2020 QCCQ 2199, 2020 QCCQ 2199

Translated from the original French R. c. Bah 2020 QCCQ 2199 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL "Criminal and Penal Division" No.: 500-01-197518-191 DATE: June 10, 2020 ______________________________________________________________________ PRESIDING: THE HONOURABLE ROBERT MARCHI, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v.

BOUBACAR BAH Accused ______________________________________________________________________ Decision on sentence ______________________________________________________________________ [ 1 ] On May 29, 2020, the accused Boubacar BAH (the accused) pleaded guilty to having, in Montreal, on or about April 26, 2019, (1) committed a robbery against Richard Bélisle (the victim), (2) confined, imprisoned, or forcibly seized Richard Bélisle, and (3) conspired with Mohammed Imad Eddine Kadiri (Kadiri) and an unknown man [1] to commit an indictable offence, namely, a robbery.

Issues [ 2 ] The issues are as follows: (1) what sentence should be imposed on the accused and (2) what is the effect of the COVID-19 (COVID) crisis on the sentence to be imposed. It is important to note that the accused has been in custody since November 7, 2019, at the Établissement de détention de Montréal (EDM). [2] BACKGROUND [ 3 ] On April 26, 2019, the victim, Richard Bélisle was working at a “La Source” outlet on Masson Street in Montreal. [ 4 ] One of the accused’s accomplices, Kadiri, entered the store, followed by Feknous. Feknous took out a gun (an imitation firearm) and pointed it at the victim.

The accused was outside in the getaway vehicle. Kadiri and Feknous ordered the victim to lie down on the ground and tied him up before taking approximately $40,000 in merchandise.

They also stole the victim’s personal cellphone. [3] [ 5 ] Technical analyses revealed exchanges between the cellphone of the accused and those of his accomplices before the commission of the offences. [ 6 ] On this subject, the accused admits that he and his accomplices agreed beforehand to commit a robbery (thus, the count of conspiracy) and that it was foreseeable that some violence would be used during its perpetration, but he claims that he did not know that a weapon would be used to commit the robbery.

This is why the accused’s plea includes a count of conspiracy to commit robbery and of not robbery. [ 7 ] The accused was later arrested based on various expert analyses and some videos. In addition, the accused’s fingerprint was found on the victim’s cellular telephone. [ 8 ] It appears that some of the stolen property was recovered, but the Court does not know how much. The positionS of the parties [ 9 ] The prosecution suggests a sentence of 2 years less a day in custody, minus the pre-sentence period of detention the accused

has been serving since November 7, 2019, that is, the equivalent of 10 months at the time of the submissions on sentence on May 29, 2020. In his submissions, counsel for the prosecution explained that he had already taken COVID into account as a factor in determining his suggested sentence. [ 10 ] The defence suggests a term of 12 to 15 months in custody, less the time served in pre-sentence detention. Defence counsel also asks for a “COVID credit” between March 13, 2020 (the date of the Emergency Order in Council by the Quebec government), and May 29, which amounts to an additional 3 months of credit.

In short, the defence suggests that one day of imprisonment be imposed. The Law – Sentencing Rules [ 11 ] The general principles that must guide a judge in determining the appropriate sentence are set out in

Part XXIII of the Criminal Code ( Cr. C. ), and more particularly, at ss. 718 to 718.2.

Section 718 Cr. C. sets out the purpose of sentencing as follows: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 12 ]

Section 718.1 Cr. C. specifies the fundamental sentencing principle, namely, that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This principle of proportionality represents a central element – if not the central element – of sentencing. [ 13 ] That being said, determining a fit sentence for an offender remains an individualized process. It is up to the Court to give more weight to one or more of the objectives, in light of the circumstances, while taking into account the guidelines and fundamental principles set out in the law and the case law.

The objective gravity of the offences [ 14 ] The crime of robbery is punishable by life imprisonment ( s. 344 of the Criminal Code ( Cr. C .)), while that of forcible confinement is punishable by a maximum of 10 years ( s. 279(2) (

a) Cr. C .). Conspiracy to commit robbery is punishable by a term of imprisonment of 10 years ( s. 344 Cr. C. ). THE VICTIM [ 15 ] The evidence reveals no specific information about the victim. All that is known is that he is an individual who was the subject of a robbery at gunpoint (the gun was an imitation, but it may be presumed that the victim did not know that it was), who was forced to lie down on the ground and who was tied up. THE ACCUSED [ 16 ] The accused testified as part of the submissions on sentencing. [ 17 ] He was 18 years old at the time of the offences.

On June 13, he will turn 20 years old. [ 18 ] He has been in custody at the EDM since November 7, 2019, that is, a little over 7 months (credited at 1.5 days, his pre- sentence custody is 10.5 months). [ 19 ] He is currently in custody in sector “C” of the facility. He explained that, in custody, he tries to avoid problems and that he has no disciplinary record. [ 20 ] In his testimony, he explained among other things the difference between “pre-COVID” and “post-COVID” conditions of detention. [ 21 ] His testimony corresponds substantially to the affidavit of Ms.

Carmen Landry, services director for sector “C”. [4] [ 22 ] Obviously, the conditions in preventive detention are more restrictive since the appearance of COVID. The Court will return to this point later in its analysis. [ 23 ] For the time being, suffice it to say that the accused was placed in lockdown for 19 days – that is, he was in his cell 24 hours a

day, as a preventive measure to limit the risk of spreading the virus. [5] In his testimony, the accused said that he understood the appropriateness of the measure to limit the spread of the virus. But that being said, he was still confined in his cell 24 hours a day, with no possibility of taking a shower, making a telephone call, or having any contact with the outside. [ 24 ] Moreover, he is in a relationship with a woman and he considers that his current relationship with her is more serious than before.

She and his mother were present during the submissions on sentence. [ 25 ] He argues that he was taking drugs both before and at the time of the commission of the offences. [ 26 ] He worked sporadically as a pizza deliveryman for a restaurant, [6] a job that he quit [ translation ] “to take a break”. [ 27 ] He says that he has an exit plan: solve the substance abuse problem he has had once and for all by making an appointment at the Centre Dollard-Cormier, finish his high school education (he has completed Secondary III), and move in with his girlfriend. [ 28 ] The accused has a criminal record [7] before the youth division: robbery and forcible confinement in 2016.

He explained that he stole money from a massage parlour and that a firearm was involved. [ 29 ] He also has a previous conviction for breaking and entering in 2018. At the time, he was using substances and as it was cold, he entered a residential building to continue using.

ANALYSIS The appropriate sentence [ 30 ] The Court must determine an appropriate sentence that is proportional, taking into account the whole of the circumstances and in particular, the gravity of the charges and the moral responsibility of the accused. [ 31 ] As mentioned, the prosecution suggests a sentence of 2 years less a day, less pre-sentence custody, whereas, the defence suggests a sentence of 12 to 15 months, less pre-sentence custody. [ 32 ] Although it is admitted that the accused had no reason to believe that the accomplices would use a weapon, he knew that it was foreseeable that [ translation ] “some” form of violence would be used against the victim.

He moreover pleaded guilty to robbery. Such violence cannot be qualified as minor. The victim was forced to lie down on the ground and was tied up. [ 33 ] In sentencing the accused, the Court takes the following factors into account: • The objective gravity of the charges to which the accused pleaded guilty, particularly the crime of robbery.

That being said, the accused’s role of getaway driver must also be taken into consideration. • The importance of emphasizing deterrence and denunciation in cases of robbery committed with violence. • The premeditation: the evidence clearly reveals an element of premeditation by the accused and his accomplices in the commission of the offences. Obviously, they agreed to commit a robbery, it was foreseeable that some violence would be used, and that is what happened.

In addition, the investigation revealed that the accused and his accomplices communicated using their cellphones in committing the offences. • The recent and serious prior convictions of the accused, one of which is of the same nature. Even though they are prior convictions dating from 2016 and 2018, when the accused was still an young offender, they must be taken into consideration in the sentencing process. [ 34 ] The Court also takes into account the following factors: • The young age of the accused.

He was 18 years old at the time of the offences, and he will be 20 years old in a few days. • His guilty plea: in this regard, the Court is aware of the relative importance to give to an accused’s guilty plea when sentencing, especially when, as here, the plea came late in the judicial proceedings. That being said, the fact that the accused’s plea will avoid a one- week trial, especially in the middle of a pandemic, in a case where the evidence certainly cannot be described as overwhelmingly against him, must be taken into account.

Only someone who has sat in the criminal division at the Montreal courthouse in the last two months can imagine the challenges such an exercise would have represented. • Although the accused has been precocious in his criminal career, his testimony and his young age give reason to hope that he will get back on the right track. The proposed exit plan and the fact that he is receiving support from his mother and his girlfriend are also factors that weigh in his favour. [ 35 ] In the circumstances, the Court finds that a sentence of 20 months of custody on each count is just.

These custodial sentences will be served concurrently. A 2-year probation period will be imposed on the accused, on the conditions set out below. [ 36 ] Regarding the period of custody imposed on the accused, the parties agree to deduct the credit awarded in Summers ( Summers credit), that is, credit of 1.5 days per day of pre-sentence custody, which amounts to 10.5 months. [8] [ 37 ] The result of the application of the Summers credit is that the accused has 9.5 months left to serve. [ 38 ] The parties also agree that the Court must take into consideration in sentencing the current pandemic created by COVID (the

COVID credit), given the especially harsh conditions of custody. The parties disagree, however, on the method to use and on the result. For the prosecution, it is one factor among others that should not [ translation ] “dominate” and lead the Court to render a sentence that is unfit (“ non-appropriée ”). For the defence, the calculation of the Summers credit and the COVID credit should lead the Court to sentence the accused to 1 day in prison, which would in short be tantamount to sentencing him to time served.

The impact of COVID-19 on the conditions of custody [ 39 ] To begin with, the Court takes judicial notice of the global phenomenon that is the current pandemic caused by COVID, and of the fact that the virus is controlled notably through social distancing. Given the very nature of prison facilities, this represents a difficult challenge for the authorities and as a result entails a higher risk of infection for detainees.

This more elevated risk of infection in prison inevitably translates into an elevated risk for the population in general. [9] [ 40 ] Regarding the conditions of custody in preventive detention facilities under normal circumstances , in the recent judgment of R. v. Videz-Rauda , [10] Guy Cournoyer, J. reproduced excerpts from the Supreme Court judgments in Summers and Myers .

The following quote is drawn from Summers : [11] “conditions in remand centres tend to be particularly harsh; they are often overcrowded and dangerous, and do not provide rehabilitative programs”. [ 41 ] The evidence reveals that since the appearance of COVID, the conditions of detention at EDM are no longer those that prevailed under normal circumstances.

In particular, the hours accused persons can leave their cells are restricted and privileges are lost. [ 42 ] For example, since the public health authority’s COVID guidelines on social distancing were issued in March 2020, time outside cells has been reduced to four hours a day during the week and three hours on weekends. [ 43 ] In addition, in April, the whole sector was placed under lockdown for 19 days after someone in the sector tested positive for COVID. [12] The lockdown was maintained to limit the risk of spreading the virus.

Detainees therefore had to remain in their cells 24 hours a day. [ 44 ] During this 19-day period, the accused did not have access to showers, the canteen, or the outside courtyard. [ 45 ] Currently, incarcerated persons are allowed two hours a day outside the cells, during which time they have access to common areas, showers, and the telephone. [13] [ 46 ] Everyone, including the accused in his testimony, understands that this type of lockdown is preventive and that it has been ordered by the authorities for valid reasons, to limit the risk of spreading the virus and therefore to protect the health and life of accused persons, staff, and, consequently, the community in general. [ 47 ] That being said, despite the good intentions of the authorities (the Court has no doubt about the necessity of the measures adopted), the net effect of lockdown has rendered the conditions of custody, already described by the Supreme Court [14] as “particularly harsh”, even more difficult. [15] [ 48 ] The Court is moreover in agreement with what was written by the judge in R. v.

Innis : [16] where … the evidence establishes that the offender was confined to a cell for extended periods of time on multiple days and denied access to fresh air for a total of over one year of his incarceration, hardship may be inferred. [ 49 ] The idea is not to [ translation ] “feel sorry for” the accused persons or to have them discharged from custody more quickly. They are charged, and a judge has decided that they should remain in custody. They are therefore held in custody.

It is normal that their freedom be restricted. [ 50 ] That said, with respect for the contrary position, one cannot ignore the reality of the COVID-19 pandemic, the greater risk for an accused of being infected with the virus in prison, [17] and the greater likelihood that his or her conditions be made even more difficult by the altogether legitimate decisions of the authorities, given the danger of the spread of the virus. [ 51 ] The Court will therefore take it into account in sentencing the accused, not only because of the pandemic or his particular situation, but because of the conditions of detention.

The accused has not been infected and the evidence does not reveal that he is more prone to infection. That said, as Pratt, J. wrote in R. v. Durance : [18] I reduce the sentence to be imposed because the experience of incarceration, while never pleasant, is currently more difficult than usual for the reasons I’ve outlined. [ 52 ] It is now time to determine how to reduce the sentence. In R. v.

O.K. , [19] the judge awarded the accused credit of 1.5 days for each day of lockdown, and 0.5 days for each COVID-19 day. [20] [ 53 ] The Court agrees with what Pringle, J. wrote in O.K. regarding this manner of calculating the reduction of the sentence: [21] I believe that putting a number on the enhanced credit is helpful, and will assist in understanding the many sentencing decisions judges will have to make about this issue in the coming weeks during the time of the pandemic crisis. [ 54 ] Under the circumstances, the Court will reduce the sentence to be imposed by 0.5 days per day served during the pandemic (between March 13, 2020, and June 10, 2020) and by 1.5 days per day of lockdown.

[ 55 ] The Court will therefore reduce the sentence as follows: • 30 days (total of 19 days in lockdown at 1.5 days). [22] • 45 days (89 days at 0.5 days between March 13, 2020, and June 10, 2020). [23] [ 56 ] Before the calculations related to COVID, the accused had 9.5 months left to serve. [ 57 ] Therefore, once the time specifically related to COVID-19 has been deducted – that is, 75 days – the accused will have, as of today, a sentence of 7 months in custody on each of the counts, to be served concurrently. [24] [ 58 ] The Court also imposes a 2-year probation order, subject to the following conditions: • Keep the peace, be of good behaviour, and appear before the Court when required to do so; • Prohibition against going to the “The Source” outlet located at 3140 Masson Street in Montreal; • Prohibition against communicating directly or indirectly with the victim Richard Bélisle; • Prohibition against communicating directly or indirectly with Mohammed Eddine Kadiri and Nasser Feknous; and • Prohibition against being in the physical presence of Mohammed Eddine Kadiri and Nasser Feknous. [ 59 ] Under s. 109 of the Cr.

C. , the Court prohibits the accused from having in his possession the weapons referred to in the first subsection of that section, for a period of 10 years. [ 60 ] Finally, the Court orders the accused to provide bodily samples sufficient for the purposes of forensic DNA analysis. __________________________________ ROBERT MARCHI, J.C.Q. Mtre Antonio Parapuf Counsel for the DCPP Mtre Myriam Larose Counsel for the accused Date of hearing: May 29, 2020