2019 QCCA 2033, 2019 QCCA 2033

Christie-Sanguinet c. R. 2019 QCCA 2033 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-003593-188 (200-01-204704-161) DATE: November 25, 2019 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. MARIE-JOSÉE HOGUE, J.A. SUZANNE GAGNÉ, J.A. PAUL CHRISTIE-SANGUINET APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT [ 1 ] The appellant appeals the 21-month sentence of imprisonment rendered on November 27, 2018 by the Honourable Robert Sansfaçon of the Court of Québec, district of Quebec. [1] He also filed a motion to adduce fresh evidence, whose admissibility and, where applicable, probative value were referred to the Court. [2] *** [ 2 ] During the night of October 8 to 9, 2016, the appellant attended a party where he consumed alcohol. The victim, Kenneth McBean, was also present.

At a certain point in time, the guests left the party, most on foot. [ 3 ] Although the appellant had initially planned to sleep over at the party, he left with a friend on board a Ford F-150 vehicle. Shortly thereafter, he struck the victim from behind while the latter was walking on the gravel shoulder. He did not slow down his vehicle after the impact; he finally stopped in a nearby driveway. [ 4 ] One of the witnesses to the accident, Marc-André Chassé, administered first aid to the victim while waiting for the ambulance, which, according to the trial judge, probably saved the victim’s life.

Luce Bélanger, the victim’s wife, was also walking on the gravel alongside the road, approximately 500 metres ahead of her husband. She stated that she heard a special noise at the time of the accident; she also saw the appellant’s damaged vehicle pass by. [ 5 ] The victim was brought to the Hôpital de l’Enfant-Jésus for a thoracic trauma. [3] Until then, the victim, who was 47 years old, had been in good physical shape. Following the accident, he was kept in a coma for a few days and underwent several surgical procedures. [ 6 ] The victim now suffers from numerous physical and psychological aftereffects.

He is no longer able to work at his job or on the family farm. He had to participate in a highly demanding rehabilitation program and his quality of life has been greatly diminished. He takes medication to relieve his pain and depression. [ 7 ] On May 8, 2018, the appellant pleaded guilty to the offence of causing bodily harm while operating a motor vehicle with a blood alcohol level greater than 80 mg of alcohol in 100 ml of blood.

The evidence reveals that his blood alcohol level was 176 mg of alcohol in 100 ml of blood, which is more than twice the permitted limit. *** [ 8 ] The trial judgment provided a detailed description of the serious aftereffects suffered by the victim and those close to him, the very favourable presentence report regarding the appellant and the mitigating and aggravating factors. At the end, the judge took the time to sum up the various factors: The accused is not a delinquent, has good values. He is extremely well supported by his family, personally and professionally.

He is stable in all spheres of his life, considering his medical condition, and has taken steps to stop his abuse of alcohol in certain circumstances like October 9, 2016.

The gravity of the offence, his full responsibility, the major and permanent consequences for the victim command the prevailing principles of denunciation, deterrence – and I stress the “general deterrence” – and reprobation, without ignoring rehabilitation and social reintegration of the accused. [ 9 ] Then, referring to the principle of individualization, the judge concluded that a sentence of 21 months’ imprisonment was appropriate: And, as I said before, if I was considering only the consequences on the victim, and if it was – sentence was a revenge, the sentence should be 10 years.

But the sentence is for the accused. The person he is, with all the factors that are positive, and with the presentence report, and what he did since the event of October the 9, so, considering all the above, and having examined all the factors listed in

article 718, 718.01, 718.02, I come to the conclusion that the sentence of 21 months of imprisonment is a fair and reasonable one considering the accused, the facts, and the victim. [ 10 ] In addition to the prison sentence, he added an order prohibiting the appellant from driving for a period of three years and an order to pay the victim surcharge. *** [ 11 ] The appellant raises two grounds: • The sentencing judge rendered an exaggerated and unfit sentence, primarily by failing to properly individualize the Appellant’s sentence to account for his medical condition; • The sentencing judge committed an error by conducting his own research regarding the medical question raised at sentencing, concluding erroneously on a determining question of fact against the Appellant.

Fresh evidence [ 12 ] The appellant was detained for 16 days following sentencing. On December 12, 2018, a judge of the Court released him pending the appeal.

The fresh evidence pertains to the treatment the appellant received while detained and, more generally, the treatment required by his state of health and its availability at the Établissement de détention de Québec (“EDQ”), the Quebec detention centre. [ 13 ] It consists of the following elements: An affidavit from the appellant dated April 2, 2019; Excerpts of his medical record, in particular, a report from his physician dated May 9, 2019. [ 14 ] In response to this evidence, the respondent filed two statements, one from Mr. Gabriel Rivard, unit head at the EDQ, and the other from Mrs.

Mélissa Aubin, nurse/unit head. These two individuals were examined on August 8, 2019 and the transcript of their testimony also forms part of the appeal record. [ 15 ] Even though certain documents contained in the medical record could have been filed at first instance, the Court is of the opinion that the fresh evidence should be admitted. This evidence deals with a decisive issue, is credible and may affect the result.

As for its probative value, the Court will have to assess it in light of the probative value of the evidence as a whole. [4] The first ground: the appellant’s state of health [ 16 ] The appellant suffers from type III spinal muscular atrophy (“SMA-III”), a progressive genetic neurodegenerative disorder which, according to his physician, causes the same effects as muscular dystrophy, that is to say, “progressive muscle mass wasting and muscle weakness”.

The presentence report on which the judge based himself describes his state of health as follows: Nature of treatment: > Diagnosed with type III muscular amyotrophy when he was 15 years old. This rare condition causes the muscles to gradually deteriorate, and the subject also suffers chronic pain in the legs, back, neck and knees. His breathing is also affected and he must use a special machine at night. He walks with a cane, but cannot sit down, get up or dress himself on his own.

He uses adaptive equipment that allows him to carry out his daily activities, but must undergo weekly physiotherapy and aquatherapy treatments. He is also being followed by a neurologist at the McGill University Health Centre. [5] [ 17 ] The report of the appellant’s physician states the following regarding the progression of the disease: Mr. Christie-Sanguinet’s condition is progressing. He is worse each time he comes for his follow-up. He is no longer able to sit independently, due to poor muscle tone and muscle pain.

He ambulates very slowly with a cane, his breathing is compromised to the point he needs a breathing machine (CPAP) at bedtime and sleeps on an electric bed to help him in and out of bed. He also requires assistance with many activities of daily living such as getting dressed (pants, socks, shoes). He is followed by a respirologist and is on the waiting list for a BiPAP trial in order to transfer from a CPAP to a BiPAP machine. [ 18 ] The physician concluded as follows regarding the prognosis: This young man has deteriorated dramatically.

His prognosis without exercise and treatment would result becoming quadriplegic, confined to a wheelchair and completely dependent on others. [6] [ 19 ] The Court must decide whether the judge weighed the appellant’s state of health in a reasonable manner or whether, in light of the fresh evidence, the sentence imposed is demonstrably unfit.

[ 20 ] The judge considered the appellant’s state of health as an “attenuating factor”, but not as a “factor in the reduction of the sentence”: I do consider his very difficult medical condition as being an attenuating factor. But it does not constitute a factor in the reduction of the sentence, because it does not fall in the category of the exceptional circumstances. [ 21 ] He relied on the decision in Côté c.

R. , [7] where this Court stated: [ translation ] [20] While it is true that the poor health of an offender may be a mitigating factor in sentencing, it is not generally a factor for reducing the sentence, save in exceptional circumstances where, for example, the offender is suffering from incurable cancer and his death is imminent. [ 22 ] By doing what he did, the judge did not commit a reviewable error.

He considered the appellant’s state of health, but found that “there is no evidence that the equipment required for his well-being may not be available in detention”, as a result of which he did not modify the sentence. [ 23 ] It should be noted that an offender’s state of health, when there is no link between that state and the commission of the offence, is not necessarily a mitigating factor within the meaning of s. 718.2 (

a) Cr.C . Rather, it is a circumstance related to the offender’s personal situation, which the judge may take into consideration when applying the principles of individualization and similarity of sentences. As Moldaver, J., writing for the majority, explained in R. v. Suter , [8] when referring to collateral consequences: [48] Though collateral consequences are not necessarily “aggravating” or “mitigating” factors under s. 718.2 (

a) of the Criminal Code — as they do not relate to the gravity of the offence or the level of responsibility of the offender — they nevertheless speak to the “personal circumstances of the offender” ( Pham , at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid. ; s. 718.2 (

b) of the Criminal Code . The question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances.

Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer “like” the others, rendering a given sentence unfit. [ 24 ] Consideration of the offender’s state of health falls within the exercise of a judge’s discretionary power. [9] Indeed, judges have “broad discretion to impose the sentence they consider appropriate within the limits established by law” [10] and the Court, it bears reminding, cannot intervene lightly. [11] Moreover, the jurisprudence has consistently held that, barring exceptional circumstances, an offender’s state of health cannot be a significant or decisive factor. [12] [ 25 ] In the case at bar, even taking the fresh evidence into consideration, the Court is of the opinion that the appellant’s state of health is not an exceptional circumstance within the meaning of the jurisprudence. [ 26 ] According to Mélissa Aubin, nurse/unit head at the EDQ, the appellant’s situation is not exceptional: [ translation ] A.

This is not an exceptional case. We see a lot of cases at the infirmary that require more care than Mr. Sanguinet. I would say that this is not my most serious case. It’s a particular case, but not exceptional. [13] [ 27 ] She testified that the appellant will be able to continue receiving all the treatments required by his state of health: [ translation ] Q. [244] For persons detained at the EDQ who need treatment follow-ups outside the EDQ, which treatments are covered by the EDQ or which treatments could allow someone to be able to go out to have such a follow-up? A.

All follow-ups with physicians, specialists, are authorized. The treatments prescribed by the physician, such as physiotherapy, occupational therapy, if they are prescribed, we do them. I would say that there aren’t many exclusions. If it’s prescribed, we go ahead and we authorize the appointments. […] Q. [249] So if you previously had EDQ inmates who needed to have injections or specific treatments that they needed, they left often, I imagine? A. Well, if it’s prescribed, we give everything that’s prescribed, even if it’s expensive, if that’s your question.

Because we currently... well, I’ll give you another example: we have medication for hepatitis C that is extremely expensive and the patients that come with a prescription get their treatment. It’s not a matter of cost, if it’s prescribed or... that’s it. [14] [ 28 ] In short, based on the evidence, the appellant’s situation is not exceptional to such an extent that the sentence is demonstrably unfit. The judge weighed this factor in a reasonable manner and it is not up to the Court to intervene in the exercise of his discretion. The second ground: the judge’s personal research

[ 29 ] During the observations on the sentence, the judge mentioned that he had consulted the muscular dystrophy website, where he had read that type III “is very light”. Here is what he said: BY THE COURT If we go on the site of dystrophie musculaire. BY THE DEFENCE Yes.

BY THE COURT But amyotrophy, spinal amyotrophy Grade 1 is high, grade 2 is moderate and grade 3, like the accused, is light, and with no specific consequences. [ 30 ] Further on, he added: BY THE COURT No, I’m telling you that I’ve checked before, not – I’ve read that paragraph and I was asking me yes is it dystrophie musculaire , is it covered spinal amyotrophy is it covered, yes, it’s in the list but it’s in the list that – at the end because if it’s a 3, it’s very light.

So, I just want to tell you what is on the site of the Canada Dystrophy Muscular problem. [ 31 ] Clearly, the judge was not entitled to do this and this practice must be denounced. As Wagner, C.J., and Moldaver, J., both dissenting, recently noted in R. v.

Le : “trial judges who engage in their own independent research are routinely chastised by appellate courts for straying outside the record and the parties’ submissions”. [15] [ 32 ] This error in principle, however, is not decisive, because, in his reasons for judgment, the judge noted that SMA-III is “a very difficult disease”, although “it’s in the lowest part”. This finding is substantiated by the evidence, including the testimony of the appellant’s mother who described the various types of spinal muscular atrophy.

The appellant has not shown how the information found online had an impact on sentencing. *** [ 33 ] At the hearing, the appellant asked the Court, regardless of its decision, to postpone the prison sentence until mid-January 2020 so as to allow him to complete a treatment he had begun (Spinraza treatment). Given the testimony of Mélissa Aubin to the effect that the appellant will be able to receive all the treatments prescribed by his physician, there is no need to grant this request.

FOR THESE REASONS, THE COURT: [ 34 ] DECLARES the fresh evidence to be admissible; [ 35 ] DISMISSES the appeal; [ 36 ] ORDERS the appellant to surrender to the prison authorities within a period of 72 hours following this judgment. FRANCE THIBAULT, J.A. MARIE-JOSÉE HOGUE, J.A. SUZANNE GAGNÉ, J.A. Mtre Benjamin Wilner Mtre Lauren B. Shadley SHADLEY BIEN-AIMÉ For the appellant Mtre Mélanie Tremblay DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the respondent Date of hearing: November 8, 2019