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Digest: R. v. Cloud


[2014] Q.J. No. 513

Court of Quebec
The Honourable Patrick Healy, J.Q.C.

February 3, 2014.
(53 paras.)


   Criminal law — Sentencing — Criminal Code offences — Offences against person and reputation — Assaults — Assault with a weapon — Wilful and forbidden acts in respect of certain property — Mischief — Particular sanctions — Imprisonment — Fines — Victim fine surcharge — Sentencing considerations — Mitigating factors — Leniency — Submissions — Joint submissions — Aboriginal offenders — Previous record — Lengthy — Addicts — Alcohol — The parties' joint submission for three months' imprisonment and subsequent probation was entirely reasonable — The imposition of a $400 surcharge would serve no sentencing principle or objective — Cloud was unemployed, destitute and alcoholic — Sentence: eight days' imprisonment concurrent; five dollar fine; one dollar fifty victim fine surcharge for each count.

   Sentencing of Cloud, who pleaded guilty to one count of mischief to property not exceeding $5,000 and one count of assault with a weapon. Cloud deliberately knocked over a display inside a convenience store. An altercation ensued, during which Cloud struck the complainant in the face and in the back with a stone. The complainant suffered no permanent injury, and the mischief caused no enduring damage. The offences were committed while Cloud was subject to a two-year probation order that was imposed in June 2013. Cloud was originally from an aboriginal community on a reserve. He was unemployed, destitute and alcoholic. The parties made a joint submission proposing a term of imprisonment of three months with a probation order of 24 months to follow. Cloud had spent 82 days in remand.

HELD: Cloud was sentenced to 90 days' imprisonment concurrent for each count, a ten dollar fine, and a three dollar victim fine surcharge. The joint submission was entirely reasonable. However, the surcharge of $200 on each count was disproportionate and unreasonable having regard to the offence and the offender. The surcharge was an integral element of a sentence. As a result, it was subject to sentencing principles such as proportionality and individualization. The surcharge was a mandatory order to be imposed in every case with the sentence, without consideration of the circumstances of the offence or the offender, and without regard for the offender's ability to discharge this debt. The Court would have waived the surcharge had the offences been committed before the 2013 amendments came into force. The surcharge now enforceable by s. 737 of the Criminal Code allowed no waiver or modulation to account for the offence or the offender. There was no basis on which to believe that the calculation it imposed would yield a higher quotient of accountability among offenders. The Court could not disobey the law now found in s. 737, but it could interpret it in a manner that best conformed in law, principle and policy to the whole of Part XXIII of the Criminal Code as well as case law. The Court therefore imposed a sentence composed of a term of imprisonment, a term of probation and a fine, which would diminish the applicable surcharge that would otherwise result in a disproportionate, unfit and unjust sentence. Sentence: eight days' imprisonment concurrent; five dollar fine; one dollar fifty victim fine surcharge for each count.

 

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