2015 QCCA 147, 2015 QCCA 147

LSJPA — 154 2015 QCCA 147 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-08-000468-142 (505-03-020577-120) DATE: January 23, 2015 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. DOMINIQUE BÉLANGER, J.A. MARK SCHRAGER, J.A. HER MAJESTY THE QUEEN APPLICANT – APPELLANT– Prosecutrix v.

X RESPONDENT - Accused JUDGMENT INTRODUCTION [ 1 ] The Crown seeks leave to appeal a judgment of September 15, 2014 of the Court of Quebec, Youth Division, District A (the Honourable Judge Mélanie Roy) in virtue of which the respondent was sentenced to six months deferred custody followed by twelve months of probation and an order to pay $800 restitution to the victim. [1] [ 2 ] On January 11, 2013, the respondent was found guilty of five counts of robbery, possession of a stolen credit card, theft of a credit card, possession of an imitation weapon for purposes of committing an offence and use of an imitation of a firearm to commit an offence. [2] FACTS [ 3 ] The charges originated from a single incident on August 27, 2011, around midnight when the respondent held an imitation pistol to the head of the victim who was delivering gasoline to a local service station.

The victim was forced by the respondent to remit his valuables including his credit card. In the minutes following the robbery when the victim telephoned the issuer of his credit card, he was informed that it had just been used at a nearby convenience store. With the help of video camera footage from the convenience store, the respondent was arrested and subsequently convicted on January 11, 2013.

The convictions were maintained by a judgment of this Court dated May 14, 2014. [ 4 ] The applicant’s motion for leave to appeal the sentence was deferred to a full bench of this Court on October 28, 2014. [ 5 ] The respondent was born in March of 1994, such that he is 20 years old but was 17 years old when the offences were committed. [ 6 ] He has prior convictions for assault and theft.

A previous sentence of 30 hours of community service was not completed at all while a subsequent sentence of 70 hours saw only 1 ½ hours actually served. [ 7 ] Between the ages of 7 and 12, the respondent lived with two foster families and then with his father until the age of 17. [ 8 ] At the time of the sentencing, the respondent had not been in contact with his mother since 2009 and only saw his father occasionally. [ 9 ] After conviction, the respondent moved back to live with one of the foster families which was noted as a positive development in the pre-sentence report.

At the time of sentencing, he was living in a house managed by the foster parent. He had also, since the commission of the offences and prior to the sentencing, managed to maintain employment and further his secondary schooling. [ 10 ] The respondent continued to deny culpability but did present a letter of apology to the Court. THE JUDGMENT

[ 11 ] The detailed judgment recites the foregoing facts. [ 12 ] The judge underlined the seriousness of the crimes, the use of a weapon and the violence involved. She concluded that there were no mitigating circumstances and that the impact on the victim was significant. [ 13 ] On the other hand, the judge indicated that the respondent had appeared before the Court at all relevant times (15 in total) and had not violated the conditions of his interim release.

He had found a structured living environment, furthered his secondary schooling and maintained employment. [ 14 ] The judge recognized that incarceration was warranted.

However, given the apparent turnaround in the respondent’s circumstances since the commission of the crimes and the policy objectives of the Youth Criminal Justice Act (the “ Act ”), [3] the judge reasoned that deferring the custodial sentence melded best with the objectives of the Act: La peine de garde différée pour l’adolescent est la peine la moins contraignante qui lui offre les meilleures chances de réadaptation tout en suscitant le sens et la conscience de ses responsabilités, et ce, en tenant compte du principe de proportionnalité.

APPLICANT’S POSITION [ 15 ] Though the applicant has articulated three grounds of appeal, they are subsumed in one single question which is whether the judge committed an error of principle in imposing the foregoing sentence. [ 16 ] The applicant contends, in support of its position, that the sentence is manifestly unreasonable and pleading for a period of incarceration of twelve months, argues that: 1. - the respondent has not acknowledged his culpability; 2. - the judge recognized that a period of incarceration was warranted yet deferred it; 3. - the respondent failed to carry out previous sentences to have been served in the community; 4. - the judge erroneously considered the respondent’s new home environment and employment; 5. - the judge failed to consider the sentencing criteria found in Section 38(3) of the Act (i.e. previous convictions and degree of participation in the offence); 6.- the sentence imposed is not proportionate to the seriousness of the offence.

DISCUSSION Review of applicable principles [ 17 ] The standard of review for a court of appeal in sentencing matters under the Act is the same as in adult cases [4] and

part XXI of the Criminal Code dealing with sentence appeals applies with the necessary modifications to the Act. [5] [ 18 ] A court of appeal may intervene where the sentence imposed is demonstrably unfit or where the sentencing judge has committed an error in principle or failed to consider or overemphasized a relevant factor . [6] [ 19 ] A sentence is demonstrably unfit only where it is clearly unreasonable [7] which will be the case if the sentence is “in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes”. [8] [ 20 ] The Act refines this precept by providing for harmonisation of sentences on a regional basis. [9] For this reason, the judge refused to consider herself bound by case law from Nova Scotia submitted by the applicant. [ 21 ] The weight given to various relevant factors by the trial judge should not be interfered with upon appellate review unless this exercise of discretion by the trial judge results in a sentence which is demonstrably unfit or constitutes an error in principle. [10] [ 22 ]

Section 3 of the Act articulates the legislative policy of long-term protection of the public by holding young persons accountable and promoting rehabilitation and reintegration while recognizing the principle of diminished moral blameworthiness of young offenders. These general policy directives are repeated in

Section 38 of the Act dealing specifically with sentencing. Though the sentence imposed must be proportionate to the seriousness of the offence (Section 38(2)(

c) of the Act ), this does not outweigh the policy objective of rehabilitation. [11] The policy goal of rehabilitation provides in effect, that incarceration is only to be imposed for violent offences and as a last resort. [12] Section 39(2) of the Act reads as follows:

39 (…) (2) [Alternative to custody] If any of paragraphs (1)(

a) to (

c) apply, a youth justice court shall not impose a custodial sentence under

section 42 (youth sentences) unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in

section 38. 39 […] (2) [Solutions de rechange] En cas d’application des alinéas (1)a),

b) ou c), le tribunal pour adolescents n’impose le placement sous garde qu’en dernier recours après avoir examiné toutes les mesures de rechange proposées au cours de l’audience pour la détermination de la peine, raisonnables dans les circonstances, et être arrivé à la conclusion qu’aucune d’elles, même combinée à d’autres, ne serait conforme aux principes et objectif énoncés à l’article 38. [ 23 ] A deferred custody order is permitted except where the young person has caused or attempted to cause serious bodily harm in the commission of the offence. [13] Analysis [ 24 ] This Court finds that the judgment under review applied the foregoing principles and as such leaves no room for appellate review. [ 25 ] The judge articulated the principles correctly.

She did not diminish the seriousness of the offences nor the moral blameworthiness of the respondent and she noted the lack of mitigating circumstances. [ 26 ] Also, the judge underlined that the respondent did not recognize his culpability and she remarked on the respondent’s previous failure to complete sentences in the community. [ 27 ] On the other hand, the judge took note of the change in the respondent’s circumstances, his ongoing process of accepting blame, his new found home structure, education and employment.

She noted his attendances in Court and his respect for the conditions of his interim release. [ 28 ] Although she recognized that the violent nature of the offence could warrant incarceration, the judge decided to defer a custodial sentence given the prospect for rehabilitation. In such manner, she applied the Act ’s policy objective of promoting the long- term protection of the public. We would add that because the accused is now twenty years old, his incarceration would be in an adult provincial jail. [14] The delays incurred in this file in imposing sentence are not attributable to the respondent.

Imprisonment in an adult institution for an offence committed at the age of seventeen will not further respondent’s prospects for rehabilitation. [ 29 ] The judge also ordered restitution of the victim’s financial loss thus giving effect to the principle of accountability.

In addition, she ordered a new letter of apology addressed directly to the victim in deference to this policy objective. [ 30 ] With regard to the six specific arguments raised by the applicant, the Court observes the following: 1.- the judge recognized that the respondent has commenced to accept blame through the letter filed at the sentencing hearing; 2.- the judge, though recognizing that incarceration could be warranted, underlined that it is a last resort and decided, on balance, to favour rehabilitation; 3.- the judge weighed the previous failures regarding the sentences in the community; 4.- the respondent’s current circumstances were most relevant and the weight given them by the judge in determining sentence does not constitute an error in principle; 5.- the circumstances of the offences are indeed considered by the judge and reflected in the judgment; 6.- the principle of proportionality, as indicated above, is treated on an equal footing with the other sentencing criteria.

Given the judgment as a whole and the principle of diminished moral culpability of young persons, [15] this argument is not a segway to intervention by this Court. [ 31 ] For all of the foregoing reasons, there is no valid reason to interfere with the exercise of the discretion by the sentencing judge. Accordingly, the motion for leave will be granted but the appeal will be dismissed. [ 32 ] Finally, given that the sentencing judgment was not rendered in the language of the respondent, the Court refers counsel and the sentencing judge to its recent judgment in Parsons v.

R. , 2014 QCCA 2206 , at paragraphs [16] to [35] . [ 33 ] FOR THESE REASONS, THE COURT : [ 34 ] GRANTS the motion for leave to appeal; [ 35 ] DISMISSES the appeal.

ALLAN R. HILTON, J.A. DOMINIQUE BÉLANGER, J.A. MARK SCHRAGER, J.A. Mtre Annie Trudel DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES For the applicant – appellant Mtre Bruno Des Lauriers CENTRE COMMUNAUTAIRE JURIDIQUE A For the respondent Date of hearing: January 23, 2015 [2] The indictment reads as follows: “1. On or about August 27, 2011 in Town A, district A, did rob A, committing thereby the indictable offence provided by section 344(1)

b) of the Criminal Code . 2. On or about August 27, 2011 in Town A, district A, did have in his possession a credit card, of a value not exceeding 5000,00$, knowing that thing was obtained by

an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment, committing thereby the indictable offence provided by

section 355b) (

i) of the Criminal Code . 3. On or about August 27, 2011 in Town A, district A, did steal a credit card issued to A, committing thereby the indictable offence provided by section 342(1) a)

e) of the Criminal Code . 4. On or about August 27, 2011 in Town A, district A, did carry or possess a weapon for the purpose of committing an offence, committing thereby the indictable offence provided by section 88(2)

a) of the Criminal Code . 5. On or about August 27, 2011 in Town A, district A, did use an imitation firearm while committing an indictable offence, committing thereby the indictable offence provided by section 85(2) a)(3) of the Criminal Code .” [13] S. 42(5) of the Act .