R. v. Lacasse, 2019 QCCA 638

Translated from the original French Bernard c. R. 2019 QCCA 638COURT OF APPEAL CANADAPROVINCE OF QUEBECREGISTRY OF QUEBEC No.: 200-10-003588-188(350-01-034894-177, 350-01-034896-172) DATE: APRIL 8, 2019 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. DOMINIQUE BÉLANGER, J.A. MARTIN VAUCLAIR, J.A. ANTONY BERNARDAPPELLANT – Accusedv. HER MAJESTY THE QUEENRESPONDENT – Prosecutrix JUDGMENT [1] On October 29, 2018, the Honourable Mr.

Justice Hubert Couture of the Court of Quebec, District of Beauce, imposed a globalsentence on the appellant comprising imprisonment for a term of two years less a day and a three-year probation order with supervisionfor the first fifteen months. The appellant was convicted on one count of aggravated assault (268 Cr.C.), one count of assault with aweapon (267(

a) Cr.C.), one count of uttering death threats (264.1 Cr.C.), one count of theft of property not exceeding $5,000 and onecount of attempted theft (334(b)(i), 463(d)(i)-334(b)(

i) Cr.C.): 2018 QCCQ 7960. [2] The appellant appeals, arguing that the judge erred by failing to consider the penological goals of rehabilitation and restraintprescribed by the Criminal Code, his mental health problems and, lastly, the onerous and restrictive release conditions imposed over aperiod of more than one year. According to the appellant, the combination of these errors resulted in a demonstrably unfit sentence. [3] The respondent sees no error in a decision which, it believes, imposed a fit sentence given the circumstances of the case.

Itargues that the judge was not required to refer explicitly to the principles of rehabilitation and restraint. The judge considered theappellant’s mental condition and the existing mitigating factors. Given that the appellant experienced toxic psychosis, the judge wasentitled to prioritize the objectives of deterrence and denunciation. [4] In particular, citing R. v.

Lacasse, 2015 SCC 64 , [2015] 3 S.C.R. 1089 and the Court of Appeal of Alberta, the Crownis of the opinion that the objectives of denunciation and deterrence should prevail and that imprisonment is the only way to achieve it. [5] With respect, the appeal must succeed. As the judge pointed out, for the most serious offence, the appellant is liable to 14 yearsof imprisonment. However, where the legislature provides for a maximum sentence of 14 years, the possible sentences will, with someexceptions, vary from a suspended sentence to imprisonment. This is the range of sentences provided for by law.

In providing so, despitethe sometimes tragic consequences of crimes, the legislature has, in its great wisdom, recognized the vast spectrum within which theyare committed. [6] In the case at bar, the judgment, other than providing a succinct and telegraphic list of the evidence and mitigating factors, doesnot contain an analysis thereof. It further appears that one should understand from the general statements regarding the excessiveconsumption of intoxicants that they justify the sentence imposed.

The lack of analysis is also reflected in the sentence which, despiteinvolving four counts in two cases, is not broken down in any way: see, in particular, R. c. Guerrero Silva, 2015 QCCA 1334; R. c. Rayo,2018 QCCA 824. [7] That said, the unusual facts required the judge to address the particular challenge this case poses.

Rarely has a drug addict hadsuch a positive profile; not only does he want to get himself back on the right track, but he has taken all the proper steps to achieve thatgoal. ** [8] When the events occurred, the appellant was barely 18 years old, had little education and had been working as a day labourerfor the family business for a few years. The uncontested presentence report clearly shows that the appellant was bullied by his peers atschool because he was overweight and because he had scholastic difficulties due to learning problems, and that this persisted until,

around the age of 15, he began to spend time with friends who led him to consume drugs. His drug addiction stemmed from his feelings of rejection and the personal suffering he experienced at that time. [ 9 ] It is established in the record that, a few days before the events of July 7, 2017, the appellant had consumed marijuana and methamphetamine, perhaps cocaine. He ended up in a state of toxic psychosis.

Faced with his state, his parents took action and drove him to the hospital, where he was diagnosed with toxic psychosis, was given antipsychotics and received a recommendation that he go to a specialized facility. His parents brought him there. It is clear that this was the first occurrence of such an episode and, moreover, that it was unwanted. [ 10 ] On July 7, the appellant, who was still in the same state, left the facility, but not before stealing someone else’s bag. [ 11 ] What followed is as surprising as it is tragic.

After wandering through the streets of the city of Saint-Georges, he jumped into the Chaudière River with the objective of swimming to Beauceville to meet his girlfriend who was there. [ 12 ] While he was swimming, a kayaker who was intrigued and wanted to help him, approached to speak to him. The judge described the situation as follows: [ translation ] … He answered in a non-aggressive tone, while swimming, sometimes above the water and sometimes below. As she was about to turn back, he suddenly appeared near the kayak, grabbed onto it and said: “I’m going to tip you over.” He managed to do just that.

He tried to remove her life jacket and pushed her underwater, saying that he wanted to drown her. [The victim] put up a struggle and moved away. The accused grabbed a paddle and tried to hit her, but did not succeed. He managed to catch up to her and once again pushed her under the water while trying to remove her life jacket. [The victim] told him that she wanted to take back her kayak and leave. He let her go. At approximately 1:30 p.m., a call was made to report that a kayak had overturned.

Police officers arrived at the scene and saw the kayak. [The victim] was on the river bank and the accused was following her. A police officer identified himself, and the accused said, “I’ll be back later.” He then ran towards the river and jumped into the water. He was arrested. ** [ 13 ] All of the counts, therefore, stem from this incident. [ 14 ] The appellant’s state was serious. A psychiatric report dated August 9, 2017 states that an initial report, dated July 12, 2017, concluded that, due to an active psychotic state, he was unable to appear in court to stand trial.

The report indicates that, since having been hospitalized and since taking antipsychotics, he no longer has delusional or paranoid thoughts and is not suffering from hallucinations. The report summarizes the notes from a 2008 psychological assessment in which the appellant had been described as an individual [ translation ] “bordering on slight intellectual deficiency”.

The report points out that he has significant difficulty understanding the judicial process, even when not in a state of psychosis. [ 15 ] A neuropsychological assessment dated August 1, 2017 described his verbal skills as falling clinically within the range of intellectual deficiency. While, ultimately, no formal diagnosis was made, the appellant does not seem to have a very high intellectual capacity. [ 16 ] This has not prevented him from being adequately self-critical as regards his consumption.

In a report dated December 9, 2017, the psychiatrist notes that after the Court released him, the appellant was still motivated to continue his psychiatric and drug addiction follow-up care, and that he continued to abstain from consuming illegal substances. [ 17 ] In any event, the portrait that emerges from the November 23, 2017 clinical assessment is at odds with the incident in which he was involved on July 7 of that same year. The assessment notes that the appellant was smiling, and walked and handled himself with confidence. He was calm and made excellent eye contact.

In the psychiatrist’s view, the appellant’s trustworthiness was adequate. He did not show any signs of mistrust, and his cooperation was without reproach. He was polite and took care to make himself understood, even with relatively unsophisticated language. The expert noted the presence of an anxious, but manageable, mood. The appellant did not show any signs of euphoria, sadness or irritability.

The expert noted that the appellant was remorseful about his problematic conduct and was realistic about the challenge of abstaining from consuming drugs and the company he kept. [ 18 ] The presentence report required by the judge pursuant to

section 721 Cr.C . describes a profile that goes beyond being “positive” or “favourable”. [ 19 ] Following a clinical interview, the author of the report, who is a probation officer and social worker, informs the court that [ translation ] “as regards his actions, the offender appears sincerely remorseful” and [ translation ] “speaks with empathy when referring to the victim”. The appellant is aware of the gravity of the acts he committed and of the fact that he must follow all of his psychiatrist’s recommendations in order to avoid a new psychotic episode and avoid reoffending.

According to the author of the report, the appellant is too scared of the consequences of a relapse. [ 20 ] The report indicates that the appellant has undertaken therapy in order to tackle the source of the malaise that led to his significant consumption of intoxicants before his psychosis. He took this therapy seriously and is now stronger. He is also more aware of the challenges of abstinence, and the author of the report sees no information that would cast a doubt on his abstinence.

She adds that the appellant is also aware of his propensity for addiction, including video games, compulsive purchases, emotional dependence and drugs, a propensity that provided him with immediate gratification to alleviate his malaise. [ 21 ] According to the author of the report, the facts show that the appellant is determined to maintain a healthier, abstinent lifestyle and that he has support (therapy, abandoning the questionable company he kept, diligent with his psychiatric follow-up, attendance at meetings of various anonymous support groups, positive rehabilitation plans).

He is responding well to the antipsychotic medical

treatment. He does not have any antisocial traits or any behaviour that could threaten the safety of others.

The author notes that the onlynegative point is the appellant’s desire to reconnect with certain friends who could influence him once again, but she also notes that he isaware of this issue and has expressed his willingness to distance himself permanently. [22] In short, over and above the positive and mitigating elements, there is proof of actual rehabilitation that is well underway. ** [23] The judge’s error in the case at bar is his failure to analyze this important, and indeed exhaustive, evidence, which is supportedby medical and psychiatric reports that are based on numerous interviews regarding the offender’s personal situation both before andafter the offence. [24] Given the judge’s reductionist listing of the mitigating factors, it is not possible to understand why he nevertheless imposed aheavy prison sentence. [25] Admittedly, this is a serious crime, as are the consequences for the victim.

Nothing in these reasons should be interpreted asindicating that the Court has disregarded this reality, which the judge summarily described. A prison sentence is certainly one that couldbe contemplated for this crime and its consequences. A court would have to determine its duration and, if it were to be servedintermittently, the terms thereof. However, sentencing must address both the crime and the offender. It is always a difficult exercise and“an inherently individualized process”: R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500, para. 92; R. v.

Suter, 2018 SCC 34. [26] The judge disregarded the positive evidence of actual rehabilitation that was well underway. This factor is important,particularly, but not only, when drug addiction underlies the criminal behaviour, and when all indicators point to recovery. In this regard,the logic underlying the case law that notes the importance of this factor in connection with narcotic-related crimes applies wheneverthere is particularly convincing evidence of rehabilitation or reintegration: see, inter alia, R. c. Bernier, 2015 QCCA 963, para. 46; R. c.Zawahra, 2016 QCCA 871; R. c.

Lafrance, (QCCA). [27] While the Court acknowledges the gravity of the crimes and their consequences, an analysis of the evidence in the variousreports summarized above shows that this criminal conduct is atypical for the appellant and, above all, it provides particularlyconvincing evidence of rehabilitation.

These are factors that argue in favour of a different sentence than that determined by the judge. [28] The respondent cites the remarks of the Supreme Court in Lacasse to the effect that “the courts have very few options other thanimprisonment for meeting these objectives [of denunciation and deterrence]”, and it argues that this is the case here. Although it cites ajudgment of the Court of Appeal of Alberta, R. v. Gejdos, 2017 ABCA 227, it fails to cite the judgments of this Court explaining thelimited scope of that passage. It is these judgments that are binding on Quebec courts and litigants.

Moreover, in R. c Charbonneau,2016 QCCA 1567, this Court wrote: [translation] 16 When it stated that “the courts have very few options other than imprisonment for meeting these objectives”: R. v.

Lacasse 2015SCC 64 , [2015] 3 S.C.R. 1089, para. 6, the Supreme Court certainly did not intend to set a starting point by requiring sentencesof imprisonment for offences, when the legislature has provided for the possibility of other sentences, it did not intend to confirm thatother sentences cannot achieve the objectives of deterrence and denunciation, nor did it intend to set aside the fundamental principle ofproportionality, which requires sentencing to consider both the gravity of the crime and the offender’s responsibility: R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948; R. v.

Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; R. v. Ipeelee, 2012 SCC 13 , [2012] 1 S.C.R. 433; R. v. Lacasse, [2015] 3 S.C.R. 1089, para. 128(dissenting opinion). 17 With respect, it would be unreasonable to give such a scope to this passage. In fact, the Supreme Court points out that judges“must still exercise their discretion in each case”: R. v. Lacasse, 2015 SCC 64 , [2015] 3 S.C.R. 1089, para. 57. 18 While certain crimes quickly result in harsher sentences, gravity must not lead exclusively to imprisonment.

Everything dependson the circumstances. 19 Individualized sentencing still applies and requires variations that depend on the offender’s individual characteristics and hismoral culpability, which is based on his participation in the crime and his degree of participation: Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, 533; R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, para. 40; R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61, para. 82; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, para. 40-41, 57; R. v.

Ipeelee, 2012 SCC 13 , [2012] 1 S.C.R. 433, para. 39; Anderson 2014 SCC41 , [2014] 2 S.C.R. 167, para. 21. [29] The Court reiterated these principles in R. v. Umakanthan, 2017 QCCA 801, para. 4, and in R. c. Harbour, 2017 QCCA 204,para. 82. [30] Moreover, the respondent’s proposal is inconsistent with the recent remarks of the Supreme Court in Suter, where the Courtnoted the importance of a judge having full manoeuvrability to tailor sentences to the crime and the offender: R. v. Suter, 2018 SCC 34,para. 46, citing R. v.

Ipeelee, 2012 SCC 13 , [2012] 1 S.C.R. 433. [31] This is entirely compatible with the principle that nothing should be excluded and that adopting rigid principles should beavoided, as the Supreme Court pointed out in a case involving the serious crime of terrorism: At the outset, I wish to underscore that the temptation to fashion rigid sentencing principles applicable to terrorism offences as a distinctclass of offences should be avoided, subject to the provisions in the Criminal Code that specifically pertain to those offences.

Thegeneral principles of sentencing, including the totality principle, apply to terrorism offences.

R. v. Khawaja, 2012 SCC 69 , [2012] 3 S.C.R. 555, para. 115. [32] Clearly, the words used in Lacasse do not explicitly set aside these well-established principles and this longstanding Canadianlegal tradition regarding sentencing.

Moreover, since the Supreme Court’s remarks clearly do not follow from a jurisprudential analysis,which would have indicated, at the very least, a willingness to depart therefrom, it must be understood that in the particularcircumstances of the respondent Lacasse, imprisonment was the only means to adequately achieve the sentencing objectives. [33] The appellant concludes by arguing that the judge should have given consideration to the strict conditions of his releaseimposed over a period of more than one year.

In particular, the appellant was subject to house arrest (24 hours a day) for some 14months, save for authorized exceptions, which consisted essentially in travelling to work or with his parents to attend to the court caseand his various medical and therapeutic appointments. [34] This Court has endorsed the approach of other appellate courts and has clearly recognized that onerous release conditions are arelevant factor in sentencing, although their relative weight can vary: R. c. Larouche, 2012 QCCA 2272, para. 32, citing R. v. Panday,2007 ONCA 598; R. v. Ijam, 2007 ONCA 597; R. v.

Voeller, 2008 NBCA 37. [35] This case law establishes that house arrest is certainly a relevant factor. It would also be logical to think that the relative weightof the restrictive conditions will increase with the duration of the order and any subsequent relaxing of those conditions. Again,individualization must govern the process. That being said, this Court has noted the relevance of restrictive release conditions—not onlyhouse arrest—in a few judgments and in various contexts: R. c. Berish, 2011 QCCA 2288, para. 21; R. c. St-Cyr, 2018 QCCA 768, para.64; R. c.

Camiré, 2010 QCCA 615, para. 81. [36] Although it is sometimes identified as a mitigating factor, it is more of a “relevant factor” in the analysis. More recently, thisCourt reiterated the fact that [translation] “there is no doubt that, when sentencing, a judge may consider the conditions of release, butthis consideration is discretionary”, and it specified that the conditions of release do not constitute a mitigating factor as such, but, rather,should play a

part in the final crafting of a fair and just sentence: R. c. Sanon, 2018 QCCA 892, para. 8. [37] In the days following the Sanon decision, the Supreme Court filed its judgment in Suter and seemed to endorse this approach.First, the Supreme Court stated that “aggravating” or “mitigating” factors under the Criminal Code relate to the gravity of the offence orthe level of responsibility of the offender, while a variety of other circumstances may be collateral consequences that nevertheless speakto the personal circumstances of the offender: R. v. Suter, 2018 SCC 34, para. 48; R. c. Émond, 2019 QCCA 317, para. 39.

Second, theobjective of sentencing is to tailor sentences to the circumstances of the offence and to the offender’s situation. This requires that thejudge consider all the consequences for the offender arising from the commission of an offence, the conviction or the sentence imposed.By doing so, the judge can “craft a proportionate sentence in a given case by taking into account all the relevant circumstances related tothe offence and the offender”: R. v.

Suter, 2018 SCC 34, para. 46-47 (emphasis in original) [38] Although giving consideration to the strict conditions of release falls within the exercise of a sentencing judge’s discretionarypower, this power must nevertheless be exercised judicially. Given a judge’s obligation to consider all the relevant circumstances of theoffence and the offender that are brought to his attention in a particular case, the judge was required to explain why he set aside thisfactor, unless the reasons were clearly evident from the record.

It bears reminding that a judge’s obligation to provide reasons whenimposing a sentence is also a statutory one: s. 726.2 Cr.C. Failing adequate reasoning, less deference will be due, and the Court maychoose to intervene: R. c. Cardinal, 2012 QCCA 1838. [39] In the case at bar, the onerous nature of the conditions was argued as an issue. The judgment is silent on the reason warrantingthe judge’s disregard of the 14 months of house arrest and the reason does not stand out clearly from the record.

This constitutes an error.In the Court’s opinion, this is a factor to be considered in the matter at hand. [40] That being said, the Court is of the view that the appellant’s proposal considers all of the circumstances of the crime and theoffender. He proposes that the Court suspend the passing of sentence and issue a probation order. [41] It is undeniable that for certain offenders, including the appellant, proceeding through the criminal justice system contributes, inand of itself, to achieving the sentencing objectives: R. c. Harbour, 2017 QCCA 204, para. 67; R. c.

Berish, 2011 QCCA 2288, para. 19-21. [42] Moreover, it bears reminding that a suspended sentence must necessarily include a probation order, which may extend for up tothree years. In this regard, in R. c. Brunet, 2016 QCCA 2059, the Court pointed out that if the appellant commits a new offence,including a failure to comply with the probation order within the meaning of

section 733.1 Cr.C., a suspended sentence, as contemplatedin the case at bar, includes a mechanism whereby the court may, upon application by the Crown, revoke the suspended sentence andimpose any sentence that could have been imposed if the passing of sentence had not been suspended: s. 731(1)(

a) and 732.2(5) Cr.C. Asa result, a suspended sentence constitutes a complete measure that allows the courts to act promptly and impose the appropriate sentencein light of the circumstances. [43] Clearly, the appellant must understand that if he fails or refuses to comply with the probation order, without a reasonableexcuse, he will be committing a criminal offence and will be liable to imprisonment for a term of not more than four years. [44] The sentence the appellant proposes is reasonable.

All in all, given the house arrest (14 months) and the time already served indetention at the hospital and in prison (99 days), the Court accepts the appellant’s suggestion in part. The Court believes that theappellant’s problems require supervision over the entire period and leaves it up to the probation officer to set an appropriate supervisionschedule. [45] The sentence will apply concurrently to each count, the conditions having been discussed with the parties at the hearing.

Theappellant’s counsel has undertaken to explain them to her client. [46] Lastly, the respondent acknowledges that it did not seek an order for the taking of a DNA sample for count 3 in file 350-01-

034894-177 and that this order was inapplicable to count 4 and to the sole count in file 350-01-034896-172. Therefore, the order should be amended accordingly.

FOR THESE REASONS, THE COURT: [ 47 ] ALLOWS the appeal; [ 48 ] SETS ASIDE the sentence of imprisonment; [ 49 ] SUSPENDS the passing of sentence in files 350-01-034894-177 and 350-01-034896-172; [ 50 ] ORDERS the release of Antony Bernard under the terms of a probation order, which will run for a period of three years as of the date of this judgment, with the following compulsory and optional conditions: Compulsory conditions 1. keep the peace and be of good behaviour; 2. appear before the court when required to do so by the court; 3. abstain from communicating directly or indirectly with Danielle Plante; 4. refrain from being within a radius of 150 metres from any place in which Danielle Plante or members of her family are present; 5. notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation; Optional conditions 6. report to the probation officer within 72 hours of this judgment and, thereafter, when required by the probation officer and in the manner directed by the probation officer; 7. abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance; 8. provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer or a probation officer, at the place and time and on the day specified by the officer, if the officer has reasonable grounds to believe that the offender has breached a condition of the order that requires him to abstain from the consumption of drugs, alcohol or any other intoxicating substance; 9. refrain from referring to Danielle Plante in social media on the Internet or otherwise bothering her; 10. continue, considering his expressed consent to do so, his follow-up with his treating physician and his psychiatrist, in the manner they respectively require; 11. authorize his treating physician and his psychiatrist to communicate to his probation officer, at the latter’s request, any information regarding his diligence and cooperation in fulfilling the requirements of their medical supervision; [ 51 ] CONFIRMS the order made under section 109(2) Cr.C . ; [ 52 ] AMENDS the order made under

section 487.051(1) Cr.C . for the sole purpose of specifying that it applies only to counts 1 and 2 of file 350-01-034894-177; [ 53 ] SETS ASIDE the order made under

section 743.21 Cr.C . ; [ 54 ] ORDERS Antony Bernard to report to the Office of the Court of Quebec in St-Joseph-de-Beauce within a period of 72 hours of this judgment in order to sign and receive a copy of the order and obtain the required explanation regarding the terms set out in

section 732.2(3) and regarding the content of sections 732.2(3) and

(5) Cr.C . FRANCE THIBAULT, J.A. DOMINIQUE BÉLANGER, J.A. MARTIN VAUCLAIR, J.A. Mtre Ariane Gagnon-Rocque Mtre Xavier Lyonnais ROY & CHARBONNEAU, AVOCATS

For the appellant Mtre Annick Harbour COUNSEL FOR THE DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the respondent Date of hearing: March 22, 2019