Court of Appeal of Quebec

R. c. Diabo (500-10-006605-172)

October 05, 2018


Rochette, Kasirer, Healy

Motion for leave to appeal from the sentence. Allowed. Appeal from sentence. Dismissed.

Convicted of unlawful possession of unstamped tobacco products under ss.32(1) and 216(1)(a) of the Excise Act, 2001 (S.C. 2002, c. 22), the respondents were sentenced to a minimum fine of $119,000 each, with one year of probation and 50 hours of community service. The appellant seeks leave to appeal the judgment, arguing that the respondents received sentences that were unduly lenient and clearly unfit, and that a period of incarceration was warranted due to the amount of tobacco seized and the local scourge of contraband tobacco. It argues that the trial judge erred in her application of s. 718.2(e) of the Criminal Code (R.S.C. (1985), c. C-46) (Cr. C.) and the principles set forth in R. v. Gladue (S.C. Can., 1999-04-23), SOQUIJ AZ-50061963, J.E. 99-881, [1999] 1 S.C.R. 688, in particular by finding that systemic and background factors relevant to the Kahnawake Mohawk community were linked with the respondents’ commission of the offences.

The appeal must fail. The appellant’s arguments are based on a misperception that s. 718.2(e) Cr. C. grants Indigenous offenders a “race-based discount” on sentence when, in point of fact, it gives a more precise expression to the venerable principle that a sentence must be individualized in order to be fit and proportional.

In this case, the judge correctly exercised her discretion to set a proportional and individualized sentence with a view to the whole of the circumstances, including those specific to the respondents as Indigenous offenders. Moreover, the appellant has not established that the judge’s preliminary comment that prison was required by reason of the local scourge of contraband tobacco was an error in the method of sentencing or that it had an impact on the sentence.

In addition, the judge found that the systemic and background factors affecting the Kahnawake community were specific to the respondents and bear on their moral culpability. This conclusion, which results from her assessment of the evidence and her experience as a judge sitting in a district greatly affected by contraband tobacco, merits deference on appeal. The judge also did not err in finding that tolerance of contraband tobacco could be considered a relevant systemic factor because it had a negative influence on the community’s social and economic situation.  

Finally, the imposition of a fine and community work respect the principles of proportionality, denunciation and deterrence, while also having a restorative effect on the community.

*Summary by SOQUIJ
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