2011 QCCA 1633, 2011 QCCA 1633

Unofficial English Translation Lacas c. R. 2011 QCCA 1633 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No: 200-10-002367-097 (100-01-012127-078) DATE: September 13, 2011 CORAM: THE HONOURABLE JULIE DUTIL, J.A. LORNE GIROUX, J.A. JEAN BOUCHARD, J.A. LOUIS-PHILIPPE LACAS APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] The appellant appeals from his conviction, rendered on March 24, 2009, by the Court of Quebec, Criminal and Penal Division, District of Rimouski (the Honourable Judge Richard Côté), on the following four counts: In regard to Stéphane Bernard (006), Mario Boisvert (010), Éric Bourget (011), Dany Cook (013), Gaétan D'Amours (014), Mélanie Houle (017), Sébastien Hudon (018), Miguel Lachance (020), Cindy Jennifer O'Hara (027), Pierre Ross (029), Dave Thibault, Ricardo Barrais, Louis-Philippe Lacas 1.

Between February 19 and May 31, 2007, in Rimouski, District of Rimouski, and elsewhere in the province of Quebec and in Canada, conspired together and with one another, or with some of them, or with others to commit the indictable offence of trafficking in cocaine and methamphetamine, substances included in

Schedule I of the Controlled Drugs and Substances Act , thereby committing the indictable offence set out at section 465(1) (

c) of the Criminal Code . In regard to Ricardo Barrais, Louis-Philippe Lacas 6. Between February 19 and May 31, 2007, in Rimouski, District of Rimouski, and elsewhere in the province of Quebec and in Canada, trafficked in cocaine and methamphetamine, or in substances represented or held out to be such substances, included in

Schedule I , thereby committing the indictable offence set out at section 5(1) (3)(

a) of the Controlled Drugs and Substances Act . In regard to Gaétan D'Amours (014), Denis Ricardo Barrais, Louis-Philippe Lacas 7. Between February 19 and May 31, 2007, in Rimouski, District of Rimouski, and elsewhere in the province of Quebec, trafficked in cocaine, methamphetamine, and cannabis, substances included in Schedules I and II of the Controlled Drugs and Substances Act , for the benefit of, at the direction of, or in association with a criminal organization, thereby committing the indictable offence set out at

section 467.12 of the Criminal Code . In regard to Stéphane Bernard (006), Mario Boisvert

(010) Éric Bourget (011), Dany Cook (013), Gaétan D'Amours (014), Mélanie Houle (017), Sébastien Hudon (018), Miguel Lachance (020), Cindy Jennifer O'Hara (027), Pierre Ross (029), Dave Thibault, Ricardo Barrais, Louis-Philippe Lacas 8. Between February 19 and May 31, 2007, in Rimouski, District of Rimouski, and elsewhere in the province of Quebec, conspired together and with one another, or with some of them, or with others to commit the indictable offence of possession of amounts of money of more than $5,000, knowing that this property was derived from the commission of an offence punishable by indictment, thereby committing the indictable offence set out at section 465(1)(

c) of the Criminal Code . [Emphasis added.]

[ 2 ] The appellant was sentenced by a judgment rendered from the bench on May 19, 2009, and in writing on June 3, 2009, to a prison sentence of nine years. He also seeks leave to appeal from this sentence. [1] Facts [ 3 ] On February 13, 2007, André Plante J. of the Court of Quebec authorized the wiretap of the private communications of thirty- two persons, most of whom lived in the Rimouski area.

This authorization was granted in the context of a major investigation of a drug ring operating in this area, on the basis of an affidavit signed by Detective Sergeant Bernard Fillion of the Sûreté du Québec. [ 4 ] It should be noted that the appellant was not one of the persons targeted by the wiretap authorization application as he operated in the Montreal area and at the time, was not known to the Rimouski police. [ 5 ] Detective-Sergeant Fillion’s affidavit is supported by, among other things, information provided by seventeen police informants designated as [ translation ] “sources”, the work of an undercover officer, physical surveillance conducted by police officers, and cellular phone records.

It is 120 pages and 164 paragraphs long and is accompanied by two appendices, one of which provides the profiles of the seventeen sources. [ 6 ] The wiretap evidence was obtained between February 13 and May 21, 2007. Some 28,000 telephone conversations were analyzed. This evidence revealed that the appellant, based in Montreal, sold drugs to Gaétan D'Amours in Lévis, who in turn supplied traffickers in Rimouski. [ 7 ] The appellant was arrested at 1:32 p.m. on October 16, 2007, in Montreal. He spoke to two attorneys, and the interrogation began at 3:43 p.m.

The detectives showed him an organizational chart of the drug ring, surveillance photos in which he appeared, and extracts of intercepted conversations. The detectives failed to make note of some of the questions they asked the appellant, as well as some of the answers he gave. On one occasion, the appellant refused to answer a question and the detectives did not follow up. During the interrogation, the appellant was provided a meal, a few breaks, and access to a washroom. [ 8 ] At the end of the interrogation, the detectives asked the appellant to provide a written statement, but he refused.

The interrogation ended at around 9:00 p.m., and at 9:50 p.m., the detectives filled out various forms with the appellant.

The grounds of appeal [ 9 ] The appellant invoked four grounds in the appeal from his conviction. [ 10 ] First, the appellant argues that the trial judge should not have allowed the Crown to file into evidence the notes taken by the officers during the interrogation that followed his arrest as they constitute an incriminating statement on his part. [ 11 ] Next, the appellant challenges another ruling of the trial judge, who refused to grant the appellant permission to cross-examine Detective Sergeant Bernard Fillion on his affidavit [ 12 ] The appellant also presented a motion to exclude wiretap evidence in which he alleged that the appendices had not been signed nor given under oath.

Consequently, he argued, the judge could not consider them. He argued further that several paragraphs of the affidavit should be struck as they were based on hearsay. This motion was dismissed by a judgment rendered on December 18, 2008. [ 13 ] Finally, the appellant invokes the rule against double jeopardy, arguing that he could not be convicted at the same time of conspiracy to traffic and of conspiracy to possess money derived from the commission of an indictable offence.

Analysis The appellant’s out-of-court statements [ 14 ] The appellant argues that since the statements he gave to the officers were not recorded, the incomplete notes taken by those officers during his interrogation were not admissible in evidence before the trial judge. [ 15 ] The trial judge responded to this argument by referring to the cases cited in his December 18, 2008, judgment concerning the admissibility of a statement given by one the appellant’s co-accused, Gaétan D'Amours. One of these cases is R. v.

Oickle , [2] in which Iacobucci J., while acknowledging the usefulness of recordings, states that: [46] ... This is not to suggest that non-recorded interrogations are inherently suspect; it is simply to make the obvious point that when a recording is made, it can greatly assist the trier of fact in assessing the confession. [ 16 ] The trial judge also referred to R. v.

Moore McFarlane , [3] a judgment of the Court of Appeal for Ontario in which Charron J.A., as she then was, ruled that when the evidence reveals that technical facilities for recording a statement are readily available, but not used, this renders the interrogation suspect.

The trial judge chose to follow this case, which is more favourable to the appellant. [ 17 ] The judge then considered whether the Crown had presented a sufficiently detailed account of the circumstances surrounding the appellant’s interrogation to allow him to conclude that, despite the absence of an audio/video recording, the statement was made freely and voluntarily. [ 18 ] He concluded that it had, stating: [ translation ] In the case at bar, the evidence is sufficiently detailed to allow the Court to conduct a thorough review of the circumstances surrounding the appellant’s statement.

In fact, Officer Gemme wrote down several questions and comments in the notes he took during the interrogation, and Officer Fillion’s testimony is detailed and clear. Officer Gemme even noted when the accused, Lacas, expressed the desire not to comment on a subject. There is nothing in the evidence that would allow the Court to infer that there may have been undue pressure or conduct on the part of the officers that could constitute promises, threats, or “inducements”.

On the contrary, the evidence provides the Court with a detailed picture of how the interrogation unfolded and establishes, beyond any reasonable doubt, that the accused’s statements were made freely and voluntarily. The fact that the statements were not at once recorded in writing and were not signed by the accused does not, in light of the circumstances overall, raise any reasonable doubt as to their free and voluntary nature. These elements will, however, need to be reconsidered when assessing the probative value of his statements.

The Court finds that the Crown has established beyond a reasonable doubt that the statements made by the accused on the sixteenth (16th) of October, two thousand and seven (2007), between three-seventeen (3:17) p.m. and nine-fifty (9:50) p.m., were made freely and voluntarily. The Crown is therefore authorized to file them. [ 19 ] It is worth emphasizing the fact that the appellant does not claim that the officers’ notes are untruthful.

Nor does he claim that he was mistreated, that promises were made to him, or that the officers used subterfuge or dishonest practices in his regard. [ 20 ] The trial judge simply accepted the officers’ testimony regarding the circumstances surrounding the appellant’s statement, while making the appropriate distinctions between the free and voluntary nature of the statement and its reliability. [ 21 ] Finally, although the motives of a trial judge should be held to faithfully respect his thinking, [4] it should be noted that he did not mention in his judgment, with respect of the verdict, that he had taken the appellant’s statement into consideration, which he expressly did in the case of his co-accused, Gaétan D'Amours. [5] [ 22 ] In the absence of any palpable and overriding error in regard to the weight that the trial judge had to attribute to the various elements of the evidence, there is no cause for the Court to overturn his finding that the appellant’s out-of-court statement was given freely and voluntarily.

Cross-examination of the affiant, Detective Sergeant Bernard Fillion [ 23 ] A wiretap must be preceded by judicial authorization. The authorizing judge must be [ translation ] “satisfied that there are reasonable and probable grounds to believe that an offence has been committed or is about to be committed, that the wiretap sought will allow evidence to be obtained, and that other investigative procedures have been tried and have failed, or are unlikely to succeed”. [6] The last criterion is excluded in cases contemplated by section 186(1.1) Cr.

C. , notably offences involving organized crime, for example. [ 24 ] The person seeking authorization must sign an affidavit setting out the facts of the case in a full, frank, clear, and concise manner. [7] In reviewing the wiretap authorization, the trial judge’s role is limited to determining its lawfulness and he or she must not substitute his or her opinion for that of the authorizing judge. [8] To accomplish this task, the judge must ask “simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have [been] issued”. [9] This explains why the trial judge may confirm an authorization even if it contains incorrect information, as this Court explained in Aurélius v.

R. : [10] [ translation ] [28] Secondly, the affidavit must be reliable. It must not be an attempt to mislead. That said, it may contain an error; information set out in the affidavit may be erroneous, even deliberately misleading.

This will not necessarily have the effect of automatically vitiating the wiretap authorization if, after excluding the erroneous information or statement from the affidavit, it nevertheless satisfies the statutory conditions. [Citation omitted.] [ 25 ] Similarly, to challenge the lawfulness of a wiretap authorization and to cross-examine the affiant, “[a] basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as for example the existence of reasonable and probable grounds.” [11] [ 26 ] With respect to information provided by an informant, Charron J. in R. v .

Pires ; R. v. Lising , [12] stated the following: 41 In some cases, the proposed cross-examination may be directed at the credibility or reliability of an informant. However, cross- examination that can do no more than show that some of the information relied upon by the affiant is false is not likely to be useful unless it can also support the inference that the affiant knew or ought to have known that it was false. We must not lose sight of the fact that the wiretap authorization is an investigatory tool.

At that stage, a reasonable belief in the existence of the requisite statutory grounds will suffice for the granting of an authorization. Upon further investigation, the grounds relied upon in support of the authorization may prove to be false. That fact does not retroactively invalidate what was an otherwise valid authorization. [Emphasis added.] [ 27 ] Finally, an appellate court must show deference to the judge’s decision to authorize the cross-examination of the affiant or not. Charron J. reiterated this principle in the following terms: [13]

46 On reviewing a trial judge’s decision to permit or deny leave to cross-examine, an appellate court is not entitled to simply substitute its view for that of the trial judge. The trial judge’s determination of whether the proposed cross-examination is reasonably likely to elicit evidence of probative value to the issues for consideration involves an exercise of discretion. The trial judge is in a better position to assess the material, the submissions of counsel and the evidence, if any, in the context of the particular voir dire and trial.

The need for a deferential standard of appellate review was recognized in Garofoli . Sopinka J. stated that “[t]he discretion of the trial judge should not be interfered with on appeal except in cases in which it has not been judicially exercised” (p. 1465). 47 This deferential standard is important. If not adhered to, trial judges, out of an abundance of caution, are likely to embark upon many unnecessary hearings rather than risk vitiating an entire trial.

The trial court’s power to control the proceedings then becomes more illusory than real and, in the context of a Garofoli hearing, the very purpose of the leave requirement is defeated. [ 28 ] Applied to the case at bar, these principles elicit the following comments. [ 29 ] The appellant seeks to cross-examine the affiant in regard to the information according to which his co-accused, Gaétan D'Amours, purchased his drug supply from one Martin Belhumeur, from the Montreal area.

According to the appellant, this information is not credible since, if it was, the officers would have included Martin Belhumeur in the list of persons targeted by the wiretap, which they did not do. Moreover, according to the appellant, if this information is unreliable, it is possible to conclude that other information is also unreliable. [ 30 ] It is worth repeating at the outset that the major investigation that served as the backdrop to the wiretap authorization sought to dismantle a drug-trafficking ring operating in the Rimouski area.

In all, thirty-two persons were targeted, twenty-nine of whom were from the Rimouski area. A priori , it is not surprising that Martin Belhumeur, who is from Montreal, was not placed under electronic surveillance. [ 31 ] Moreover, there were three sources who alleged that Gaétan D'Amours purchased his supply from Martin Belhumeur.

Paragraphs 4.47, 4.52 and 4.115 of the affidavit state this as follows: [ translation] 4.47 MEETING WITH SOURCE “M” ON MAY 10, 2006 On May 10, 2006, Sergeants Mario Ducasse and Jean-Guy Cyr, both detectives with the Rimouski BRE (BSLGIM), met with the source identified as “M” for the purposes of the present affidavit. During this meeting, “M” gave them information that can be summarized as follows: - Martin Belhumeur controls the Montréal-Nord, Repentigny, and Pointe-aux-Trembles areas.

He runs a drug laboratory that makes pills and he distributes cocaine. - His telephone number is (514) .... - Martin Belhumeur supplies Gaétan D'Amours , Sébastien Hudon , and Pierre Ross . - Belhumeur’s uses his brothers to transport the drugs to Rimouski and New-Brunswick. - Pierre Ross took over the sale of cocaine from Gino Bérubé, who was caught in Montreal with a substantial quantity of cocaine. Note: - The telephone number (514) ... is a cellular phone number belonging to Martin Belhumeur of Pointe-aux-Trembles (reference to paragraph 4.161).

Around May 11, 2006, I reviewed this source meeting report. 4.52 MEETING WITH SOURCE “K” ON MAY 18, 2006 On May 18, 2006, accompanied by Sergeant Mario Ducasse, detective with the Rimouski BRE (BSLGIM), I met with source “K”, who gave us information that can be summarized as follows: - Martin Belhumeur is the supplier of Gaétan D'Amours , who in turn supplies Sébastien Hudon and Pierre Ross . The drugs are delivered to Rimouski for Ross and Hudon , but Gaétan D'Amours takes a cut of their sales. Gaétan D'Amours still lives in the Quebec City area.

Note: - Gaétan D'Amours was observed in Lévis on December 1, 2006 (reference to paragraph 4.129). 4.115 MEETING WITH SOURCE “G” ON OCTOBER 23, 2006 On October 23, 2006, Sergeants Mario Ducasse and Stéphane Paquet, both detectives with the Rimouski BRE (BSLGIM), met with source “G”, who gave them information that can be summarized as follows:

- Stéphane Hudon has two telephone numbers, i.e., cellular phone number ... and .... - Sébastien Hudon gets his supplies from Gaétan D'Amours of Quebec City. Rino Bédard is D'Amours’ runner. He uses a red van to go to Rimouski. Bédard’s ( Rino Bédard ) cellular phone number is (418) .... - Pierre Ross also gets cocaine from Gaétan D'Amours . Ross picks it up, or Rino Bédard delivers it to him. - Gaétan D'Amours’ supplier’s name is “Belhumeur” (Martin Belhumeur) from Montreal. “ Vinny ” ( Vincent Proulx ) has his girlfriend, Martine Tousignant, hide the drugs. She hides them in her school bag.

Her telephone number is .... “ Vinny ” uses this number to contact dealers. Notes: - Confirmation of telephone numbers (reference to paragraph 4.161): - (418) ... is listed under the name of Mario Leclerc of Rimouski. - (418) ... is listed under the name of Stéphane Hudon , ... in Rimouski. - (418) ... is listed under the name of Gaétan Gagné, ... in Lévis. This was the known address of Gaétan D'Amours . - (418) ... is listed under the name of Martine Tousignant of Rimouski.

On November 3, 2006, I reviewed the source meeting report. [ 32 ] Likewise, much of the information provided by these sources is congruent with and confirms information provided by other sources. [ 33 ] On the whole, the affidavit thus provided reasonable and probable grounds to believe that a drug ring was operating in the Rimouski area. Even if we were to treat sources M, K, and G as unreliable, which is not the case, fourteen other sources corroborated each other on several points.

In short, there were sufficient elements to permit the issuing judge to authorize the wiretap, and absent the demonstration that the cross-examination of the affiant would have raised doubts as to the preconditions for the authorization, the trial judge was justified in denying this application. The second ground of appeal is therefore dismissed. Hearsay and appendices not signed nor given under oath [ 34 ] The appellant claims that the wiretap evidence should be excluded because the affidavit filed in support of the application for authorization contains double and even triple hearsay.

According to the appellant, all the officers who received confidential information from the various sources should have submitted an affidavit. [ 35 ] Along the same lines, the appellant argues that the appendices, which are not signed, contain boilerplate wording that does not permit proper assessment of the credibility of the sources.

Moreover, he argues that the affiant became aware of some of the information long after it was given. [ 36 ] The trial judge dismissed the appellant’s arguments in the following terms: [ translation ] [17] The attesting officer, Fillion, is one of the principal detectives on this case. At the time he signed the affidavit, he had been involved in the investigation for two years. During the investigation, between January 2005 and September 2006, he personally met with nine of the seventeen police informants.

Much of the information obtained from the informants that he met with is corroborated by other informants. [18] Moreover, the attesting officer, Fillion, personally participated in the surveillance and searches conducted over the course of the investigation. [19] Even if information from some of the informants came to him several months after their meetings with their handlers, they remain relevant and reliable since they were continuously updated. [20] In addition to having met with several of the informants, Officer Fillion was in regular contact with the officers in charge of their handling. [21] Consequently, Officer Fillion had sufficient knowledge of the facts at issue to attest to the reliability of the information contained in the affidavit. [ 37 ] This approach is entirely consistent with the state of the law on this issue. [ 38 ] Hearsay is permissible when the affiant presents reasonable grounds to believe that the wiretap authorization will be fruitful. [14] At this stage, we must not forget the fact that the wiretap authorization is merely an investigatory tool and is not subject to the rules governing the presentation of evidence at trial. [15] [ 39 ] Moreover, it is in practice impossible for one police officer to be aware of all the information necessary to obtain a wiretap authorization, particularly when lengthy and complex investigations of the activities of criminal organizations are at issue, as is the case here.

[ 40 ] In spite of all of this, the appellant argues that each officer should have filed an affidavit attesting to the credibility of the information provided by the informants. While this may be desirable, there is no such legal requirement, as LeBel J. noted in R. v . Araujo : [16] 48 Finally, while there is no legal requirement for it, those gathering affidavit material should give consideration to obtaining affidavits directly from those with the best firsthand knowledge of the facts set out therein, like the police officers carrying on the criminal investigation or handling the informers.

This would strengthen the material by making it more reliable. In the present case, it might have prevented this case from turning into the mess it is now, still in appeal, after years of litigation on preliminary matters, without any final judgment on the guilt or innocence of the appellants. [ 41 ] The impugned affidavit is that of one of the principal detectives on the case. In this regard, a reading of paragraph 4.1 indicates that the affiant is an experienced detective who has worked in the Rimouski area since 1981, and since 1998 as a detective.

Since 2004, he has been assigned exclusively to narcotics investigations with the Regional Investigation Office in Rimouski and personally knows several of the individuals targeted by the investigation. [ 42 ] The affidavit also reveals that on fifteen occasions, the affiant met with one or another of sources A, B, C, E, F, H, K, O, and Q. He thus had personal contact with nine of the seventeen informants.

Further, the affidavit refers to several observations, surveillances, and inquiries made in the file by the affiant, who was directly involved in and regularly informed of the progress of the police investigation. Surely he is one of “those with the best firsthand knowledge of the facts” in the sense contemplated by LeBel J. in R. v. Araujo . [17] [ 43 ] This Court recently ruled on the status of an affiant who was not the principal detective on the case.

It concluded that he was nevertheless fully aware of all the details of the case and could act as the affiant for the purposes of the wiretap authorization: [18] [ translation ] [31] A complex investigation involves several police officers. Some may be assigned to surveillance; some may act as double agents, while others may be assigned to work with informants. Often, especially in cases concerning criminal groups specialized in drug trafficking, police officers who have become experts in the activities, customs, practices, jargon, and modus operandi of gangs are used.

The squad put together for a long and sensitive investigation is made up of a large number of men and women whose roles are different but complimentary to each other. This is the case here. The task of Officer Pelletier was to gather and organize all the information obtained from the various sources. To do so, as noted above, he had access to all the reports and detectives. He attended the debriefing sessions. He insisted that the officers handling the informants disclose both the positive and negative factors affecting the reliability of the information they provided.

He consulted the SPVM’s expert as well as an attorney. This is how he was able to support his affidavit. Finally, his affidavit was supplemented by two additional statements, that of the director of the police operation and that of the expert Gauthier. [ 44 ] In the same judgment, the Court then examined the issue of the reliability of informants in the situation where the affiant had not personally met with all of them but obtained an assessment of their reliability from the detectives, a situation similar to the present case.

The Court noted that in such circumstances, the judge from whom wiretap authorization is sought is in a position to assess the credibility of the informants: [19] [ translation ] [45] Officer Pelletier did not meet with each informant. He nevertheless insisted that every detective provide an assessment of the reliability of the informant that he or she was handling.

He obtained a written report on the informants identified as A, B, D, E, F, and I, and a verbal report on the informants identified as C, G, and H. [46] This assessment was noted in the affidavit, such that Desbiens J., who was seized of the application for wiretap authorization, was aware of the positive and negative factors affecting the credibility of each informant, in particular the level of detail of the information provided, the informant’s role in the milieu in which he or she operated, cooperation in other investigations, the relevance and significance of the information provided on these other occasions, remuneration, if any, and prior criminal record.

He was thus able to assess the reliability of the information provided by the nine informants. [47] Moreover, the parallel examination of the facts set out in the affidavit and certain information provided by the informants revealed confirming facts. ... [ 45 ] To conclude, the affidavit presented in this case was sufficient to establish the reliability of the information submitted.

In regard to the fact that the appendices were not signed, the trial judge correctly relied on a judgment of the Ontario Superior Court of Justice according to which “[t]he appendices to the affidavit are an integral part of it”. [20] The trial judge committed no error in ruling as follows: [ translation ] [9] While in some cases it may be desirable that the appendices to an affidavit be signed and sworn, the Court finds that in the present case, the appendices are an integral part of the affidavit signed by Officer Fillion and the information contained therein could be considered in the same manner as the other allegations in the affidavit. [ 46 ] This third ground of appeal is therefore also dismissed.

The multiple convictions [ 47 ] The appellant argues that count 1 (conspiracy to traffic in cocaine and methamphetamine) and count 3 (conspiracy to possess the proceeds of crime) concern the commission of one and the same indictable offence since the conspiracy to traffic necessarily

involves the conspiracy to possess the proceeds derived from trafficking. Consequently, in accordance with the principles established inR. v. Kienapple[21] against double jeopardy, a stay of proceedings should be ordered with respect to count 8. [48] Chamberland J.A. in Cazzetta v. R.[22] discussed the scope of this principle in the following terms: [translation] [36] In Kienapple, and later in R. v. Prince, (SCC), [1986] 2 S.C.R. 480, and R. v. Wigman, (SCC),[1987] 1 S.C.R. 246, the Supreme Court set out the principle precluding multiple convictions in respect of a single criminal act.

TheCourt acknowledges therein that the test for the application of the rule must be framed not in terms of whether the offences charged arethe same offences or included offences, but in terms of whether the same cause, matter, or delict is the foundation for both charges (R. v.Prince, supra at 490).

For the rule to apply, there must be a factual nexus between the offences charged (they must arise from the sameact) and a sufficient legal nexus (for example, hunting out of season and hunting at night with lights do not have a sufficient legal nexusto give rise to the application of the rule against multiple convictions even if both charges arise out of the same hunting expedition) (R. v.Prince, supra at 491–494; McKinney v. The Queen, (SCC), [1980] 1 S.C.R. 401). … [38] In R. v.

Khouri (1995), (SK CA), 97 C.C.C. (3d) 223, the Saskatchewan Court of Appeal ruled that theoffence of possession of the proceeds of trafficking and the offence of trafficking under the Controlled Drugs and Substances Act did nothave an sufficient legal nexus as the receipt of payment or other consideration is not an essential element of the second offence (see alsoto the same effect, R. v. Falahatchian (1995), (ON CA), 99 C.C.C. (3d) 420 at 433–434 (Ont. C.A.) and R. v.Garoufalis (1998), (MB CA), 131 C.C.C. (3d) 242 at 247 (Man.

C.A.). [39] I agree, and I find that the same reasoning applies as between the offence of trafficking in cocaine and that of possession ofproperty obtained by crime contemplated by

section 354 Cr. C. [Emphasis added.] [49] It is apparent from this extract of Chamberland J.A.’s reasons that the payment or transfer of money is not required for theoffence of drug trafficking, an observation that the Court of Appeal for Ontario also made in R. v. Falahatchian:[23] 38 Once a prohibited drug is delivered or given to another person, the offence of trafficking is proven. The receipt of money is not anelement of the offence of trafficking: R. v. Lauze (1980), (QC CA), 17 C.R. (3d) 90 (Que. C.A.); R. v. Khouri (1995),a decision of the Saskatchewan Court of Appeal, March 29, 1995.

When Falahatchian gave the heroin to Akbari, the offence oftrafficking was complete. [Emphasis added.] [50] This is logical, as on close analysis, it is often the case that the drug trafficking and the payment occur at separate moments intime. This is indeed what happened in the case at bar in regard to event 7, which the judge discusses at paragraphs 39 to 43 of hisjudgment.

The traffickers conspired on April 2, 2007, the cocaine was delivered on April 3, and the appellant was paid on April 4. [51] The conspiracy to traffic in drugs and the conspiracy to possess the proceeds of crime are thus two separate offences eventhough they may arise out of the same set of facts. Also, the principle precluding multiple convictions for the same criminal act is notapplicable here. [52] The appellant’s fourth ground of appeal is dismissed, and consequently, the appeal of his conviction is dismissed as well.

The sentence [53] On March 24, 2009, the trial judge convicted the appellant on the four counts set out at the beginning of this judgment. [54] In a judgment rendered from the bench on May 19, 2009, and in writing on June 3, 2009, the judge sentenced the appellant to aterm of imprisonment of nine years, from which was subtracted the nineteen months that he spent in pre-sentence custody, countedtwice. The appellant’s total prison sentence is seventy months. [55] It is worth repeating the facts noted by the trial judge for the purposes of sentencing the appellant.

He wrote the following atparagraphs 2 to 9 of his judgment: [translation] [2] The accused were arrested in 2007 in the context of a long police investigation referred to as “Project Bordures” intended todismantle a drug-trafficking ring operating in the Rimouski area. [3] The evidence accepted by the Court at trial revealed that between February and May 2007, there were two drug rings sellingcocaine and other drugs operating in the Rimouski area.

One was led by Sébastien Hudon and the other was led by Pierre Ross. [4] Hudon and Ross obtained most of their supply from the accused Gaétan D'Amours of Lévis, who obtained his supply in theMontreal area from the accused Louis-Philippe Lacas, as well as from Mario Boisvert and Dany Cook. The drugs at issue in thetransactions between Lacas and D’Amours were delivered by the accused Barrais. [5] The criminal organization in which the accused were involved was in reality a group of individuals who had businessrelationships for the purpose of drug trafficking.

While the trafficking transactions were planned and carried out in a similar manner,there is nothing to suggest that the accused belonged to a structured and hierarchical criminal organization.

[6] The accused D'Amours acted somewhat like a broker. He took care of finding cocaine in Montreal to supply the traffickers inRimouski. He would buy cocaine by the kilogram in Montreal and immediately resell it to the traffickers in Rimouski. Delivery inRimouski was usually carried out by people working for him. [7] The evidence indicates that between February and May 2007, the accused D'Amours purchased and resold at least ten kilogramsof cocaine at a price ranging from $31,000 to $36,000 per kilo.

During the same period of time, he also sold methamphetamine, LSD,and six and a half pounds of cannabis destined for Pierre Ross. [8] The evidence reveals that between February and April of 2007, the accused Lacas sold at least five kilograms of cocaine to theaccused D'Amours and that he had access to a significant quantity of cocaine. He also sold 1,000 methamphetamine tablets to D'Amours. [9] In regard to the accused Barrais, the evidence indicates that he acted as the delivery man for the accused Lacas.

BetweenFebruary and April of 2007, he participated in the traffic of three kilograms of cocaine. [56] The appellant challenges the judgment on sentencing on the grounds that the sentence imposed on him is unreasonable as it fallsoutside the range of sentences imposed for similar crimes and is contrary to the principle of parity in sentencing. [57] It is a truism to state that an appellate court must show deference and should vary a sentence only if it is clearly unreasonable.LeBel J. stated the following on this issue in R. v.

L.M.:[24] [14] In its past decisions, this Court has established that appellate courts must show great deference in reviewing decisions of trialjudges where appeals against sentence are concerned. An appellate court may not vary a sentence simply because it would have ordereda different one. The court must be “convinced it is not fit”, that is, “that . . . the sentence [is] clearly unreasonable” (R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, at para. 46, quoted in R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, atpara. 15). This Court also made the following comment in R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 90: . . . absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appealshould only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. (See also R. v. W. (G.), (SCC), [1999] 3 S.C.R. 597, at para. 19; A. Manson, The Law of Sentencing (2001), at p. 359;and F.

Dadour, De la détermination de la peine: principes et applications (2007), at p. 298.) [15] Owing to the profoundly contextual nature of the sentencing process, in which the trier of fact has broad discretion, the standardof review to be applied by an appellate court is one based on deference. The sentencing judge has “served on the front lines of ourcriminal justice system” and possesses unique qualifications in terms of experience and the ability to assess the submissions of theCrown and the offender (M. (C.A.), at para. 91).

In sum, in the case at bar, the Court of Appeal was required — for practical reasons,since the trier of fact was in the best position to determine the appropriate sentence for L.M. — to show deference to the sentenceimposed by the trial judge. … [17] Far from being an exact science or an inflexible predetermined procedure, sentencing is primarily a matter for the trial judge’scompetence and expertise. The trial judge enjoys considerable discretion because of the individualized nature of the process (s. 718.1Cr. C.; R. v. Johnson, [2003] 2 S.C.R. 357, 2003 SCC 46, at para. 22; R. v.

Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5, at para. 82). Toarrive at an appropriate sentence in light of the complexity of the factors related to the nature of the offence and the personalcharacteristics of the offender, the judge must weigh the normative principles set out by Parliament in the Criminal Code: - the objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgmentof and reparations for the harm they have done (s. 718 Cr.

C.) (see Appendix); - the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender (s. 718.1 Cr. C.); and - the principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that asentence should be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identifiedand that available sanctions other than imprisonment should be considered (s. 718.2 Cr.

C.). [58] The principle of parity in sentencing must yield to the principle of deference for the trial judge’s exercise of discretion unlessthe sentence is vitiated by an error in principle or is clearly unreasonable.[25] [59] What is the situation in the case at bar? [60] The trial judge concluded that there were no mitigating factors. He was perfectly right. [61] On the contrary, the evidence reveals several aggravating factors. First of all, it appears that the appellant is a very activetrafficker who is able to supply large quantities of cocaine.

In this regard, he had established relationships with major drug traffickers.Over a two-month period, he supplied five kilos of cocaine and 1,000 methamphetamine tablets to his co-accused, Gaétan D'Amours. [62] Moreover, the appellant has prior drug convictions. His most recent conviction earning him forty-two months’ detention. Hewas, for that matter, on parole from this sentence at the time of his arrest on October 16, 2007.

He therefore displays no indication ofrehabilitation or remorse. [63] The appellant argues, however, that there is too great of a discrepancy between the sentences imposed in the District ofMontreal and the districts of eastern Quebec, such that the sentence imposed on him infringes the principle of parity in sentencing.

[ 64 ] The exercise in which the appellant is engaged, with supporting case law, is hardly conclusive insofar as it fails to consider the trial judge’s familiarity with the milieu, a problem that this Court discussed in Pelletier v.

R. : [26] [ translation ] [3] In such matters, we must not overlook the fact that the trial judge presides in the community that has suffered the consequences of the crimes and will have a strong sense of the particular blend of sentencing goals that will be just and appropriate for the protection of that community. [ 65 ] Owing to the very nature of an individualized sentencing process, sentences imposed for offences of the same type will not always be identical. [27] [ 66 ] In the present case, the trial judge, after considering the case law in light of the sentencing principles set out at

section 718 and following of the Criminal Code and

section 10 of the Controlled Drugs and Substances Act , [28] concluded that a nine-year penitentiary sentence was appropriate.

The appellant has not demonstrated that the sentence imposed is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes. [29] [ 67 ] Moreover, a review of the case law indicates that for offences similar to that committed by the appellant, the range of sentences varies from three to twelve years, with the majority falling between six and ten years. [30] The total sentence imposed on the appellant is thus situated at the higher end of the range but does not exceed it. [ 68 ] On the whole, the Court is of the view that the appellant’s appeal of his sentence should also be dismissed.

FOR THESE REASONS, THE COURT: [ 69 ] DISMISSES the appeal against the conviction; [ 70 ] GRANTS the motion for leave to appeal the sentence; [ 71 ] DISMISSES the appeal against the sentence. JULIE DUTIL, J.A. LORNE GIROUX, J.A. JEAN BOUCHARD, J.A. Mtre Marcel Guérin For the appellant Mtre Jacques Casgrain Mtre Sandra Blanchard Criminal and penal prosecutors For the respondent Date of hearing: June 7, 2011