2013 ONSC 7070, 2013 ONSC 7070

CITATION : : Her Majesty the Queen v. Richard Claude Charlebois, 2013 ONSC 7070 COURT FILE NO.: 2012-824008 DATE: 20131209 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Her Majesty the Queen v. Richard Claude Charlebois BEFORE: Charbonneau, J. COUNSEL: D. Brisebois Counsel, for the Respondent T. Mazerolle Counsel, for the Applicant HEARD: October 2 nd , 2013 REASONS FOR JUDGMENT [ 1 ] The appellant appeals the sentence imposed by His Honour Mr. Justice J. Brunet, following the appellant’s conviction for possession of unstamped tobacco, contrary to

section 32 subsection 1 of the Excise Act and possession of tobacco while not permitted, contrary to

section 29 subsection 1.01 of the Tobacco Tax Act. [ 2 ] The appellant pleaded guilty and was sentenced to a term of imprisonment of six (6) months on April 15, 2013. The Facts [ 3 ] The facts relevant to sentence were not in dispute and were agreed to at the time of sentence before Justice Brunet. [ 4 ] On July 7, 2012 the appellant and three others were arrested in possession of 50 cases of (410,000) cigarettes of unstamped tobacco. The appellant and the other accused had loaded tobacco into a canoe and had transported it across the river into Cornwall.

The appellant gave an incriminating statement to police upon his arrest. In that statement he indicated that he had once before possessed unstamped tobacco. [ 5 ] The appellant is 51 years old. He did not have a criminal record. In fact, he had, by all accounts an excellent civic record in the community. He was and had been all his life gainfully employed. [ 6 ] Two of the appellant accomplices, Jonathan Ladouceur and Calynda-Marie Parent were also sentenced to jail for 6 months.

The Grounds of Appeal [ 7 ] The appellant submits that the sentence was demonstrably unfit given the gravity of the offence and the responsibility of the offender. In other words, the appellant submits the sentence does not fit the crime and fails to apply the proportionately principle enunciated in

section 718.1 of the Criminal Code of Canada . [ 8 ] The appellant also submits that the sentencing Judge failed to properly consider his specific circumstances. He argues that the principle of parity required the sentencing judge to compare his personal characteristics with those of accused in other cases who had received lesser sentences.

Moreover, his personal characteristics called for a lesser sentence than his accomplice who had a previous unrelated criminal record and had committed breaches of court orders pending trial. [ 9 ] Finally, the appellant submits that the sentencing judge erred in his consideration as to whether a conditional sentence could be imposed in all the circumstances. [ 10 ] For the reasons that follow, I disagree with the appellant’s submissions on grounds 1 and 2 above but agree with his submissions based on ground 3 that the sentencing judge did not correctly address the availability of a conditional jail sentence.

Analysis [ 11 ] There was ample justification to impose a term of imprisonment and not a fine. The offence committed here is not a simple contravention of a taxing statute. It involves concerted illegal smuggling activities which can produce substantial sums of money. As such it is much like the illegal smuggling of drugs. It is well known that such smuggling is conducive to violence.

Moreover, it directly affects public health by allowing cheap cigarettes to be available to the public in general, including young people, the most vulnerable. [ 12 ] Moreover, the smuggling of cigarettes has been recognized as a scourge in the Cornwall area by at least one Ontario Court Justice. As a result jail sentences are now regularly imposed for similar offences.

The decision to terminate the imposition of fines and to substitute terms of imprisonment in order to emphasize general and specific deterrence appear warranted and local Ontario Court Justices are certainly in a very good position to make such a decision. [ 13 ] It cannot be said that a term of imprisonment of 6 months was harsh or excessive in all the circumstances. The appellant has failed to show the term of imprisonment is demonstrably unfit. [ 14 ] The appellant has also failed to convince me that there is anything on the facts of this case, including the characteristics of any

of the accomplices or similarly situated accused, that would justify intervention by this court on the basis of the principle of parity. Indeed as I indicate later, the sentencing judge took into account the principle of parity. His decision on this particular aspect of the caseis entitled to deference. [15] I am however concerned with the way the sentencing judge addressed the question of whether the term of imprisonment couldbe served in the community under

section 742. [16] The sentencing judge addresses this particular issue as follows in his reasons at pages 11 and 12: I agree with the Crown and Mr. Mazerolle that a conditional jail sentence is something that is part of the type of sentencesthat could be meted out. It would have to be an exceptional situation and, sir, I don’t find your situation to be exceptional. You arepleading guilty. You have no record, but given the large amount of contraband here, and also the principle at s. 718.2 of the CriminalCode, which essentially gets back to the Mr. Ladouceur situation, he was sentenced to six months.

The sentencing principle is thatpersons who are in similar situations committing similar offences should be sentenced in the same way and that’s the situation thatyou’re in. So it’s very difficult for the court to say your situation is different. Mr. Mazerolle has pointed out that Mr. Ladouceur alsohad a fail to appear in court. Mr. Turgeon points out that your involvement was slightly greater than that of Mr. Ladouceur in terms ofloading and unloading and being more at the fore of the incident.

The court is of the view that the appropriate sentence is six months jail, in the circumstances, given all of these factors and weighingthem all together. That’s an unfortunate situation for you, but that is the direction the court must take given the jurisprudence and theprinciples that I just averted to, particularly s. 718.2, sir. So the situation is that there will be six months jail with respect to the s. 32matter.” [17] It is clear from his reasons that the sentencing judge was satisfied that the statutory prerequisites set out in 742.1 weresatisfied.

However, he declined to impose a conditional sentence because such a sentence would not be consistent with the principle ofparity. [18] He reasoned that in order to impose a conditional sentence, the position of the appellant would have to be exceptionallydifferent than the position of his accomplice Ladouceur. He found their situation was not substantially different and therefore aconditional sentence would be contrary to the sentencing principle of parity provided in s. 718.2(

b) namely: “a sentence should besimilar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” [19] In focusing only on the principle of parity the sentencing judge failed to take into consideration whether a conditionalsentence would be consistent with all the fundamental purpose and principles set out in ss. 718 to 718.2. [20] The Supreme Court of Canada in R. v.

Wells 2000 SCC 10 , [2000] 1 S.C.R. 207, para 29 explains theimportance of a comprehensive analysis as follows: Pursuant to s. 742.1(b), the second and most substantial stage of the analysis involves the determination of whether aconditional sentence would be consistent with the fundamental purpose and principles set out in ss. 718 to 718.2. Unlike the morecursory review of the purpose and principles of sentencing at the preliminary stage, this second stage requires a comprehensiveconsideration of these principles and objectives.

It is this comprehensive consideration which guides the sentencing judge in determining(

i) whether the offender should serve the sentence in the community or in jail, (ii) the duration of the sentence, and, if a conditionalsentence, (iii) the nature of the conditions to be imposed. [21] In R. v. Proulx 2000 SCC 5 , [2000] 1 S.C.R. 61, paras 99-100, Lamer C.J. emphasized this principle as follows: The conditional sentence facilitates the achievement of both of Parliament’s objectives.

It affords the sentencing judgethe opportunity to craft a sentence with appropriate conditions that can lead to the rehabilitation of the offender, reparations to thecommunity, and the promotion of a sense of responsibility in ways that jail cannot. However, it is also a punitive sanction. Indeed, it isthe punitive aspect of a conditional sentence that distinguishes it from probation. As discussed above, it was Parliament’s intention thatoffenders who would otherwise have gone to jail for two years less a day now be given probation or some equivalent thereof.

Thus, a conditional sentence can achieve both punitive and restorative objectives. To the extent that both punitive and restorativeobjectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need forpunishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be themore attractive sanction.

However, even where restorative objectives cannot be readily satisfied, a conditional sentence will bepreferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectivelyas incarceration. This follows from the principle of restraint in ss. 718.2(

d) and (e), which militates in favour of alternatives toincarceration where appropriate in the circumstances. [22] The sentencing judge does not appear to have considered that the objectives of denunciation and deterrence could not beeffectively met by a conditional sentence. He only focussed his attention on the principle of parity.

It is reasonable to conclude that hebelieved those objectives could be achieved by a conditional sentence. [23] The failure of the sentencing judge to comprehensively consider all the objectives and principles of sentence and focus insteadon one specific principle of parity was an error which justifies appellate intervention. [24] As was indicated by the Supreme Court of Canada in Wells (supra) at para 30, when considering the application of 718.2(e)when considering a conditional sentence: As was indicated in Gladue, the application of s. 718.2(

e) does not mean that a sentence will automatically be reduced, since the

determination of a fit sentence requires a consideration of all the principles and objectives set out in

part XXIII. [ 25 ] The sentencing judge did not consider all the principles and objectives of sentencing and therefore committed an error of principle which justifies appellate review. Even when applying the principle of parity, it was an error in principle for the sentencing judge to conclude that the differences between the accused and Ladouceur had to be exceptional for a conditional sentence to be available. I pause to mention that there was nothing on the record before the sentencing judge which indicated that the issue of a conditional sentence had even been addressed at the Ladouceur sentencing.

My evaluation of all the circumstances of this case, lead me to the conclusion that a term of imprisonment served in the community is a fit and proper sentence. All parties agree that the statutory pre-conditions are met. Given the personal background of Mr. Charlebois, ensuring the safety of the public is not an impediment to imprisonment served in the community. I find that, provided the conditions imposed on Mr. Charlebois are sufficiently severe, the objectives of denunciation and deterrence can be achieved.

Finally such a sentence would not be contrary to the principles of sentencing set out in s 718.2. [27] As indicated I will impose a conditional sentence with sufficient severe conditions to reinforce the objectives of denunciation and deterrence. This will achieve the primary purposes without preventing the application of other important principles. Prospects of rehabilitation will be enhanced by allowing Mr. Charlebois to maintain his long term employment at this time in his life. It will not substantially conflict with parity in my opinion.

Finally it will take into account the principle that a sentence should avoid incarceration wherever another fit sentence is available. [28] Before setting the exact term and conditions of the sentence I will allow counsel to make submissions. Charbonneau, J. Date: December 9, 2013 CITATION : : Her Majesty the Queen v. Richard Claude Charlebois, 2013 ONSC 7070

ONTARIO SUPERIOR COURT OF JUSTICE RE: Her Majesty the Queen AND Richard Claude Charlebois BEFORE: Charbonneau, J. COUNSEL: R. Turgeon Counsel, for the Respondent, Federal Crown and Minister of Finance T. Mazerolle Counsel, for the Applicant, Richard Claude Charlebois ENDORSEMENT Charbonneau, J. Released: December 9, 2013