2023 QCCA 563, 2023 QCCA 563

Wanna c. R. 2023 QCCA 563 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007679-218 ( 500-01-141575-164 ) MINUTES OF HEARING DATE: April 27, 2023 CORAM: THE HONOURABLE GUY GAGNON, J.A. ROBERT M. MAINVILLE, J.A. MARIE-JOSÉE HOGUE, J.A. APPELLANT COUNSEL daher wanna Mtre robert bellefeuille ( Étude Légale ) RESPONDENT COUNSEL HIS MAJESTY THE KING Mtre denis trottier ( Director of Criminal and Penal Prosecutions ) On appeal from a judgment rendered on February 8, 202 1 by the Honourable Mylène Grégoire of the Court of Quebec, Criminal and Penal Division, District of Montreal .

NATURE OF THE APPEAL: Appeal against sentence – Robbery. Clerk at the hearing : Lesly Ramos Courtroom: Pierre-Basile-Mignault HEARING 12:22 Commencement of the hearing. Identification of counsel. 12:23 Submissions by Mtre Bellefeuille. 12:25 Questions by the Court and responses by Mtre Bellefeuille.

12:32 Submissions by Mtre Trottier. 12:36 Mtre Bellefeuille has no reply. Recess of the hearing. 12:38 Resumption of the hearing. BY THE COURT: Judgment – see page 3. Conclusion of the hearing. Lesly Ramos, Clerk at the hearing JUDGMENT [ 1 ] This is an appeal from a fine of $75,000 in lieu of forfeiture which was incorporated in a sentence imposed on the appellant by Judge Mylène Grégoire of the Court of Québec on February 8, 2021. [1] [ 2 ] The context of this appeal is straightforward.

In a judgment rendered on December 17, 2019, the appellant was found guilty of stealing a Volvo truck and trailer and of extorting his employer for its return. The truck and trailer were never recovered by the police or the employer. The guilty verdict is not challenged. [ 3 ] On February 8, 2021, the appellant was sentenced to nine months incarceration and two years’ probation. The following orders were included in the sentencing judgment: [2] IMPOSES a fine in lieu of forfeiture for the sum of $75 000. The said amount will be paid through the Clerk’s office at the Montreal court house in a delay of five years.

IMPOSES that in default of payment of that fine, the accused will have to serve a term of eighteen months of imprisonment (462.37 (4) (a)(iv)); DIRECTS that the eighteen months of imprisonment shall be served consecutively to any other term of imprisonment imposed on the offender or that the offender is then serving (462.37 (4)(b)); [ 4 ] Only these orders are challenged in appeal. The appellant submits that no such order may be issued in the absence of evidence establishing that he profited financially from the stolen trailer truck for an amount equivalent to that of the fine in lieu of forfeiture.

This is his only ground of appeal. [ 5 ] The circumstances in which the judge decided to impose the fine in lieu of forfeiture are set out as follows in the sentencing judgment: [3] [69] According to the claims of the accused, Mr. Ioxa [the employer’s representative] immediately started to look for the truck, calling the truck stop in Grand Forks, North Dakota, the last known destination of the accused. Nobody was able to locate the truck with the plate number. [70] Mr. Ioxa also went to Ottawa and searched the area without more success.

He then presented himself to the Ontario police Department, but they referred him to Quebec police. [71] Mr. Ioxa kept trying to call the accused almost every day to convince him to meet and discuss, but the accused didn’t want to make any compromise. He kept threatening Mr.

Ioxa by saying: “send me the money in my account, then we’ll meet and you will see the equipment”; “If you don’t give me the money, you’re not going to see the equipment ever again”. [72] On top of the steps taken by the victim, on March 12, 2016, S/D Yvon communicated with the Canadian border services and received the information that the accused entered Canada with the truck and trailer on February 6, 2016 around 2:00 PM. (Exhibit P-7) [73] The whole evidence demonstrates beyond a reasonable doubt that the accused has always been in possession and control of the equipment: • beginning at the signature of the lease contract; • and still on February 6, 2016 when he crossed the Canadian border at 2:00 P.M.; (Exhibit P-7) • and at least up until March 10, 2016, which correspond to his last contact with Detective Yvon before his arrest, still promising to return the truck and trailer within 48 hours of the payment by Mr.

Ioxa.

[74] In my reasons on verdict, I conclude that given the evidence (direct and circumstantial) and the absence of evidence, assessedlogically, and in light of human experience and common sense, the only reasonable inference was that the accused never ceased to be inpossession and control of the equipment. He was still offering even late in March 2016, to bring back the truck and trailer within a shortdelay.

In fact, he is the only one to know what happened to it. [75] Since the accused lied on different occasions about the real location of the equipment (Grand Forks-North Dakota, USA orMississauga, Ontario), it is unreasonable to expect from the authorities to search everywhere in the territory of two different countries. [76]

Section 462.37(4) of the Criminal code also requires that where payment of a fine is ordered, the Court shall impose a term of jailin default of payment consecutive to any other term of imprisonment imposed on the offender. The period of imprisonment depends onthe value of the property. [77] As above mentioned, the Court determined the loss at $75 000. Consequently the fine will be for an amount of $75 000.

Indefault of payment of that fine, the Court shall impose a term of imprisonment not less than eighteen months and not exceeding twoyears. (s. 462.37(4)(iv) of the Criminal code). [6] These facts are borne out by the record before us. Consequently, it is readily apparent from the record that the appellant hadpossession and control of the trailer truck at all material times. It may therefore reasonably be assumed that he profited from thatequipment. This is sufficient for the purpose of imposing a fine in lieu of forfeiture, as a unanimous Supreme Court of Canada recentlynoted in R. v.

Vallières:[4] [36] At this second step, the Crown’s burden is only to show that the offender had possession or control of property that is proceedsof crime and to establish the value of that property (Angelis, at para. 35; Dwyer, at paras. 24-27). The Crown does not have to prove thatthe offender personally benefited from the proceeds of crime (R. v. Piccinini, 2015 ONCA 446, at para. 19 ; R. v. Siddiqi, 2015ONCA 374, at para. 6 ). Nor does the court have to consider the offender’s subsequent use of the property, such as how cashwas spent by the offender (Schoer, at para. 105; R. v.

Dow, 2014 NBCA 15, 418 N.B.R. (2d) 222, at para. 37; R. v. S. (A.), 2010 ONCA441, 258 C.C.C. (3d) 13, at para. 14). (Emphasis added) [7] Moreover, the appellant admitted at trial that the combined value of the truck and trailer was $75,000, more specifically $60,000for the truck and $15,000 for the trailer.[5] This is the most advantageous finding for the accused as to the value of the truck and trailerand it was retained by the sentencing judge.[6] FOR THESE REASONS, THE COURT: [8] DISMISSES the appeal. GUY GAGNON, J.A. ROBERT M. MAINVILLE, J.A. MARIE-JOSÉE HOGUE, J.A.