r v. BRANDON MURPHY, 2023 QCCA 313

R. c. Murphy 2023 QCCA 313 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-700030-222 (540-01-090229-199) DATE: March 3, 2023 CORAM: THE HONOURABLE STEPHEN W. HAMILTON, J.A. STÉPHANE SANSFAÇON, J.A. PETER KALICHMAN, J.A. HIS MAJESTY THE KING APPELLANT – Prosecutor v.

BRANDON MURPHY RESPONDENT – Accused JUDGMENT [ 1 ] The appellant appeals from a sentencing judgment rendered on August 11, 2022, by the Honourable Serge Cimon of the Court of Québec, District of Laval, on one count of mischief in relation to property the value of which does not exceed $5,000 (count 2) and one count of criminal harassment under s. 264(2) Cr.C . (count 1).

The judge imposed a global sentence on the respondent without addressing each of the two counts separately, imposing a 12-month conditional sentence combined with 24 months of probation that includes a 12- month follow-up for the first year (the “Original Judgment”). [ 2 ] Several minutes after the judge read the conclusions of his judgment and filed a written version, counsel for the prosecution pointed out to him that she believed the sentence was unlawful because, at that time, a conditional sentence could not be imposed on a count of criminal harassment prosecuted by way of indictment ( s. 742.1 (f)(ii) Cr.C .).

The judge acknowledged his error and heard the parties’ submissions on what should be done.

He subsequently amended the conclusions of his Original Judgment (the “Amended Judgment”), [1] imposing a suspended sentence combined with two years’ probation that includes a one-year follow-up for the first year on the count of criminal harassment (count 1) and a 12-month conditional sentence on the count of mischief (count 2). [ 3 ] In his motion for leave to appeal, the appellant argues that the judge could not amend the conclusions of his judgment as he did because he had exhausted his jurisdiction, and he asks this Court to recognize that, since the judge was functus officio , the Amended Judgment is void.

As for the Original Judgment, the appellant asks that it be set aside and that this Court impose the sentence it considers fit. [ 4 ] Subsidiarily, if this Court finds that the Amended Judgment is valid, the appellant argues that the sentence on the count of criminal harassment is unfit. [ 5 ] The appellant further submits that the judge erred by failing to make an order under s. 109 Cr.C . [ 6 ] The appellant filed its memorandum on November 7, 2022.

The respondent failed to file his memorandum. * * * [ 7 ] On November 17, 2022, after the appellant had filed its memorandum, s. 742.1 (f)(ii) Cr.C . , which prohibited a court from imposing a conditional sentence for the offence of criminal harassment when prosecuted by way of indictment, was repealed by s. 14(2) of the Act to amend the Criminal Code and the Controlled Drugs and Substances Act . [2] In other words, the legal basis for the appellant’s ground of appeal regarding the sentence imposed in the Original Judgment, namely a 12-month conditional sentence, no longer exists. [ 8 ] Prior to the hearing, the Court therefore asked the parties’ counsel to make submissions in light of this legislative amendment . [ 9 ] The appellant amended the position it had set out in its notice for leave to appeal and its memorandum.

It submits [3] that the ground by which it argues that the judge could not render the Amended Judgment still stands and that it should therefore be set aside. It does not, however, ask this Court to reverse the Original Judgment. Relying on the precepts set out by the Supreme Court of Canada in R. v. R.A.R. [4] and R. v. R.N.S. , [5] it is of the view that the respondent is entitled to the benefit of the new sentencing provisions. The appellant therefore is not only abandoning its request to have the 12-month conditional sentence vacated, but also the request made in its

memorandum for a 9-month conditional sentence on the second count (mischief) and a sentence of 90 days of imprisonment to be served intermittently on the first count (criminal harassment) [6] . [ 10 ] The respondent [7] opposes the appellant’s request to quash the Amended Judgment, arguing that the judge had not exhausted his jurisdiction.

He adds that he is [ translation ] “contemplating” conceding that the sentence imposed in the Amended Judgment on the count of criminal harassment, namely a suspended sentence, was unfit in light of the overall circumstances of the case described by the trial judge, and that he would agree to have it replaced by a global 12-month conditional sentence on both counts. The appellant and the respondent therefore arrive at the same sentence, but by two very different means.

As for the trial judge’s failure to make an order under s. 109 Cr.C ., the respondent acknowledges the judge’s error and consents to such an order being made. [ 11 ] Because the respondent did not produce his memorandum in the time fixed by the Court, he did not have the right to address the Court at the hearing on the merits, nor did he present a request to postpone the hearing. After the presentation of the appellant’s arguments, the Court authorized the respondent’s lawyer to address the Court and present his point of view. He takes the position that the judge had not exhausted his jurisdiction.

However, he adds that even though the Amended Judgment should not be annulled, the appeal of that judgment should still be allowed in order to replace the suspended sentence on the count of criminal harassment by the same sentence sought by appellant, which is the one set out in the Original Judgment. In other words, the sentence handed out in the Original Judgment should be reinstated but in the Amended Judgment.

The respondent agrees with the appellant that the judge erred by failing to make an order under s. 109 Cr.C . [ 12 ] The respondent verbally asked the Court to be authorized to present his memorandum and his arguments at a later date. That request was taken under advisement. [ 13 ] The Court will not authorize the respondent to present his memorandum and his arguments at a later date. The request was made too late, after the appellant’s arguments had been presented.

Moreover, the respondent will suffer no harm from the rejection of his request as he agrees with the sentence proposed by the appellant. [ 14 ] A court [ translation ] “that has decided a matter on the merits and has drawn up and entered a formal judgment has discharged its duty and no longer has the ability to correct or reconsider its decision”. [8] This doctrine, known as functus officio , means that once a sentence has been rendered, the judge no longer has jurisdiction over a criminal matter, and a party that is dissatisfied with the sentence must go before an appellate court [9] if it wants to have the judgment varied. [10] This rule protects the finality of judgments: “[it] prevents a judge from varying or changing his decision after a final judgment has been reached”. [11] [ 15 ] In the present case, the judge noted his error and altered the conclusions of his judgment so that they would comply with the law.

As the appellant points out, it cannot be argued that, in doing so, he simply wanted to [ translation ] “provide a breakdown of the sentence” imposed on the two counts, because that was not part of his initially expressed intention.

Nor was this a change or a mere correction of a manifest error, as permitted by law. [ 16 ] Consequently, the Court must intervene to set aside the Amended Judgment. [ 17 ] As for the appeal of the Original Judgment, given that the appellant has abandoned the grounds of appeal regarding the sentence imposed (subject to the ground regarding the failure to make an order under s. 109 Cr.C . ), the appeal of the Original Judgment will be allowed for the sole purpose of adding the order provided for in s. 109 Cr.C .

FOR THESE REASONS, THE COURT: [ 18 ] GRANTS the amended application for leave to appeal from the sentence; [ 19 ] ALLOWS the appeal in part; [ 20 ] SETS ASIDE the Amended Judgment rendered on August 11, 2022, by the Honourable Serge Cimon of the Court of Québec, District of Laval, in file no. 540-01-090229-199; [ 21 ] RESTORES the Original Judgment rendered on August 11, 2022, by the Honourable Serge Cimon of the Court of Québec, District of Laval, in file no. 540-01-090229-199; [ 22 ] ALLOWS the appeal regarding the Original Judgment rendered on August 11, 2022, by the Honourable Serge Cimon of the Court of Québec, District of Laval, in file no. 540-01-090229-199, for the sole purpose of adding the following order: In file 540-01-090229-199 [ 23 ] PROHIBITS Brandon Murphy from possessing: (

a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance during the period that (

i) begins on the day on which the order is made, and (ii) ends not earlier than ten years after his release from imprisonment; and (

b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

STEPHEN W. HAMILTON, J.A. STÉPHANE SANSFAÇON, J.A. PETER KALICHMAN, J.A. Mtre Simon Blais DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the Appellant Mtre Gabriel Bérubé-Bouchard GABRIEL BÉRUBÉ-BOUCHARD AVOCAT For the Respondent Date of hearing: February 3, 2023