2019 QCCA 539, 2019 QCCA 539

Steele Morin c. R. 2019 QCCA 539 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL N o : 500-10-006704-181 (500-01-102977-144) MINUTES OF THE HEARING DATE : March 1, 2019 CORAM : THE HONOURABLE NICHOLAS KASIRER, J.A. ROBERT M. MAINVILLE, J.A. JOCELYN F. RANCOURT, J.A. PETITIONER COUNSEL PHILIPPE STEELE MORIN Mtre ALAN GUTTMAN Mtre ANNIE GIGUÈRE-DERAPS (Guttman & Marier) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre MARIANNA FERRARO (Directeur des poursuites criminelles et pénales) Motion for leave to appeal from a judgment rendered on March 13, 2018, the reasons of which revised on July 10, 2018 by the Honourable Justice Pierre Labrie of the Superior Court, District of Montreal.

DESCRIPTION : Sentence – Referred motion for leave to appeal. Clerk : Mihary Andrianaivo Courtroom : Antonio-Lamer HEARING 9:32 Start of the hearing. Exchanges between the Court and Mtre Alan Guttman. 9:53 Submissions by Mtre Marianna Ferraro. 10:18 Rebuttal by Mtre Guttman. 10:20 Recess. 10:27 Resumption of the hearing. BY THE COURT : Unanimous judgment read out by the Honourable Justice Nicholas Kasirer, J.A. – See page 3. End of the hearing. Mihary Andrianaivo Clerk BY THE COURT JUDGMENT [ 1 ] For reasons to be deposited forthwith, the Court: [ 2 ] GRANTS the motion for leave to appeal; [ 3 ] DISMISSES the appeal. NICHOLAS KASIRER, J.A.

ROBERT M. MAINVILLE, J .A. JOCELYN F. RANCOURT, J.A. Steele Morin c. R. 2019 QCCA 539 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006704-181 (500-01-102977-144) DATE: MARCH 1, 2019 CORAM: THE HONOURABLE NICHOLAS KASIRER, J.A. ROBERT M. MAINVILLE, J.A. JOCELYN F. RANCOURT, J.A. PHILIPPE STEELE MORIN APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Crown Prosecutor REASONS FOR THE JUDGMENT RENDERED AT THE HEARING OF MARCH 1, 2019 [1] Philippe Steele Morin seeks leave to appeal from a judgment of the Superior Court, District of Montreal (the Honourable Mr.

Justice Pierre Labrie), rendered on March 13, 2018, which imposed on him a sentence of 11 years imprisonment on a count of manslaughter and three years imprisonment, to be served consecutively, on a count of interference with a dead human body. [1] From this total term of imprisonment of 14 years, the judge deducted an amount for time served in pre-sentence custody. [2] The petitioner entered a guilty plea for each of the two counts prior to sentencing. The parties tendered an agreed statement of facts at the sentencing hearing which is annexed to the judgment in appeal.

The sentencing hearing itself lasted two days during which time the petitioner and others testified and victims’ impact statements were read into the record. [3] It may be noted that the Rules of the Court of Appeal of Quebec in Criminal Matters [2] provide that the parties may agree to a joint statement of facts in place of transcripts of depositions. While the joint statement of facts relating to the guilty plea was filed here, it does not extend to the evidence adduced at the sentencing hearing.

The appellant did not produce transcripts from the hearing on sentence. [3] In his reasons for judgment on sentence, the judge referred to the agreed statement of facts, but also observed that he considered “all the evidence made at the sentencing hearing” in arriving at a fit sentence (para. [136]). In his analysis of the petitioner’s role in the commission of the offences, he also explicitly averted to the petitioner’s account of the relevant events at the sentencing hearing and took that account into consideration in determining the fit sentence (para. [131]).

The petitioner’s choice not to include this additional testimonial evidence compromises his ability to show that the judge committed a reviewable error insofar as the Court is bound to accept the facts as stated by the sentencing judge in his reasons. [4] ***

[ 4 ] In support of his motion for leave and, if the motion is granted, of the appeal, the petitioner raises three questions: first , he alleges that the total sentence of 14 years imprisonment is unreasonably excessive, in particular because of double counting of the aggravating circumstance of post-offence conduct; second , that the judge erred by requiring that the sentence for interference with the body be served consecutively to any other sentence, notwithstanding the fact that the offences were committed in a single transaction; and, third , that the three-year sentence on that interference offence was manifestly unfit when compared to comparable decisions in the case law. [ 5 ] The method that sentencing judges are generally required to follow when imposing a total sentence for multiple convictions in a single judgment was helpfully explained by Vauclair, J.A., writing for the Court in R. v.

Guerrero Silva [5] : [55] […] l’approche à privilégier en présence d’infractions multiples, surtout lorsque les parties ne s’entendent pas et que les accusations émanent d’événements distincts, est de fixer les peines pour chacune des infractions, de décider si elles doivent être concurrentes ou consécutives et enfin, dans ce dernier cas, de déterminer si le tout enfreint les règles de la totalité ( art. 718.2c) C.cr .) et de la proportionnalité ( art. 718.1 C.cr .). Des ajustements sont alors possibles pour obtenir la peine appropriée dans un cas donné.

Certes, le juge peut d’abord déterminer la peine globale pour ensuite la répartir entre les différentes infractions.

À la limite, l’exercice est le même, bien que la première approche, en s’attardant à chaque infraction individuellement, semble permettre une meilleure corrélation entre, d’une part, la peine et, d’autre part, le crime et le criminel. [ 6 ] An overly formalistic approach to the matter is, of course, to be avoided, but as this Court recalled in Desjardins , [6] where a sentencing judge imposes a total sentence without first having ascertained the appropriated sentences of each of the multiple offences in play, and the concurrent or consecutive character of those sentences, there is a meaningful risk of a distortion in the total sentence imposed. [ 7 ] The appellant’s three grounds of appeal can best be treated by following the method proposed in Guerrero Silva and Desjardins . *** I Is the three-year sentence imposed for the offence of interference with a dead human body unfit in the circumstances? [ 8 ] The petitioner submits that the three-year sentence of imprisonment for this offence is manifestly unreasonable and excessive.

Noting that the maximum sentence is fixed by Parliament at five years in

section 182 (

b) Cr.C ., he cites decided cases where courts in comparable or even more serious circumstances have imposed lesser sentences. This suggests to the petitioner that the judge erred and that the term for this count must be shortened on appeal. [ 9 ] This ground of appeal is without merit. [ 10 ] The Court owes deference to the sentencing judge’s exercise of the inherently discretionary power to fix the term of this sentence.

Deference is required, in particular, in light of the fact that the judge heard evidence from the offender relating to the interference with the body at the sentencing hearing first-hand and that he had the advantage of hearing other testimony, including the reading of the victims’ impact statements by the persons concerned. [7] Nothing would suggest that the sentencing judge committed a reviewable error in sentencing the petitioner to three years imprisonment for this offence on the basis of the applicable standard: it has not been shown that he committed an error of law or an error in principle that had an impact on the sentence, nor has it been shown that the sentence imposed is demonstrably unfit. [8] [ 11 ] Parliament has underscored the seriousness of interference with a dead human body in s. 182(

b) in treating it as a purely indictable offence with a maximum five-year term. [9] The petitioner has not indicated that the sentence imposed falls outside of range generally imposed. The decision in R. v. LaFantaisie [10] that he proposes as a guide is of little assistance here given that the six-month sentence imposed in that case reflected different circumstances.

The offender in LaFantaisie , contrary to the case at bar, committed the offence almost immediately following the unlawful act of manslaughter; he made no attempt to conceal the body; he turned himself in to the police and confessed both crimes in a relatively short time.

It may be recalled that the petitioner here decided to hide the victim’s body in order to evade responsibility for the act causing death; he put in place an elaborate plan for disposing of the body; he executed the plan, with the help of others, over a period of several days and transported the body from Montreal to Ontario; he abandoned the body in particularly egregious manner on two separate occasions; and the body bore significant marks of interference after death. His guilty plea came well after committing the offence, following a period of hiding from the authorities.

LaFantaisie is not a useful guide given the more serious character of the conduct in this case. [ 12 ] It is true that in Daigle , [11] cited by the petitioner as a supposedly more serious instance where a sentence of only two years was imposed, the offender mutilated the dead body whereas that did not occur here. Indeed, while the petitioner in our case admitted that he initially planned to cut up the victim’s body and dispose of the remains in a river or by fire, he did not act on that intention.

But the mere fact that the petitioner has identified a Superior Court case in which a lesser sentence was imposed in serious but different circumstances does not, of course, signal that the sentencing judge made a reviewable error. The manner in which the judge weighed aggravating and mitigating factors indicates that he exercised his discretion to individualize this sentence, taking into account aspects of the petitioner’s prior record of violence and the fact that he committed the offence while on probation and while fleeing justice on other matters.

In both Daigle and this case, sentencing judges were charged with the inherently discretionary task of individualizing the sentences based on the evidence before them. The fact that the body was mutilated in Daigle is not, on its own, a factor that decides seriousness in all cases of interference with a dead human body. The petitioner has failed to point to an error that would allow the Court to disturb the exercise of the judge's discretion in respect of the three-year sentence imposed here.

II Did the judge err in concluding that the sentences for the two offences must be served consecutively rather than concurrently? [ 13 ] The petitioner argues that the sentencing judge erred in ordering that the sentence for interference with a dead human body be served consecutively to the sentence for manslaughter. He contends that the two offences to which he pleaded guilty form part of a single

criminal transaction and, as such, that concurrent sentences should have been imposed. [ 14 ] This ground is also rejected. [ 15 ] It is true that the sentencing judge does not set out in explicit terms why he chose to exercise his discretion to impose consecutive sentences.

In fairness to him, this might well be because the petitioner appears not to have contested this point in first instance. [ 16 ] In that latter regard, the judge noted that the Crown proposed a sentence of 16 years composed of 12 years for the manslaughter count and 4 years for the count of interference with the dead body, the latter term to be served consecutively. In paragraph [109], the sentencing judge wrote that “[t]he Crown submits that a consecutive term of imprisonment on that last count is justified by the fact that the interference with the body took place over a period of three (3) days”.

He summarized the defence’s position as follows: [114] Counsel for Mr. Steele Morin submits that a total of ten (10) years of imprisonment should be imposed for the two (2) offences in this case. [115] He submits that it could be eight (8) or nine (9) years for the count of manslaughter plus one (1) or two (2) consecutive years for the count of interference with the victim’s body. [116] He also submits that it could be ten (10) years for the manslaughter and two (2) years to be served concurrently for the interference with the victim’s body. [117] Counsel for Mr.

Steele Morin agrees that a consecutive sentence could be imposed in this case for the interference with the body. [ 17 ] It does appear, as the respondent argues on appeal, that the petitioner conceded the point in first instance, which might explain why so little of the reasons for judgment are devoted to the matter of consecutive terms. But whether or not this is the case, the concise character of the reasons on this point in itself does not reflect a reviewable error, and the petitioner himself does not formally allege that the reasons are insufficient.

Indeed when the judgment is read as a whole, his reasons for ordering consecutive sentences are sufficiently plain: he agreed with the Crown’s submission that the two offences concerned distinct criminal transactions. [ 18 ] That said, did the sentencing judge err in deciding that the convictions for manslaughter and for interference with the dead body should give rise to consecutive sentences? [ 19 ] The decision to impose consecutive as opposed to concurrent sentences is one that deserves deference on appeal. [12] This reflects the discretionary exercise that is at the core of the sentencing process where the judge at first instance is best placed to weigh the evidence relating to this aspect of the sentence. [13] [ 20 ] No reviewable error on this standard has been shown. [ 21 ] The law relating to when sentences should be consecutive or concurrent is well-known.

Section 718.3(4) (b)(

i) Cr.C . provides that terms of imprisonment imposed at the same time for more than one offence may be imposed consecutively, including in circumstances when “the offences do not arise out of the same event or series of events / les infractions ne découlent pas des mêmes faits”.

Moreover, where offences speak to different socially-protected interests, subject to the considerations relating to the appropriateness of the total sentence and to its proportionality, consecutive sentences are often ordered. [14] In addition, where the nature and quality of the criminal acts, and the manner in which they were perpetrated, are different, consecutive sentences may be appropriate. [15] [ 22 ] It was reasonable for the judge to conclude that the conduct giving rise to the two offences constituted two separate criminal transactions.

The manslaughter took place during the early hours of the morning on January 17, 2014 when the offender and the victim were intoxicated. The interference with the body commenced at about 11:30 a.m. that morning when the offender woke and put in place the first steps of a plan to dispose of the body. The interference extended over a three-day period, punctuated by two separate principal events involving two other people who the offender had enlisted to help him.

While the offender may have panicked when he first realized the victim was dead, he certainly was not intoxicated over the period during which the interference was committed, and his panic did not preclude him from putting in place an elaborate plan to dispose of the body, first near a restaurant dumpster in Montreal with the help of one person and, on second thought, by transporting the remains days later to Ontario to be disposed of in an isolated wood with the help of another.

It involved a series of planned acts designed to hide the body in the process of which the offender treated the human remains with indignity quite distinct from the behaviour that gave rise to the manslaughter conviction and that took place days before, when he was intoxicated.

The two offences reflected a different purpose in the mind of the offender, in that the interference with the body was undertaken, according to the joint statement of facts, in order to evade criminal liability for the manslaughter. [ 23 ] The mere fact that the events giving rise to the two convictions were connected through the same victim, or that they occurred in succession, does not mean they are necessarily part of a single translation justifying concurrent sentences. [16] Temporally, and indeed in respect of the mental state of the offender, the two offences are not so closely linked as to be part of a continuum, and it was not unreasonable to hold that they did not constitute two parts of a single incident or transaction. [17] [ 24 ] All of the foregoing is clear from the joint statement of facts and in keeping with the facts as recounted in the judgment.

In any event, we do not have the benefit of the offender’s own evidence given at the sentencing hearing which might well be relevant to understanding the judge’s view of the facts relevant to this finding.

In sum, no error has been shown in the judge’s decision to agree with the Crown’s characterization of the interference count as partaking of a separate criminal transaction from that of the manslaughter by reason of the significant period of time that separated the two events. [ 25 ] While the judge did not mention this factor, the decision to order consecutive sentences finds further justification in the fact that the policy bases for the offences of manslaughter and interference with a dead human body are distinct. [18] Both offences protect society

against violent behaviour against the person. Manslaughter of course serves to potential victims themselves against violence; interference with the body serves to protect the dignity of human remains, where the immediate victims include other persons who are closely connected to the deceased such that interference causes them direct harm.

The criminalization of interference with human remains can also serve the purpose of preventing an accused from mishandling a body to hide the commission of a crime against the person of the victim, a purpose not directly relevant to the offence of manslaughter. [19] [ 26 ] These different policy purposes underlying offences of manslaughter and interference with the body support consecutive sentences allowing for distinct punishments for distinctly antisocial conduct.

In this sense, courts regularly punish the distinct crime of interference with a dead human body, as here, with a sentence consecutive to other crimes connected to the death itself. [20] [ 27 ] To conclude on this point, the finding that the sentence imposed for interference should be served consecutively to that for manslaughter cannot be disturbed on appeal.

III Did the judge err in imposing a total sentence of 14 years imprisonment? [ 28 ] The petitioner argues that the 14-year sentence, composed of 11 years for manslaughter and three years for interference, to be served consecutively, results in an unreasonably excessive total sentence that violates the principle of proportionality.

It may be recalled that he had proposed a total term of 10 years at sentencing, while the respondent had proposed 16 years. [ 29 ] Specifically, the petitioner argues that the judge was mistaken to consider his post offence conduct of interference with the victim’s remains as an aggravating factor for the manslaughter conviction while, at the same time, punishing him for the same conduct under s. 182 (

b) Cr.C . In the event, the petitioner says that amounts to a double punishment. [ 30 ] Did the sentencing judge impose a total sentence for manslaughter and interference, considered together and in light of the principle of proportionality, that was manifestly unfit in the circumstances? [ 31 ] The judge committed no error that would entitle this Court to disturb the total 14-year sentence. [ 32 ] Again on this point, the law is well-settled. The total sentence must be proportional ( s. 718.1 Cr.C . ) and, where consecutive sentences are imposed,

section 718.2 (

c) Cr.C . provides that the combined sentence should not be “unduly long or hard” (in French, an “excès de nature ou de durée”).

In so doing, a judge must ensure that the combined effect of the consecutive sentences “does not exceed the overall culpability of the offender”. [21] After the judge determines what the fit sentence is for each of the multiple offences, he or she must examine whether the total amount should be adjusted to ensure a fair correlation between, on the one hand, the sentence and, on the other, the crime and the person who committed it. [22] [ 33 ] This is precisely the method the judge sought to follow here.

Citing Guerrero Silva , the sentencing judge wrote: [127] When there are multiple offences, the Court should determine just and appropriate sentences for each of the offences, decide whether they should be served concurrently or consecutively and, in the case of consecutive sentences, determine whether the length of the sentences infringes the principles of totality and proportionality.

If need be, adjustments are possible in order to render an appropriate sentence in a given case. [ 34 ] Moreover, the judge’s consideration of post-offence conduct did not amount to a reviewable error. [ 35 ] In paragraph [132] of his reasons, the judge wrote that “[t]he post offence conduct of Mr. Steele Morin with respect to the interference with the victim’s body, including the planning to dispose of the body, the destruction of evidence and the fact that Mr. Steele Morin went into hiding” constituted an aggravating circumstance.

This observation was made in connection with comments made for both offences. [ 36 ] It is plain, as the judge indicated, that aspects of the petitioner’s post offence conduct were aggravating circumstances distinct from the essential elements of the offence of interference with the body as defined in the Criminal Code . These include the fact that he went into hiding after the body was discovered (para. 105 of the joint statement of the facts), and that he undertook acts to destroy the evidence. The latter includes: (

i) the direction to his spouse “to get rid of her cell phone” (para. 40 of the joint statement), (ii) the cleaning of the inside of the apartment of traces of his own blood (para. 62), and (iii) hiding the body (para. 97).

While it is not necessary to decide the point, other aspects of his post offence conduct that could be viewed as aggravating circumstances include the petitioner’s breaking into the victim’s apartment, his stealing of the victim’s car, and his encouragement of at least two other persons to participate in criminal activity to cover up the manslaughter. [ 37 ] By taking into account these aspects of the conduct following the manslaughter, the judge did not impose a total sentence that exceeded the petitioner’s moral culpability.

The considerations referred to by the judge were distinct from the definition of the crime of interference itself.

Had an essential element of interference been treated as an aggravating circumstance for the interference sentence, it could arguably have amounted to an instance of double punishment. [23] But it was not unfair to consider the hiding of the body, the destruction of evidence and the elaborate plan to dispose of the body with others as aggravating circumstances. [24] Moreover, in paragraph [119] of his reasons, the sentencing judge records that the petitioner conceded before him that the post offence conduct qualifies as an aggravating circumstance, but that he asked that it be taken into account that he acted out of panic. [ 38 ] One is hard pressed to think that this state of panic, which nevertheless did not preclude the petitioner from enlisting the help of several people in a complicated plan to dispose of the body, diminishes his moral culpability for the purposes of measuring the total sentence in any way. [ 39 ] The judge was thus entitled to consider the post offence conduct as aggravating factors for the sentence and nothing suggests that, in doing so, he wrongly exercised his discretion by taking them into account in a manner that resulted in an unduly harsh, excessive

or disproportionate sentence. [ 40 ] Lastly on this point, the imposition of an 11-year term for the manslaughter offence, whether viewed alone or in connection with the total sentence, cannot be disturbed on appeal.

It is well-settled law that Parliament sets a very wide range of sentences for manslaughter in order to provide the necessary discretion for judges to fix a just sentence in accordance with the widely varying forms of moral culpability that fall under the definition of the offence. [25] Moreover, the petitioner himself recognized, in his proposal to the judge of an eight or nine-year term for the manslaughter count, the seriousness of the offence as charged.

The judge noted the signs of violence on the victim’s body, who died from manual strangulation, as an aggravating circumstance, as well as her vulnerability in the circumstances. He mentioned too that the offences were committed while the petitioner was fleeing from justice and that he had a lengthy criminal record as further aggravating factors. The judge took special care to record, at length, the testimony connected to the victims’ impact statements adduced in evidence before him, a point which the petitioner fails to acknowledge in written argument.

In addition, the judge did not fail to consider the guilty plea, the absence of premeditation for manslaughter and the petitioner’s remorse as mitigating circumstances.

No basis for disturbing this aspect of the sentence has been shown. [ 41 ] All in all, with a view to the record as constituted and based on the strict standard of review applicable at this stage, no reviewable error has been shown in the decision to impose a total sentence of 14 years. [ 42 ] In short, all the grounds for appeal are without merit. [ 43 ] For the aforementioned reasons, the Court, at the hearing, granted the motion for leave to appeal and dismissed the appeal. NICHOLAS KASIRER, J.A. ROBERT M. MAINVILLE, J.A. JOCELYN F. RANCOURT, J.A.

Mtre Alan Guttman Mtre Annie Giguère-Deraps Guttman & Marier For Appellant Mtre Marianna Ferraro Directeur des poursuites criminelles et pénales For Respondent Date of hearing: March 1, 2019