2010 QCCA 2083, 2010 QCCA 2083

Unofficial English Translation LSJPA — 1046 2010 QCCA 2083 COURT OF APPEAL CANADA PROVINCE OF QUEBEC MONTREAL REGISTRY No.: 500-08-000333-098 (705-03-007896-085 – 705-03-007897-083) DATE: November 18, 2010 CORAM: THE HONOURABLE ANDRÉ FORGET, J.A. ANDRÉ ROCHON, J.A. JACQUES DUFRESNE, J.A. X APPELLANT - Accused v. HER MAJESTY THE QUEEN RESPONDENT - Prosecutrix JUDGM ENT [ 1 ] THE COURT ; - On appeal from a judgment of the Court of Quebec, Youth Division, district A (the Honourable Normand Bonin), rendered on December 10, 2009, that rejected a joint recommendation of counsel and sentenced the appellant as follows: [ translation ] SENTENCES X, under paragraph (

n) of subsection 42(2) of the YCJA , to a period of custody and supervision of 111 days, composed of a period of 74 days to be served continuously in custody followed by a period of 37 days to be served under supervision in the community; in file 705-03-007897-083: 20 days in custody / 10 days under supervision, a term to run concurrently with that for file 705- 03-007896-085; During said period of supervision, X must comply with the conditions set out in subsection 97(1) of the YCJA and attached to the present order as well as such additional conditions as may be imposed by the provincial director ( subsection 97 (2) ); SENTENCES X, under paragraph (

k) of subsection 42(2) of the YCJA , to a probation period of 12 months from the date of expiration of the supervision period, with the conditions set at the hearing, a copy of which will be remitted to him ( subsections 56(1) , 56(2) and 56(3) YCJA ) in files 705-03-007896-085 and 705-03-007897-083. [ 2 ] On February 17, 2009, the appellant pleaded guilty to the charges against him, which are worded as follows: [ translation ] case 705-03-007896-085 : on or about November 19, 2009, at city A, district A, did steal from J.L. a Toyota Tacoma automobile of a value exceeding $5,000.00, thereby committing the indictable offence set out in paragraph (

a) of

section 334 of the Criminal Code .

case 705-03-007897-083 : on or about November 19, 2009, at city A, district A, did fail or refuse to comply with a youth sentence imposed under paragraph (

k) of subsection 42(2) , as handed down on January 11, 2009 in file number 160-03-000049-078, to wit: to keep the peace and be of good behaviour, thereby committing the offence punishable by

summary conviction set out in

section 137 of the Youth Criminal Justice Act . [ 3 ] The appellant’s only criminal record dates back to May 7 and 8, 2007. In the space of 24 hours, the appellant, then 16 years old, committed two thefts of less than $5,000 for which he received a probation order, with supervision for one year, in addition to 100 hours of volunteer work. He was sentenced on January 11, 2008, after pleading guilty. [ 4 ] The circumstances of these two offences were not adduced into evidence.

Without having done the necessary verifications, the probation officer [ translation ] “thinks it was two handbag thefts”. [ 5 ] A pre-sentence report was prepared. The report is very severe and concludes that the appellant needs supervision. Without it, the risk of repeat offences is very likely. [ 6 ] The person who wrote the report made three recommendations : • Indemnification payable to the victim; • A youth sentence of volunteer work; • 12 months’ probation.

THE JUDGMENT A QUO [ 7 ] In a lengthy and well-structured judgment, the judge of the Court of Quebec rejected the joint recommendation of counsel, who had agreed on a combined sentence of community work and probation. [ 8 ] The trial judge rejected the joint recommendation on two grounds. [ 9 ] The first is that, according to the judge, the joint recommendation was made on the basis of an erroneous premise, counsel having presumed that it was impossible under

section 39 of the Youth Criminal Justice Act [1] ( YCJA ) to impose a custody sentence. [ 10 ] The second ground is that the joint recommendation would bring the administration of justice into disrepute. The judge said he believed that [ translation ] “most well-informed citizens would find it very difficult to understand a mere sentence of community work”. ANALYSIS [ 11 ] Counsel for the respondent did not object to the appeal. [ 12 ] Above all, the appeal questions the legality of the sentence imposed. This issue should be decided even before examining the appellant’s arguments concerning the judge’s refusal to accept the joint recommendation. [ 13 ] Only paragraph (

c) of subsection 39(1) of the YCJA is at issue : [2]

(1) Le tribunal pour adolescents n’impose une peine comportant le placement sous garde en application de l’article 42 (peines spécifiques) que si, selon le cas:

c) il a commis un acte criminel pour lequel un adulte est passible d’une peine d’emprisonnement de plus de deux ans après avoir fait l’objet de plusieurs déclarations de culpabilité [3] dans le cadre de la présente loi ou de la

Loi sur les jeunes contrevenants ,

chapitre Y-1 des Lois révisées du Canada (1985 ); 39.

(1) A youth justice court shall not commit a young person to custody under

section 42 (youth sentences) unless (

c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of findings of guilt under this Act or the Young Offenders Act ,

chapter Y-1 of the Revised Statutes of Canada, 1985; or [ 14 ] If the conditions of paragraph (

c) of subsection 39(1) are satisfied, the judge must examine the alternatives in light of a number of factors. In this regard, subsections 39 (2) and 39(3) YCJA provide that :

(2) 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. Factors to be considered

(3) In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to (

a) the alternatives to custody that are available; (

b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance with previous non-custodial sentences; and (

c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances. [ 15 ] Paragraph (

c) of subsection 39(1) was scrutinized by the Supreme Court of Canada in R. v. S.A.C . [4] In that case, the Supreme Court decided two questions, its conclusions appearing in the first paragraph of the judgment. Deschamps J., for the Court, wrote the following : [1] … I conclude that the only findings of guilt to be considered for the purposes of that provision are ones that were entered prior to the commission of the offence for which the young person is being sentenced.

Furthermore, to show a pattern of findings of guilt, the Crown must, as a general rule, adduce evidence of a minimum of three prior convictions. However, the prior findings of guilt need not relate to similar — or to indictable — offences. …. [ 16 ] Deschamps J. came to these conclusions by applying the rules governing the

interpretation of bilingual laws in order to ascertain the true meaning of the provision. Broadly, these rules state that the first step is to determine the common meaning of the two provisions (English and French), with the narrower meaning generally prevailing. The second step is to decide whether the common meaning reflects Parliament’s intent. [ 17 ] Through this

interpretation process, Deschamps J. accepted the French version as to the date as of which the prior findings of guilt must have been entered, and the English version for the requirement that there be a “history that indicates a pattern of findings of guilt”. On this last point, Deschamps J. wrote : … In providing that the sentencing court must look for a pattern, Parliament instructs the court to identify past behaviour that will give indications of regular or escalating behaviour.

The type of behaviour the court is called on to identify is one of criminality, not the repetition of a specific offence, hence the use of the expressions “findings of guilt” in English and “ déclarations de culpabilité ” in French. However, the word “pattern” does not specify a threshold number. Also, while similarity is not a requirement, it may be relevant to identifying a pattern of criminal behaviour. In some circumstances, two prior findings of guilt will be sufficient to indicate a pattern of behaviour.

For example, if, before committing a sexual assault, a young person had already been convicted twice for other sexual assaults, the court might find a pattern in the prior findings of guilt. If, however, the record consists of disparate offences, such as theft and breach of an undertaking, two convictions may be insufficient to permit the identification of a mode of offending behaviour.

Therefore, unless the sentencing court finds that the offences are so similar that a pattern of findings of guilt can be found in only two prior convictions, the threshold for demonstrating a “pattern” of findings of guilt is at least three prior convictions . The narrower meaning which makes it possible to resolve this second difficulty is thus found in the English version of s. 39(1) ( c ). [5] [Emphasis added.] … According to the French version, the findings of guilt the court can take into consideration to determine whether a custodial sentence

may be imposed are those made before the offence was committed. The relevant period does not extend to the sentencing date. [6] … Thus, the provision could be interpreted as only requiring evidence that the young person had already been convicted twice before committing the offence for which he or she is to be sentenced. [7] [ 18 ] In the case at bar, however, the real question is whether the judge’s conclusion as to the existence of a “pattern of findings of guilt” is well-founded. We are faced here with the exception mentioned by Deschamps J.

In such cases, the “threshold for demonstrating a ‘pattern’ is at least three prior convictions”. [ 19 ] Deschamps J. recognized that in some circumstances, offences may be so similar that the judge may find a “ pattern of findings of guilt” in o nly two prior convictions . [ 20 ] As has been noted in commentary, [8] the standard of proof for establishing a pattern is very onerous : [ translation ] … The standard of proof for establishing a pattern of guilt is much more onerous than it is for demonstrating that “the adolescent was found guilty several times”.

A pattern refers more to behaviour or to a context, which is generally the result of an assessment or an analysis. The evidence is therefore more complex and the standard of proof higher, unlike demonstrating the number of times the adolescent was found guilty, which is essentially requires factual evidence. [ 21 ] The difficulty in the present case stems from the lack of knowledge concerning the two minor thefts committed in the space of 24 hours in 2007. It is clear from the arguments that the prosecuting attorney had no information in this regard, other than affirming that it was [ translation ] “minor theft”.

The judge expressly recognized this, stating that he could not rely on the unverified comment of the probation officer [ translation ] “who thought” it was handbag thefts. [ 22 ] In the absence of even

summary evidence on the subject (none was presented by counsel for the respondent), it is difficult to ascertain a pattern of findings of guilt. Even assuming such a conclusion could be reached because of the nature of the previous convictions, the fact remains that it was a borderline case where the court imposed a custodial sentence only as a last resort (subsection 39(2) YCJA ). [ 23 ] Taking into account this context and Parliament’s intent to reduce incarceration of non-violent adolescents, [9] the joint recommendation was neither unreasonable nor unfit.

Nor would it bring the administration of justice into disrepute in the eyes of a public properly informed of the facts, the law and, more specifically, the objectives of the YCJA .

The trial judge should have followed the recommendation. [ 24 ] FOR THESE REASONS : [ 25 ] ALLOWS the appeal; [ 26 ] OVERTURNS the sentence imposed on the appellant on December 10, 2009; [ 27 ] REPLACES it with the following sentence : ORDERS the appellant to do 200 hours of community work (175 hours for the theft and 25 hours for failing to comply with a youth sentence) within 18 months from the date of this judgment; ORDERS , pursuant to paragraph (

k) of subsection 42(2) of the YCJA, 12 months’ probation from the date of this judgment, with the following conditions : - Keep the peace and be of good behaviour; - Report to the Provincial Director or his delegate as often as required and submit to his supervision; - Give the Court clerk or the delegate of the Provincial Director prior notice of any change of address or occupation; - Abstain from going within 500 metres of the residence or workplace of J.L.;

- Attend a school or a training establishment, conduct yourself appropriately there and do all the work to the satisfaction of the school authorities, or hold and keep a legitimate job or participate in a training program or take steps to obtain employment and keep the delegate of the Provincial Director apprised in this regard; - Participate in social skills development programs at the request of the delegate of the Provincial Director; - Comply with the recommendations of the delegate of the Provincial Director; - Abstain from contact with any persons who, to your knowledge, have a criminal record for theft, except your father; - Abstain from belonging to a gang; - Abstain from taking any drugs, except for duly prescribed medication.

ANDRÉ FORGET, J.A. ANDRÉ ROCHON, J.A. JACQUES DUFRESNE, J.A. Mtre Marie Lapointe-Trépanier Laurentides-Lanaudière Community Legal Centre For the appellant Mtre Pierre D. Loranger Criminal and penal prosecuting attorney For the respondent Hearing date: November 17, 2010