Pourquoi la peine doit être imposée dans les meilleurs délais 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 on October 3, 2014.

[36] The Petitioner submits that the letter and the spirit of Section 720 Cr.C. were “completely discarded” 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 “monitor the behaviour of an accused, or to allow him to complete rehab, detox, therapy or drug addiction programs” is firmly condemned by the jurisprudence of appellate courts.[10] In the instant case, the Petitioner submits that “all the necessary information for the imposition of sentence […] was available on February 28, 2013”. Therefore, sentence should have been rendered promptly after that date.

[37] Section 720 Cr.C. provides that “a court shall, as soon as practicable after an offender has been found guilty, conduct proceedings to determine the appropriate sentence to be imposed”. However, Subparagraph 720(2) Cr.C. allows the court to delay sentencing to “enable the offender to attend a treatment program approved by the province under the supervision of the court, such as an addiction treatment program”, 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.

[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 “before 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” (Section 723(1) Cr.C.). The court is legally required to “consider any relevant information placed before it, including any representations or submissions made by or on behalf of the prosecutor or the offender” (Section 726.1 Cr.C.), and to “hear any relevant evidence presented by the prosecutor or the offender” (Section 723(2) Cr.C.). Finally, “[b]efore determining the sentence to be imposed, the court shall ask whether the offender, if present, has anything to say” (Section 726 Cr.C.).

[39] However, in a number of cases, appellate courts have held that it is improper for the trial court to delay sentencing for a “lengthy period of time” for a “collateral” 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]

[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 “conduct himself during that intervening period”.[14]

[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:

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.

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]

[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:

De tout cela, je retiens que la méthode de retarder indûment ou dans un but inapproprié le prononcé de la sentence est généralement réprouvée. Si le juge du procès a discrétion pour décider du moment où il se prononcera, il doit l’exercer pour des motifs légaux au risque de perdre sa compétence. Tout en reconnaissant que la conduite d’un accusé, après la commission du crime, soit un facteur à considérer, cela ne justifie pas pour autant le juge de retarder la sentence au-delà d’une période raisonnable. Si certaines circonstances autorisent parfois que le délai pour décider de la peine puisse être allongé pour permettre une meilleure évaluation de la situation de l’accusé, il doit néanmoins rester à l’intérieur d’une norme acceptable: « a few weeks », écrit le Juge en chef MacKeigan dans Muise, un peu moins de cinq mois, peut-on lire dans Nunner[18].

[emphasis added; references omitted]

[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.