Gagnon, Beaupré, Dumais (ad hoc) 

Application for leave to appeal the sentence. Granted. Appeal from a sentence. Allowed; a 6-month conditional sentence is substituted for the 15-month conditional sentence imposed at trial.

As a result of an agreement with the Crown, the appellant pleaded guilty to one count of fraud on the government. The more serious charges were dropped. The appellant argues that the trial judge unlawfully considered facts pertaining to another offence to be aggravating factors even though that charge was meant to have been dropped, and that the error had an impact on the severity of the sentence. The issue is whether the judge erred in principle in considering facts related to the commission of an offence which, by agreement between the parties, was not charged in the subsequent indictment.

The only charge to which the appellant agreed to plead guilty is the offence set out in s. 121(1)(b) of the Criminal Code (R.S.C. 1985, c. C-46) (Cr.C.). The existence of consideration is not an essential element of this offence. Among the aggravating factors accepted by the judge, two relate to the more serious offence set out in s. 121(1)(a)(i) Cr.C. of having given, offered, or agreed to give or offer to an official an advantage or benefit as consideration for cooperation or assistance in connection with the transaction of business with the government. The judge’s reasons do not explain the legal basis for his decision to use factors other than the constitutive elements of the offence related to the guilty plea entered.

The judge could rely on neither s. 725(1)(b.1) Cr.C. nor s. 725(1)(c) Cr.C. The parties had agreed to limit themselves to the circumstances of the case underlying the charge to which the guilty plea was entered and any relevant external factors. The judge therefore had to respect that agreement. That does not mean that any other fact that could constitute the basis for a separate charge must be excluded once a plea agreement is reached. Rather, it means that any other fact that constitutes the basis for a separate charge that was brought then suspended, withdrawn, or dropped in exchange for a guilty plea must be excluded. This reasoning is consistent with the Crown’s duty to act fairly towards the accused by not using indirect means to seek a harsher sentence. The judge therefore committed an error in principle in drawing a negative inference from aggravating factors pertaining to a previous charge against the appellant that had been dropped, pursuant to the agreement between the parties.

This error clearly affected the sentence. The aspect of fraud added to the offence set out in s. 121(1)(b) Cr.C. and the consideration taken into account by the judge were used to justify a more severe sentence. While the judge did not err in imposing a conditional sentence on the appellant, the length of imprisonment is excessive and must be reduced to 6 months. The appellant’s obligation to be in his residence 24 hours a day must be adapted to account for the revised length of the conditional sentence. The other modalities of the conditional sentence remain unchanged.

Text of the decision: http://citoyens.soquij.qc.ca