Court of Appeal of Quebec

R. c. Diabo (500-10-006604-175)

October 05, 2018

500-10-006604-175

Rochette, Kasirer, Healy

Motion for leave to appeal from the sentence. Dismissed.

The appellant seeks leave to appeal the sentence imposed on the respondent, who pleaded guilty to a charge of unlawful possession of unstamped tobacco products under s. 32(1) of the Excise Act, 2001 (S.C. 2002, c. 22), prosecuted by summary conviction under s. 216(1)(b) of the same Act. In the judgment a quo, the Court of Quebec also sentenced two other accused who, after separate trials on different events, had been found guilty of the same offence but were prosecuted by indictment. The respondent and the two other accused are Indigenous persons and members of the Mohawk nation. They live on the Kahnawake reserve.

The Attorney General can apply for leave to appeal a summary conviction sentence directly to the Court of Appeal, thereby skipping the Superior Court, provided all the statutory prerequisites in s. 676(1.1) of the Criminal Code (R.S.C. (1985), c. C-46) (Cr. C.) are met and the interests of justice so require.

Here, and if s. 676(1.1)(b) Cr.C. can be interpreted as including a sentencing decision, the summary offence committed by the accused does not include a compelling factual connection to the indictable offences committed by the other accused to ground a direct appeal justified by the interests of justice. The offences arise out of different facts and the offenders are not meaningfully linked, other than the fact that they are all Indigenous persons living on the same reserve, who were convicted of unlawful possession of unstamped tobacco and whose sentences were recorded in a single judgment, based on similar Gladue reports describing the systemic and background experiences of Kahnawake Mohawks. Moreover, the objectives pursued by the appellant, who seeks to increase its administrative efficiency and obtain a leading decision on the need to impose prison terms to counter the scourge of contraband tobacco in the district, when large quantities of tobacco are seized, undermines the fundamental sentencing principles of individualization and proportionality, especially with respect to aboriginal offenders in light of s. 718.2(e) Cr.C. and the Gladue principles (S.C. Can., 1999-04-23), SOQUIJ AZ-50061963, J.E. 99-881, [1999] 1 S.C.R.  688.

Last, to grant leave to directly appeal the sentence to the Court of Appeal would have the effect of denying the accused’s right of appeal to the Superior Court, which could have serious consequences because he would not have the opportunity, where applicable, to appeal a decision favourable to the appellant before the Court of Appeal on a question of law under s. 839(1) Cr.C.

*Summary by SOQUIJ
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