2017 QCCA 1286, 2017 QCCA 1286

O'Reilly c. R. 2017 QCCA 1286 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-005701-147 , 500-10-005612-146 (500-01-002508-080 SEC.ACC. 010) DATE: August 30, 2017 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. MARIE ST-PIERRE, J.A. ROBERT M. MAINVILLE, J.A. GÉRALD O’REILLY APPELANT – Accused v. HER MAJESTY THE QUEEN RESPONDANT – Prosecutrix JUDGMENT [ 1 ] In case number 500-10-005701-147, the appellant seeks leave to appeal the sentence imposed upon him July 2, 2014 by Judge Louise Bourdeau of the Court of Quebec, District of Montreal. [ 2 ] In case number 500-10-005612-146, the appellant seeks leave to appeal from (

a) an order imposing a fine in lieu of forfeiture issued on July 2, 2014 by Judge Louise Bourdeau and (

b) an order of forfeiture of offence-related property or proceeds of crime issued on July 3, 2014 by Judge Bourdeau. [ 3 ] For the reasons of Justice Mainville, with which Justices Morissette and St-Pierre agree, THE COURT : In case number 500-10-005701-147: [ 4 ] GRANTS the motion for leave to appeal from the sentence imposed on the appellant; [ 5 ] DISMISSES the appeal from the July 2, 2014 judgment issued by Judge Louise Bourdeau, Court of Quebec, imposing the sentence; In case number 500-10-005612-146: [ 6 ] REFUSES leave to appeal from the judgment issued by Judge Louise Bourdeau, Court of Quebec, on July 2, 2014 imposing a fine in lieu of forfeiture; [ 7 ] GRANTS leave to appeal from the judgment ordering forfeiture issued July 3, 2014 by Judge Louise Bourdeau, Court of Quebec; [ 8 ] GRANTS the appeal from this July 3, 2014 judgment for the sole purpose of modifying its conclusions so that they correspond to the prosecution’s application; [ 9 ] REPLACES paragraphs [26] and [27] of said forfeiture judgment of July 3, 2014 with the following: [26] DECLARES that the following goods and sums are offence-related property or the proceeds of crime and ORDERS that these be forfeited for disposal according to law: ITEM 1 Monies contained in the petitioner’s transit account following seizures on the 19th of March 2008 at 4770, St-Ignatius, as a result of search warrant number 500-26-048511-087 valued at CA$348,095.00 and US$76,190.00.

ITEM 2

Monies contained in petitioner’s transit account following seizures on the 19th of March 2008 at 43, Hyde Park, as a result of search warrant number 500-26-048525-087 valued at CA$22,387.00 and US$501.00. ITEM 3 Monies contained in the petitioner’s transit account following seizures on the 19th of March 2008 at 8501-8505, Delmeade as a result of search warrant numbers 500-26-048527-083 and 500-26-048538-080 valued at CA$37,205.75.

ITEM 4 Two automated teller machines and their contents for an amount of CA$13,200.00 following seizures on the 19th of March 2008 as a result of search warrant numbers 500-26-048581-080 and 500-26-048581-085 and operated by Les Systèmes Ascott IV Ltée. YVES-MARIE MORISSETTE, J.A. MARIE ST-PIERRE, J.A. ROBERT M. MAINVILLE, J.A. Me Isabel J.

Schurman Me Francis Villeneuve-Ménard SCHURMAN LONGO GRENIER For the appellant Me Isabelle Doray Me Alik-Hasmig Dikijian DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES For the respondent Hearing Dates: June 6 and 7, 2017 REASONS OF MAINVILLE J.A. [ 10 ] On February 24, 2014, Judge Louise Bourdeau of the Court of Quebec, District of Montreal, found the appellant guilty of fraud, conspiracy to commit fraud and laundering the proceeds of crime for the benefit of, at the direction of or in association with a criminal organization.

The appeal from this conviction was dismissed by the Court in a judgment rendered today in case number 500-10-005612- 146. [ 11 ] This judgment concerns a motion brought by Gérald O’Reilly seeking leave to appeal from the sentence imposed upon him by Judge Bourdeau on July 2, 2014 (case number 500-10-005701-147).

It also concerns a separate motion seeking leave to appeal an order condemning him to pay a fine in lieu of forfeiture issued by Judge Bourdeau on July 2, 2014 as well as another order issued by the same judge on July 3, 2014 for the forfeiture of offence-related property or the proceeds of crime (case number 500-10-005612-146).

These motions were deferred to this panel by a judge of the Court. [1] [ 12 ] Gérald O’Reilly was granted conditional interim release pending the outcome of the appeal of his conviction. [2] The execution of the forfeiture orders was suspended during the proceedings on appeal. [3] [ 13 ] The context of the proceedings is laid out in the Court’s reasons dismissing the appeal from the guilty verdict.

Those reasons and the reasons set out herein must be read together. [ 14 ] In short, a police investigation revealed a criminal organization, led by Gérald O’Reilly, involved in contraband cigarettes and laundering the proceeds of this crime. Millions of contraband cigarettes flowed to Nova Scotia through this criminal organization, thus defrauding the governments of Canada and Nova Scotia of many millions of dollars in unpaid taxes. The criminal organization sourced its cigarettes from a variety of suppliers.

The cigarettes were delivered in standard cases and stored in a suburban Montreal residence belonging to Gérald O’Reilly. Employees re-packaged the cigarettes in large cardboard boxes which were then transported inside a cube truck for delivery in Montreal to a refrigerated semi-trailer truck which drove to Nova Scotia where the cigarettes were distributed by

members and associates of the organization. The proceeds of the contraband returned to Montreal though various channels, notably insoap boxes delivered by Canada Post, and was then laundered, in part, using ATMs. [15] The charges for which Gérald O’Reilly was declared guilty on February 24, 2014 are as follows: [Translation] 1.

Between July 13, 2006 and March 12, 2008, in Montreal, District of Montreal; in Beaconsfield and Town of Mont-Royal, District ofMontreal; in Kahnawake and St-Constant, District of Longueuil; in Cornwall Island, Ontario; in Sydney, Nova Scotia and elsewhere inCanada, by deceit, falsehood or other fraudulent means, defrauded the Government of Canada of a sum of money exceeding $5,000.00,thereby committing the indictable offense set out at s. 380(1)(

a) of the Criminal Code. 2. Between July 13, 2006 and March 12, 2008, in Montreal, District of Montreal; Beaconsfield and Town of Mount-Royal, District ofMontreal; in Kahnawake and St-Constant, District of Longueuil; in Cornwall Island, Ontario; Sydney, Nova Scotia and elsewhere inCanada, by deceit, falsehood or other fraudulent means, defrauded the Government of Nova Scotia of a sum of money exceeding$5,000.00, thereby committing the indictable offense set out at s. 380(1)(

a) of the Criminal Code. 3. Between July 13, 2006 and March 12, 2008, in Montreal, District of Montreal; Beaconsfield and Town of Mount-Royal, District ofMontreal; in Kahnawake and St-Constant, District of Longueuil; in Cornwall Island, Ontario; Sydney, Nova Scotia and elsewhere inCanada, did conspire together and along with other persons heretofore unknown, in order to commit an indictable offence, namely todefraud the governments of Canada and Nova Scotia, thereby committing the indictable offence set out at s. 465(1)(

c) of the CriminalCode. 4. Between July 13, 2006 and March 12, 2008, in Montreal, District of Montreal; Beaconsfield and Town of Mount-Royal, District ofMontreal; Kahnawake, District of Longueuil; Sydney, Nova Scotia and elsewhere in Canada, did commit an indictable offence set out inthe Criminal Code or any other Act of Parliament for the benefit of, at the direction of, or in association with a criminal organization,thereby committing the indictable offence set out at s. 467.12 of the Criminal Code. 5.

Between July 13, 2006 and March 12, 2008, in Montreal, District of Montreal; Beaconsfield and Town of Mount-Royal, District ofMontreal; Sydney, Nova Scotia and elsewhere in Canada, did use, transfer the possession of, send, deliver, transport, alter, dispose of orotherwise transfer the possession of property or proceeds of any property with the intent to conceal or convert it, knowing or believingthat it had been obtained or derived from the commission, in Canada, of a designated offence, thereby committing the indictable offenceset out at s. 462.31(2)(

a) of the Criminal Code. [16] On July 2, 2014, the trial judge sentenced Gérald O’Reilly to the following: For the 1st, 2nd and 3rd counts (fraud and conspiracy): 4 years of imprisonment; For the 4th count (organized crime): 1 year of imprisonment, to be served consecutively; For the 5th count (laundering the proceeds of crime): 2 years of imprisonment, to be served concurrently. [17] In a separate judgment rendered the same day as the sentence, the judge granted an application brought by the prosecution tosubstitute a fine for an order for forfeiture of the proceeds of crime.

She thus ordered Gérald O’Reilly to pay a fine of $258,865 withinone year of his release. She imposed a three-year prison term should he fail to pay the fine within the prescribed period. [18] In a judgment dated July 3, 2014, the judge declared large sums seized in buildings linked to Gérald O’Reilly and in two ATMs,as well as the ATMs themselves, to be offence-related property or the proceeds of crime. Consequently, she ordered that these sums andATMs be forfeited for disposal in accordance with the law.

LEAVE TO APPEAL FROM THE SENTENCE [19] In her reasons, the judge emphasized the objectives of general denunciation and dissuasion, highlighting both the [Translation]“shocking” nature of the infractions that had deprived governments of significant revenue to the detriment of honest citizens whoregularly pay their taxes, as well as the structured, planned and organized character of the crimes.[4] [20] The judge acknowledged that the offender was 81 years of age at sentencing, and also acknowledged the financial difficulties hehas faced since being charged.

She further noted that he had shouldered a significant tax bill from the Agence du Revenu du Québec forthe same crimes, that he had some health problems and that his legal woes had been mediatised.[5] [21] The judge took into account his age, the fact that he respected the conditions of his release, the support he received from someof his children and the letters thanking him for his charitable donations.

On the other hand, she noted the importance of the role heplayed, that of the directing mind of the criminal organization; the nature and the extent of the fraud and the financial losses sustained bythe governments; the degree of organization of the fraudulent system put in place, its duration, and the quantities involved; as well as thefact that the infractions were committed for the benefit of or under the direction of a criminal organization.[6] [22] The judge laid out her reasoning with respect to the sentence thus: [translation] [40] Lévesque v. Québec, (QC CA), [1993] J.Q.

No. 2006 [(C.A.) (QL)], long ago established the factors to beconsidered when imposing sentences for fraud. There are several that apply to this case: economic loss of over $5 million for thegovernments; although the organization was not exceedingly complex, the operations were planned and the strategy well carried out; thebenefit of $285,865 in cash received by Gérald O’Reilly between September 6, 2007, and January 23, 2008 from Alexander Philips using

Canada Post to send 14 boxes containing the money, each one identified as coming from Mira Soap, his wife’s company; greed was theonly motivation; and the laundering of this cash through an automatic teller connected to Gérald O'Reilly. [41] As for the media coverage, even if it could be taken into account, scholarly commentary has not deemed it to be a mitigatingfactor. (“La Peine”, Traité du droit criminel, vol. 3, at 80). The accused is not a public or political figure, and like any other accused whois convicted, he suffers the normal and usual consequences.

It is true that the expression "gang-related activity" sparks the public’simagination, but the media coverage, which was filed under exhibits SD-5 and 6, was not disproportionate or abusive: R v. Lussier, (QC CQ), [2005] R.J.Q. 1577 at para. 76. [42] Even if the Court could take into account Gérald O'Reilly's age, it is only one factor among many. It cannot have a determinativeimpact because of the great number of aggravating factors. [43] Sentences for these offences must reflect societal condemnation. Unconditional incarceration is necessary.

As a result of hisguilty plea, the co-accused Matthew Lazarre received a 3-year sentence for the counts of fraud and conspiracy, and a two-year sentenceto be served consecutively for committing an indictable offence for the benefit of a criminal organization. In 1998, he was fined$2,820,000, failing payment of which a 5-year prison sentence, and another fine of $21,919,000, failing payment of which a 2-yearsentence to be served consecutively for the illegal sale of tobacco. [23] Gérald O’Reilly seeks leave to appeal this sentence. He asks this Court to re-determine his sentence, submitting that the trialjudge: (

a) failed to give adequate consideration to all of the mitigating factors he raised, notably his age, his state of health, the media attentionhe received, his charitable works, etc.; (

b) erred in comparing his sentence with Matthew Lazarre’s; and (

c) failed to give adequate consideration to the possibility of imposing sanctions less restrictive of his liberty, as required by s. 718.2(d)and (

e) of the Criminal Code. [24] Before turning to these grounds of appeal, it is appropriate to recall the applicable standard of review when a court of appealreviews a sentence. The Supreme Court of Canada has reiterated on many occasions that appellate courts may not intervene lightly astrial judges have broad discretion to impose the sentence they deem appropriate within the limits of the law.[7] In this respect, JusticeLeBel’s comments in R. v.

L.M.[8] remain relevant: [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, at para.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 appeal shouldonly 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, sincethe trier of fact was in the best position to determine the appropriate sentence for L.M. – to show deference to the sentence imposed bythe trial judge. [25] As Justice Wagner recently pointed out in R. v.

Lacasse, “an error in principle, the failure to consider a relevant factor or theerroneous consideration of an aggravating or mitigating factor will justify appellate intervention only where it appears from the trial judge’s decision that such an error had an impact on the sentence.”[9] [26] It is also appropriate to note that the four-year prison sentence imposed for fraud and conspiracy to commit fraud falls within the range of applicable sentences imposed for frauds of a similar magnitude. For example, in the 2015 decision Dayfallah c.

R.,[10] this Court referred to the study of authors Hugues Parent and Julie Desrosiers[11] regarding sentencing for fraud:[12] [translation] […] They classify fraud for sums of $500,000 and more as “highly significant fraud” and note that 3 to 5 year sentences are thepredominate range. They also observe peaks of up to 6 to 14 years of imprisonment, with a leaning towards 6 to 7 years for “the mostsevere cases”.

They specify that these severe cases concern frauds of significant amounts, committed for personal ends, and taking placeover long periods of time, with a high degree of premeditation and committed in a context of a breach of trust, by individuals who may ormay not have a criminal record. [27] In the decision R. c. Chicoine, the Court outlined the applicable range as follows:[13] [translation]

[76] In this vein, a review of recent Canadian case law reveals: 76.1. that with respect to significant fraud, sentences fall within a range of 6 to 10 years, and not 3 to 5 years, with the most serious cases giving rise to even longer sentences; 76.2. that, between 2004 and 2012, out of 54 cases of fraud involving more than one million dollars, 44 cases resulted in sentences of 3 years or more, 31 cases resulted in sentences of 4 years or more, 25 cases resulted in sentences of 5 years or more and 21 cases resulted in sentences of 6 years or more; 76.3. that with respect to laundering the proceeds of crime, where the sum at issue is near to or greater than one million dollars, the range of sentences seems to be between 15 to 48 months of imprisonment. [ 28 ] As for the year of imprisonment imposed for committing an indictable offence for the benefit of, at the direction of or in association with a criminal organization, the sentence is not unreasonable for criminal organization offences.

With respect to the fact that this sentence is consecutive, this results from the operation of the law since s. 467.14 of the Criminal Code provides that a sentence imposed for an offence under s. 467.12 must be served consecutively to any other punishment imposed for the commission of an offence arising from the same events. [ 29 ] Consequently, the sentence imposed here seems prima facie reasonable. It is therefore necessary to determine whether mitigating factors allow to conclude that this is not so in Gérald O’Reilly’s specific case.

However, in crafting the sentence, the judge accounted for all of the mitigating factors he invokes, namely his medical condition, the media coverage and his charitable acts. [ 30 ] His medical condition is not determinative because the evidence on file, a doctor’s note, indicates that he is “[g]enerally in good health”. [14] [ 31 ] As for the media coverage, it was by no means excessive – the evidence on file includes an

article published in The Gazette when he was arrested and an

article published in La Presse when he was found guilty. Even taking for granted that the case may have been the subject of some broadcast press, in the absence of evidence that the media coverage was disproportionate, abusive or oppressive, this is not a factor which would generally serve to mitigate a sentence, as the Court has indicated several times in its most recent decisions. [15] [ 32 ] With respect to the charitable acts, these are of course laudable but, in and of themselves, they do not justify a reduced sentence.

Contributions to religious or charitable works, laudable though they may be, should not serve to set aside or reduce the appropriate duration of a prison sentence for a fraud of many millions of dollars committed over an extended period of time under the auspices of a criminal organization, as is the case here. [ 33 ] Gérald O’Reilly also submits that the judge erred in comparing his sentence with the one imposed on Matthew Lazarre following his guilty plea, because, in his view, his situation is not comparable. [ 34 ] Co-accused Matthew Lazarre admitted his guilt with respect to the first and second charges relating to fraud and to the fourth charge of having committed an indictable offence for the benefit of, at the direction of or in association with a criminal organization.

A conditional stay of proceedings was pronounced with respect to his involvement in the third charge related to conspiracy to commit fraud. Unlike Gérald O’Reilly, Matthew Lazarre was not charged with the fifth count related to laundering the proceeds of crime. He had been in pre-trial custody for 23 months when his sentence was imposed, which allowed him to benefit from a 46-month credit in accordance with the rule then in force.

The joint submission was, thus, for a three-year prison sentence for the first and second counts and two consecutive years of prison for the fourth count, which, taking into account the credit he received for pre-trial detention, resulted in an actual sentence of 14 months of imprisonment calculated as of the imposition of the sentence. [ 35 ] I cannot accept Gérald O’Reilly’s submission that his total five-year sentence, similar to that imposed on Matthew Lazarre, does not respect the principle of sentencing parity.

Indeed, the principle of parity seems respected given that the primary actors in the criminal organization in question – Gérald O’Reilly, David Alexander Phillips and Matthew Lazarre (excluding Félicitas O’Reilly, who passed away before the trial ended) – were all given similar sentences totaling five years imprisonment. [ 36 ] Certainly, the fact that Matthew Lazarre was not a first offender – in 1998 he had already been found guilty of trafficking contraband tobacco and sentenced to prison and hefty fines – may, at first, appear to weigh in favour of imposing a more severe total sentence in his case, but only if we ignore the fact that he was neither involved in laundering the proceeds of crime nor the leader of the criminal organization in question, as was Gérald O’Reilly.

Indeed, Matthew Lazarre’s involvement was as a principal supplier of contraband cigarettes rather than that of the ring leader. In addition, unlike Gérald O’Reilly, he pled guilty, which is a mitigating factor that O’Reilly cannot raise. [ 37 ] Finally there is the question of age. Simply put, the appellant submits that his advanced age weighs strongly against the imposition of a prison sentence and, instead, justifies a conditional sentence served in the community. [ 38 ] The advanced age of an accused must be taken into account when determining a sentence, [16] as Chief Justice Lamer indicated in R. v.

M. (C.A.) : [74] However, in the process of determining a just and appropriate fixed-term sentence of imprisonment, the sentencing judge should be mindful of the age of the offender in applying the relevant principles of sentencing. After a certain point, the utilitarian and normative goals of sentencing will eventually begin to exhaust themselves once a contemplated sentence starts to surpass any reasonable estimation of the offender's remaining natural life span.

Accordingly, in exercising his or her specialized discretion under the Code , a sentencing judge should generally refrain from imposing a fixed-term sentence which so greatly exceeds an offender's expected remaining life span that the traditional goals of sentencing, even general deterrence and denunciation, have all but depleted their functional value.

But with that consideration in mind, the governing principle remains the same: Canadian courts enjoy a broad discretion in imposing numerical sentences for single or multiple offences, subject only to the broad statutory parameters of the Code and the fundamental principle of our

criminal law that global sentences be “just and appropriate”.[17] [39] The age factor must, however, be considered in light of the health of the offender as it relates to his life expectancy.Consequently, the mere fact that an accused is elderly is not, in and of itself, a mitigating factor in determining a prison sentence, unlessthe evidence reveals that he has little chance of serving the sentence before passing away. This is increasingly true with the general agingof the Canadian population and the raised probability of longer life expectancies. [40] As such, in the recent decision Thibault v.

R.,[18] the Court was called to review an 18-month prison sentence imposed uponMs. Thibault after she was found guilty of committing fraud and breach of trust against the governments of Canada and Quebec between1997 and 2007 while she was Lieutenant Governor of Quebec. She relied on Justice Lamer’s remarks in R v. M. (C.A.), to argue that thejudge had erred in failing to account for her advanced age – she was 76 when the judgment was rendered – her state of health and herphysical handicap which, in her view, justified a conditional sentence. The Court refused to intervene because, despite Ms.

Thibault’sadvanced age, nothing suggested that she would not complete her sentence before her demise.[19] [41] In R. v. Swope, the Court of Appeal for British Colombia had to consider the impact of a 78-year old offender’s age whenimposing a 39-month prison sentence and concluded that, while age was a factor that had to be considered, it was not determinative butmerely a factor among others: [32] I turn, then, to the matter of Mr. Swope's age and health.

I acknowledge that, in sentencing an elderly offender, a court must becognizant of the fact that the limited life expectancy is a factor in gauging the severity of the sentence. […] [33] It might also be acknowledged that subjective experience of time in prison is likely to differ with the age of an offender. A personwhose health and life are rapidly slipping away may well consider time in jail to be particularly harsh, as their last opportunities forliberty are lost. [34] The importance of the offender’s anticipated lifespan, as a sentencing consideration should not, however, be overstated.

As FinchJ. (as he then was) said for the majority of this Court in R. v. Shah (1994), (BC CA), 94 C.C.C. (3d) 45 at 50: [E]ven where there is a risk that an accused may not outlive the time he is required to serve, the compassion that would evoke is not acontrolling or decisive factor in deciding on the appropriate sentence. It is one of many factors to be taken into account in sentencing. [35] There is scope for courts to be compassionate towards aged and infirm persons in the course of sentencing; this Court hasaffirmed that proposition in both Shah and R. v.

Potts, 2011 BCCA 9 at para. 85. [36] The judge in this case did take Mr. Swope’s age into consideration in passing sentence. While the time he will spend inprison is likely to be a significant portion of his remaining lifespan, I am not persuaded that the sentence runs afoul of the above-quotedcomments from C.A.M. I am unable to say that the sentence that the judge imposed was overly-long or oppressive. I note that, despite thefact that Mr. Swope has been on bail pending appeal, he will, when returned to prison, be eligible for day parole in less than five months’time and for full parole in less than one year.

There are special provisions in s. 121 of the Corrections and Conditional Release Act, S.C.1992, c. 20, that may be used to expedite parole in the event of certain deteriorations in a prisoner’s health.[20] [42] As a result, if at the time a sentence is imposed, the offender’s state of health does not suggest that he is unlikely to completethe sentence before his demise, the judge then has the necessary discretion to impose an appropriate sentence in light of all the usualfactors and criteria.

This is the case here, given Gérald O’Reilly’s state of health (“[g]enerally in good health”) when he was sentencedon July 2, 2014. It is also worth mentioning that, in light of the provisions of the Corrections and Conditional Release Act,[21] it isunlikely that Gérald O’Reilly would still be incarcerated today had his sentence not been suspended for the duration of the appeal. [43] It is possible that an offender’s state of health deteriorates following sentencing. This possibility increases with the age of theoffender.

The sentencing judge may not, however, speculate on this subject and must determine the sentence in accordance with theevidence before him when it is rendered. If the offender’s health subsequently declines, this is no longer a question relating to thedetermination of the sentence, but rather a question relating to its application. In such circumstances, it is incumbent on the relevantcorrectional authorities to take appropriate measures taking into account, notably, s. 121 of the Corrections and Conditional Release Act: 121

(1) Subject to

section 102 — and despitesections 119 to 120.3 of this Act, sections 746.1and 761 of the Criminal Code […] and anyorder made under

section 743.6 of the CriminalCode […] — parole may be granted at any timeto an offender 121

(1) Sous réserve de l’article 102 mais pardérogation aux articles 119 à 120.3 de laprésente loi, aux articles 746.1 et 761 du Codecriminel, […] et même si le temps d’épreuve aété fixé par le tribunal en application de l’article743.6 du Code criminel […], le délinquant peutbénéficier de la libération conditionnelle dansles cas suivants : (

a) who is terminally ill;

a) il est malade en phase terminale;

(

b) whose physical or mental health is likely to suffer serious damage if the offender continues to be held in confinement; (

c) for whom continued confinement would constitute an excessive hardship that was not reasonably foreseeable at the time the offender was sentenced; or […]

b) sa santé physique ou mentale risque d’être gravement compromise si la détention se poursuit;

c) l’incarcération constitue pour lui une contrainte excessive difficilement prévisible au moment de sa condamnation; […] [ 44 ] Gérald O’Reilly further submits that the judge should have considered the possibility of a conditional sentence served in the community.

But, given that the appropriate sentence here was more than two years of imprisonment, this alternative was not open to him: s. 742.1 of the Criminal Code . [22] [ 45 ] In this case, I have not been convinced that the sentence imposed upon Gérald O’Reilly is unreasonable, nor have I been convinced that the trial judge committed an error of principle, failed to take a relevant factor into account or erred in considering a mitigating factor so as to justify the intervention of this Court. Thus, I would grant the motion for leave to appeal from the sentence, but dismiss the resulting appeal.

LEAVE TO APPEAL FROM THE JUDGMENT IMPOSING A FINE IN LIEU OF FORFEITURE [ 46 ] Part of the proceeds from the contraband cigarettes was delivered to Gérald O’Reilly in cash mailed in soap boxes which were transported from Nova Scotia to Montreal by Canada Post.

The police were able to intercept many of these boxes, in which they counted a total of $258,865, before allowing them to be forwarded to the recipient. [ 47 ] Shortly after the guilty verdict was rendered, the prosecution applied to the trial judge for an order under s. 462.37(3) of the Criminal Code condemning Gérald O’Reilly to pay a fine of $258,865 in lieu of forfeiture of this amount under.

In a judgment rendered on July 2, 2014, the judge granted this application, stating that she was convinced that, on a balance of probabilities, the amount in question constituted the proceeds of crime obtained in connection with the designated infraction. [ 48 ] Gérald O’Reilly now asks this Court for leave to appeal this judgment, invoking the following grounds: (

a) the judge did not take into account his inability to pay the fine as a result of the losses sustained by his legitimate business endeavours following the charges laid against him; (

b) the judge failed to exercise her discretion not to impose the fine, but rather responded mechanically to the prosecution’s application; (

c) the judge failed to exercise her discretion so as to distribute the fine among the co-accused. [ 49 ] All three grounds are bound to fail. [ 50 ] Subsections 462.37(1) , (3) and (4) of the Criminal Code notably provide as follows: 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

(1) Sur demande du procureur général, le tribunal qui détermine la peine à infliger à un accusé coupable d’une infraction désignée — ou absous en vertu de l’article 730 à l’égard de cette infraction — est tenu , sous réserve des autres dispositions du présent

article et des articles 462.39 à 462.41, d’ordonner la confiscation au profit de Sa Majesté des biens dont il est convaincu, selon la prépondérance des probabilités, qu’ils constituent des produits de la criminalité obtenus en rapport avec cette infraction désignée ; l’ordonnance prévoit qu’il est disposé de ces biens selon les instructions du procureur général ou autrement en conformité avec la loi. […]

(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

(3) Le tribunal qui est convaincu qu’une ordonnance de confiscation devrait être rendue à l’égard d’un bien — d’une

partie d’un bien ou d’un droit sur celui-ci — d’un contrevenant peut , en remplacement de l’ordonnance, infliger au contrevenant une amende égale à la valeur du bien s’il est convaincu que le bien ne peut pas faire l’objet d’une telle ordonnance et notamment dans les cas suivants : (

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

b) has been transferred to a third party; (

c) is located outside Canada;

a) impossibilité, malgré des efforts en ce sens, de retrouver le bien;

b) remise à un tiers;

c) situation du bien à l’extérieur du 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.

d) diminution importante de valeur;

e) fusion avec un autre bien qu’il est par ailleurs difficile de diviser.

(4) Where a court orders an offender to pay a fine pursuant to subsection (3), the court shall

(4) Le tribunal qui inflige une amende en vertu du paragraphe (3) est tenu : (

a) impose, in default of payment of that fine, a term of imprisonment […]

a) d’infliger, à défaut du paiement de l’amende, une peine d’emprisonnement : […] (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 […] (vi) de trois ans à cinq ans, si l’amende est supérieure à deux cent cinquante mille dollars mais égale ou inférieure à un million de dollars, […] (

b) direct that the term of imprisonment imposed pursuant to paragraph (

a) be served consecutively to any other term of imprisonment imposed on the offender or that the offender is then serving.

b) ordonner que la peine d’emprisonnement visée à l’alinéa a) soit purgée après toute autre peine d’emprisonnement infligée au contrevenant ou que celui-ci est en train de purger. [ 51 ] The first ground of appeal, which concerns the inability to pay, is clearly bound to fail given the Supreme Court’s unanimous decision in Lavigne holding “that ability to pay may not be taken into consideration either in the decision to impose the fine or in the determination of the amount of the fine.” [23] This factor may only be taken into consideration in determining the timeframe for payment, [24] as the trial judge did in this case by granting Gérald O’Reilly one year following his release to pay the fine.

I also note that if he is destitute at that time and does not have the ability to pay the fine, he may rely on R. v. Wu [25] which sets out that inability to pay a fine should not be considered a refusal to pay under the meaning of s. 734.7(1) (

b) of the Criminal Code . [26] [ 52 ] The second ground of appeal concerns the discretion in deciding whether to impose a fine in lieu of forfeiture. While the trial judge does have limited discretion where the circumstances are such that the pursuit of the legislative objectives laid out in the legislative provision does not require the imposition of a fine – for example, where the offender did not profit from the crime or where it was an isolated crime committed by an offender acting alone [27] – the appellant relies here on no circumstance other than his inability to pay.

As I already indicated, ability to pay may not be taken into consideration either in imposing the fine or in determining the amount of the

fine to be imposed in lieu of forfeiture. [ 53 ] The third ground of appeal concerning the distribution of the fine among the co-accused is inconsistent with the trial judge’s finding of fact that it was Gérald O’Reilly who received the payments amounting to $258,865, [28] which finding, moreover, is abundantly supported by the evidence tendered at trial that led to the guilty verdict.

Since Gérald O’Reilly does not point to any palpable and overriding error in this finding, his appeal on this question is bound to fail. [ 54 ] In conclusion, since the three grounds of appeal are all bound to fail, I would refuse leave to appeal from the July 2, 2014 judgment condemning Gérald O’Reilly to pay a fine of $258,865 in lieu of forfeiture.

LEAVE TO APPEAL THE FORFEITURE JUDGMENT [ 55 ] In an application dated March 28, 2014, the prosecution requested a forfeiture order with respect to certain sums of money that had been seized pursuant to various search warrants in buildings linked to Gérald O’Reilly and with respect to two ATM machines. More specifically, the motion was directed at the following sums and property: [29] ITEM 1 Monies contained in the petitioner’s transit account following seizures on the 19th of [M]arch 2008 at 4770, St-Ignatius as a result of search warrant number 500-26-048511-087 valued at 348 095,00 $ CAD and 76 190,00 $ US.

ITEM 2 Monies contained in petitioner’s transit account following seizures on the 19 th of [M]arch 2008 at 43, Hyde Park as a result of search warrant number 500-26-048525-087 valued at 22 387,00 $ CAD [and] 501,00 $ US before conversion. ITEM 3 Monies contained in the petitioner’s transit account following seizures on the 19 th of [M]arch 2008 at 8501-8505, Delmeade as a result of search warrant numbers 500-26-048527-083 [and] 500-26-048538-080 valued at 37 205,75 $ CAD.

ITEM 4 Two automated teller machines and their contents for an amount of 13 200,00 $ CAD, following seizures on the 19 th of [M]arch 2008 as a result of search warrant numbers 500-26-048581-080 [and] 500-26-048581-085 and operated by Les Systèmes Ascott IV Ltée. [ 56 ] In her July 3, 2014 judgment, the trial judge granted this application and attached as a

schedule to her judgment a list prepared by the defence detailing the confiscated sums (Exhibit RD-1), which list included property that was not targeted by the prosecution’s application. [ 57 ] Gérald O’Reilly seeks leave to appeal this judgment, invoking two grounds of appeal: (

a) that, according to the testimony of the police informant Thibault, the $16,930.00 seized in the safe located at 8505 Delmeade was not the proceeds of criminal activity and (

b) that the judge erred in rejecting his daughter Karen O’Reilly’s testimony that a large portion of the sums seized at 4770 St-Ignatius (item 1) and 43 Hyde Park (item 2) belonged to her. [ 58 ] With respect to the first ground of appeal, in his memorandum the appellant fails to refer to any excerpt from the transcripts of Thibault’s testimony that would support his argument that the safe did not contain the proceeds of crime.

On the contrary, the prosecution rightly points out that in his testimony at the preliminary inquiry Thibault rather specified that, among other things, the safe was used for such a purpose. [30] In these circumstances, this ground of appeal cannot be sustained. [ 59 ] With respect to the second ground, Karen O’Reilly’s testimony was set aside by the judge as [ t ranslation ] “lacking in credibility and reliability” [31] and because it contradicted the material evidence gathered during the seizures.

Given the high bar set for a court of appeal to intervene with respect to a trial judge’s findings with respect to the credibility of a witness, [32] this ground of appeal can neither be sustained. [ 60 ] Finally, I note that at the hearing before the Court, the prosecution acknowledged that the

schedule to the July 3, 2014 judgment includes property that was not contemplated by its forfeiture application.

In light of this admission, I am of the view that the appeal should be granted for the sole purpose of amending the order of the trial judge so as to bring it into conformity with the forfeiture application. [ 61 ] I suggest, therefore, that the Court grant leave to appeal from the forfeiture judgment of July 3, 2014 and grant the appeal for the sole purpose of amending the conclusions of that judgment to conform to the prosecution’s application by replacing paragraphs [26] and [27] thereof by the following: [ t ranslation ] [26] DECLARES that the following goods and sums are offence-related property or the proceeds of crime and ORDERS that these be forfeited for disposal according to law: ITEM 1

Monies contained in the petitioner’s transit account following seizures on the 19th of March 2008 at 4770, St-Ignatius, as a result of search warrant number 500-26-048511-087 valued at CA$348,095.00 and US$76,190.00. ITEM 2 Monies contained in petitioner’s transit account following seizures on the 19th of March 2008 at 43, Hyde Park, as a result of search warrant number 500-26-048525-087 valued at CA$22,387.00 and US$501.00.

ITEM 3 Monies contained in the petitioner’s transit account following seizures on the 19th of March 2008 at 8501-8505, Delmeade as a result of search warrant numbers 500-26-048527-083 and 500-26-048538-080 valued at CA$37,205.75. ITEM 4 Two automated teller machines and their contents for an amount of CA$13,200.00 following seizures on the 19th of March 2008 as a result of search warrant numbers 500-26-048581-080 and 500-26-048581-085 and operated by Les Systèmes Ascott IV Ltée.

CONCLUSIONS [ 62 ] In conclusion, in case number 500-10-005701-147, I propose that the Court grant the motion for leave to appeal from the sentence imposed on Gérald O’Reilly but dismiss the appeal from the July 2, 2014 judgment imposing that sentence.

In case number 500-10-005612-146, I propose that the Court refuse leave to appeal from the July 2, 2014 judgment condemning Gérald O’Reilly to pay a fine in lieu of forfeiture, but grant the motion for leave to appeal from the forfeiture judgment rendered July 3, 2014 for the sole purpose of bringing the conclusions of that judgment into conformity with the prosecution’s application. ROBERT M. MAINVILLE, J.A.