2013 QCCA 1432, 2013 QCCA 1432

Unofficial English Translation R. c. Lebrasseur 2013 QCCA 1432 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-005293-129 (500-73-003481-104) DATE: August 27, 2013 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A. MARIE ST-PIERRE, J.A. HER MAJESTY THE QUEEN APPELLANT – Prosecutrix v.

PAUL LEBRASSEUR RESPONDENT – Accused JUDGMENT [ 1 ] The appellant appeals from a judgment rendered on October 25, 2012, by the Superior Court, Criminal Division, District of Montreal (the Honourable Madam Justice Johanne St-Gelais), which found that the exception stated under subsections 719(3.1) and 515(9.1) Cr. C. did not apply and imposed a forty-two month prison term on the respondent, after granting credit of one and one-half days for each day spent in pre-sentencing custody, pursuant to subsection 719(3.1) Cr.

C. [ 2 ] For the reasons of St-Pierre, J.A., with which Doyon and Kasirer, JJ.A. agree, THE COURT: [ 3 ] DISMISSES the appeal. FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A. MARIE ST-PIERRE, J.A. Mtre Michel F. Denis, Ad. E. PUBLIC PROSECUTION SERVICE OF CANADA For the Appellant Mtre Julie Giroux For the respondent Date of hearing: March 1, 2013 REASONS OF ST-PIERRE, J.A.

[ 4 ] This appeal deals only with the credit for pre-sentencing custody granted at the sentencing hearing. The appellant is otherwise satisfied with the sentence imposed on the respondent. [ 5 ] Following a jury conviction rendered on May 1, 2012, on a charge of conspiracy to import hashish, St-Gelais J. of the Superior Court, District of Montreal (the judge) deemed it necessary to impose an overall prison sentence of seventy-two months on the respondent. Having done so, she exercised her discretion under subsections 719(3) and (3.1) Cr.

C. and found that the respondent was entitled to a thirty-month credit for his pre-sentencing custody (custody for twenty months credited on a 1.5:1 ratio under subsection 719(3.1) Cr. C .).

She therefore imposed a sentence of forty-two months, to begin on the day of sentencing. [ 6 ] At the sentencing hearing, the judge granted credit for pre-sentencing custody on a ratio of 1.5:1 despite the respondent's criminal record, deeming that she had the discretion to do so since it was not stated in the record that the justice of the peace who had denied release had done so because of the respondent's previous convictions. [ 7 ] The appellant submits that the judge interpreted subsection 515(9.1) Cr. C. too narrowly.

The Crown argues that the judge erroneously granted 1.5:1 credit even though the respondent's custody was the result of, among other things, his criminal record, which is quite lengthy. In the appellant’s view, to rule out the discretion conferred under subsection 719(3.1) Cr.

C. , it is enough for the record to reveal that prior convictions played a significant role, that it was one of the reasons for the pre-sentencing custody, although not necessarily the only one, as in this case. [ 8 ] The respondent submits that the judge's decision at the sentencing hearing to grant credit for pre-sentencing custody is not subject to appeal. He then argues that [ translation ] "the

interpretation submitted by the appellant is too narrow, prevents the sentencing objectives from being achieved, and fetters the trial judge's discretionary power to impose a fair, personalized sentence, consistent with the rules of law”. Thus, in his opinion, the exceptions set out under subsection 719(3.1) Cr. C. must be interpreted strictly and give way when they are in conflict with factors that the trial judge believes should be accepted in the exercise of his or her discretion. [ 9 ] In my opinion, the issue is subject to appeal but the appeal should be dismissed.

The exception based on subsection 515(9.1) Cr. C. should be applied strictly. This provision requires the justice of the peace to state in the record of the proceedings "that the accused be detained in custody primarily because of a previous conviction". In the absence of such a statement, or if the statement is ambiguous, the sentencing judge retains full discretion to grant a credit of 1.5:1 for pre-sentencing custody if the circumstances justify it.

Judgment under appeal [ 10 ] In the first thirty paragraphs of her judgment, the judge recited the facts that led to the charge laid against the respondent and, ultimately, to his conviction.

She also addressed the role of various participants in the conspiracy, their criminal records (if any), and the state of their respective files. [ 11 ] In paragraph 31, the judge summarized the respondent's criminal record as follows: [ translation ] - In 1978, theft; he received a $350 fine; possession of narcotics for the purpose of trafficking; twenty days to be served intermittently; - In 1979, theft; fourteen days in prison; - In 1993, possession of narcotics for the purpose of trafficking; twenty days to be served on weekends; - In 1994, importing narcotics; five years; - In 2008, conspiracy involving narcotics; nine months; possession of narcotics for the purpose of trafficking; thirty-six months (five months of pre-sentencing custody); failure to comply with an undertaking; seven days; possession of narcotics; one day. [ 12 ] The judge then stated the parties' positions as to the appropriate sentence for the respondent: during submissions on sentencing, the defence suggested a sentence between two and four years and sought credit for pre-sentencing custody on a 1.5:1 ratio; the prosecution suggested a sentence of seven years and sought a ratio of 1:1 because the release had been denied due to the respondent's criminal record, among other things. [ 13 ] In this context, after describing the respondent's specific role in the conspiracy, identifying the aggravating and mitigating factors to be considered, and analyzing all of them, the judge concluded that a six-year prison sentence was reasonable. [ 14 ] Having drawn this first conclusion, the judge analyzed whether enhanced credit should be applied for time served in pre- sentencing custody. [ 15 ] After reproducing the text of subsections 719(3.1) and 515(9.1) Cr.

C. , which were relevant to her examination, the judge wrote in paragraph 59 of her judgment:

[ translation ] Subsection 719(3.1) of the Criminal Code provides that if the circumstances justify it, the Court may, when imposing a sentence, grant one and one-half days for each day spent in custody unless the justice denied release and ordered detention based primarily on a previous conviction. The justice must state the reason in the record. [ 16 ] That being so, she accepted that there were two questions to be answered:

(1) Do the circumstances justify applying 1.5:1 credit to the respondent?

(2) Does this case constitute an exception under subsection 515(9.1) Cr. C. ? [ 17 ] First, the judge concluded that the circumstances justified applying enhanced credit. The appellant questions the application of the exception in subsection 515(9.1) Cr. C. , but does not otherwise question the judge's conclusion. [ 18 ] Second, the judge granted 1.5:1 credit despite the respondent's criminal record because the case does not fall under the exception in subsection 515(9.1) Cr. C.

It is useful to reproduce the judge’s explanation in this respect in paragraphs 64 to 72 of her judgment: [ translation ] [64] We must now determine if his detention was ordered because of his previous criminal record. [65] The justice of the peace stated that [ translation ] "Lebrasseur is deeply involved in such criminal matters. His record shows that he has little respect for the legal system". [66] The justice of the peace went on to point out that Lebrasseur had failed to comply with his undertakings.

After being granted conditional release, he became involved once again in this case, he lied to the parole officers about his address, he failed to notify the officers of his change of address, his conditional release was revoked in 2010 for taking narcotics, firearm projectiles were seized in his home which were in his possession in violation of an order pursuant to

section 109 of the Criminal Code . The justice ended by stating that [ translation ] "his life is one of lies and breached undertakings". [67] The justice of the peace ordered Lebrasseur's detention because he considered him untrustworthy in light of his numerous breaches of undertakings to the parole board, among other things.

It appears to the Court that the primary reason Lebrasseur was denied release was not his criminal record. [68] The new provisions, in effect since February 22, 2010, may have a direct impact on the discretion usually reserved for the sentencing judge. [69] These punitive provisions can prevent an accused from making certain arguments during submissions on sentencing that could militate in favour of 1.5:1 credit for pre-sentencing custody. [70] At the release hearing, the justice of the peace may state in the record that custody is ordered because of the accused's criminal record.

In that case, the sentencing judge must consider this statement. However, the Court finds that there must be a statement or clear indication in the record for the sentencing judge to feel bound by the decision rendered by the justice of the peace at the release hearing. That is not the case here. [71] In the event of ambiguity respecting the reasons for detention, such ambiguity must be interpreted in favour of the accused. [72] As Tuck-Jackson J. pointed out in R. v. M.C. : [30] … In my view, the Crown bears the burden of demonstrating that the jurist did detain primarily on the basis of a previous conviction.

If there is any ambiguity as to the basis of detention that ambiguity must operate in favour of the defence. (Citations omitted.) [ 19 ] Having previously accepted that the circumstances justified granting 1.5:1 credit, the judge applied that ratio to the entire pre- sentencing custody period. Positions of the parties The appellant [ 20 ] The appellant notes that the justice of the peace who denied the application for release repeatedly referred to the respondent's criminal record when explaining why he made his ruling.

The respondent's criminal record is determinative because it plays a significant role in the ruling. In the Crown's view, nothing more is needed to refuse to grant enhanced credit under subsection 719(3.1) Cr. C . [ 21 ] According to the appellant, the judge committed an error of law by requiring that the criminal record be the primary reason for denying release and that a specific, unambiguous statement to this end be entered into the record.

The respondent [ 22 ] Because pre-sentencing custody is not included in the sentence, which only starts to run when it is imposed, and because the appellant was satisfied with the overall sentence of seventy-two months determined by the judge, the respondent would like us to find that the [ translation ] "portion" relating to credit for pre-sentencing custody is not subject to appeal.

[ 23 ] Should the appellant have the right to appeal, the respondent submits that the appeal should be dismissed. First, deference must be shown to the judge who exercised a discretionary power. Next, the

interpretation of subsection 719(3.1) Cr. C. submitted by the appellant does not follow the letter of the law or the general sentencing principles. The justice of the peace would have had to have written in the minutes that the respondent was remaining in custody because of his criminal record for the judge to be bound to rule out granting enhanced credit. Merely referring to the second and third criteria of subsection 515(10) Cr. C . is insufficient.

Finally, the respondent concludes that even if he was kept in custody because of his record, the judge could still use her discretionary power because of the conditions of detention, among other things. Issues [ 24 ] The appeal raises the following two issues: • First issue : Is there a right to appeal? • Second issue : In the circumstances of the case, could the respondent's criminal record be a bar to exercising the judicial discretion under subsection 719(3.1) Cr. C. ?

Analysis First issue: the right to appeal [ 25 ] It is appropriate to quickly dispose of the respondent's argument that there is no right to appeal regarding the pre-sentencing custody credit because this period is [ translation ] "not part of the sentence". [ 26 ] There is no doubt that the appellant is dissatisfied with the forty-two month sentence imposed, despite the fact that counsel declared the Crown satisfied with the overall quantum of seventy-two months before deductions for pre-sentencing custody.

If the judge decided on a sentence of seventy-two months, it was because she thought that she could deduct thirty months from that number by exercising the discretion afforded to her under subsection 719(3.1) Cr. C. Pre-sentencing custody therefore represents one of the factors she took into account when determining the sentence. [1] [ 27 ] In these circumstances, pursuant to paragraph 676(1)(

d) Cr. C. , the appellant could appeal from the sentence imposed on the basis of the credit granted if it sought and obtained leave to do so. [ 28 ] The appellant sought leave and our colleague, Fournier J.A., granted it. [2] Second issue : In the circumstances of the case, could the respondent's criminal record be a bar to exercising the judicial discretion under subsection 719(3.1) Cr. C.? [ 29 ] First, it is useful to reproduce the legislative provisions relevant to a consideration of the second issue in dispute.

515. ...

(9) Pour l’application des paragraphes (5) et (6), il est suffisant de consigner les raisons en conformité avec les dispositions de la

partie XVIII ayant trait à la manière de recueillir les témoignages lors des enquêtes préliminaires.

(9.1) Malgré le paragraphe (9), si le juge de paix ordonne la détention sous garde du prévenu en se fondant principalement sur toute condamnation antérieure, il est tenu d’inscrire ce motif au dossier de l’instance.

(10) Pour l’application du présent article, la détention d’un prévenu sous garde n’est justifiée que dans l’un des cas suivants :

a) sa détention est nécessaire pour assurer sa présence au tribunal afin qu’il soit traité selon la loi;

b) sa détention est nécessaire pour la protection ou la sécurité du public, notamment celle des victimes et des témoins de l’infraction ou celle des personnes âgées de moins de dix-huit ans, eu égard aux circonstances, y compris toute probabilité marquée que le prévenu, s’il est mis en liberté, commettra une infraction criminelle ou nuira à l’administration de la justice;

c) sa détention est nécessaire pour ne pas miner la confiance du public envers l’administration de la justice, compte tenu de toutes les circonstances, notamment les suivantes : (

i) le fait que l’accusation paraît fondée, (ii) la gravité de l’infraction, (iii) les circonstances entourant sa perpétration, y compris l’usage d’une arme à feu, (iv) le fait que le prévenu encourt, en cas de condamnation, une longue peine d’emprisonnement ou, s’agissant d’une infraction mettant en jeu une arme à feu, une peine minimale d’emprisonnement d’au moins trois ans. 515. ...

(9) For the purposes of subsections (5) and (6), it is sufficient if a record is made of the reasons in accordance with the provisions of

Part XVIII relating to the taking of evidence at preliminary inquiries.

(9.1) Despite subsection (9), if the justice orders that the accused be detained in custody primarily because of a previous conviction of the accused, the justice shall state that reason, in writing, in the record.

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (

a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; (

b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and (

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including (

i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. 719. ...

(3.1) Malgré le paragraphe (3), si les circonstances le justifient, le maximum est d’un jour et demi pour chaque jour passé sous garde, sauf dans le cas où la personne a été détenue pour le motif inscrit au dossier de l’instance en application du paragraphe 515(9.1) ou au

titre de l’ordonnance rendue en application des paragraphes 524(4) ou (8). 719. ...

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8). [ 30 ] Subsections 515(10) and 515(9) Cr. C. , supra , were already included in the Criminal Code when the Truth in Sentencing Act [3] came into force on February 22, 2010. Subsections 515(9.1) and 719(3.1) Cr. C. were not.

These new sections were added to the Criminal Code when the Truth in Sentencing Act came into force, creating previously nonexistent parameters respecting credit for pre- sentencing custody. [ 31 ] In the words of authors Béliveau and Vauclair regarding the statement in the record required by subsection 515(9.1) Cr. C. , [ translation ] "the purpose of this statement is to govern the application of

section 719 Cr. C. ". [4] In other words, the involvement of a first judge, who in some cases is called upon to intervene quite early in the process without knowing all the ins and outs, could

ultimately deprive the sentencing judge in the event of a guilty plea or a conviction from the judicial discretion he or she would otherwise have to calculate enhanced pre-sentencing custody credit if the circumstances justify it. [ 32 ] Taking this into account, and even though the judge’s approach whereby a clear statement must be entered into the record may appear strict or too formal, I find that it is the right one. [ 33 ] Regarding exceptions to the exercise of judicial discretion in matters of crediting pre-sentencing custody, [5] this approach appears essential to me, especially since, as LaForme J.A. of the Court of Appeal for Ontario wrote in Monje , "presentence custody continues to be 'dead time' for the same reasons Laskin J.A. noted in Rezaie and remains as one of the most punitive forms of imprisonment in Canada". [6] [ 34 ] In my opinion, the opening words of subsection 15(9.1) Cr.

C. "[d]espite subsection (9)" , and the rest of this subsection, force us to find that even "if a record is made of the reasons in accordance with the provisions of

Part XVIII relating to the taking of evidence at preliminary inquiries" [7] it is not enough to set aside the discretion that otherwise belongs to the sentencing judge to grant enhanced credit "if the circumstances justify it". [ 35 ] Subsection 515(9.1) Cr. C. imposes the obligation to state in the record of proceedings that the reason for the accused's custody is based primarily on previous convictions; because of the consequences of this statement in the record, it is easy to understand why it would be appropriate to take a strict approach.

The obligation on justices of the peace presiding a release hearing to state the reason for detention in the record (based primarily on any previous conviction) requires that they weigh its appropriateness. [ 36 ] I find that the wording of subsection 515(9.1) Cr. C. is clear. Before concluding that a first judge has limited the judicial discretion of the sentencing judge by rendering his or her decision on release, it is necessary to find an explicit statement in the record that custody was ordered primarily – not incidentally or among other things – because of a previous conviction.

In this respect, any doubt or ambiguity must be interpreted in favour of maintaining judicial discretion. [ 37 ] Several trial courts have understood and applied subsections 515(9.1) and 719(3.1) Cr. C. this way in several judgments rendered to date, as the following examples illustrate. [ 38 ] In R. v. Vittrekwa , Cozens J. of the Territorial Court of Yukon, Whitehorse, wrote: 34. Under s. 515(9.1), if the justice at a bail hearing orders that the offender be detained because of a previous criminal conviction, he must state the reason in writing in the record.

In the absence of this written record, there is no ability to "read in" that the offender must have been detained because of his or her prior criminal conviction. [8] [ 39 ] In R. v. M.C. , Tuck-Jackson J. of the Ontario Court of Justice stated: 30 … The combined effect of s. 719(3.1) and 515(9.1) of the Criminal Code is such that Mr. M.C. cannot pass through the gateway to enhanced credit unless I am first satisfied that the Justice of the Peace who presided at Mr. M.C.'s bail hearing did not conclude that Mr. M.C. be detained in custody primarily because of a previous conviction.

In my view, the Crown bears the burden of demonstrating that the jurist did detain primarily on the basis of a previous conviction. If there is any ambiguity as to the basis of detention, that ambiguity must operate in favour of the defence. [9] [ 40 ] In R. v. London , Chen J. of the Provincial Court of British Columbia wrote: 1 There are a few issues here. The first one is the application of s. 515(9.1) , coupled with the application of s. 719. Specifically that is whether or not the detention order pronounced by Judge Rae on July 5th, 2010 was primarily because of Mr.

London's previous conviction, or his prior record. Now that I have had an opportunity to review both that subsection and Judge Rae's decision, I do not interpret Judge Rae's decision detaining Mr. London as a decision that was primarily because of the previous conviction. It was a factor, certainly, but Judge Rae certainly did not state in her decision that it was the primary factor, so I am not prepared to find that Mr. London is precluded from having access to ss. (3.1) of s. 719. [10] [ 41 ] In R. v.

Goforth , Tomkins J. of the Fort Qu'Appelle Provincial Court of Saskatchewan had the following to say: 32 Section 515(9) states that if interim release is refused "primarily because of a previous conviction", this fact is to be endorsed in writing on the record. No such endorsement was made in Mr. Goforth's case but the Crown took the position that Mr.

Goforth's bail was denied primarily because of his record, that as such an endorsement ought to have been made and that I should, therefore, either consider him ineligible for enhanced remand credit or deny enhanced credit. 33 Counsel made submissions regarding the onus of requesting, requiring or ensuring such endorsement. I do not believe it is necessary for me to resolve that issue, however, because I am satisfied that Mr. Goforth was not denied bail "primarily" because of a previous conviction. 34 I have reviewed the recording of Mr. Goforth's show cause hearing and of my decision to refuse him release.

Bail was refused in his case for a combination of reasons which I stated to be the following: * That his record and these allegations, if proven, showed a pattern of serious violence; * That Mr. Goforth did not recognize and/or had not taken steps to address his inclination to violence; * That Mr. Goforth offered no "real" release plan, proposing if released to return to substantially the same living arrangements and controls, or lack thereof; * That Mr. Goforth faced allegations that he attempted to interfere with the administration of justice by encouraging the victim of the

section 266 assaults not to lay charges against him. 35 It was clearly all of these circumstances which together influenced the decision to refuse release and it is also clear that Mr. Goforth's prior record for violence was not the primary reason for the decision. As such, it was appropriate that no endorsement was made on the record pursuant to section 515(9.1) and Mr. Goforth is not ineligible for enhanced remand credit. [11] [ 42 ] Finally, in R. v.

Rhyno , Pickup J. of the Supreme Court of Nova Scotia, District of Halifax, wrote: 36 The Crown submits that as a result of the Provincial Court judge denying bail primarily on the basis of prior convictions of the accused, any remand credit for Ms. Rhyno cannot exceed a 1:1 ratio. 37 According to R. v. M.C ., 2011 ONCJ 593 , the Crown bears the burden of demonstrating that the offender was detained primarily on the basis of a previous conviction. Any ambiguity as to the basis for the detention operates in favour of the offender.

Further, where an accused is detained on the primary basis of a previous conviction, this must be indicated on the record: Criminal Code , s. 515(9.1). Failing that, it falls to the sentencing court to determine whether the detention was on the basis of a previous conviction, but the burden to establish this rests on the Crown. ... 41 In this case, there is no doubt that the previous convictions were a significant element going to the decision to detain.

In both the case of Michelle Rhyno and Michael Rhyno, I am satisfied that the previous convictions were the main factor in the denial of bail at Provincial Court. 42 Having so found, I am satisfied that the Crown has met its burden of proving that Michael Rhyno and Michelle Rhyno were detained under s. 519(9.1) such that s. 719(3.1) would not apply as asserted by the Crown.

Therefore, enhanced credit will not be considered for either party. [12] [ 43 ] A review of this same case law reveals several clear statements by judges ordering the pre-sentencing custody of an accused based primarily on the accused's criminal record. [ 44 ] In R. v. J.M. , a case involving a writ of certiorari where the accused sought to contest a note in his record stating that his release was denied because of his criminal record, Spies J. of the Superior Court of Justice for Ontario observed the following: 13 In my view, it would be unjust to require Mr.

J.M. and other offenders to wait upon the Court of Appeal to decide whether a s. 515(9.1) endorsement was issued appropriately. Such orders have the effect of barring a court from considering whether an offender may receive enhanced pre-sentence custody credit of up to one and one half days for every day served. In some cases, enhanced credit may be the difference between receiving a sentence of time served and receiving a sentence of further incarceration.

Delaying the review of a s. 515(9.1) endorsement for the Court of Appeal's consideration would deprive such offenders of the full credit they may deserve. 38 On the issue of the test applied by the Justice of the Peace, Mr. Marynick asks this court to focus on the specific wording used by the Justice of the Peace when he made the s. 515(9.1) endorsement. The record indicates that the Justice of the Peace said, "And, Mr. Clerk, if you would also indicate that ... the criminal record did play a significant role in my decision in deciding to detain, so if you'd tick off the appropriate box." [Emphasis added.] Mr.

Marynick submits that a significant role is not the same as a primary role. The first is a much lower standard than the second. 39 In making this submission, Mr. Marynick requests that I ignore the remainder of the record. This is completely unfair to the Justice of the Peace who made the endorsement. Mr. Marynick would have this court pick on one word made by the Justice of the Peace and turn a deaf ear to the others that were spoken.

This would neither be fair nor an accurate way to review the record. 40 Upon consideration of the record as a whole, it is clear that the Justice of the Peace knew what the correct standard is. He very clearly stated that in his view all that he had to indicate was that the detention was primarily because of the record and that it was in this case and that he was recording that fact by asking the Registrar to check off the appropriate box to reflect his endorsement. Although there is an issue as to whether or not the Justice of the Peace was correct in his

interpretation that this endorsement may be made where the detention was primarily because of the record as a whole, he clearly appreciated that the criminal record needed to be the primary reason for detention. [13] [ 45 ] Here are three more examples: R. v. Ferdinand : 19 In accordance with the recent amendments to the Criminal Code pursuant to Bill C-25, I will endorse the Information to indicate that the accused is being detained primarily because of previous convictions. [14] R. v. Pico : 30 The accused's Criminal Record speaks for itself.

It reflects a lifestyle of dishonesty, deception and a total disregard for Court Orders. In the eight months between January and August of this year alone, he has been convicted of eleven criminal offences. 31 His behaviour has been a danger to the safety of the public at large. In my view, his criminal past is a reliable precursor of recidivism and future dangerousness. On paper, the plan of release appears to be satisfactory. However, I am convinced that his parents will never be able to control him, as they have not been able to do in the past, and he will continue to do exactly what he pleases. I. DISPOSITION

32 For these reasons I am satisfied that the Crown has indeed met its onus on the secondary ground. I order that the accused be detained primarily as a result of his Criminal Record, and I will endorse the Information accordingly, pursuant to section 515(9.1) of the Criminal Code . [15] R. v. Morin : 62 On June 4, 2012, Morin had a bail hearing before a Justice of the Peace in relation to a charge of assault and breaching a condition of an undertaking to a Peace Officer. Morin’s bail was denied.

The Justice of the Peace made an endorsement stating that bail was “denied based primarily on previous convictions” pursuant to s. 515(9.1) C.C. Therefore, in relation to Morin’s pre-trial custody between June 4th and August 10th, 2012, this Court is precluded, pursuant to s. 719(3.1) C.C. , from contemplating any greater credit than 1:1 time. [16] [ 46 ] Let us now consider the situation in the present case. [ 47 ] The judgment denying the respondent's application for release was rendered by Michel Bellehumeur J. of the Court of Quebec, Criminal and Penal Division (the justice of the peace), on April 4, 2011.

In the same judgment, the justice of the peace also refused to release a co-accused, Philippe Deval. [ 48 ] The justice of the peace broadly stated the offences charged, which he described as serious. In paragraph 18 of his judgment, he wrote that [ translation ] "for Parliament, the accused are charged with offences whose objective seriousness is high – some of them even the highest under Canadian law". [ 49 ] As for the applicable law, he pointed out at the outset that custody can only be justified by one of the grounds set out under subsection 515(10) Cr. C.

He went on to note that, because of the charges in this file, the burden of demonstrating that there was no ground for detention was the accused's. Finally, he considered the three paragraphs of subsection 515(10) Cr. C. in turn, and summarized the principles, criteria, and relevant factors to be borne in mind. Regarding paragraph ( b ), he listed the nine criteria set out in Rondeau , [17] rendered by our Court.

As for paragraph ( c ), he pointed out his broad discretionary power, which allows him to refuse to release an accused when this appears necessary to avoid undermining public confidence in the administration of justice. [ 50 ] In paragraph 81 of his judgment, the justice of the peace wrote that [ translation ] "the selling of narcotics raises a particular problem respecting release on bail under paragraphs 515(10)(

b) and ( c )".

A little later, he added: [ translation ] [86] Since the Supreme Court judgments in Pearson and Morales , the legislation and case law have refined and adapted to the facts while following the broader objectives of the protection and safety of the public. [87] It appears from the case law that, essentially, [ translation ] "the bigger the criminal organization and the greater the accused's role in that organization, the more difficult it will be to convince the Court that it is unlikely that detention is not necessary for the protection or safety of the public". [88] Also, this refusal does not apply only with respect to [ translation ] "the leaders of the network, but also to any individuals who are important cogs in the organizations, allowing them to operate and regenerate quickly". [89] An accused who has a [ translation ] "high position in the hierarchy of narcotics smuggling", who is the [ translation ] "right hand man, the alter ego of the person who appears to be the top man in this importing and trafficking business", or who [ translation ] "is not a messenger or a secondary participant" will rarely be released while awaiting trial. [90] For the Court, the seriousness of the accused's actions, his involvement, the continued and repeated nature of his reprehensible actions, the amounts of money involved, and the quantity, value and hardness of the drugs are all elements likely to shake public confidence in the administration of criminal justice. [91] Furthermore, public confidence in the administration of justice could also be lost as the result of the release of an accused who, although not a leader of the operation or one of the main players, was the one who put these main players in contact with each other to set up the conspiracy. (Citations omitted) [ 51 ] Finally, as to the evidence he heard, the justice of the peace characterized it as follows: [ translation ] [95] The evidence in this case is plausible, relevant, credible and trustworthy. ... [96] The same is true with respect to the conspiracy offences.

Although I have not assessed it on the merits, as the trial judge will do, the evidence heard, appears to me overwhelming and well documented for each of the files.

For the purposes of the hearing, it appears that the Crown has established the constitutive elements of each offence through its evidence. [ 52 ] With respect to Lebrasseur, the justice of the peace analyzed only seven of the nine criteria set out in Rondeau : [18] (1) the nature of the offence; (2) the relevant circumstances of the offences; (3) the likelihood of a conviction; (4) the degree of involvement of the accused; (5) the accused's relationship to the victim; (6) the accused's profile; (7) his post-offence conduct.

He did not consider the eighth or ninth criteria, that is, the danger, if any, that Lebrasseur's provisional release represents to the community that is specifically affected by the case and Lebrasseur's involvement in the activities of a criminal organization. In the case of the other accused, however, he did analyze the eighth criterion.

[ 53 ] Only one of the seven criteria analyzed in Lebrasseur's case refers to his criminal record, namely, the sixth factor (the accused's profile). Under this heading, the justice of the peace wrote: [19] [ translation ] [161] Lebrasseur is a horticulturist, who received his training during a prison stay. It is a new passion for him, and he could work in that field once he gets out of prison.

He could also work with his friend Dimitri in record production and on various other musical projects. [162] The accused has previously been convicted of the following: - In 1978, possession for the purpose of trafficking in narcotics; - In 1993, possession for the purpose of trafficking in narcotics; - In 1994, importing over 2 kilos of cocaine from Venezuela; - In 2002, as part of Project Colisée, conspiracy to traffic cannabis.

In that case, Paul Lebrasseur was the one who received the cannabis. [157] Less than one month after his release after Project Colisée, he was arrested with over one kilo and almost 1000 methamphetamine pills. [158] In that file, he was released conditionally on September 30, 2009. In the weeks following his release, he got involved in the present conspiracy to import one tonne of hashish into Canada. [159] According to the Crown's case, in September of 2010, Lebrasseur's conditional release was revoked for consuming cocaine. [160] He also lied to the parole officers about his home address.

He did not tell them about moving in February 2010, contrary to his undertaking. [161] Furthermore, it must be borne in mind that almost one kilo of hashish was seized from his home, in addition to 116 grams of marijuana buds, 95 9 mm bullets, and 13 magnum 357 bullets. From this seizure, it must be found that he was violating two orders issued under

section 109 Criminal Code . [ 54 ] In the first paragraph of his "Conclusion" section, the justice of the peace indicated that, after a methodical analysis of each of the factors, he would assess their combined effect. It is therefore useful to reproduce in full the paragraphs of his judgment containing this assessment because, ultimately, they constitute the grounds on which he denied the accused's release: [ translation ] [175] The accused Lebrasseur is deeply involved in such criminal matters. His record shows that he has little respect for the legal system.

When he was released on recognizance in a drug case, he was arrested a few weeks later with over one kilo of cocaine and almost 1000 methamphetamine pills. [176] He was conditionally released on September 30, 2009, and in the weeks following his release, he got involved in this conspiracy to import one ton of hashish into Canada. [177] It appears from the evidence that Paul Lebrasseur finds it difficult to comply with the conditions of his release and the other undertakings ordered by the Court. [178] Indeed, in September of 2010, his conditional release was revoked for having consumed cocaine, a violation of his conditions. [179] It was also proved that he lied to parole officers respecting his home address.

He also failed to notify them when he moved in February of 2010. [180] Finally, in the conspiracy file, nearly one kilo of hashish was seized from his home, in addition to 116 grams of marijuana buds, 95 9 mm bullets, and 13 magnum 357 bullets. This was a violation of the conditions and especially two orders issued under

section 109 of the Criminal Code . [181] Despite the possible undertakings of his sister Sonia Lebrasseur, his own undertakings and a judicial hypothec that he could give, the accused Lebrasseur has not met his burden of proof. He has not established on a balance of probabilities that the Court could release him. [182] In the analysis of the factors listed above, his sister Sonia is undoubtedly the only positive aspect, but even she is not nearly enough to sway the decision-making process. Even with all her good will and honesty, she still could not supervise the accused effectively.

His life is one of lies and breached undertakings. For all these reasons and taking into consideration all of the evidence, which is overwhelming, the Court finds that Paul Lebrasseur has not discharged his burden of proof. His release would constitute a danger to the community. [183] Furthermore, for the same reasons as those given in the case of Philippe Deval, the Court finds that the provisional release of Paul Lebrasseur would undermine the public confidence in the administration of justice. [184] Consequently, the provisional release of the accused Paul Lebrasseur is denied.

The Court orders his detention based on the second and third grounds in subsection 515(10) of the Criminal Code .

[ 55 ] The justice of the peace did not say, and did not write, that he ordered custody based primarily on a previous conviction. [ 56 ] I also do not accept the argument that it was implied by his remarks, without any doubt or ambiguity. Four observations emerge from my analysis of his judgment in support of this conclusion. [ 57 ] First observation : the justice of the peace analyzed the situation from the standpoint of the respondent's burden of proof and found that it had not been discharged.

In the circumstances of the offences charged, in light of his comments in paragraphs 86 to 91 of the judgment rendered (reproduced supra ), could it not be argued that he denied the accused's release without regard to his criminal record? I believe so. Although he refers to the criminal record, it appears to me to represent at most one background element, a secondary aspect rather than a principal one. [ 58 ] Second observation : the justice of the peace expressed a particular feeling with respect to Lebrasseur's violation of various undertakings.

Once again, in the context of the significance given to the objective of not undermining public confidence, pursuant to paragraph 515(10) (

c) Cr. C. , the criminal record appears to play a minor role. [ 59 ] Third observation : the judge denied release based on two grounds:

(1) Lebrasseur's detention was necessary for the protection or safety of the public, having regard to all the circumstances, including any substantial likelihood that, if released, he would commit a criminal offence or interfere with the administration of justice;

(2) Lebrasseur's detention was necessary to maintain confidence in the administration of justice, in light of all the circumstances, the following in particular: (

i) the apparent strength of the prosecution’s case; (ii) the gravity of the offence; (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used; and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

His decision therefore rests on several elements, one of which is the criminal record, no more and no less. [ 60 ] Fourth observation : there is nothing to indicate that the justice of the peace took subsection 515(9.1) Cr. C. into consideration. This observation appears all the more important since the justice did not truly comment upon the respondent's criminal record.

Indeed, he merely listed the previous convictions in the paragraphs of his judgment that addressed the sixth factor to be considered, one of the many relevant factors [20] in assessing dangerousness, only to observe that Lebrasseur is [ translation ] "deeply involved in such criminal matters". [ 61 ] In short, it appears impossible to argue that Lebrasseur's criminal record is the primary basis of his decision to deny release. [ 62 ] The judge had full judicial discretion to conclude as she did. [ 63 ] I would therefore dismiss the appeal. MARIE ST-PIERRE, J.A.