbent upon him to impose a term of imprisonment of at least 18 months, but no more than 2 years with respect to the break enter and theft at Mr. Robichaud’s home and a term of imprisonment of at least 3 years, but no more than 5 years with respect to the same offence at Mr. Kenny’s home, both sentences to be served consecutively.

He also had to determine the time limit allowed to pay the fines. [ 23 ] The parties made some observations before the Court concerning time limits for payment of the fines and the applicable term of imprisonment for failure to pay them. Both parties asked the Court to exercise the discretion that the trial judge should have exercised given his findings of fact. That being the case, I will accept the parties’ invitation rather than send the matter back to the trial judge. VI. Disposition [ 24 ] For these reasons:

a) The application for leave to appeal is allowed, but the appeal is dismissed;

b) The cross-appeal is allowed, but solely for the following purposes:

(1) Schedule A to the warrant of committal on conviction dated September 15, 2010, is deleted; (2) pursuant to ss. 462.37(3) and (4) of the Criminal Code , the appellant is ordered to pay a fine instead of forfeiture of $19,400.00 with respect to the break, enter and theft at Mr. Robichaud’s home and on default of payment, he shall serve a term of 20 months in prison (consecutive to any other sentence).

The time limit for payment of this fine is set at 60 days from the date of the appeal judgment; and (3) in accordance with the same provisions, the appellant is also ordered to pay a fine instead of forfeiture of $475,000.00 with respect to the break, enter and theft at Mr. Kenny’s home and on default of payment, he shall serve a term of 4 years in prison (consecutive to any other sentence). The time limit for payment of this fine is set at 60 days from the date of the appeal judgment. In other respects, the sentences imposed by the trial judge remain the same. S CHEDULE A

1976-02-18 Montreal QC BE & Theft Sec 306(1)(b)(

d) CC Susp Sent & Probation for 2 yrs 1976-03-09 Montreal QC Fail to comply with conditions of recognizance Sect 133(3) (

b) CC $50 I-D 8 days 1976-08-11 Tracadie NB

(1) BE & Commit Sec 306(1) (

b) CC

(2) BE with Intent Sec 306(1)(

a) CC

(3) BE & Commit Sec 306(10(

b) CC

(4) BE & Commit Sec 306(1) (

b) CC

(1) Susp Sent – Probation for 2 yrs – Restitution $60 (2-3) Susp Sent – Probation for 2 yrs

(4) Susp Sent – Probation for 2 yrs – Restitution $115 1977-03-25 Valleyfield QC

(1) Theft under $200 Sec 283-294(

b) CC

(2) BE & Theft Sec 306(1) (b)(

e) CC (8 chgs)

(3) BE with Intent Sec 306(1)(a)(

e) CC

(4) BE with Intent Sec 306(1)(a)(

e) CC

(5) Mischief to public property Sec 387 (1)(a)(3)(

b) CC

(6) BE & Theft Sec 306(1) (b)(d)(

e) CC (1-6) 3 yrs on each chg conc 1977-05-19 Valleyfield QC

(1) BE with Intent Sec 306(1)(a)(

e) CC

(2) Conspiracy Sec 423(1)(

d) CC (1-2) 1 yr conc with sent serving 1978-03-25 Paroled 1981-02-19 Mont-Laurier QC

(1) Conspiracy Sec 423(1)(

d) CC

(2) Theft over $200 Sec 294(

a) CC (1) 2 yrs (2) 3 yrs & 6 mos conc 1981-02-24 Montreal QC B & E with Intent Sec 306(1) (a)(

e) CC 2 yrs consec to sentence serving 1981-03-24 Valleyfield QC

(1) BE & Theft (5 chgs)

(2) Assault Peace Officer Sec 246 CC (1) 6 yrs on each chg conc & conc with sentence dated 1981-02-24 (2) $100 I-D 1 mo

1983-03-02 Paroled 1988-12-19 Valleyfield QC

(1) Accessory after the fact to robbery Sec 23 CC

(2) Attempt Robbery Sec 421(

d) CC (QPP Ste Martine 40106-1621) (1-2) 20 mos 1989-01-13 Montreal QC Att B & E with Intent Sec 421(

b) CC (PD Laval 22861) 2 yrs less 1 day & probation 3 yrs 1989-01-23 Quebec QC BE & Theft Sec 306 CC (OPF St Romuald 40283- 2352) 6 mos & probation 2 yrs 1990-06-07 Valleyfield QC Accessory after the fact to commit

summary offence Sec 463(d)(ii) CC (PD Ile Perrot 31210-0257) 1 mo conc with sent serving 1990-08-22 Montreal QC Obstruction Sec 129(

a) CC (UCPS Montreal 167210) $400 I-D 60 days 1991-04-04 Alexandria ON Theft under $1000 Sec 334(

b) CC (Lancaster OPP 123-90) 75 days intermittent 1991-06-04 Montreal QC

(1) Poss of property obtained by crime under $1000 Sec 355(b)(

i) CC

(2) Assault with intent to resist arrest Sec 270(1)(b)(2) (

a) CC

(3) Poss of property obtained by crime over $1000 Sec 355(

a) CC

(4) Poss of Break In Instruments Sec 351(1) CC (OCPS Montreal 167210) (1) 30 days (2-4) 15 mos on each chg conc & probation for 2 yrs

1992-06-01 Valleyfield QC

(1) Assault with a weapon Sec 267(1)(

a) CC (3 chgs)

(2) Poss of a weapon Sec 87 CC

(3) Escape lawful custody Sec 145(1)(

a) CC

(4) Poss of a weapon Sec 87 CC

(5) Assault with intent to resist arrest Sec 270(1)(b)(2) (

a) CC (5 chgs) (PD Ile Perrot 31210-0587)

(6) Fail to comply with probation order Sec 740(1) CC (3 chgs) (1-5) 8 mos on each chg conc & probation 2 yrs (6) 3 mos on each chg conc & conc 1992-06-29 Montreal QC Poss of property obtained by crime over $1000 Sec 355(

a) CC (RRC Ste Anne des Plaines) 1 mo 1992-10-19 Valleyfield QC

(1) BE & Commit Sec 348(1) (b)(

d) CC

(2) Dangerous operation of motor vehicle Sec 249(1)(a) (2)(

b) CC

(3) Fail to stop at scene of accident Sec 252(1) CC (2 chgs)

(4) Fail to comply with probation order Sec 740(1) CC (2 chgs) (RRC Ste Anne des Plaines)

(5) Prison breach Sec 144(

a) CC

(6) Mischief over $1000 Sec 430(1)(a)(3)(

a) CC (QPF Montreal 40A26-9203) (1) 2 yrs (2-4) 6 mos on each chg conc & conc (5-6) 1 yr on each chg conc (1-4) 12 mos & probation 2 yrs 1994-10-12 Valleyfield QC

(1) Personation with Intent Sec 403(

a) CC

(2) Escape lawful custody Sec 145(1)(

a) CC

(3) Assault a peace officer Sec 270(1)(a)(2)(

a) CC

(4) Poss of a weapon Sec 87 CC (PD Salaberry-de-Valleyfield 31203-3982) (1-4) 12 mos & probation 2 yrs

1996-03-13 St-Leonard QC Theft under $5000 Sec 322- 334(b)(ii) CC (UCPS Montreal 167210) 90 days 1997-10-15 Valleyfield QC

(1) BE & Theft Sec 348(1) (b)(

d) CC

(2) Theft under $5000 Sec 334(b)(

i) CC (Ile Perrot PD 31210-01347)

(3) Escape lawful custody Sec 145(1)(

a) CC

(4) Assault a peace officer Sec 270(1)(a)(2)(

a) CC (UCPS Montreal 167210) (1-2) 12 mos condition sentence order on each chg conc & probation 3 yrs (3-4) 6 mos on each chg conc & 3 mos conditional sentence order on each chg & probation 3 yrs 2001-06-26 733.1(1)

a) CCC 30 days & 1 yr probation 2002-04-08 Montreal QC

(1) Obstruct peace officer Sec 129(a)(

d) CC

(2) Fail to comply with undertaking Sec 145(3)(

a) CC (Montreal PS 167210) (1-2) 3 days on each chg 2002-05-13 Valleyfield QC

(1) Criminal harassment Sec 264(1)(3)(

a) cc

(2) Fail to comply with recognizance Sec 145(3)(

a) CC (2 chgs)

(3) Fail to comply with probation order Sec 733.1(1) (

a) CC

(4) Escape lawful custody Sec 145(1)(

a) CC

(5) Fail to comply with Recognizance Sec 145(3)(

b) CC (2 chgs) (Ile Perrot PD 31210-1874) (1-5) 30 days on each chg conc & probation 1 yr 2002-06-22 264(3)

a) CCC 30 days & 1 yr probation 2004-02-23 334(b)(

i) CCC 3 mos & 2 yrs probation 2005-04-26 Montreal QC Fail to comply with probation order Sec 733.1(1)(

b) CC (3 chgs) (Montreal PS 167210) 30 days intermittent on each chg

2006-01-20 Valleyfield QC

(1) Break & Enter with Intent Sec 348(1)(a)(

e) CC

(2) Uttering Threats Sec 264.1(1)(a)(2)(

a) CC

(3) Poss of breakin-in instruments Sec 351(1) CC

(4) Fail to comply with probation order Sec 733.1(1) (

a) CC (Vaudreuil-Soulanges Reg QPF 40221-31845) (1-3) 5 mos on each conc chg & probation 1 yr (4) 60 days conc & probation 1 yr 2006-04-06 Valleyfield QC

(1) Theft under $5000 Sec 334(b)(

i) CC

(2) Faily to comply with probation order Sec 733.1(1) (

a) CC (Vaudreuil-Soulanges Reg QPF 40221-31964) (1) 6 mos (2) 30 days & probation 2 yrs COURT OF APPEAL OF NEW BRUNSWICK 112-10-CA FERNAND ROBICHAUD APPELLANT - and - HER MAJESTY THE QUEEN RESPONDENT Robichaud v. R., 2011 NBCA 112 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Deschênes

The Honourable Justice Quigg History of Case: Decision under appeal: Unreported Preliminary or incidental proceedings: 2011 NBCA 112 Motion for correction heard: May 3, 2012 Decision rendered: May 17, 2012 Counsel at hearing: Fernand Robichaud appeared in person. For Her Majesty the Queen: Jean-Guy Savoie. THE COURT This Court’s disposition of the Attorney General’s sentence cross-appeal is corrected to reflect the Court’s intention. In addition, the corrected disposition is stayed in accordance with the Court’s reasons for decision.

English version of the judgment delivered by THE COURT [1] By decision dated December 15, 2011, now reported as Robichaud v. R. , 2011 NBCA 112, 381 N.B.R. (2d) 315, we allowed the Attorney General’s cross-appeal against sentence for the following purposes: […] (2) pursuant to ss. 462.37(3) and (4) of the Criminal Code , the appellant is ordered to pay a fine instead of forfeiture of $19,400.00 with respect to the break, enter and theft at Mr. Robichaud’s home and on default of payment, he shall serve a term of 20 months in prison (consecutive to any other sentence).

The time limit for payment of this fine is set at 60 days from the date of the appeal judgment; and (3) in accordance with the same provisions, the appellant is also ordered to pay a fine instead of forfeiture of $475,000.00 with respect to the break, enter and theft at Mr. Kenny’s home and on default of payment, he shall serve a term of 4 years in prison (consecutive to any other sentence). The time limit for payment of this fine is set at 60 days from the date of the appeal judgment. In other respects, the sentences imposed by the trial judge remain the same. [para. 24]

[2] It will be seen that the term of imprisonment in default of payment of the $475,000 fine (4years consecutive to any other sentence) is the midpoint between the minimum (3 years) and the maximum (5 years) prescribed bys. 462.37(4)(a)(vi) of the Criminal Code. Not surprisingly, it was the Court’s intention to also impose a default term of imprisonment atthe midpoint between the minimum and the maximum prescribed by s. 462.37(4)(a)(ii) for the $19,400 fine. The midpoint between thatminimum (6 months) and maximum (12 months) is 9 months.

In our decision, we referred to the applicable provision, namelys. 462.37(4)(a)(ii), but slipped in identifying the prescribed range of imprisonment as “at least 18 months, but no more than 2 years”(para. 22) and in setting at 20 months the term of imprisonment in default of payment of the $19,400 fine. [3] The Attorney General requests the proceedings be reopened for the limited purposes ofcorrecting our disposition of her sentence cross-appeal, as well as the follow-up judgment and warrant of committal. Mr.

Robichaudobjects; he contends any correction of our disposition should be left to the Supreme Court of Canada where his application for leave toappeal is pending. [4] The critical circumstances are the following: (1) the Court’s decision references the correctCriminal Code provision but an accidental slip resulted in the prescription of a term of imprisonment in default of payment of the$19,400 fine that is neither authorized by that provision nor reflective of this Court’s intention; (2) the Court is not asked to reopen thecase on the merits; and (3) formal judgment has been entered.

On the issue of our jurisdiction to correct a disposition in thosecircumstances, we respectfully agree with the views expressed in R. v. Hamilton; R. v. Rhingo, (ON CA), [1997] O.J.No. 1110 (Ont.C.A.) (QL): A question has also been raised in argument with respect to a court's power to vary one of its own orders in order to correct clericalmistakes or errors arising from an accidental slip or omission or in order to properly reflect the intention of the court.

This power is wellrecognized at common law as a proper exercise of a court's inherent or ancillary jurisdiction to control its own process and preventabuses of process. In Chandler v. Alberta Association of Architects (Alberta), (SCC), [1989] 2 S.C.R. 848 the SupremeCourt stated as follows at p. 860: The general rule that a final decision of a court cannot be reopened derives from the decision of the English Court of Appeal in In re St.Nazaire Co. (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellatedivision.

The rule applied only after the formal judgement had been drawn up, issued and entered, and was subject to two exceptions: 1. where there had been a slip in drawing it up, and, 2. where there was an error in expressing the manifest intention of the court. See Paper Machinery Ltd. v. J.O. Ross Engineering Corp., (SCC), [1934] S.C.R. 186. In the same way, an appellate court can correct its own orders. [para. 11] See, as well, R. v. De La Cruz, (ON CA), [2003] O.J. No. 1971 (Ont.C.A.) (QL) corrected at (ON CA), [2003] O.J.

No. 3235 (Ont.C.A.) (QL), where proceedings on appeal were reopened, at the behest of the Attorney General, tocorrect a sentence disposition fashioned pursuant to s. 687(1)(a). [5] Our sworn duty is to render justice according to law. In our view, the interests of justiceforeclose denial of the sought-after correction. After all, without that correction, a sentence at odds with our intention and s. 462.37(4)(a)(ii) would stand, absent intervention by the Supreme Court of Canada. That is indisputably an unacceptable result.

Accordingly, wecorrect our disposition as well as the follow-up judgment and warrant of committal to provide for a 9-month term in prison (consecutiveto any other sentence) in default of payment of the $19,400 fine. [6] For his part, and as noted, Mr. Robichaud has applied to the Supreme Court of Canada forleave to appeal our decision. His application targets our decision to allow, in part, the Attorney General’s cross-appeal against sentenceand raises issues that go well beyond our Court’s accidental slip in setting the term of imprisonment in default of payment of the $19,400fine. Mr.

Robichaud requests a stay of execution of our disposition of the cross-appeal (see paras. 24(2) and (3) of our previous decision)

until such time as the Supreme Court of Canada has ruled on his application and any follow-up appeal, should leave be granted. We are satisfied it is appropriate to grant, pursuant to s. 65.1(1) of the Supreme Court Act , R.S.C. 1985, c. S-26, the requested stay for a period ending 60 days after the Supreme Court of Canada’s final decision.