2018 QCCA 904, 2018 QCCA 904

R. c. Laffin 2018 QCCA 904 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005953-151 (760-01-070703-142, 760-01-070704-140) 500-10-005954-159 (760-73-001079-140) DATE: June 6, 2018 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. MARTIN VAUCLAIR, J.A. GENEVIÈVE MARCOTTE, J.A. 500-10-005953-151 (760-01-070703-142) (760-01-070704-140) HER MAJESTY THE QUEEN APPELLANT – Prosecutrix v. JOSHUA RICHARD LAFFIN RANDALL CONNERS RESPONDENTS – Accused 500-10-005954-159 (760-73-001079-140) HER MAJESTY THE QUEEN APPELLANT – Prosecutrix v.

JOSHUA RICHARD LAFFIN RANDALL CONNERS RESPONDENTS – Accused JUDGMENT [ 1 ] The appellants appeal from a judgment rendered by the Court of Quebec (Criminal and Penal Division), District of Beauharnois, (the Honourable Judge Michel Mercier), rendered on August 18, 2015, which sentenced the respondents to one year conditional sentences of imprisonment and one year probation after pleading guilty to an Excise Act , 2001 offence of possession of unstamped tobacco. [ 2 ] For the reasons of Vauclair, J.A., with which Hilton and Marcotte, JJ.A. agree: THE COURT: [ 3 ] ALLOWS the appeals; [ 4 ] QUASHES the conditional sentences of imprisonment and probation orders; [ 5 ] SUBSTITUTES concurrent sentences of three months of imprisonment in file 500-10-005954-159 (760-73-001079-140) and 30 days of imprisonment in file 500-10-005953-151 (760-01-070703-142, 760-01-070704-140); [ 6 ] DECLARES that the sentences have been served;

[ 7 ] MAINTAINS the victim surcharge in files 760-01-070703-142 and 760-01-070704-140. ALLAN R. HILTON, J.A. MARTIN VAUCLAIR, J.A. GENEVIÈVE MARCOTTE, J.A.

Mtre Patrick Cardinal (500-10-005953-151) CRIMINAL AND PENAL PROSECUTING ATTORNEY For the appellant Mtre Gilles Villeneuve (500-10-005954-159) PUBLIC PROSECUTION SERVICE OF CANADA For the appellant Joshua Richard Laffin (Absent) Mtre Mairi Springate Mtre Marie-Noël Saint-Hilaire SHADLEY BIEN-AIMÉ For Randall Conners Date of hearing: April 17, 2018 REASONS OF VAUCLAIR, J.A. [ 8 ] Two sentence appeals were heard together, on the same question. [ 9 ] On June 19, 2014, in file no. 500-10-005954-159, before the Court of Quebec (Criminal and Penal Division, Judge Michel Mercier), District of Beauharnois, the respondents Conners and Laffin pled guilty to possession of 909,200 grams of unstamped manufactured tobacco, contrary to s. 32(1) and s. 216(1)(

a) of the Excise Act , 2001. [ 10 ] The Public Prosecution Service of Canada (PPSC) prosecuted those offences. Respondents were sentenced to a one year conditional sentence order (“CSO”), the legality of which is contested in this appeal. [ 11 ] On the same occasion, in file no. 500-10-005953-151, both respondents pled guilty to the

summary conviction offence of obstructing a peace officer in the execution of his duties and respondent Laffin further pled guilty to three

summary conviction offences of failing to comply with a condition in a judicial undertaking. [ 12 ] The Quebec Director of Criminal and Penal Prosecutions prosecuted those offences. Following a joint submission to impose a sentence of 30 days of imprisonment concurrent to the sentence in the other file, the sentencing judge imposed a concurrent 30-day CSO. Despite the joint submission, the DCPP now appeals the legality of those sentences.

My conclusions in file no. 500-10-005954-159 will equally apply. [ 13 ] Gladue reports were prepared for each of the respondents and filed as exhibits at the sentencing hearing held on August 18, 2015. The prosecuting Crown for the PPSC (not Mtre Villeneuve) requested three months of imprisonment and one year of probation. The respondents requested a CSO. [ 14 ] As mentioned, Judge Mercier sentenced each respondent to a one year CSO. [ 15 ] Respondents reside on the American side of the Akwesasne Reserve and were born and raised in the United States of America. They are Aboriginal, whether American or Canadian.

Putting aside the historical and social particularities of the territory which, according to the respondent, date back to the Treaty of Paris in 1763, Akwesasne is geographically located partially in Canada and partially in the United States of America.

The U.S./Canada border is real and significant, although the residents of Akwesasne themselves may be free to come and go between Canada and the United States without passing through customs. [ 16 ] The appellant’s argument is essentially that the respondents received illegal sentences because CSOs cannot be served outside Canada, and they reside in the American part of Akwesasne, or the St. Regis Mohawk Indian Reservation, as it is known in the United States.

[17] Respondent Laffin is self-represented and did not appear to participate in the conduct of the Crown’s appeal. RespondentConners (the respondent) is represented and supports the legality of the CSO order. He relies mainly on the objectives of the conditionalsentence and of s. 718.2(

e) Cr.C. as interpreted by the Supreme Court in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688. Hesays that removing a tool from the sentencing toolbox available for sentencing members of Akwesasne who come before the courtswould be a setback with respect to the principles of restorative justice the Supreme Court sought to foster. [18] At trial, he says, the appellant never questioned the legality of the CSO itself; its only concern being the implementationrequirements of a conditional sentence.

Thus, the respondent was not required to argue the matter and now seeks to file new evidence tosupport the real possibility of supervision on the Akwesasne territory. [19] That evidence consists of the affidavit of Ms. Joyce King (with transcripts of her cross-examination by the appellant) and twodocuments entitled “Entente visant à confier à une communauté autochtone le suivi dans la communauté des personnes contrevenantesautochtones” for periods ending respectively on March 31, 2015 and 2018. The Mohawk Council of Akwesasne employs Ms. King asDirector of the Akwesasne Justice Department.

The Mohawk Council of Akwesasne is the governing body for the Canadian part of theterritory. [20] The appellant does not contest the admissibility of this new evidence, but says it is of limited relevance and not determinative.Nevertheless, the cross-examination of Ms. King clarifies, first, that two governing bodies – one Canadian, the other American – controlAkwesasne and, second, that Ms. King’s services cannot enforce a CSO on the American territory of Akwesasne. [21] I find the new evidence irrelevant to the issue before the Court.

I agree with the appellant that the appeal is not a sentencingmatter but a jurisdictional matter. I accept that criminal courts must be able to enforce sentences and cannot simply rely on foreigngovernments or officials to enforce their laws or sentences willingly. As the appellant aptly submits, international law prohibits Canadafrom enforcing its domestic law abroad. Contrary to respondent’s position, to conclude that supervision is possible does not put an end tothe matter because supervision is only a prerequisite to enforceability.

In this modern world, it may be possible to monitor individualsthrough electronic monitoring over the Internet, but that does not allow a CSO to be served some thousand kilometers from Canada. Ifthat were the case, I would expect clear guidance from the legislation. [22] There is not much case law directly on this question and the parties submitted none. There is, however, the case of R. v. Goett,2012 ABCA 215, from the Court of Appeal of Alberta, apparently known to counsel for the respondent but surprisingly not mentioned inher appeal book.

In Goett, the appellant sought to serve a CSO in Texas after pleading guilty to federal income tax offences. Goett, a 71-year old resident of Alberta at the time of the offences, had moved to the United States permanently, apparently seeking treatment forserious medical issues. [23] In Goett, the Court wrote at paragraph 14: [14] The sentencing judge correctly concluded that an Alberta court has no jurisdiction to order that a conditional sentence be servedin Texas. The conditional sentence and Criminal Code procedures which govern it are completely statutory: R v Bailey, 2012 ABCA 165,[2012] AJ No 550.

The Criminal Code speaks at length about territorial jurisdiction. It also defines those courts which are empoweredunder the Code. No foreign court is so identified. Sections 742.5 (1) and (1.1) provide for transfers of conditional sentence orders fromone province or territory to another only where the Crown consents. There is no similar provision for the transfer of a conditionalsentence to any other jurisdiction. Accordingly, there is no statutory authority to enable a Canadian court to ask a foreign court toadminister a sentence imposed in Canada. [My emphasis] [24] I agree.

Contrary to the respondent, I fail to see how that finding would have been different if Mr. Goett had arranged to besupervised in Texas. I would add that a CSO requires an efficient method of bringing the offender before the court if he does not complywith the conditions of the order. In the context of an offender being abroad, it is difficult to imagine how this may be achieved other thanby relying on the offender to surrender.

One must not forget that, though it may result in an order that the offender serve a portion of theunexpired sentence in custody, a breach of a CSO condition is not an offence: s. 742.6 Cr.C. and consequently, extradition is notpossible. Moreover, hearings on CSO breaches should be held promptly. Community safety and the administration of the sentencethemselves give the matter a sense of urgency: see s. 742.6(10)(11)(13)

(14) Cr.C. [25] I also rely on this passage from R. v. Greco, (2001) (ON CA), 159 C.C.C. (3d) 146 (C.A. Ont.), at paragraph14: [14] For example, if a probationer commits a breach of the order while abroad and fails or refuses to voluntarily return to Canada,then, absent a right of extradition or some other co-operative arrangement with the foreign state, Canada would likely be powerless tobring the offender to justice.

Likewise, if the “offensive conduct” abroad is conduct that the probationer is required to engage in orrefrain from under the laws of the foreign state, prosecution in Canada could well constitute an affront to the requirements of inter-national comity and result in our courts declining jurisdiction. [Internal reference omitted] [26] In Greco, it seems that Moldaver J.A. leaves open the possibility of a co-operative arrangement with a foreign state, somethingthat the Alberta Court of Appeal does not discuss in Goett.

I do not need, however, to resolve the issue here because, firstly, there is noevidence of an agreement between Canada and the United States relating to the enforcement of a Canadian CSO and, secondly, itremains “that the principle of the sovereign equality of states generally prohibits extraterritorial application of domestic law”: R. v.Cook, (SCC), [1998] 2 S.C.R. 597, at para. 26.

Further, given that no offence is committed by a breach of a CSOcondition, Canada is even more powerless to bring the offender to justice. [27] In sum, absent a statutory authority to enable a Canadian court to ask a foreign court to administer a sentence imposed in Canadaand seeing no possibility of enforcement of the CSO, I would allow the appeal and set aside the illegal sentences.

[28] In its supplemental factum requested by the Court, the appellant now suggests that the appropriate sentence is the imposition ofthe minimum fine of $193,659.60 to be paid within two years, a sentence, it writes, that is “consonant with Parliament's intent that aneconomic punishment (such as a fine) be imposed for an economic offence”, relying further on R. v. Crowder, 2010 QCCA 1378, atparas. 24-25. [29] The respondent underlines that he served 79 days of his conditional sentence before it was suspended. Citing R. v. Whaling,2014 SCC 20 , [2014] 1 S.C.R. 392 and s. 11(

h) of the Charter, he further argues that to impose the mandatory minimum finewithout accounting for the time already served would be to punish the respondent twice for the same offence. [30] It is not contested that both respondents served the equivalent of three weeks of detention prior to being sentenced. [31] According to the judge, the sole justification for the sentence imposed in an oral judgment is that a CSO was “better than justsend [the respondents] in the "slammer" and close the door [sic]”.

While this justification does not say much, it speaks nevertheless to theseriousness of the crime since the Crown was asking for three months of imprisonment. This is understandable, given the respondentsboth have prior convictions, more or less similar in the case of respondent Conners. In 2013, Mr. Laffin was sentenced to a $170,000 finefor an identical tobacco offence. In 1998, Mr. Conners was convicted for smuggling alcohol into Canada, contrary to the Excise Act.

Hereceived a $500 fine. [32] Before the Court, the appellant made a distinction between the prior convictions, somewhat less serious for Conners, andsuggested that a fine would be a fit sentence for him. The appellant further argues that a probation order is not appropriate in thecircumstances. The respondent asked that the original sentence be imposed should the Court allow the appeal. However, the respondentsays he already served that sentence and, thus, imposing a fine would be a double punishment. [33] Obviously, with the one year CSO, the judge was not prepared to give a lesser punishment with a fine.

I agree with therespondent and suggest the substitution of the sentence of imprisonment sought by the Crown in first instance. I also agree thatrespondents have served the custodial portion of the sentence. [34] It is not clear how credit for pre-sentence detention was taken into account, but the sentence must be reduced accordingly: R. v.Summers, 2014 SCC 26 , [2014] 1 S.C.R. 575. I would also reduce the sentence a further 79 days of the CSO served, as theCourt did in R. c. Clarke, 2015 QCCA 1995, at para. 47; see also R. v. F.(G.C.) (2004), (ON CA), 188 C.C.C. (3d) 68(C.A. Ont.).

Consequently, 100 days must be deducted and, thus, it follows that the sentence has been served. [35] I propose to allow both appeals, substitute a sentence of three months of imprisonment in file 500-10-005954-159 (760-73-001079-140) and 30 days of imprisonment, concurrent, in file 500-10-005953-151 (760-01-070703-142). I also propose to declare thatthe custodial portion of the sentences has been fully served and to quash the probation order. For further clarity, I would also hold thatthe victim surcharge is applicable in file 760-01-070703-142 and 760-01-070704-140. MARTIN VAUCLAIR, J.A.