June 19, 2018
200-10-003088-148; 200-10-003092-140; 200-10-003194-151
Bouchard, Gagnon, Healy
Appeals from convictions and orders for forfeiture. Dismissed. Application for leave to appeal and appeal from the sentence. Allowed in part.
Following a trial before jury, the appellants Denis and Lefebvre were convicted of charges related to drug trafficking in a criminal organization that controlled drug trafficking in Abitibi.
During the trial, the appellants escaped in a helicopter from the detention facility where they were in custody. The case was the subject of widespread media coverage, and it is common ground that part of the information made public at the time was likely to prejudice the appellants because in some cases it was probably erroneous. However, the trial judge gave clear and firm instructions to the jury to protect the appellants’ right to make full answer and defense and to safeguard the fairness of the trial. On several occasions during the trial, he told the jurors that they had to base their decision exclusively on the evidence presented in the courtroom. He properly exercised his discretion by dismissing the appellants’ applications to declare a mistrial. The other grounds of appeal raised by the appellants are dismissed.
In addition, the appellants argue that Denis’s 16-year custodial sentence and Lefebvre’s 20-year sentence are clearly unfit in light of the applicable legal principles. They also argue that they should have benefited from enhanced credit of two days for each day spent in pre-sentence custody, pursuant to the law in force at the time most of the offences for which they were convicted were committed, i.e., before the coming into force of the Truth in Sentencing Act (S.C. 2009, c. 29), which amends s. 719(3) of the Criminal Code to limit credit to one day for each day spent in custody unless circumstances justify enhanced credit of a maximum of one and one-half days.
The judge erred in finding that pre-sentence custody did not constitute a sentence and that the Canadian Charter of Rights and Freedoms (R.S.C. 1985, App. II, II, No. 44, Schedule B, Part I) therefore did not apply. The retrospective application of s. 5 of the Act objectively frustrated the appellants’ expectations of liberty by substantially increasing the duration of their incarceration, thus infringing on their constitutional right to benefit from the lesser punishment if the punishment for the offence has been varied between the time of commission and the time of sentencing. In the absence of evidence in this respect, this infringement is not justified under s. 1 of the Charter, and s. 5 of the Act should therefore be declared to be of no force or effect. In accordance with the convention applied by the courts before this provision was enacted, enhanced credit of two days is granted to the appellants for each day of pre-sentence custody.
Finally, even though the sentences are harsh and outside the appropriate range, intervention is not warranted because they reflect the objective seriousness of the offences and the moral blameworthiness of the appellants, and they are similar to the other sentences imposed on the other directors of the criminal organization.
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