Court of Appeal of Quebec

Bernard c. R.

April 08, 2019

200-10-003588-188

Thibault, Bélanger, Vauclair

Appeal from sentence. Allowed; the prison sentence is set aside. The Court suspends sentencing and orders the release of the appellant and three years’ probation.

The appellant was convicted of aggravated assault, assault with a weapon, uttering death threats, theft, and attempted theft. He was 18 years old at the time of the offences and was in a state of toxic psychosis after consuming cannabis and methamphetamine. His parents drove him to the hospital and then to a specialized organization. Still in a state of psychosis, he left the centre after stealing a bag, threw himself in a river and attacked a kayaker by trying to tip his kayak and taking his life vest. He was sentenced to two years less one day of imprisonment, with a three-year probation order.

The trial judge erred by ignoring evidence of the appellant’s  real rehabilitation that is well under way and supported by medical and psychiatric reports based on numerous interviews concerning his personal situation before and after the offence. This element is important, especially since addiction underlies the criminal problem and there is every indication that he has taken himself in hand. 

The most serious offence makes the appellant liable to 14 years’ imprisonment. However, when Parliament provides a maximum sentence of 14 years, subject to exceptions,  the possible punishments range from a suspended sentence to incarceration. Thus, despite the sometimes tragic consequences, Parliament has in its great wisdom recognized the wide variety of ways crimes happen. 

The judge’s list of mitigating factors does not reveal the reason why he imposed a prison sentence on the appellant. Admittedly, the offence is serious, as are the consequences for the victim. Yet sentencing targets both the offence and the offender, and it is an individualized process. The unique facts of this case required that the judge consider the specific challenge it presents. The appellant’s profile is most positive: not only does he want to take himself in hand, but he is also accomplishing all the proper actions to do so.

Moreover, the appellant’s severe and restrictive release conditions had to be considered because they are a relevant factor – not a mitigating factor – when determining a just and fair sentence. The judgment is silent as to the reason for setting aside the 14 months during which the appellant was under house arrest, and this reason does not appear clearly from the record, which is an error allowing the Court’s intervention.

*Summary by SOQUIJ
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