2020 QCCA 282, 2020 QCCA 282

Barchichat c. R. 2020 QCCA 282 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007160-193 (500-01-126101-150) DATE: February 21, 2020 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. STEPHEN W. HAMILTON, J.A. STÉPHANE SANSFAÇON, J.A. MICKAEL ABRAHAM BARCHICHAT APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT * [ 1 ] The appellant appeals from a judgment rendered on September 5, 2019 by the Court of Québec, Criminal and Penal Division, District of Montreal (the Honourable Linda Despots), that convicted him on 4 counts of fraud and sentenced him to 22 months in prison. [ 2 ] For the reasons of Chief Justice Nicole Duval Hesler, with which Hamilton and Sansfaçon, JJ.A. concur, THE COURT: [ 3 ] ALLOWS the appeal; [ 4 ] SETS ASIDE the sentence imposed and REPLACES it with a conditional sentence of 22 months; and [ 5 ] RETURNS the matter to the trial judge so she can determine the conditions of the conditional sentence.

NICOLE DUVAL HESLER, C.J.Q. STEPHEN W. HAMILTON, J.A. STÉPHANE SANSFAÇON, J.A. Mtre Jonathan Gordon Mtre Victoria Nix BORO, FRIGON, GORDON, JONES For the appellant Mtre Louis Philippe Meek Baillot DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the respondent Date of hearing: January 24, 2020

REASONS OF THE CHIEF JUSTICE [ 6 ] The appellant, who was convicted on four counts of fraud over $5,000, complains that the trial judge, who sentenced him to 22 months of imprisonment, should have imposed a conditional sentence. [ 7 ] It is worth noting that the offences occurred between November 1, 2008 and August 4, 2010 and that the defrauded sums, totalling $104,500 and spread out among four groups of complainants, range from $5,200 to $70,000. At the time of the sentencing hearing, the appellant had reimbursed almost all of these sums, save for an amount of approximately $10,000. [ 8 ] In 1996, in the wake of the reform of

Part XXIII of the Criminal Code , the legislature introduced conditional sentences of imprisonment in order to find alternatives to incarceration. At the time, any offence that did not provide for a minimum sentence could be punished by way of a conditional sentence. Over the years, there were several legislative amendments in this area. From 2007 to 2012, which includes the relevant period in this case, s. 742.1 Cr.C . read as follows: 742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in

section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s compliance with the conditions imposed under

section 742.3. 742.1 S’il est convaincu que la mesure ne met pas en danger la sécurité de la collectivité et est conforme à l’objectif et aux principes énoncés aux articles 718 à 718.2, le tribunal peut ordonner à toute personne qui, d’une part, a été déclarée coupable d’une infraction autre qu’une infraction constituant des sévices graves à la personne au sens de l’article 752, qu’une infraction de terrorisme ou qu’une infraction d’organisation criminelle, chacune d’entre elles étant poursuivie par mise en accusation et passible d’une peine maximale d’emprisonnement de dix ans ou plus, ou qu’une infraction pour laquelle une peine minimale d’emprisonnement est prévue et, d’autre part, a été condamnée à un emprisonnement de moins de deux ans de purger sa peine dans la collectivité, sous réserve de l’observation des conditions qui lui sont imposées en application de l’article 742.3, afin que sa conduite puisse être surveillée. [ 9 ] In Proulx , the Supreme Court of Canada, in a judgment written by Lamer, C.J., established the analytical framework judges must apply when weighing the appropriateness of a conditional sentence in a given case: [1] [58] A similar approach should be used by Canadian courts.

Hence, a purposive

interpretation of s. 742.1(

a) does not dictate a rigid two-step approach in which the judge would first have to impose a term of imprisonment of a fixed duration and then decide if that fixed term of imprisonment can be served in the community. In my view, the requirement that the court must impose a sentence of imprisonment of less than two years can be fulfilled by a preliminary determination of the appropriate range of available sentences. Thus, the approach I suggest still requires the judge to proceed in two stages. However, the judge need not impose a term of imprisonment of a fixed duration at the first stage of the analysis. Rather, at this stage, the judge simply has to exclude two possibilities: (

a) probationary measures; and (

b) a penitentiary term. If either of these sentences is appropriate, then a conditional sentence should not be imposed. [59] In making this preliminary determination, the judge need only consider the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 to the extent necessary to narrow the range of sentence for the offender […] […] [60] …[T]the judge should then proceed to the second stage of the analysis: determining whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

Unlike the first stage, the principles of sentencing are now considered comprehensively. Further, it is at the second stage that the duration and venue of the sentence should be determined, and, if a conditional sentence, the conditions to be imposed. [ 10 ] Later in its judgment, the Supreme Court set out the principles that militate in favour of or against a conditional sentence. To do so, it focused on the underlying objectives of s. 742.1 Cr.C . and on the general sentencing principles outlined in s. 718 Cr.C .

The Court summarized its analysis as follows: [2] [113] In sum, in determining whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing, sentencing judges should consider which sentencing objectives figure most prominently in the factual circumstances of the particular case before them. Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration.

In determining whether restorative objectives can be satisfied in a particular case, the judge should consider the offender’s prospects of rehabilitation, including whether the offender has proposed a particular plan of rehabilitation; the availability of appropriate community service and treatment programs; whether the offender has acknowledged his or

her wrongdoing and expresses remorse; as well as the victim’s wishes as revealed by the victim impact statement (consideration of whichis now mandatory pursuant to s. 722 of the Code). This list is not exhaustive. [114] […A] conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives areof diminished importance. [115] Finally, it bears pointing out that a conditional sentence may be imposed even in circumstances where there are aggravatingcircumstances relating to the offence or the offender.

Aggravating circumstances will obviously increase the need for denunciation anddeterrence. However, it would be a mistake to rule out the possibility of a conditional sentence ab initio simply because aggravatingfactors are present. I repeat that each case must be considered individually. [116] Sentencing judges will frequently be confronted with situations in which some objectives militate in favour of a conditionalsentence, whereas others favour incarceration. In those cases, the trial judge will be called upon to weigh the various objectives infashioning a fit sentence. As La Forest J. stated in R. v.

Lyons, (SCC), [1987] 2 S.C.R. 309, at p. 329, “[i]n a rationalsystem of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the natureof the crime and the circumstances of the offender”. There is no easy test or formula that the judge can apply in weighing these factors.Much will depend on the good judgment and wisdom of sentencing judges, whom Parliament vested with considerable discretion inmaking these determinations pursuant to s. 718.3. [11] Courts must adequately weigh all sentencing objectives.

The objectives of deterrence and denunciation must be considered inlight of the circumstances of each case and cannot a priori exclude a sentencing choice solely due to the objective gravity of a crime. In ajudgment involving fraud perpetrated by an employee against an employer, Vauclair, J.A. stated:[3] [translation] [77] As for the objectives of denunciation and general deterrence, the legislature has not stated that these objectives must dominatethe penological response.

In stipulating that a breach of trust is an aggravating factor, the legislature wanted to draw the attention ofjudges to this circumstance, which continues to arise in a variety of contexts. [78] Moreover, courts should not attribute significant weight to those objectives for a given crime in order to exclude penologicalchoices that the legislature itself has not excluded. Courts cannot create starting points or mandatory minimums: R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R.206; R. v.

Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089. [12] Further on he added: [translation] [83] Moreover, I note that denunciation and general deterrence are nebulous objectives that can quickly lead to a disproportionatesentence if they are not weighed with care. Although this Court acknowledged their general usefulness, it has on more than one occasionnoted the uncertain and limited nature of the general deterrence objective: R. c. Paré, 2011 QCCA 2047; R. c. Brais, 2016 QCCA 356; R.c. Charbonneau, 2016 QCCA 1567. See also: R. v.

H. (C.N.) (2002), (ON CA), 170 C.C.C. (3d) 253, para. 35(C.A.O.); R. v. Biancofiore (1997), (ON CA), 119 C.C.C. (3d) 344, para. 23 (C.A.O.); R. v. Wismayer (1997), (ON CA), 115 C.C.C. (3d) 18, 36 (C.A.O.) and R. v. Lee, 2012 ABCA 17, para. 37 (opinion of Berger, J.A.). [84] I am well aware that deterrence is believed to be effective for embezzlement that requires thinking and planning. However, thisstatement must not cause us to lose sight of the specific facts of each case and each offender. The sentence must be informed by all thepenological objectives, not only some of them.

Only balancing of all the objectives will lead to a fit sentence. [Emphasis added.] [13] The appellant’s sentence must be individualized and proportional to his moral culpability.[4] The mitigating factors are alsorelevant in determining whether a sentence of imprisonment to be served in the community is appropriate. Indeed, in the present case, thejudge noted the following mitigating factors: the appellant’s family situation as well as the fact that he did not have a criminal record andthat he had repaid almost all of the defrauded sums.

To that, I would add the fact that he did not re-offend during the ten years followingthe end of the period of less than two years during which the offences were committed. [14] In the present case, a conditional sentence was permissible at the time the guilty verdict was rendered and at the time ofsentencing. The judge, however, concluded that a sentence of incarceration was required to satisfy the objectives of deterrence anddenunciation.

She seems to have been influenced by the fact that a conditional sentence is no longer available for fraud over $5,000 committed after November 20, 2012.[5] Be that as it may, she did not follow the approach proposed in Proulx, cited hereinabove. I willcome back to this later. [15]

Section 742.1 Cr.C. requires that a court analyze the following four criteria when imposing a conditional sentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.[6] [16] According to the Supreme Court, “the first three criteria are prerequisites to any conditional sentence”.[7] If these conditions

have been met, the court must then determine the appropriate sentence in light of the sentencing objectives and principles ( ss. 718 and 718.2 Cr.C . ). It must consider whether a conditional sentence is an appropriate sentence. On this point, the following excerpt from Proulx is unequivocal: 90. First, a consideration of ss. 718.2 (

d) and 718.2 (

e) leads me to the conclusion that serious consideration should be given to the imposition of a conditional sentence in all cases where the first three statutory prerequisites are satisfied. Sections 718.2 (

d) and 718.2 (

e) codify the important principle of restraint in sentencing and were specifically enacted, along with s. 742.1 , to help reduce the rate of incarceration in Canada.

Accordingly, it would be an error in principle not to consider the possibility of a conditional sentence seriously when the statutory prerequisites are met. […] [8] . [Emphasis in the original.] [ 17 ] In the present case, having acknowledged that, as a general rule, the objectives of deterrence and denunciation could be met with a conditional sentence and having determined that, based on general penological principles, the appropriate term of imprisonment should be 22 months, the judge did not consider the offender’s risk of re-offending if he were to serve his sentence in the community, nor did she consider whether the safety of the community would be endangered. [ 18 ] Yet, in Proulx , which I referred to at length above, Lamer, C.J. identified the two factors to be taken into consideration at this stage as being “(1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re- offence.” [9] [ 19 ] In the instant case, the risk of re-offending is virtually non-existent.

This is obvious from the fact that the offender did not have a criminal record prior to committing the crimes, that he did not re-offend since 2010 and that he made restitution of almost all the defrauded sums.

Moreover, the appellant is the father of five children, two of whom have health problems, a factor liable to influence the imposition of a term of incarceration versus a sentence to be served in the community. [ 20 ] With all due respect for the trial judge, whose decision is otherwise more than adequately substantiated, I am of the view that she erred in law by emphasizing deterrence and denunciation to such an extent that she did not follow the approach set out in Proulx to exclude a conditional sentence in the present case. [ 21 ] For these reasons, I would allow the appeal, set aside the sentence imposed and replace it with a conditional sentence of twenty- two months, and return the matter to the trial judge so she can determine the conditions of the conditional sentence.

NICOLE DUVAL HESLER, C.J.Q.