2011 QCCA 2288, 2011 QCCA 2288

Unofficial English Translation R. c. Berish 2011 QCCA 2288 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004937-114 (500-01-018405-099) DATE: December 12, 2011 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. PAUL VÉZINA, J.A. JACQUES VIENS, J.A. (AD HOC) HER MAJESTY THE QUEEN APPELLANT – Prosecutrix v. DEREK BERISH RESPONDENT – accused JUDGMENT [ 1 ] The appellant appeals from the sentence imposed on the respondent, which is reproduced in full below. [ 2 ] On June 6, 2010, the respondent acknowledged his guilt and the Honourable Judge Jean-Pierre Boyer of the Court of Quebec (Criminal Division) convicted him of the two following offences:

a) On or about January 21 st , 2009, in Montreal, District of Montreal, did have in his possession 920 gr. of marijuana for the purpose of trafficking, contrary to section 5(2) (4) of the Controlled Drugs and Substance Act .

b) On or about January 21 st , 2009, in Montreal, District of Montreal, did have in his possession for the purpose of trafficking 127 amphetamines pills (ecstasy), contrary to section 5(2) (3)( b )(

l) of the Controlled Drugs and Substance Act . [ 3 ] On May 19, 2011, the judge imposed the following sentence: i. Conditional discharge; ii. Probation for a duration of two (2) years; iii. 240 hours of community service; iv. A donation of $500.00 to CAVAC; v. A prohibition to communicate with the co-accused, Mr. Michael Grote; vi. A firearm prohibition order pursuant to

section 109 of the Criminal Code ; and vii. An order of forfeiture of $70,656.00 seized from the respondent’s residence. * * * [ 4 ] The judge decided to give the benefit of the doubt to a young eighteen-year-old offender who had learned the error of his ways in the two years since he had committed his crimes and granted him a conditional discharge. [ 5 ] The Crown now petitions the Court to review the sentence, which, in its view, is unreasonable; it had sought a one-year sentence of imprisonment to be served in the community.

[ 6 ] Its main ground of appeal is that the judge did not take into consideration the extent of the trafficking carried out by the accused, which it describes as being "a big business, for a period of one year".

The Crown also points out that the accused was in possession of over $70,000 when he was arrested. [ 7 ] Admittedly, the judge only briefly stated the negative facts militating against discharge—the planning involved...and the quantity of drugs possessed—but this does not necessarily mean that he did not weigh all the circumstances of the case before deciding. [ 8 ] Indeed, his decision shows a complete understanding of the file when he succinctly, but precisely, listed fifteen positive elements in favour of discharge: 1- no previous record, 2- 18 th years old when he committed the offences, 3- a guilty plea after renouncing to a Preliminary Hearing, 4- …respected all the conditions of his interim release since January 2009 [the sentence: May 10 th , 2011], 5- …lives with his father, 6- …very close to his grandparents, 7- …works four days a week, 8- …will be attending school L’École des métiers de la Construction de Montréal , 9- …attends sessions for his psychotherapy, 10- [according to his attending physician] he does not pose a danger to society, 11- that he was detained for many hours after his arrest, and it had great impact on him, 12- that his family is very involved and supportive, 13- that his future is bright and it would be sad to put a ball and chain on him, 14- that he has acknowledged his stupid conduct, 15- the handicap of a criminal record would be disproportionate. [ 9 ] The Court will interfere only if a sentence is [ translation ] "patently unreasonable" or [ translation ] "clearly inappropriate", according to the usual expressions, or, obviously, if there is an error in principle, a failure to consider a relevant factor, or an overemphasis of a relevant factor. [ 10 ] From the outset, we would point out that the positions of the prosecution and the defence are not that far apart.

Discharge with a two-year probation and a one-year conditional sentence both involve the acknowledgement that the accused has learned the error of his

ways and that the safety of the public will not be at risk if the accused is not confined to prison. [ 11 ] The main distinction resides in the fact that, in the first case, the offender is not deemed to have been convicted, whereas in the second, he will carry a conviction that will burden him for the rest of his life. [ 12 ] It has been suggested that the handicap would not be that great since the young person is presently attending the École des métiers de la construction and is therefore likely to spend the rest of his life here. [ 13 ] What a strange argument.

If he were older, if life had been good to him, and if he were prosperous and travelling the world to drum up business, would he be more entitled to a discharge? Therein lies a double standard that makes one wonder. [ 14 ] It ignores the fact that at eighteen or twenty years of age, the future remains wide open.

The impediment of a conviction could eventually become quite heavy, even if it cannot be determined as precisely today as it could be with an older offender. [ 15 ] It also ignores the fact that the world is getting smaller every day and that to make a living, or to make a better living, many men and women who practice trades must travel to Chinese work sites or South American mines, or take advantage of opportunities in developing countries where specialized workers are needed. [ 16 ] The judge saw and heard the respondent.

Indeed, the latter’s presence in Court was required every time the case came back before the judge. [ 17 ] Could the discharge set a bad example for young people who might be tempted by the easy money of drugs? [ 18 ] The judge considered this. Let us review some of the facts. [ 19 ] First, the respondent was caught. This is already a deterrent for anybody who does not have a prior record. [ 20 ] He was arrested, handcuffed, incarcerated and he had to face the somber reality that he might have to go to prison for a very long time.

The judge observed that this changed him. [ 21 ] Also, his freedom was restricted for over two years. A strict curfew that must be respected inspires introspection, especially when all of one’s friends are going out and having fun. [ 22 ] Since sentencing, he has completed two hundred and forty hours of community work, entailing seventy return trips to do volunteer work with the dispossessed for as many half-days.

This is the type of activity that gets one thinking about the illusion of easy money and the harm caused to the victims of drugs. [ 23 ] Clearly, the respondent had made sufficient progress toward rehabilitation for both the prosecution and the judge to deem that incarceration was unnecessary to instil a sense of responsibility in the accused. [ 24 ] The judge went even further and found that the accused, a young man well on his way to being rehabilitated, should benefit from a new start, free of the ball and chain that a conviction would represent. [ 25 ] It is the duty of trial judges to ferret out those cases amongst the many heard every day where a discharge would benefit society.

Experience teaches judges to recognize these cases, which are quite rare when all is said and done. [ 26 ] In short, the judge was bound to exercise the discretion he is granted by law in a judicial manner, by providing reasons for his decision. The facts the judge accepted were duly proved. The reasons for his decision were sufficient to ensure that their relevance and weight could be assessed and the reasonableness or unreasonableness of the decision could be determined therefrom. [ 27 ] Admittedly, the amount of $70,000 is startling. But even in the case of more serious offences, discharge is available.

There was therefore no legal impediment to the judge's decision. [ 28 ] On this matter, it is interesting to point out a particular aspect of this case. [ 29 ] The police arrested another individual during the same police operation. In fact, it was the surveillance of this other person that led to the respondent's arrest. [ 30 ] In that case, the same judge accepted the joint submission of the prosecution and defence and ordered the other individual to serve a two-year term of imprisonment. [ 31 ] The judge took into account all that separated the two men.

The younger man had no prior record or pending charges, while the older man, when he was arrested, was awaiting trial for another offence of the same nature, to which he in fact simultaneously pleaded guilty, and which earned him a concurrent two-year sentence. One of the men has seen the error of his ways, while the other seems bent on a life of crime. [ 32 ] It is precisely the duty of judges to personalize sentences to ensure fairness in each case. Sometimes this requires them to be fair but harsh, while other times they must be fair and lenient.

But they must always be mindful of fairness. [ 33 ] The judge chose, in this rather unusual case, to favour the accused's rehabilitation, which was already underway. While one may disagree with his decision, it cannot be characterized as unreasonable in the circumstances. [ 34 ] The appellant argues that the sentence is so lenient that the judgment, already cited before the trial courts, risks setting an unacceptable standard for sentencing. This argument is without merit.

We cannot interfere and inflict a uselessly harsh sentence on the respondent merely because the judgment could be erroneously interpreted and improperly followed by the courts. Judges know that each

case is different and will continue to impose sentences by taking into consideration all the circumstances and not only the judgments rendered by their colleagues. [ 35 ] It is to be hoped that the respondent will show himself to be worthy of the exceptional trust the Court has placed in him. [ 36 ] For these reasons, the Court : [ 37 ] ALLOWS the motion for leave to appeal the sentence; [ 38 ] DISMISSES the appeal. FRANÇOIS DOYON, J.A. PAUL VÉZINA, J.A. JACQUES VIENS, J.A. (AD HOC) Mtre Jean-Claude Boyer Criminal and penal prosecutor For the appellant Mtre Daniel Michael Lighter Boro Polnicky Lighter For the respondent Date of hearing: October 28, 2011