2020 QCCA 1738, 2020 QCCA 1738

Unofficial English Translation of the Judgment of the Court Yombo c. R. 2020 QCCA 1738 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006942-187 (500-01-158983-178, 500-01-158985-173, 500-01-158158-177, 500-01-158159-175, 500-01-158160-173, 500-01-160159-171, 500-01-158171-170, 500-01-160165-178, 500-01-160181-175) DATE: December 17, 2020 CORAM: THE HONOURABLE GUY GAGNON, J.A. MICHEL BEAUPRÉ, J.A. BENOÎT MOORE, J.A. ÉMILE YOMBO APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT [ 1 ] The appellant appeals against a finding that he is a long-term offender, made on December 6, 2018 by a judge of the Court of Québec (the Honourable Marie-Josée Di Lallo), which ordered him to be subject to long-term supervision for a period of five years. The appellant also seeks leave to appeal various sentences imposed on him, totaling 45 months of imprisonment. [ 2 ] Moreover, the appellant seeks leave to adduce fresh evidence in the Court record.

For the reasons of Gagnon, J.A., with which Beaupré and Moore, JJ.A. concur, THE COURT: [ 3 ] DISMISSES the motion to adduce fresh evidence; [ 4 ] DISMISSES the appeal of the long-term offender designation; [ 5 ] GRANTS the application for leave to appeal the sentences; [ 6 ] DISMISSES the appeal of the sentences. S. GUY GAGNON GUY GAGNON, J.A. S. MICHEL BEAUPRÉ MICHEL BEAUPRÉ, J.A. S. BENOÎT MOORE BENOÎT MOORE, J.A. Mr. Émile Yombo Unrepresented Appellant Mtre Martin Chalifour

Director of Criminal and Penal Prosecutions For the respondent Date of hearing: September 29, 2020 REASONS OF GAGNON, J.A. [ 7 ] The appellant, Émile Yombo, pleaded guilty to several crimes of violence against the person, for which he received a total sentence of 45 months in prison, from which a 24-month enhanced credit was deducted for his pre-sentence detention, leaving 21 months to be served. [1] In connection with this sentence, the judge of the Court of Québec ordered him to be subject to long-term supervision for a period of five years. [ 8 ] The following table sets out the breakdown of the total sentence determined by the judge: File no.

Determination of prison sentences (before taking pre-sentence custody into account) Calculation of consecutive sentences (before pre-sentence custody) 500-01-160159-171 8 months (consecutive to 500-01-158158-177 and 500-01-158983-178) 500-01-160165-178 6 months (concurrent to 500-01-160159-171) 9 months* (concurrent [in principle] to 500-01-160159-171) 8 months* 500-01-158158-177 Count 1: 15 months Count 3: 15 months Count 4: 15 months (concurrent among themselves, but consecutive to 500-01-160159-171 and 500-01-158983-178) 15 months 500-01-158171-170 9 months (concurrent) 500-01-158160-173 9 months (concurrent) 500-01-158159-175 6 months (concurrent) 500-01-158983-178 Count 1 : 11 months Count 2 : 11 months Total : 22 months (consecutive among themselves and consecutive to 500-01-160159-171 and 500-01-158158-177) 22 months 500-01-158985-173 9 months (concurrent) TOTAL DURATION OF THE PRISON SENTENCE DETERMINED 45 MONTHS [2] TOTAL DURATION OF THE PRISON SENTENCE IMPOSED 21 MONTHS [ 9 ] The appellant argues that the reasons for his long-term offender designation are so inadequate that they prevent appellate review.

The designation is also unlawful because none of the twelve sentences imposed as a result of his guilty pleas meets the minimum two-year imprisonment threshold set by s. 753.1(3) Cr.C . The appellant also disputes the judge’s finding that there is a substantial risk that he will reoffend, since his mental state at the time of the events should have mitigated the weight given to this factor.

Lastly, he complains that the judge did not provide him with reasonable assistance at the sentencing hearing, at least for the portion thereof when he was not represented by counsel. [ 10 ] He also seeks leave to appeal the sentence, which, in his view, is excessive. [3] He considers that his mental health was a factor that tempered his moral blameworthiness and not an aggravating factor, as the judge wrongly held. [ 11 ] Lastly, in a pleading he himself drafted, the appellant seeks leave to file in the Court record a newspaper

article about him published on November 9, 2018, a few days before he appeared before the judge. FACTS AND PROCEEDINGS [ 12 ] A brief review of the facts will provide a better understanding of the context in which the appellant was designated a long-term offender.

[ 13 ] On April 4 and 11, 2018, the appellant pleaded guilty to twelve counts of assault with a weapon or causing bodily harm ( s. 267 (

a) or (

b) Cr.C . ), possession and concealment of a prohibited device ( ss. 90(2) (

a) and 91(3) (

a) Cr.C . ) and, finally, failing to comply with a recognizance ( s. 145(3) (

a) Cr.C . ) and with a probation order ( s. 733.1(1) (

a) Cr.C . ). At the time, the appellant was represented by Mtre George Calaritis. [ 14 ] The following is the judge’s description of the facts in support of these charges, which the appellant himself described as a modus operandi : [4] [ translation ] So, Émile Yombo pleaded guilty to a total of ten (sic) counts in eight different files. First, he admitted that on July 14, 2017, he committed assault with a weapon against Petro Furtado Bandeira de Mello, an employee in a coffee shop, by spraying him with pepper spray.

He also admitted that he was guilty of having committed an assault with a weapon on July 19, 2017 against Billy Cajuste, who had attacked him the previous day. The accused ran into him by chance in the metro. A heated exchange ensued. The accused admitted that he first sprayed him a little with pepper spray on the platform and then directly in his face once they were in the metro car. The accused was arrested the next day. He was in the metro again. He admitted having carried five concealed canisters of dog repellent on him in his bag.

However, on those dates, July 14, 19 and 20, 2017, he was prohibited from having weapons in his possession. Indeed, at the time, he was subject to five recognizances signed before judges of the Montreal Municipal Court, and he was also on probation in a case heard at the Laval Courthouse. The accused admitted that he had not complied with his conditions. He appeared in court on July 21. The court once again trusted him. He was released again based on his undertaking to comply with new conditions, including, among others, that of not possessing or carrying weapons.

Barely a few days later, on August 2, the accused once again committed assault with a weapon, this time against Samuel Gwadar, a Subway restaurant employee, by spraying him with pepper spray. The accused was known there and left before the police arrived. Two days later, on August 4, the accused was sitting on a park bench next to Noureddine Mohamad. Following a simple discussion, he decided to spray him with pepper spray. Images from the surveillance cameras made it easy to recognize the accused. A search for him was undertaken.

Émile Yombo appeared in court on August 7, 2017 and has been detained since then. [ 15 ] On April 11, 2018, at the request of Mtre Calaritis, the judge ordered a pre-sentence report and a psychiatric report.

These reports concluded that there was a substantial risk of reoffending (the pre-sentence report) and a major risk of reoffending (the psychiatric report). [ 16 ] In light of these conclusions, the Crown considered it had satisfied s. 752.01 Cr.C . [5] and, with the approval of Mtre Calaritis, it asked the judge to order the appellant to undergo an assessment at the Institut Philippe-Pinel de Montréal to determine whether he should be found to be a long-term offender or a dangerous offender.

When making this order, the judge informed the appellant that, in due course, he would be able to cross-examine the author of the report and, if he wished, file a second opinion. [ 17 ] On October 15, 2018, Mtre Vicky Powell appeared before the judge as the appellant’s new counsel.

Her mandate would be short, because on November 8, 2018, she was authorized to withdraw from the file. [ 18 ] On November 16, 2018, after the appellant personally cross-examined psychologist Tiziana Costi, the author of the report regarding the advisability of finding him to be a dangerous or long-term offender, he asked the judge to grant his application to stay the proceedings on the ground that the expert had been misled by a false allegation by a corrections officer who had told her that the appellant had ripped off an accused’s ear. [6] [ 19 ] During her cross-examination, the psychologist stated that she had been informed of this fabrication, which had no impact on the conclusions of her report.

The judge therefore dismissed the appellant’s application, stating that she was convinced that the psychologist had not been influenced by this mistaken allegation. [7] [ 20 ] The Crown then presented its submissions on the sentence. First, it asked the judge to find the appellant to be a long-term offender and order him to be subject to supervision for the maximum period of ten years. Next, it suggested to the judge that she impose a total sentence of imprisonment of 45 months due to the appellant’s dangerousness and the severity of his crimes.

Notwithstanding the pre-sentence detention (16 months), the prosecution nonetheless proposed that the judge impose a penitentiary sentence. [8] [ 21 ] The appellant’s reply consisted in arguing that his 16-month pre-sentence detention was sufficient punishment. He also suggested that he be subject to a three-year probation, of which two years would be under supervision.

Although at the time of the appellant’s criminality, his integration into the labour market was marked by instability and he had no meaningful financial resources, he nevertheless stated that he was willing to repay the losses suffered by the Société de transport de Montréal. [ 22 ] The judge rejected this suggestion, in particular due to the severity of the charges laid against the appellant, his substantial risk of reoffending and his difficulty in accepting any oversight. [ 23 ] She concluded that the conditions of ss. 753.1(1) and

(3) Cr.C . had been met and that the appellant’s criminality warranted a

sentence of 45 months of imprisonment coupled with a five-year long-term supervision order. The appellant appeals these conclusions. ANALYSIS (

A) Fresh evidence [ 24 ] The appellant seeks to file in the Court record a newspaper

article that merely describes the events that occurred in a metro station on July 19, 2017, when the appellant sprayed a victim with dog repellent. Following this attack, the authorities had to shut down three metro lines for 29 minutes, resulting in a $23,200 loss to the Société de transport de Montréal. In its main section, the

article refers to the Crown’s stated intent to ask the court to designate the appellant as a long-term offender. [ 25 ] This is clearly not fresh evidence, because it was already part of the court record in first instance. [9] The appellant explained, however, that due to an error, the newspaper

article in question was not reproduced in his brief. In these circumstances, the Court will dismiss the application to adduce fresh evidence, but will accept the filing in the Court record of the newspaper

article dated November 9, 2018. (

B) Appeal of the long-term offender designation [ 26 ] In my view, the main ground of appeal raised against the long-term offender designation is the argument that the decision is unlawful. I will therefore begin by considering that ground of appeal. (

I) Legality of the long-term offender designation [ 27 ] The appellant argues that none of the charges to which he pleaded guilty resulted in a sentence of at least two years of imprisonment.

Thus, the condition in s. 753.1(3) Cr.C . requiring that a minimum sentence of imprisonment of that duration be imposed “for the offence for which the offender has been convicted” was not met. [ 28 ] More specifically, the appellant submits that the judge was not entitled to take into account the consecutive sentences imposed on December 6, 2018 so as to conclude that the two-year threshold in s. 753.1(3) Cr.C . had been met.

In support of this position, the appellant asks the Court to apply, with necessary modifications, the Supreme Court ruling in Mathieu . [10] [ 29 ] In that decision, Fish, J. had dismissed the idea that a sentence of less than two years of imprisonment imposed on an offender could be combined with the period of pre-sentence custody so as to transform this sentence into an implicit penitentiary sentence giving the court the power to delay the offender’s parole ( s. 743.6(1.2) Cr.C . ). [ 30 ] To address the issue the appellant raises, the Court must first (1) determine at which step the long-term offender designation fits within the sentencing process, (2) identify the minimum sentence referred to in s. 753.1(1) (

a) Cr.C . and, finally, (3) decide whether the totality of the sentence is the proper yardstick for satisfying the requirement of imposing a sentence of at least two years on the offender, as prescribed by s. 753.1(3) Cr.C .

(1) The long-term offender designation [ 31 ] First and foremost, it is important to give s. 753.1 Cr.C . a scope that favours the achievement of its purposes.

That said, according to the jurisprudence, the primary purpose of the long-term offender designation is to protect society against an offender’s substantial risk of reoffending and, in that sense, it is a preventive sanction. [11] [ 32 ] The provision also has a secondary, although very important, purpose, which is to provide the offender with oversight designed to promote his rehabilitation and reintegration into society. [12] In certain respects, the supervisory measures imposed on the offender’s liberty, which are more restrictive than a so-called “supervised” probation, contribute to the protection of society through his orderly reintegration within the community. [ 33 ] That said, although it is not immediately apparent, it can be inferred from ss. 753.1(1) and

(3) Cr.C . read together that the long- term offender designation follows a very specific procedural order. The following are the two relevant provisions:

753.1(1) – Application for finding that an offender is a long-term offender : The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that (

a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted ; (

b) there is a substantial risk that the offender will reoffend; and (

c) there is a reasonable possibility of eventual control of the risk in the community. 753.1(1) – Demande de déclaration — délinquant à contrôler : Sur demande faite, en vertu de la présente partie, postérieurement au dépôt du rapport d’évaluation visé au paragraphe 752.1(2), le tribunal peut déclarer que le délinquant est un délinquant à contrôler, s’il est convaincu que les conditions suivantes sont réunies :

a) il y a lieu d’imposer au délinquant une peine minimale d’emprisonnement de deux ans pour l’infraction dont il a été déclaré coupable ;

b) celui-ci présente un risque élevé de récidive;

c) il existe une possibilité réelle que ce risque puisse être maîtrisé au sein de la collectivité. 753.1(3) – Sentence for long-term offender : If the court finds an offender to be a long-term offender, it shall (

a) impose a sentence for the offence for which the offender has been convicted, which must be a minimum punishment of imprisonment for a term of two years; and (

b) order that the offender be subject to long- term supervision for a period that does not exceed 10 years. 753.1(3) – Délinquant déclaré délinquant à contrôler : S’il déclare que le délinquant est un délinquant à contrôler, le tribunal lui inflige une peine minimale d’emprisonnement de deux ans pour l’infraction dont il a été déclaré coupable et ordonne qu’il soit soumis, pour une période maximale de dix ans, à une surveillance de longue durée. [Emphasis added] [ 34 ] Pursuant to s. 752.01 Cr.C ., the Crown must, as soon as feasible after the verdict, but before sentencing, advise the judge of its intention to make an application for remand of the offender for assessment.

If the judge has reasonable grounds to believe that the offender might be found to be a long-term offender, the remand order is issued ( s.752.1(1) Cr.C .). The resulting assessment report forms the central basis for the consideration of the application. Incidentally, I note that these steps are not contested in this appeal. [ 35 ] Once the expert report has been filed, the court can designate the offender as a long-term offender only if the three conditions set out in s. 753.1(1) Cr.C . have been met.

The judge must first decide whether the prison sentence to be imposed for the offence for which the offender has been convicted will be a minimum of two years. At this stage of the analysis, the judge is not setting the sentence. [13] The judge must only be satisfied that the offender’s criminality and his moral blameworthiness require, at the very least, a minimum sentence of two years. The English version of s. 753.1(1) (

a) Cr.C . supports this

interpretation: “(

a) it would be appropriate to impose a sentence of two years or more […]”. [ 36 ] Next, the judge must be convinced that there is a substantial risk that the offender will reoffend. Courts have now taken a position on this issue by recognizing that the substantial risk that the offender will reoffend referred to in s. 753.1(1) (

b) Cr.C . is not limited to crimes of a sexual nature. [14] A long-term offender designation can therefore be imposed in cases of repetitive indictable offences and in light of the probability that the offender will once again commit a violent crime that inflicts severe injury or psychological damage on others. [15] [ 37 ] Lastly, the judge must be satisfied, based on the evidence presented, that there is a reasonable possibility of eventual control of the risk in the community ( s. 753.1(1) (

c) Cr.C. ). [16] [ 38 ] Here is how the Supreme Court summarized the application of the three preconditions to a long-term supervision order: [21] […] In order to make a long-term offender designation, the court must be satisfied that it would be appropriate to impose a sentence of imprisonment of at least two years for the offence for which the offender has been convicted, that there is a substantial risk that the offender will reoffend, and that there is a reasonable possibility of eventual control of the risk in the community: s. 753.1(1). [17]

[ 39 ] In order to comply with the procedural sequence set out in s. 753.1 Cr.C . , the judge must therefore rule on the application for a long-term offender designation before definitively determining the sentence to be imposed. If a review of the conditions set out in s. 753.1(1) Cr.C . is conclusive, the judge finds the offender to be a long-term offender. [ 40 ] The judge must then set the supervision period, which cannot exceed ten years ( s. 753.1(3) Cr.C . ). He must also craft a fair and just sentence which, according to s. 753.1(3) Cr.C . , cannot be less than two years.

Lastly, he must impose a sentence by taking into account the offender’s pre-sentence custody, as authorized by s. 719 (3) Cr.C . [ 41 ] This passage from the Alberta Court of Appeal ruling in H.P.W. implicitly recognizes the various sequential steps I have referred to, namely, the distinction that must be made between the designation of the offender as a long-term offender and the determination of the sentence: [16] Accordingly, we find that

section 753.1(3) (

a) does not set out a mandatory prerequisite to finding an offender to be a long-term offender.

Section 753.1(3) (

a) is a minimum sentence to be imposed on persons who have been found to be long-term offenders […]. [18] [Emphasis added]

(2) The two-year minimum sentences provided for in ss. 753.1(1) and

(3) Cr.C . [ 42 ] As I have just explained, when considering an application for a long-term offender designation, the judge does not have to definitively determine the sentence of imprisonment. He must merely decide whether it would be appropriate to impose a sentence of imprisonment of two years or more. At this stage of the analysis, the offender’s pre-sentence detention is not a factor to be considered in making that decision. [ 43 ] In J.S.D ., the British Columbia Court of Appeal held as follows: [19] In our respectful view, the judge erred by including credit for pre-sentence custody when determining the “appropriate sentence” under s. 753.1(1) . That

section is intended to refer to the sentence that fits the offence and the offender, and not the vagaries of the trial process, including pre-trial and pre-sentence delays. That is, s. 753.1(1) (

a) sets a floor of seriousness of the predicate offence, for purposes of consideration of a long-term offender designation. […] [19] [ 44 ] I agree with this reading of s. 753.1(1) (

a) Cr.C . It would be incongruous, to say the least, to conclude that a sentence of at least two years must be imposed and then effectively make it a sentence of less than two years because of pre-sentence custody, with the result that a measure intended to protect society would be neutralized despite a finding that there is a substantial risk that the offender will reoffend. [ 45 ] The situation, however, is different at the actual sentencing stage. While s. 753.1(3) Cr.C . requires the judge to craft a sentence of not less than two years (the gross sentence), this condition is not as absolute at it seems.

At this second stage, the judge retains the discretion conferred by s. 719(3) Cr.C . to take into account, where applicable, any period the offender spent in custody as a result of his offence. In light of this factor, the term of imprisonment imposed (the net sentence) may even be less than two years, without thereby infringing s. 753.1(3) Cr.C . [20] [ 46 ] In Wust , [21] Arbour, J. found that the minimum sentence provided for by law, such as the one in s. 344(1) (

a) Cr.C . , could be reduced because of the offender’s pre-sentencing custody. [22] Perras, J.A., of the Alberta Court of Appeal, applied the same logic to interpret s. 753.1(3) Cr.C . [23] He wrote: [19] The reasoning of the Supreme Court in Wust is applicable to the matter before us. The two year minimum punishment in s. 753.1(3) (

a) is not absolute. It is subject to the judicial discretion conferred by s. 719(3) . The actual sentence imposed may be less than two years, so long as the sentence plus the credits given total an overall punishment of at least two years . [24] [ 47 ] It appears from the foregoing that the sentence mentioned in s. 753.1(1) (

a) Cr.C . does not correspond to the sentence determined pursuant to s. 753.1(3) Cr.C . In the first case, the role of the judge is to decide whether the prison sentence will be of at least two years ( s. 753.1(1) (

a) Cr.C . ), while at the stage of imposing the sentence ( s. 753.1(3) Cr.C . ), the judge must craft a sentence of at least two years from which he can, in principle, deduct a period equal to an enhanced credit for the offender’s pre-sentence custody. [ 48 ] This is why I am of the opinion that Mathieu is of no assistance to the appellant. Indeed, there is a fundamental difference between s. 743.6(1.2) Cr.C . , discussed in that decision, and s. 753.1(1) Cr.C . Pursuant to the first provision, a judge can delay the offender’s parole, after having imposed a sentence of imprisonment of two years or more.

The process under s. 753.1(1) Cr.C . is entirely different, in that the long-term offender designation occurs before the sentence of imprisonment is imposed. [25] [ 49 ] These two provisions, however, share a common point.

In connection with an application to delay the offender’s parole, his pre- sentence detention cannot be taken into account to decide whether the condition relating to the imposition of “a sentence of imprisonment of two years or more” has been met ( s. 743.6(1.2) Cr.C . ). [26] Similarly, as I have just explained, when considering an application for a long-term offender designation, the pre-sentence custody cannot be a factor in deciding whether such an order should be made ( s. 753.1(1) (

a) Cr.C . ).

(3) The totality principle and s. 753.1(3) Cr.C . [ 50 ] Another question arises with respect to s. 753.1 Cr.C ., more specifically with regard to the drafting of s. 753.1(3) Cr.C . Must the judge necessarily impose a minimum sentence of imprisonment of two years on at least one count, even if the total of the consecutive sentences is two years or more? [ 51 ] In my opinion, pursuant to the requirement set out in that provision, it is only necessary that the total sentence determined for all

of the offences for which the offender has been convicted satisfy the statutory threshold, before the pre-sentence custody is taken into account. Another way to express the same idea is to state, as the Ontario Court of Appeal wrote in Hall , that the total sentence imposed on the offender, to which the pre-sentence custody is added, must be equal to a sentence of two years or more.

If the sentence imposed by a trial judge, having regard to the credit that the trial judge gives for pre-sentence incarceration, is the equivalent of a sentence of two years or more, the first pre-condition to the finding that an offender is a long-term offender is met. [27] [ 52 ] In the present case, the difficulty arises from a literal reading of s. 753.1(3) Cr.C . , more specifically from Parliament’s use of the singular number: “for the offence for which the offender has been convicted / pour l’infraction dont il a été déclaré coupable”. [28] [ 53 ] The totality principle is codified in s. 718.2(

c) Cr.C .

Quite recently, in Friesen , [29] the Supreme Court reiterated the importance of this principle, which is intended to prevent courts from crafting a total sentence that exceeds the offender’s overall culpability. [ 54 ] Although the sentence for each count must be established in accordance with the objectives and principles applicable to sentencing, [30] it is possible to achieve this result by first determining the total sentence. [31] It is only after ensuring that the consecutive sentences do not exceed the offender’s overall culpability [32] that the judge will consider the possibility of reducing the sentence to reflect the totality principle. [ 55 ] This is a fundamental principle [33] and is designed to establish a limit on the duration of consecutive sentences so as to avoid a disproportionate punishment.

The total sentence resulting from the application of that principle constitutes the prison sentence determined for the offender before pre-sentence custody is taken into account. [ 56 ] Moreover, the jurisprudence acknowledges that the period of pre-sentence incarceration forms part of the punishment (but not the sentence). [34] In this regard, Arbour, J. stated the following in Wust : [41] […] Therefore, while pre-trial detention is not intended as punishment when it is imposed, it is, in effect, deemed part of the punishment following the offender’s conviction, by the operation of s. 719(3). […] [35] [ 57 ] That said, it would be contradictory, to say the least, to assert that an offender can be designated a long-term offender for being ordered to serve 24 months on a single conviction and, at the same time, claim that a person ordered to serve a total sentence of 45 months, as in the present case, could avoid such a designation because none of the consecutive sentences satisfies the two-year statutory threshold. [ 58 ] Moreover, by retaining the totality principle when applying s. 753.1(3) Cr.C . , one avoids the perception that the sentence, for a given count, has been adjusted solely in order to satisfy the two-year minimum, without regard to sentencing principles. [ 59 ] In light of the foregoing, it therefore seems logical to conclude that the total sentence determined on the basis of the appellant’s overall culpability is the sentence referred to in s. 753.1(3) Cr.C .

This opinion is supported by a number of sources. [ 60 ] As regards the jurisprudence, in Hervieux Riverin , [36] our Court acknowledged that the totality principle [37] applies to s. 753.1(3) Cr.C . : [ translation ] [4] It is possible, as the appellant argues in its brief, that there was a minor technical error in the calculation of the actual detention for purposes of s. 719 of the Criminal Code , but this is irrelevant for purposes of applying s. 753.1(3) of that same code: indeed, the global sentence imposed on the appellant here exceeds two years of incarceration, and if we concede, without ruling thereon, that there was an error in the calculation in question, the global sentence is still greater than two years of incarceration. […]. [38] [Emphasis added] [ 61 ] A number of trial courts have also applied the totality principle in order to satisfy the condition in s. 753.1(3) Cr.C . [39] In Hyde , the Provincial Court of Alberta found it was entitled to combine three sentences of less than two years each to designate the offender as a long-term offender. [40] After taking the offender’s pre-sentencing custody into account, the Ontario Court of Justice, in Nash , imposed five concurrent prison sentences, the longest sentences being 12 months. [41] The judge had previously determined that the accused’s total sentence of imprisonment should be five and a half years, such that the condition in s. 753.1(3) Cr.C . was met. [ 62 ] Moreover, this method for calculating the two-year minimum seems to have been widely accepted by the Court of Québec. [42] [ 63 ] The doctrine also adopts this approach: [ translation ] The sentence imposed by the court may therefore be less than two years of imprisonment if the global sentence, once pre-sentence custody is taken into account, exceeds the statutory threshold .

Thus, a court that sentences an offender to a global sentence of imprisonment of 48 months, from which it deducts 28 and a half months for pre-sentence custody, resulting in a sentence of 19 and half months to be served as of that date, may therefore find the offender to be a long-term offender. [43] [Reference omitted; emphasis added] [ 64 ] Lastly, the applicable rules of

interpretation indicate that the use of the singular in s. 753.1(1) (

a) Cr.C . does not preclude the use of the plural to give the provision its full effect. Section 33(2) of the

Interpretation Act [44] is unequivocal regarding the inclusion of the plural if the text of the legislation is drafted in the singular :

33(2) – Number : Words in the singular include the plural, and words in the plural include the singular. 33(2) – Nombre grammatical : Le pluriel ou le singulier s’appliquent, le cas échéant, à l’unité et à la pluralité. [ 65 ] The Federal Court of Appeal acknowledged this rule of

interpretation by suggesting that “[o]ne must therefore avoid attaching too much importance to the use of the singular” in a legislative text. [45] On this point, it is also appropriate to cite Louis-Philippe Pigeon in Drafting and Interpreting Legislation : Third rule: The singular number extends to more than one person or thing (section 54). The temptation is always strong to use both singular and plural in some provisions.

This temptation must always be resisted: the draftsman who yields to it may well destroy the application of the rule and slip into a habit of extremely cumbersome draftsmanship where singular and plural are always being used. [46] [ 66 ] It is true that in Mathieu , Fish, J. stated that the order under s. 743.6(1.2) Cr.C . must be based on a sentence imposed “only in respect of individual counts, taken separately”. [47] Read in context, this passage simply means that the order contemplated in that provision must, as Fish, J. explained, result from “a sentence imposed for one of the offences referred to in s. 743.6(1.2) ”. [48] [ 67 ] This clarification having been made, I am still of the opinion that Mathieu in no way precludes the use of the totality principle when deciding whether the sentence determined by the court satisfies the condition in s. 753.1(3) Cr.C . [ 68 ] In

summary, I believe that consideration of the totality principle for the purpose of applying this provision is directly related to the long-term offender designation.

This conclusion flows from the plurality of convictions for violent crimes committed by an offender which, when analyzed globally, is closely linked to the need to control the danger reflected by those convictions. [ 69 ] For all these reasons, and in accordance with the prevailing jurisprudence on the issue, I am of the opinion that if the total sentence of imprisonment determined for an offender is equal to or exceeds the two-year minimum, the condition in s. 753.1(3) Cr.C . has been met. ------------------------------- [ 70 ] In the case at bar, at the time the appellant pleaded guilty, the list of his prior convictions already included several convictions for violent crimes as well as numerous breaches of undertakings of all types. [49] As indicated above, the application of s. 752.01 Cr.C . is not at issue for purposes of ruling on this appeal, since the appellant’s counsel raised no objection to his remand for assessment.

On this point, I will simply state that the majority of cases in the country explain that this provision is not a precondition to the application of s. 752.1(1) Cr.C . [50] [ 71 ] In the present case, the judge substantively followed the procedural steps for making a long-term offender designation, setting the period of long-term supervision and determining a fit sentence. [ 72 ] She first ruled on the application for a long-term offender designation in light of the expert report provided by psychologist Costi and her testimony.

Although the judgment does not show that the judge rigorously followed the various steps provided for at law, her reasons clearly indicate that she was well aware of the three conditions mentioned in s. 753.1(1) Cr.C . when she listed them at the beginning of her judgment. [51] [ 73 ] After analysis, she concluded that there is a substantial risk that the appellant will reoffend [52] and she accepted the expert’s position that there is a reasonable possibility of eventual control of the risk in the community.

In the first stage of her reasoning, the judge also decided that the appellant should be sentenced to a total prison term of 45 months [53] and she considered, as the expert Costi suggested, that [ translation ] “a few years of supervision” [54] within the community would be sufficient.

Having completed this step, the judge found the appellant to be a long-term offender. [55] [ 74 ] She then proceeded to determine a fair and just sentence, which she established to be a global sentence of 45 months, from which she deducted a pre-sentence detention equal to 24 months, resulting in the imposition of a 21-month prison term. [56] She also set a five- year supervision period [57] and provided a breakdown of the total sentence for each of the charges, with no individual sentence reaching the two-year imprisonment threshold. [ 75 ] In his appeal brief, the appellant implicitly acknowledges the sequence the judge followed in the sentencing process, just as he admits that the total sentence of imprisonment is at least 45 months: [ translation ] [21] On December 6, 2018, the trial judge found the appellant to be a long-term offender subject to supervision for a period of five years.

The trial judge imposed a global custodial sentence of 45 months, from which 24 months of pre-sentence custody was deducted, leaving a balance of 21 months of detention. […] [ 76 ] I am of the opinion that, in the case at bar, the conditions of s. 753.1(1) Cr.C . have been met and that the judge followed the analytical framework suggested by s. 753.1 Cr.C . read in its entirety, at least as regards its essential elements.

I also find that the condition in s. 753.1(3) Cr.C . has been satisfied and that the sentence imposed on the appellant is consistent with the law, notably as regards the consecutive sentences of imprisonment established by the judge, whose total greatly exceeds the two-year statutory threshold. [ 77 ] Consequently, I would dismiss this ground of appeal. (II) The inadequate reasoning of the judgment [ 78 ] The appellant argues that the judge [ translation ] “completely failed to give reasons for her decision” [58] when she found him to

be a long-term offender. I do not agree with this statement. In my view, the basis on which the judge arrived at this finding is clear from her reasons and the record, such that the appellant’s right to appeal is in no way impeded. [ 79 ] As evidence thereof, I refer to the grounds of appeal raised by the appellant, which focus on specific elements of the decision.

I also note that a judge of this Court found sufficient information in the judgment under appeal to rule on, and dismiss, the appellant’s application for release from custody. [59] [ 80 ] Moreover, the reasons for the decisions of the various judges of this Court dismissing two subsequent applications for release from custody filed by the appellant [60] and an application to suspend the long-term offender designation pending appeal [61] are based, at least in part, on the judgment under appeal. [ 81 ] That said, the judgment addressed the following points in turn: - a

summary of the appellant’s guilty plea on April 4 and 11, 2018 and of the chronology of the events preceding his appearance; - a

summary of the pre-sentence report and the expert report on the dangerous or long-term offender; - the parties’ respective positions on the sentence; - the general principles and the purposes of sentencing (ss. 718 and following Cr.C . ); - the conditions for finding an accused to be a long-term offender ( s. 753.1(1) Cr.C . ); - the seriousness of the appellant’s actions and a detailed profile of the appellant, which the judge described before concluding that there is a substantial risk that he will reoffend, in addition to referring to his judicial history, his conflicts with those around him, his desire to take control of his life, his social environment, his drug addiction, his motives and state of mind at the time of his actions as well as his rationalization for his aggressive behaviour; - the mitigating and aggravating factors considered, namely, on the one hand, the guilty plea and the desire to engage in a process of change and, on the other hand, the repeated crimes against persons, the breach of a probation order and an undertaking as well as the consequences of his actions on the victims; - the elements the judge took into account to find the appellant to be a long-term offender; - the determination of a fit sentence of 45 months; and - the formal designation as a long-term offender, the sentence established for each count and the total sentence of imprisonment to be served. [ 82 ] This is how the judge summarized the factors that led to the impugned designation: [ translation ] In conclusion, the twenty-nine-year-old accused exhibits an ongoing and persistent delinquency.

His impulsive nature and a problem managing his emotions and anger have landed him before the courts on a recurring basis for a number of years. Unfortunately, his feeling of persecution causes him to react in an aggressive and intimidating manner when faced with confrontations. As soon as he drinks alcohol, this significantly reduces his threshold of tolerance and increases his unpredictability. Fortunately, the accused is now aware of this. At present, however, he has few means to control this feeling of persecution and his violent behaviour.

The Court therefore finds the accused to be a long-term offender, but for a period of five years, in the hopes that his time in prison and the period of supervision will, with Mr. Yombo’s willingness, allow him to be reintegrated into society as a contributing member. [ 83 ] Based on the record as a whole, there is an easily identifiable logical connection between the judge’s finding that the appellant is a long-term offender and the basis for that decision.

There is no doubt that the evidence presented at trial, the parties’ submissions and the judge’s reasons easily allow the Court to rule on the issues raised by this appeal. [ 84 ] Consequently, I would dismiss this ground of appeal. (III) Assessment of the evidence and the substantial risk of reoffending [ 85 ] The appellant argues that the judge applied an incorrect analytical framework for purposes of assessing his risk of reoffending, by resorting to the general sentencing scheme without being convinced that there was a likelihood he would cause death or injury to others or inflict severe psychological damage on others. [ 86 ] More specifically, he alleges that the judge failed to consider his state of mental health and to include this factor among the mitigating factors.

The appellant raises this issue as a separate ground of appeal, which I will address further below in my reasons. [ 87 ] The finding that an offender is a long-term offender falls within the discretion of the trial judge and calls for the application of the deferential standard of reasonableness. [62] The conclusion that there is a substantial risk that the offender will reoffend is a finding of fact based, in particular, on the relative credibility of the experts and requires great deference from appellate courts. [ 88 ] That said, it is inaccurate to state, as the appellant has done, that the judge analyzed the risk of recidivism in the context of the sentence in general rather than on the basis of s. 753.1 Cr.C .

[ 89 ] The judge was presented with a report by psychologist Costi entitled [ translation ] “ Expertise on Dangerous or Long-term Offenders ”, which states, among other things: [ translation ] […] In terms of future risk, Mr. Yombo presents all the elements, including a lack of realistic long-term plans, a life situation if he were outside where he could quickly reoffend, a lack of personal support, a poor response to intervention and supervision, and difficulty coping adequately with stress. […] The risk of violence in Mr.

Yombo’s case is linked in part to his antisocial traits, but above all to the paranoid interpretative aspects of his personality, which cause him to react to what he perceives as attacks or disrespect and to have found no other way to manage his anger or emotions than violent acts, in this case attacks with pepper spray. The risk that Mr. Yombo will reoffend with such acts remains high. [63] [ 90 ] After reviewing certain actuarial scales, the expert concluded that the appellant shows [ translation ] “a substantial risk of reoffending with the same type of offence”.

When examined on November 16, 2018, the expert reiterated this diagnosis, although she was of the opinion that the risk is [ translation ] “manageable” within the community. [ 91 ] The judge was also presented with a pre-sentence report that concluded along the same lines. [64] Lastly, an expert psychiatric report prepared by Dr. Marie-Alice Sanchez was filed as evidence. It includes the following passage: [ translation ] His impulsivity [Mr.

Yombo], the lack of stability in his social network and the absence of intimate relationships are also risk factors, as is alcohol consumption, which is a major risk factor regarding his risk of reoffending. [65] [ 92 ] When one reads the judge’s reasons carefully with regard to the evidence presented in support of the application for the long- term offender designation, it is clear from the very essence of her decision that she concluded that there was a substantial risk the appellant would reoffend.

The judge provided a detailed profile of the appellant, including his judicial history, his conflicts with those around him, his violent crimes, his alcohol and drug abuse, the lack of available support from his current social environment, his perception of others, his antisocial and paranoid personality traits, and his rationalization for his aggressive behaviour. [66] [ 93 ] Clearly, the appellant’s potential dangerousness was measured in light of his past conduct, which was marked by repetitive acts of violence of a similar nature, including a careful review of the events surrounding the commission of the offences in question. [67] [ 94 ] As regards the requirement that the judge be convinced that there is a likelihood the appellant will cause death or injury to other persons or inflict severe psychological damage on other persons, although the judge did not use those words, she nevertheless indicated her agreement with the conclusions of the expert report stating that the appellant is at a substantial risk of reoffending. [ 95 ] Faced with such a profile, which the judge described accurately, one cannot conclude that the long-term offender designation is unreasonable. (IV) The judge’s duty to assist [ 96 ] The appellant complains that, at the time the judge dismissed his application to stay the proceedings, she did not inform him that the mistreatment experienced in prison could be the subject of an application under ss. 7 and 12 of the Charter for the purpose of obtaining redress in the form of a reduction in his sentence. [ 97 ] He also makes the following complaints against the judge: - the judge should have informed him that he was entitled to present a second opinion; - she did not take into account the fact that he did not have Internet access to search the jurisprudence; - she should have appointed an amicus curiae to assist him in preparing his application; - she did not provide him with sufficient guidance, despite knowing that he was considering withdrawing some of his guilty pleas. [ 98 ] The scope of a judge’s duty to assist a self-represented accused varies depending on the circumstances and context of the trial. [68] It is generally accepted, however, that, at a minimum, a self-represented accused must be informed of the disadvantages of his choice to represent himself and of the importance of consulting a lawyer. [69] In Jarrah , my colleague Thibault, J.A. had the following to say regarding the duty to assist a self-represented accused: [ translation ] [42] There are no set rules on the nature and extent of the assistance owed to a self-represented accused.

Each case must be assessed in light of the circumstances in the record. An accused is not entitled to a perfect trial. Consequently, certain deficiencies in the assistance provided by the judge will not necessarily affect the fairness of the trial.

The judge does not have the obligation to advise the accused throughout the trial as counsel would nor to cross-examine the prosecution’s witnesses, which could jeopardize his impartiality. [43] However, the judge must ensure that the accused has a full and complete defence, insist on the application of the rules of evidence in criminal matters and see to it that the accused has a general understanding thereof. [70]

[References omitted] [ 99 ] Thus, the extent of a judge’s duty to assist a self-represented accused depends largely on the circumstances of the case and, in particular, on maintaining the rules inherent in the conduct of a fair trial.

That said, the reasonable assistance to be provided by a judge to a self-represented accused cannot be transformed into an obligation to advise the accused on strategy or on a ground of defence that should be raised, [71] at the risk of calling into question the court’s impartiality. [72] [ 100 ] In the present case, the appellant has not shown that the proceedings in first instance were unfair.

Moreover, the judge duly cautioned the appellant about his choice to represent himself. [ 101 ] As to the conditions under which the appellant was detained, the judge was not required to raise a charter argument proprio motu with regards to obtaining redress, for which the burden of proof regarding the merits of such redress rests on the applicant. [73] [ 102 ] In any event, although the appellant did not present a formal application under the Charter regarding his argument that he experienced hardship while in detention, the judge nevertheless took that argument into account, as appears from her remarks at the end of the sentencing hearing: [ translation ] You had previously made this request for proceedings, which I dismissed because it was the ultimate remedy and had no place under the circumstances.

But I said that you could submit documents to me, and I would see if, in terms of the sentence, I could weigh what you’ve been through, if I could consider something and see what I could give you if it could count within my thought process to give you a fair and reasonable sentence, taking into account all the circumstances of the case. [74] [ 103 ] Moreover, counsel for the appellant, Mtre Powell, informed the judge, before she was dismissed by her client, that she had explained to him the procedure for a long-term offender designation and the applicable legal provisions and criteria. [ 104 ] It also appears from the record, including the transcript of the discussions between the parties, that the appellant was well aware of the application to have him designated as a long-term offender, of Ms.

Costi’s report, of his right to challenge the conclusions of that report and of his right to cross-examine the expert. He was also informed about his right to file a second opinion and about the various time limits set out in

Part XXIV of the Criminal Code . [ 105 ] Moreover, this case did not involve any complex legal issues in first instance [75] . In short, there was nothing warranting the appointment of an amicus curiae , which the appellant himself acknowledged when he said the following to the judge: [ translation ] “ […], but I’m telling you now, right now, telling you for the fourth time, that I am ready to represent myself today”. [76] [ 106 ] Two lawyers agreed to represent the appellant during part of the proceedings in first instance.

There were four more who represented or assisted him on appeal, the last being Mtre Rita Magloé Francis, who asked to withdraw from the file on the morning of the appeal hearing on the ground that the appellant wished to present his submissions himself. The number of lawyers involved highlights the appellant’s firm desire to follow his own strategy without regard to the advice provided by professionals.

It is therefore inappropriate that he should complain about the consequences of his choices. [ 107 ] As to the possibility raised in first instance of withdrawing his guilty pleas, the appellant does not raise any grounds of appeal in connection with this issue. Furthermore, at the time this possibility was discussed before the judge, the appellant was represented by counsel. [ 108 ] For these reasons, this ground of appeal must fail. (

C) The application for leave to appeal the sentence [ 109 ] The appellant filed an application for leave to appeal the 45-month prison sentence. This application is largely theoretical because the sentence ended on September 6, 2020 and because the appellant was, in fact, discharged in February 2020. [ 110 ] In any event, for the following reasons, I am of the opinion that none of the arguments raised in the appellant’s application warrant the intervention of the Court. (

I) Weighing of the mitigating and aggravating factors [ 111 ] The appellant is of the view that the judge did not consider the following mitigating factors: - The complaints filed against corrections officers or the Établissement de détention Rivière-des-Prairies; - a disparaging newspaper

article about him; - his hospitalization as a result of the fight that led to the offence of July 18, 2017; - his willingness to begin a therapeutic process; and - his willingness to repair some of the harm done to the STM. [ 112 ] In Lacasse [77] and Nasogaluak [78] , the Supreme Court noted that it is not the role of an appellate court to modify a sentence because it would have weighed the relevant factors differently. [ 113 ] In the present case, the judge took the appellant’s complaints into account:

[ translation ] The accused filed into evidence, as Exhibits R-1A, D-l and D-2, several complaint forms and applications for the review of disciplinary breaches that he himself submitted to the Établissement de détention Rivière-des-Prairies following the sanctions he received. He had been reprimanded for not complying with the institution’s regulations or directives. It was noted that the inmate was frustrated and uncooperative. That said, he received several favourable responses after filing his complaints.

In some cases, some of the sanctions were even cancelled, with the decision indicating that correctional services officers would be sensitized to ensure that the situation did not recur. The court takes this into account. [79] [ 114 ] The judge also explained to the appellant that the court had no control over the media coverage of the actions for which he was charged. Moreover, there is nothing to indicate that this publicity, including the newspaper

article dated November 9, 2018, harmed the appellant because it was abusive or disproportionate. [80] [ 115 ] Lastly, the judge also took into account the appellant’s belated willingness to rehabilitate himself and his desire to indemnify the Société de transport de Montréal.

She was not, however, required to impose a sentence based on the appellant’s hopes and wishful thinking. [81] [ 116 ] Other than saying he disagrees with the judge’s weighing of the relevant factors she considered, the appellant has not pointed to any errors in principle in the judge’s exercise of her discretion when arriving at a 45-month prison sentence. (II) The principle of proportionality and the appellant’s mental health [ 117 ] The appellant argues that the judge failed to consider his mental state when assessing his moral blameworthiness. [ 118 ] Various expert reports filed in first instance stated that the appellant has deficiencies of an antisocial, narcissistic and paranoid nature that are exacerbated by excessive alcohol consumption when the appellant is not in a sheltered environment.

If I have properly understood the appellant’s position, it is these personality disorders that the judge should have considered and taken into account as a mitigating factor. [ 119 ] A distinction should be made between mental health problems such as mood disorders and those consisting of paranoid, antisocial or borderline personality disorders. The first category is, in all likelihood, a [ translation ] “relatively treatable” disease, [82] thereby reducing the risk of recidivism and thus the need for deterrence.

This is not the case for the second category, which, depending on the situation, may indicate a higher degree of dangerousness. By way of illustration, I refer to Rondeau , in which Béliveau, J.S.C. wrote: [ translation ] [145] […] One must therefore conclude that the fact that the commission of an offence can be explained by a mental disorder liable to reoccur cannot be a mitigating factor where there is no real and serious prognosis of recovery.

Crime prevention, which is the primary purpose established by Parliament in the opening words of s. 718, must then take precedence over that of rehabilitation. [83] [ 120 ] The evidence shows that the appellant exhibits persistent and recurring behaviour of mistrust and aggression towards other people he meets at random.

This evidence also reveals that the medical or judicial measures taken since his teenage years have essentially been ineffective. [ 121 ] Given the appellant’s repetitive violent offences against others while he was subject to undertakings and recognizances and given his psychological profile, the judge was justified in not considering his mental state as a mitigating factor with respect to his moral blameworthiness, especially since public safety is at stake. ------------------------------- [ 122 ] Although the appellant barely satisfies the minimum conditions for obtaining leave to appeal, I am of the view that such leave should be granted, but that the appeal of the sentences should be dismissed.

CONCLUSION [ 123 ] I would dismiss the application to adduce fresh evidence as being unfounded in law, but would nevertheless accept the filing in the Court record of the newspaper

article dated November 9, 2018, which, however, has no impact on the outcome of the appeal. On the merits, I would dismiss the appeal of the long-term offender designation, grant the application for leave to appeal the sentences, but dismiss said appeal of these sentences. S. GUY GAGNON GUY GAGNON, J.A.