Dutil, Cotnam, Weitzman

Applications for leave to present fresh evidence. The application of the appellant Sylvain-Bourgelas is granted in part, and the application of the appellant Roy is granted; the applications of the respondent are dismissed. Appeals from sentence. Allowed.

The appellants appeal from a judgment of the Court of Québec sentencing them to four years’ imprisonment for the offence of robbery with the use of a firearm committed when they were both 18 years old and struggling with drug addiction. That sentence was the minimum sentence for this offence set out in section 344(1)(a.1) of the Criminal Code (R.S.C. 1985, c. C-46), which was repealed before the hearing of this appeal.

The appellants’ applications for leave to present fresh evidence concerning the steps they have taken towards their rehabilitation should be granted in view, inter alia, of the unusual chronology of the proceedings in this case. However, the respondent’s application seeking to admit into evidence an authorized summons charging the appellant Roy with fraud should be dismissed. It is incorrect to conclude that the judge can automatically take into account any pending case without considering the purpose sought by the admissibility of such evidence. In this case, merely referring to a summons alleging that the appellant Roy committed fraud, of which he is presumed innocent, is insufficiently probative to have an impact on sentencing.

As for the sentences imposed, it should be recalled that the two appellants, who were struggling with addiction issues, committed the crime when they were very young. On its own, their age does not render the four-year sentence demonstrably unfit, but there is more in this case, that is, convincing evidence of rehabilitation. The appellants’ profiles are quite different from what they were at the time of the offence. The therapies undertaken and successfully completed as well as their abstinence support the conclusion that there is a low risk of reoffending, in particular because the crime was motivated by their drug addiction.

Despite the gravity of the crime committed, and without minimizing the serious consequences for the victim, the sentence imposed – based primarily on the objectives of denunciation and general deterrence – constitutes an unreasonable departure from the principle of proportionality. The trial judge did not apply the principle of restraint with respect to these young delinquents. All the mitigating factors, and in particular the convincing evidence of rehabilitation, required a more lenient sentence.

Although a prison sentence is generally warranted for robbery committed with a firearm, in this case, the just and appropriate sentence, individualized to reflect the appellants’ moral blameworthiness, is two years less a day, followed by two years’ probation. The particular situation of the appellants, whose rehabilitation prospects are strong, weigh in favour of a sentence served in the community. The nature of their offence is not an insurmountable obstacle to this type of sentence.

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