2021 QCCQ 13581, 2021 QCCQ 13581

Translated from the original French R. c. Laberge 2021 QCCQ 13581 COURT OF QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT OF CHICOUTIMI “Criminal and Penal Divis ion” No.: 150-01-063945-217 DATE : December 23, 2021 PRESIDING: THE HONOURABLE RICHARD P. DAOUST, J.C.Q. HER MAJESTY THE QUEEN Prosecutrix v. JEAN-MICHEL LABERGE Suspect JUDGMENT ON THE PROSECUTION’S APPLICATION UNDER

SECTION 491 OF THE CRIMINAL CODE [ 1 ] The suspect benefited from the alternative measures program under the Criminal Code in connection with a firearms charge. Since the measure has been completed, the charge should be dismissed. Despite the dismissal, the prosecution seeks forfeiture of the weapons under

section 491 of the Criminal Code . [ 2 ] The issue is whether weapons used in the commission of an offence or that are involved in or the subject matter of an offence must be forfeited to Her Majesty when the person has benefited from alternative measures and the charges against the person are dismissed under section 717(4) (

a) of the Criminal Code . [ 3 ] The prosecution suggests that the combined effect of the acceptance of responsibility for the acts that form the basis of the offence and the wording of

section 491 of the Criminal Code renders the forfeiture of the weapons mandatory. The defence believes that the acceptance of the facts cannot be set up against a person who benefits from the alternative measures program [the “AMP”]. [ 4 ] In section 717(1)(

e) of the Criminal Code , the conditions for applying the AMP specifically require that the person accept responsibility for the act or omission that forms the basis of the offence the person is alleged to have committed.

Furthermore, section 717(2) specifies that the AMP may not be used to deal with a person who denies participation or involvement in the commission of the offence. [ 5 ] Therefore, because subsection 491(1) of the Criminal Code provides for the forfeiture of weapons used in the commission of an offence or that are involved in or the subject matter of an offence committed by the person, and because the AMP requires that the suspect acknowledge the facts that form the basis of the charge, the prosecution concludes that forfeiture of the weapons is mandatory where the weapon was used in the commission of an offence or was involved in or is the subject matter of an offence. [ 6 ] The prosecution adds that, unlike

section 491.1, the wording of subsection 491(1) does not require a conviction. As a result, forfeiture must take place because, since the facts are acknowledged, the commission of an offence using or involving a weapon is necessarily acknowledged. That being the case, the weapons must be forfeited, whether or not there has been a conviction. [ 7 ] Although this textual argument appears seductive, the Court does not accept it, for two reasons. [ 8 ] First. Subsection 717(3) of the Criminal Code answers the question. It specifically provides that admissions, confessions, or statements accepting responsibility for

an act or omission made by a person alleged to have committed an offence as a condition of the person being dealt with by alternative measures are not admissible in evidence against that person in any civil or criminal proceedings. [ 9 ] It is easy to see how it would be shocking for admissions made in the context of a diversionary program to be taken into

account in order to impose consequences other than those Parliament intended to avoid. It must be borne in mind that these admissions were made in the context of a program that urges suspects to accept responsibility and adapts punishments to the victim or society. In short, allowing admissions made to resolve a case – leading to the dismissal of charges – to be used for other judicial purposes that would penalize the suspect would run counter to the objective of alternative measures.

Allowing this could also embitter a suspect who qualified for the program and has complied with the conditions; this is why Parliament enacted this provision. [ 10 ] The second . In Montague , [1] the Court of Appeal for Ontario established that mandatory forfeiture of weapons and ammunition used in the commission of an offence under

section 491 is one of the consequences that forms part of the punishment for the offence and is therefore appealable with leave under

section 675 of the Criminal Code . [ 11 ] Accordingly, if forfeiture of weapons and ammunition is part of the sentence, the fact that there is no conviction but actually a dismissal of the charges because of the suspect’s participation in the alternative measures program means there is no sentence. If there is no sentence given the dismissal of charges, and forfeiture is part of the sentence, a mandatory order under

section 491 may not be made. FOR THESE REASONS, THE COURT : DISMISSES the charge; DISMISSES the prosecution’s application for forfeiture. __________________________________ RICHARD P. DAOUST, J.C.Q. Mtre Marianne Girard Counsel for the Director of Criminal and Penal Proceedings Mtre Julien Boulianne Counsel for the accused Date of hearing: December 17, 2021