R. c. Fleisher, 2015 QCCA 642<\/a><\/p>\nGROUND I: The judge erred in law by imposing sentence two years after the guilty plea.<\/p>\n
[35] The Respondent was charged on September 28, 2010. He pleaded guilty on November 21, 2012. The sentencing judgment was rendered on October 3, 2014.<\/p>\n
[36] The Petitioner submits that the letter and the spirit of Section 720 Cr.C. were \u201ccompletely discarded\u201d by the sentencing judge, who repeatedly postponed the sentence hearing at the request of the Respondent. The Petitioner submits that the postponement of sentencing in order to \u201cmonitor the behaviour of an accused, or to allow him to complete rehab, detox, therapy or drug addiction programs\u201d is firmly condemned by the jurisprudence of appellate courts.[10] In the instant case, the Petitioner submits that \u201call the necessary information for the imposition of sentence [\u2026] was available on February 28, 2013\u201d. Therefore, sentence should have been rendered promptly after that date.<\/p>\n
[37] Section 720 Cr.C. provides that \u201ca court shall, as soon as practicable after an offender has been found guilty, conduct proceedings to determine the appropriate sentence to be imposed\u201d. However, Subparagraph 720(2) Cr.C. allows the court to delay sentencing to \u201cenable the offender to attend a treatment program approved by the province under the supervision of the court, such as an addiction treatment program\u201d, provided that the court obtains the consent of the Attorney General and the offender and that such a decision is consistent with the interests of justice and of any victim of the offence.<\/p>\n
[38] The discretionary power of a judge to adjourn sentencing proceedings, and hence to delay sentencing, may be exercised on legal grounds or for purposes contemplated by the law.[11] For example, a sentencing judge may postpone sentencing for the purposes of obtaining a pre-sentence report (cf. Section 721 Cr.C.) or additional information concerning the offence or the offender.[12] A judge may also postpone the sentence hearing in order to allow the parties to prepare their submissions. While Section 720 Cr.C. requires that the sentence proceedings be conducted as soon as practicable after the accused has been found guilty, the Criminal Code also provides that \u201cbefore determining the sentence, a court shall give the prosecutor and the offender an opportunity to make submissions with respect to any facts relevant to the sentence to be imposed\u201d (Section 723(1) Cr.C.). The court is legally required to \u201cconsider any relevant information placed before it, including any representations or submissions made by or on behalf of the prosecutor or the offender\u201d (Section 726.1 Cr.C.), and to \u201chear any relevant evidence presented by the prosecutor or the offender\u201d (Section 723(2) Cr.C.). Finally, \u201c[b]efore determining the sentence to be imposed, the court shall ask whether the offender, if present, has anything to say\u201d (Section 726 Cr.C.).<\/p>\n
[39] However, in a number of cases, appellate courts have held that it is improper for the trial court to delay sentencing for a \u201clengthy period of time\u201d for a \u201ccollateral\u201d purpose, such as to see how the accused behaves or to allow the accused to attend a treatment centre for drug addiction (without the consent of the Attorney General).[13]<\/p>\n
[40] For instance, in R. v. Fuller, the Manitoba Court of Appeal held that the trial judge erred in adjourning the sentencing proceedings for a period of six months following the receipt of a pre-sentence report and the hearing of submissions by counsel in order to determine how the accused would \u201cconduct himself during that intervening period\u201d.[14]<\/p>\n
[41] Similarly, in Nunner, the Ontario Court of Appeal held that adjournments made for the purposes of determining whether the accused makes restitution, or cooperates with the police in recovering stolen goods, or aids in the investigation of others, are beyond the scope of the power of adjournment and amount to a failure to exercise jurisdiction.[15] Yet, in Nunner, the court concluded that the trial judge did not exceed his jurisdiction in postponing sentencing for slightly less than five months from the date of conviction. The court made it clear, however, that this delay could not be further extended:<\/p>\n
We are informed that in January, the learned Judge adjourned sentencing to March 2, 1976, a total postponement of slightly less than five months from the date of conviction. In all the circumstances of this case, including the youth of the offender and the objective sought to be achieved by the Judge, I am not prepared to hold that he has exercised his discretion to postpone sentencing for an illegal purpose in adjourning the sentencing to March 2nd.<\/p>\n
Accordingly, I think the order of Labrosse, J., was premature and the appeal should be allowed and the order set aside. However, if there is a further postponement beyond March 2nd, mandamus for an immediate sentencing should issue on the application of the Crown.[16]<\/p>\n
[42] Likewise, in Cardin, this Court held that the trial judge was not empowered to postpone sentencing for over three years for the purpose of permitting the accused, a drug addict convicted of robbery, to attend a treatment centre for drug addiction.[17] On the other hand, the court recognized that, in some circumstances, the trial judge may delay sentencing for a reasonable period of time in order to better understand the situation of the offender:<\/p>\n
De tout cela, je retiens que la m\u00e9thode de retarder ind\u00fbment ou dans un but inappropri\u00e9 le prononc\u00e9 de la sentence est g\u00e9n\u00e9ralement r\u00e9prouv\u00e9e. Si le juge du proc\u00e8s a discr\u00e9tion pour d\u00e9cider du moment o\u00f9 il se prononcera, il doit l’exercer pour des motifs l\u00e9gaux au risque de perdre sa comp\u00e9tence. Tout en reconnaissant que la conduite d’un accus\u00e9, apr\u00e8s la commission du crime, soit un facteur \u00e0 consid\u00e9rer, cela ne justifie pas pour autant le juge de retarder la sentence au-del\u00e0 d’une p\u00e9riode raisonnable. Si certaines circonstances autorisent parfois que le d\u00e9lai pour d\u00e9cider de la peine puisse \u00eatre allong\u00e9 pour permettre une meilleure \u00e9valuation de la situation de l’accus\u00e9, il doit n\u00e9anmoins rester \u00e0 l’int\u00e9rieur d’une norme acceptable: “a few weeks”, \u00e9crit le Juge en chef MacKeigan dans Muise, un peu moins de cinq mois, peut-on lire dans Nunner[18].<\/p>\n
[emphasis added; references omitted]<\/p>\n
[43] These cases were heard prior to the enactment of Subparagraph 720(2) Cr.C., but, in my opinion, remain pertinent absent a treatment program approved by the province or in cases where the Attorney General does not consent to delay the sentencing proceedings to enable the offender to attend such a treatment program.<\/p>\n
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Pourquoi la peine doit \u00eatre impos\u00e9e dans les meilleurs d\u00e9lais possibles ? R. c. Fleisher, 2015 QCCA 642 GROUND I: The judge erred in law by imposing sentence two years after the guilty plea. [35] The Respondent was charged on September 28, 2010. He pleaded guilty on November 21, 2012. The sentencing judgment was rendered […]<\/p>\n","protected":false},"author":2,"featured_media":12971,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[120],"tags":[],"yst_prominent_words":[],"acf":[],"_links":{"self":[{"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/posts\/6239"}],"collection":[{"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/comments?post=6239"}],"version-history":[{"count":0,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/posts\/6239\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/media\/12971"}],"wp:attachment":[{"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/media?parent=6239"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/categories?post=6239"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/tags?post=6239"},{"taxonomy":"yst_prominent_words","embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/yst_prominent_words?post=6239"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}