R. v. Larche, 2006 SCC 56, [2006] 2 SCR 762

                                                 SUPREME COURT OF CANADA

Between:

Her Majesty The Queen

Appellant / Respondent on cross‑appeal

and

Jean‑Paul Larche

Respondent / Appellant on cross‑appeal

And between:

Her Majesty The Queen

Appellant / Respondent on cross‑appeal

and

Honourable Robert Sansfaçon, in his

capacity as judge of the Court of Québec

Respondent

and

Jean‑Paul Larche

Respondent / Appellant on cross‑appeal

Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

______________________________

R. v. Larche, [2006] 2 S.C.R. 762, 2006 SCC 56

Her Majesty The Queen                                    Appellant/Respondent on cross‑appeal

v.

Jean‑Paul Larche                                                Respondent/Appellant on cross‑appeal

and

Her Majesty The Queen                                    Appellant/Respondent on cross‑appeal

v.

Honourable Robert Sansfaçon, in his

capacity as judge of the Court of Québec                                                    Respondent

and

Jean‑Paul Larche                                                Respondent/Appellant on cross‑appeal

Indexed as:  R. v. Larche

Neutral citation:  2006 SCC 56.

File No.:  30384.

2005:  November 8; 2006:  December 8.

Present:  McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

on appeal from the court of appeal for quebec

Criminal law — Sentencing — Uncharged offences — Accused participating in criminal operation that exported cannabis in U.S. and repatriated proceeds to Canada — Accused pleading guilty on two counts — Sentencing judge applying s. 725(1) (c) of Criminal Code  dealing with uncharged offences in determining sentence — Whether sentencing judge entitled to apply s. 725(1)(c) without Crown’s consent — Whether uncharged offences considered by sentencing judge met connexity and jurisdictional requirements of s. 725(1)(c) — Relevance of international comity in exercising discretion conferred by s. 725(1)(c) — Criminal Code, R.S.C. 1985, c. C‑46, s. 725(1) (c).

The accused participated in a criminal operation that exported cannabis from Canada across the American border and repatriated the proceeds to Canada.  He was arrested and charged in Canada and  he was also indicted in the U.S.  To accommodate an expected extradition request by the American authorities, both counts of the Canadian indictment were drafted as if the underlying criminal enterprise, which was transnational in scope, ended at the U.S.‑Canadian border.  The accused pleaded guilty to both counts but took issue with the manner in which the indictment was framed, arguing that the Crown had artificially fractioned what in truth was a single conspiracy.  Over the Crown's objections, the sentencing judge agreed to apply s. 725(1) (c) of the Criminal Code  in determining the sentence and noted three uncharged offences on the indictment as required by s. 725(2).  The first two notes relate to the accused’s participation in operations both in Canada and in the U.S.;  the third note concerns an event that occurred entirely in Vermont.  The Court of Appeal found that the sentencing judge lacked jurisdiction to inscribe the third note.

Held:  The appeal and the cross‑appeal should be dismissed.

Under s. 725(1)(c), a sentencing judge “may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge”.  While sentencing judges cannot apply s. 725(1)(b) and (b.1) without the consent of both the Crown and the offender, no such requirement appears in para. (c).  This could not have been a legislative oversight.  Therefore, if the requirements of s. 725(1)(c) are met, sentencing judges are entitled to exercise their discretion and to apply s. 725(1)(c) over the Crown’s objections. [3] [23]

The finality of s. 725(1)(c) is to increase punishment on the basis of an uncharged offence.  When the accused does not consent to the application of that provision, the Crown must, pursuant to s. 724(3) (e) of the Criminal Code , establish, by proof beyond a reasonable doubt, the existence of any aggravating fact.  This requirement of proof beyond a reasonable doubt is imperative in light of the presumption of innocence, which applies to all alleged offences. [43‑44]

In addition to that requirement, the legislator has provided two other safeguards in s. 725(1)(c).  First, unrelated offences are excluded. Second, judges can be relied on, in the exercise of their discretion, to decline to consider uncharged offences if this would result in unfairness to the accused or to the Crown.  Under s. 725(1)(c), there  are two necessary preconditions for the exercise of the sentencing judge’s discretion.  In requiring in para. (c) that the “facts for[m] part of the circumstances of the offence”, Parliament has made plain the need to establish a nexus or “connexity” between the uncharged criminal conduct and the offence for which the offender has been convicted.  The provision must be construed as encompassing not only the facts of a single transaction, but also the broader category of related facts that inform the court about the “circumstances” of the offence more generally.  Moreover, s. 725(1)(c) requires that the facts “could constitute the basis for a separate charge”.  Since Canadian courts cannot punish for crimes entirely committed abroad, the facts that form “part of the circumstances of the offence” must also have a real and substantial connection to Canada. [45‑48] [54] [57] [59]

In this case, the sentencing judge made plain in his reasons that it was of the very essence of the enterprise that cannabis would be exported and sold in the U.S. and that the proceeds would be repatriated to Canada.  From the perspective of both object and modus operandi, this enterprise did not stop at the border.  Its constituent elements were seamlessly connected and, considered globally, the offences charged were in fact committed partly north and partly south of the border.  Therefore,  the facts set out in all three notes formed part of the circumstances of the offence and met the requirement of connexity.  While the third note did not satisfy the jurisdictional requirement because it concerns an event that occurred entirely in Vermont, the sentencing judge was entitled to consider the facts contained in the first two notes in determining the sentence.  Considering the criminal enterprise as a whole, a real and substantial connection to Canada existed for these facts.  Furthermore, assuming that international comity can, as a theoretical matter, militate against the application of s. 725(1)(c) in appropriate cases, there was no reason for the sentencing judge to consider it decisive in this case. [14‑15] [56] [62] [64]

An appeal, not certiorari, was the appropriate remedy for contesting a decision under s. 725. [72]

Cases Cited

Applied:  Libman v. The Queen, [1985] 2 S.C.R. 178; referred to:  R. v. Garcia, [1970] 3 C.C.C. 124; R. v. Robinson (1979), 49 C.C.C. (2d) 464; R. v. Howlett (2002), 163 O.A.C. 48; R. v. Gladue, [1999] 1 S.C.R. 688; Kienapple v. The Queen, [1975] 1 S.C.R. 729; 65302 British Columbia Ltd. v. Canada, [1999] 3 S.C.R. 804; R. v. Parisien (1971), 3 C.C.C. (2d) 433; R. v. Pearson, [2001] R.J.Q. 69; R. v. G.R., [2005] 2 S.C.R. 371, 2005 SCC 45; R. v. Edwards (2001), 54 O.R. (3d) 737; R. v. Gourgon (1981), 58 C.C.C. (2d) 193; R. v. Paré, [1987] 2 S.C.R. 618; United States of America v. Lépine, [1994] 1 S.C.R. 286; R. v. B. (O.) (1997), 116 C.C.C. (3d) 189; United States of America v. Fordham (2005), 196 C.C.C. (3d) 39, 2005 BCCA 197; R. v. Russell, [2001] 2 S.C.R. 804, 2001 SCC 53; Sanders v. The Queen, [1970] S.C.R. 109; Dubois v. The Queen, [1986] 1 S.C.R. 366; R. v. Mallet, [2000] N.B.J. No. 197 (QL).

Statutes and Regulations Cited

Act to amend the Criminal Code  (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22.

Criminal Code , R.S.C. 1985, c. C‑46 , ss. 467.14 , 676(1) (c), (d), 718  to 718.2 , 724 , 725 .

Treaties and Other International Instruments

Extradition Treaty between Canada and the United States of America, Can. T.S. 1976 No. 3, art. 17 bis [ad. Can. T.S. 1991 No. 37, Art. VII].

Authors Cited

Black’s Law Dictionary, 8th ed.  St. Paul, Minn.:  West Publishing, 2004, “res gestae”.

APPEAL and CROSS‑APPEAL from judgments of the Quebec Court of Appeal, [2004] R.J.Q. 1107, 21 C.R. (6th) 250, [2004] Q.J. No. 2984 (QL) and [2004] Q.J. No. 2988 (QL), varying a judgment of Bellavance J. (2003), 15 C.R. (6th) 222, [2003] Q.J. No. 8699 (QL), and a judgment of Sansfaçon J.C.Q.  Appeal and cross‑appeal dismissed.

Yvan Poulin and Michel F. Denis, for the appellant/respondent on cross‑appeal.

Thomas P. Walsh, for the respondent Jean‑Paul Larche/appellant on cross‑appeal.

The judgment of the Court was delivered by

Fish J. —

I

1                                   Offenders are punished in Canada only in respect of crimes for which they have been specifically charged and of which they have been validly convicted.

2                                   To this general rule, there is only one true exception: In sentencing an offender, the judge may consider any uncharged offences that form part of the circumstances of the offence.

3                                   The trial judge in this case applied s. 725(1) (c) of the Criminal Code , R.S.C. 1985, c. C-46 , over the objections of Crown counsel, and the decisive question is whether he was entitled to do so.  I agree with the courts below that he was. 

4                                   The Court of Appeal found, however, that the trial judge had erred in two respects: First, he considered an uncharged offence over which he lacked territorial jurisdiction, since it had been committed entirely in the United States; second, he imposed concurrent sentences, overlooking the statutory requirement of a consecutive sentence on the second count ([2004] R.J.Q. 1107).  I agree with the Court of Appeal on both issues.

5                                   Accordingly, I would dismiss the Crown’s appeal against the decision of the Court of Appeal affirming the trial judge’s authority to apply s. 725(1)(c).  And I would dismiss as well Mr. Larche’s cross-appeal against the finding of the Court of Appeal that the trial judge lacked jurisdiction to inscribe the third note.

II

6                                   The respondent Jean-Paul Larche participated in a criminal operation that exported cannabis from the Eastern Townships of Quebec across the American border and repatriated the proceeds to Canada.  For that, Mr. Larche and others were arrested and charged in Canada in June 2002.  Less than one month later, they were indicted in the United States in connection with the same operation.

7                                   Mr. Larche was indicted in Canada on two counts, the first for having conspired to produce, possess, and traffic in cannabis, and to possess the proceeds; the second for having committed drug-related offences under the direction of a criminal organization or for its profit.

8                                   Both counts were drafted as if the underlying  criminal enterprise, which was plainly transnational in scope, ended right at the U.S.-Canadian border.  The offences were alleged to have been committed:

[translation] . . . at Sutton, Sutton Junction, township of Sutton, West Brome, Lac‑Brome, Bromont, Cowansville and Saint‑Alphonse‑de‑Granby, in the district of Bedford; at Ange‑Gardien, in the district of Saint‑Hyacinthe; at Lacolle and Saint‑Bernard‑de‑Lacolle, in the district of Iberville; at Rock Island, in the district of Saint‑François; at Longueuil, in the district of Longueuil; and elsewhere in the province of Quebec . . . .  [Emphasis added.]

9                                   The two counts were framed this way to accommodate an expected extradition request by the American authorities on an indictment charging Mr._Larche for having conspired to distribute marijuana, during essentially the same period, in Vermont “and elsewhere”.  It appears from the record that the extradition request, more than three years later, was still bogged down in the United States by translation problems.  At the hearing of the appeal, however, we were advised by Crown counsel that an extradition request had been received and that a summons or warrant was imminent.

10                               Mr. Larche pleaded guilty to both counts before Sansfaçon J.C.Q.  Defence counsel took issue, however, with the manner in which the indictment was framed.  In defence counsel’s submission, the Crown had artificially fractioned what in truth was a single conspiracy.

11                               Crown counsel responded as follows:

[translation]  One of the criticisms or the view my colleague has of the Crown’s position is that a wall was set up and that an attempt was made to dissociate offences committed on one side of the border from those committed on the other.  That is not the Crown’s position.  The Crown’s position is as follows: Mr. Larche’s role in respect of the set of facts before you today is a dual one. [1st role] Mr. Larche played an important role in laundering proceeds of crime by transporting money belonging to the organization of Marc‑André Cusson. . . .  Mr. Larche was Mr. Cusson’s lieutenant for the collection of money in the United States.

[2nd role]  The other role the Crown ascribes to Mr. Larche is that of being present during and co‑ordinating the exportation of narcotics.  This is the role that will be described in greater detail by Mr. Brousseau, but that is already before you in light of the evidence that Mr. Larche gave routes and directions, was present for unloading operations, and directed the operations.  [Emphasis added.]

12                               Defence counsel did not dispute these allegations.  Seizing upon them instead,  he urged the trial judge — over the Crown’s objections — to apply s. 725(1) (c) of the Criminal Code  in determining the sentence.  The Crown’s own submissions on sentence, he argued, established that the prerequisites of that provision were satisfied.  Mr. Larche had participated in the Cusson gang’s operations both in Canada and in the United States.  His participation in these crimes constituted “facts forming part of the circumstances of the offence[s]” for which he was to be sentenced, within the meaning of s. 725(1)(c).  And, again in the words of s. 725(1)(c), these facts “could constitute the basis for a separate charge”.

13                               Sansfaçon J.C.Q. agreed and, applying s. 725(2)  of the Criminal Code , he noted three “facts” — or uncharged offences — on the indictment:

[translation]

1.    Between December 2001 and July 2002, Jean‑Paul Larche participated on 3 (three) occasions in the exportation of marihuana from Quebec to Massachussetts on behalf of the criminal organization headed by Marc‑André Cusson.

2.    Between December 2001 and July 2002, Jean‑Paul Larche on several occasions brought back from the United States money derived from the sale of marihuana, in total between $500,000 and $600,000 in U.S. currency, on behalf of the criminal organization headed by Marc‑André Cusson.

3.    On May 31, 2002, in the state of Vermont, Jean‑Paul Larche had in his possession $110,000 in U.S. currency (Yankee Barn Home incident in New Hampshire) derived from the sale of marihuana on behalf of the criminal organization headed by Marc‑André Cusson.

14                               The first two notes describe what might reasonably be characterized as the missing half of the single criminal enterprise that was the true substratum of the indictment.  As earlier explained, it had been “carved out” of the offences charged to accommodate an anticipated request for Mr. Larche’s  extradition to the United States.  Both notes relate to facts over which Canadian courts have jurisdiction and I agree with the Court of Appeal that Sansfaçon J.C.Q. was entitled to consider those facts in determining the sentence.  He was then required by s. 725(2) to enter them on the indictment, as he in fact did.

15                               Like the Court of Appeal, however, I believe s. 725(1)(c) only applies to uncharged offences over which Canadian courts have territorial jurisdiction.  The third note, by its plain terms, does not satisfy this requirement.  It concerns an event that occurred entirely in Vermont.  This alone is sufficient to dismiss Mr. Larche’s cross-appeal, which seeks to revive that note.

III

16                               Section 725  of the Criminal Code  reads:

725. (1) In determining the sentence, a court

(a)       shall consider, if it is possible and appropriate to do so, any other offences of which the offender was found guilty by the same court, and shall determine the sentence to be imposed for each of those offences;

(b)       shall consider, if the Attorney General and the offender consent, any outstanding charges against the offender to which the offender consents to plead guilty and pleads guilty, if the court has jurisdiction to try those charges, and shall determine the sentence to be imposed for each charge unless the court is of the opinion that a separate prosecution for the other offence is necessary in the public interest;

(b.1)    shall consider any outstanding charges against the offender, unless the court is of the opinion that a separate prosecution for one or more of the other offences is necessary in the public interest, subject to the following conditions:

(i)    the Attorney General and the offender consent,

(ii)   the court has jurisdiction to try each charge,

(iii)   each charge has been described in open court,

(iv)  the offender has agreed with the facts asserted in the description of each charge, and

(v)   the offender has acknowledged having committed the offence described in each charge; and

(c)       may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge.

(1.1)    For the purpose of paragraphs (1)(b) and (b.1), the Attorney General shall take the public interest into account before consenting.

(2)       The court shall, on the information or indictment, note

(a)       any outstanding charges considered in determining the sentence under paragraph (1)(b.1), and

(b)       any facts considered in determining the sentence under paragraph (1)(c),

and no further proceedings may be taken with respect to any offence described in those charges or disclosed by those facts unless the conviction for the offence of which the offender has been found guilty is set aside or quashed on appeal.

17                               Section 725 was adopted as part of An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22 (Bill C-41), which replaced the whole of Part XXIII (Sentencing) of the Criminal Code .  It came into force in 1996.

18                               The Crown contends that s. 725 is a codification of pre-existing common law principles, particularly those set out in R. v. Garcia, [1970] 3 C.C.C. 124 (Ont. C.A.).  This is true of s. 725(1)(a) and (b), and to some extent of para. (b.1).  But the rest of  s. 725 — including s. 725(1)(c) and s. 725(2), which concern us here — is new law.

19                               Under Garcia, facts capable of supporting separate charges could be considered in determining the sentence only if they were covered by other pending charges.  R. v. Robinson (1979), 49 C.C.C. (2d) 464 (Ont. C.A.), also cited by the Crown, is to the same effect.  Section 725(1)(b) and, albeit in a more structured way, para. (b.1) thus express in statutory form the practice recognized by Garcia and Robinson. See R. v. Howlett (2002), 163 O.A.C. 48 (C.A.), at para. 13.

20                               Section 725(1)(c), on the other hand, allows the court to take into consideration facts that could constitute the basis for a separate charge that has not —  or at least not yet — been laid.

21                               As Cory and Iacobucci JJ. emphasized in R. v. Gladue, [1999] 1 S.C.R. 688, at para. 39:

One cannot interpret the words of s. 718.2(e) simply by looking to past cases to see if they contain similar statements of principle. The enactment of the new Part XXIII was a watershed, marking the first codification and significant reform of sentencing principles in the history of Canadian criminal law. Each of the provisions of Part XXIII, including s. 718.2(e), must be interpreted in its total context, taking into account its surrounding provisions.

22                               This cautionary injunction applies here.  Section 725(1)(c) and s. 725(2) are best understood not by looking to past cases but by considering their plain terms, their evident purpose, and their relationship not only to the rest of  s. 725 but also to other provisions of Part XXIII of the Criminal Code  and to the scheme of the Criminal Code  as a whole.

23                               I mentioned earlier that the decisive question on this appeal is whether s. 725(1)(c) can be applied without the Crown’s consent, as in this case.  To that question, the plain words of s. 725 command an affirmative answer.  Parliament has provided that trial judges cannot apply paras. (b) and (b.1) without the consent of both the Crown and the offender.  No such requirement appears in para. (c).  This could not have been a legislative oversight.  Had Parliament intended to require the consent of either the Crown or the accused in order for trial judges to apply s. 725(1)(c), it would have said so, as it did in the two immediately preceding paragraphs of the same subsection of the Code.

24                               This view of the matter is entirely consistent with the purpose of the provision.  Read together, s. 725(1)(c) and s. 725(2) serve two main purposes.

25                               First, s. 725(1)(c) dispels any uncertainty whether a sentencing judge can take into account as aggravating factors other uncharged offences that satisfy its requirements.

26                               Second, s. 725(2) then protects the accused from being punished twice for the same offence: incrementally, as an aggravating circumstance in relation to the offence charged, and then for a second time should a separate charge subsequently be laid in respect of the same facts.  This protection is essential, since the usual safeguards would not apply: The accused, if later charged with offences considered by the trial judge under s. 725(1)(c), could neither plead autrefois convict nor, unless charged with what is found to be “the same delict”, invoke the rule against multiple convictions set out in Kienapple v. The Queen, [1975] 1 S.C.R. 729.

27                               I stated at the outset that s. 725(1)(c) was the only true exception to the rule that offenders are punished in Canada only in respect of crimes for which they have been specifically charged and of which they have been validly convicted.  I do not consider subs. (1)(b) and (b.1) to be true exceptions to that rule because they both relate to separately charged offences for which offenders may be punished only (1) with their consent and (2) if they agree to plead guilty (para. (b)) or, “agre[e] with the facts asserted” and “acknowledg[e] having committed the offence” (para. (b.1)).

28                               As we have seen, s. 725(1)(c) permits a court, in determining the sentence, to consider any fact that forms part of the circumstances of the offence even if it could form the basis for a separate charge.  These uncharged but proven offences, if they are considered at all, will invariably be treated as “aggravating circumstances” within the meaning of s. 718.2(a) and related provisions of the Criminal Code .  It is true, of course, that not all aggravating circumstances, or factors, are crimes in themselves.  The offender’s previous convictions, for example, and the vulnerability of the victim due to infirmity or age, are not offences in themselves.  But, like uncharged offences that may be considered under s. 725(1)(c), they are aggravating as opposed to mitigating circumstances because they warrant more severe — not more lenient — sentences.

29                               This typical effect of s. 725(1)(c) is well illustrated by the Crown’s position in this case: The Crown urged the trial judge to sentence Mr. Larche to six years’ imprisonment, less time served, if he applied s. 725(1)(c), or three to four years’ imprisonment if he did not.

30                               On appeal, the three-year sentence imposed by the trial judge was increased to six years due to the requirement in s. 467.14  of the Criminal Code  that sentences for crimes committed under the direction or for the benefit of criminal organizations be served consecutively. Consistent with its position that s. 725 should not apply and with its submissions at trial, the Crown recommended in the Court of Appeal a total sentence of three years in all —  two years on the first count, and one year, consecutive, on the second.  That recommendation was reiterated in this Court.

31                               The Crown’s position in this regard should not be mistaken for compassion or leniency.  It was driven by the Crown’s attempt to ensure that Mr. Larche could later be extradited to the United States to face trial there for the corresponding half of his crimes committed in that country.  That would expose Mr. Larche, upon conviction, to a mandatory minimum sentence of five years’ and a maximum of forty years’ imprisonment.  The Crown’s suggestion that a total sentence of three years be imposed on the Canadian charges, if s. 725(1)(c) were not applied, must be understood in that light.

IV

32                               As appears from the plain wording of both provisions, s. 725(1)(c) and s. 725(2), read together, are at once discretionary and mandatory.  Discretionary, because courts may — not must — consider the facts that could support other charges; mandatory, because if they do, they must — not may — note on the record that they have done so.

33                               In my view, the discretion afforded judges by s. 725(1)(c) is not trumped by s. 718.2, which enumerates principles of sentencing that courts “shall . . . take into consideration”.  One of these principles, set out in s. 718.2(a), is that “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances”.  Though framed in mandatory terms — “shall” and “should” — s. 718.2 must be read in its entire context and in its grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament: see 65302 British Columbia Ltd. v. Canada, [1999] 3 S.C.R. 804, at para. 50.

34                               I turn first to the context of s. 718.2.  It is part of a detailed, intricate and comprehensive sentencing scheme introduced by Parliament, as I have already mentioned, in 1995.  The “Fundamental purpose of sentencing” and its objectives are set out in s. 718.  Under the heading “Fundamental principle”, s. 718.1 then provides that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”  In this context and under the heading “Other sentencing principles”, s. 718.2 then states:

718.2   A court that imposes a sentence shall also take into consideration the following principles:

(a)       a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, . . .

35                               Taking this principle into consideration does not require the court to apply it without regard to the other principles of sentencing set out in the Code or in binding decisions of the courts.  Nor does it override s. 725.

V

36                               It was argued before us that there is an implicit requirement of consent of either the accused, or the Crown — or both — before s. 725(1)(c) can apply.

37                               The Crown submits that it would be [translation] “absurd” and would violate prosecutorial discretion to hold that s. 725(1)(c) allows the accused to  [translation] “unilaterally” avoid extradition or escape a more severe sentence resulting from the Crown’s decision to segment charges.  It follows, says the Crown, that s. 725(1)(c) cannot be applied without the Crown’s consent.

38                               This submission fails because s. 725(1)(c) is not subject to “unilateral” application by either of the parties.  Its application remains at all times subject to the sentencing judge’s discretion.

39                               It is true that prosecutorial discretion in the laying of charges will not lightly be interfered with by the courts.  But proceedings cannot be delayed abusively to increase punishment:  R. v. Parisien (1971), 3 C.C.C. (2d) 433 (B.C.C.A.), particularly at p. 437.  Nor can offences be artificially fractioned in the pursuit of a like objective.

40                               In the present case, the Court of Appeal held that s. 725(1)(c) can only be applied with the consent of the accused.  Applying its previous decision in R. v. Pearson,  [2001] R.J.Q. 69, the court stated:

[translation]  If s. 725(1)(c) can be applied only with the consent of the accused, it must therefore be because this provision permits the court to consider facts extrinsic to the offence to which the accused has pleaded guilty.  Given the right of every accused person to be presumed innocent, it cannot be that the provision permits the court to consider facts not strictly within the framework of the offence for which the accused is to be punished unless the accused has been tried for [the other] offence. [Emphasis in original; para. 25.]

41                               This position flows from a legitimate concern that an accused’s conviction or plea of guilt on one charge could be hijacked for the purpose of punishing that accused for unanticipated accusations of wrongdoing.  An indictment must be sufficiently precise factually for the accused to grasp the reproached circumstances or “transaction”, and sufficiently precise legally to permit the accused to know which charge he or she must answer among the various charges that might characterize the act: R. v. G.R., [2005] 2 S.C.R. 371, 2005 SCC 45.

42                               However, with respect for the contrary view, this concern does not justify reading in the requirement of the accused’s consent where the legislator has declined to provide for it.  On the contrary, in s. 724(3)(e), the legislator has specifically provided a procedure for considering aggravating facts over the accused’s objection.

43                               Section 724(3)(e) provides that “[w]here there is a dispute with respect to any fact that is relevant to the determination of a sentence, . . . the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact”.  As I have already said, the facts relevant to the determination of a sentence in accordance with s. 725(1)(c) would normally be aggravating facts.  A dispute arises when the accused refuses to recognize the veracity of such facts, or, to put it another way, does not consent to the application of s. 725(1)(c).  This procedure appears to me to contemplate the application of s. 725(1)(c) without the accused’s consent.

44                               The requirement in s. 724 of proof beyond a reasonable doubt is imperative in light of the presumption of innocence, which applies to all alleged offences.  The finality of s. 725(1)(c) is to increase punishment on the basis of an uncharged offence.  Where the offender disputes his guilt of that offence, the presumption of innocence applies.

45                               In addition to the requirement of proof beyond a reasonable doubt, the legislator has provided two other safeguards in s. 725(1)(c).  Applied with vigour, these three safeguards are together adequate to address the important concerns expressed by the Quebec Court of Appeal in Pearson and again in the present case.

46                               First, as Rosenberg J.A. observed in R. v. Edwards (2001), 54 O.R. (3d) 737 (C.A.), “the occasions on which [s. 725(1)(c)] may be invoked are carefully circumscribed by the requirement that the facts form part of the circumstances of the predicate offence” (para. 35).  Unrelated offences, which the offender would not expect to be confronted with, are excluded.  Second, judges can be relied on, in the exercise of their discretion under s. 725(1)(c), to decline to consider uncharged offences if this would result in unfairness to the accused — or for that matter, to the Crown, for example in taking the Crown by surprise so as to foreclose prematurely the laying of additional charges. 

47                               Section 725(1)(c) has three components, which may be broken down this way:  “In determining the sentence, a court . . . [1] may consider any facts [2] forming part of the circumstances of the offence [3] that could constitute the basis for a separate charge.”  The use of the word “may” signifies that the provision is discretionary, as I have already mentioned.  The requirements of “forming part of the circumstances of the offence” and the necessity that these facts be capable of constituting “the basis for a separate charge” are two necessary preconditions for the exercise of that discretion.

48                               I begin by considering the requirement that the facts form part of the circumstances of the offence.  Parliament has made plain the need to establish a nexus or “connexity” between the uncharged criminal conduct and the offence for which the offender has been convicted.

49                               Care must also be taken, in applying s. 725 over the accused’s objection,  to ensure that the sentencing hearing is not transformed into a “trial within a trial”.  This is relevant to a court’s exercise of discretion, once the threshold requirements of s. 725(1)(c) have been met, especially given the need for the accused to anticipate the extent of their jeopardy and the right to jury trial for certain offences.  But the need to avoid a series of “spin-off” trials at the sentencing stage is, at best, of marginal value in determining whether an uncharged offence forms part of the circumstances of the offence for which the accused must be sentenced.

50                               In my view, whether facts form part of the circumstances of the offence must ultimately be resolved on a case-by-case basis.  Broadly speaking, however, there do appear to me to be two general categories of cases where a sufficient connection may be said to exist.  These two categories, as we shall see, are not hermetic or mutually exclusive, and will often overlap.

51                               The first would be connexity either in time or place, or both.  This flows from the ideal animating s. 725(1)(c): In principle, a single transaction should be subject to a single determination of guilt and a single sentence that takes into account all of the circumstances.  In its application, this principle is subject, of course, to the constraints fixed by Parliament in the governing provisions of the Criminal Code , including, notably, s. 725.

52                               In Edwards, Rosenberg J.A. refers to the concept of res gestae as applied in R. v. Gourgon (1981), 58 C.C.C. (2d) 193 (B.C.C.A.). The notion of res gestae — or “things done” (Black’s Law Dictionary (8th ed. 2004), at p. 1335) — relates to a close spatial and temporal connection, and may therefore be helpful in this context.

53                               In R. v. Paré, [1987] 2 S.C.R. 618, this Court considered whether culpable homicide perpetrated “while committing” an indecent assault had to be “exactly coincidental” with the underlying assault, or merely form part of the same sequence of events or transaction.  Wilson J., for a unanimous court, adopted the transactional definition (see pp. 632 and 634).

54                               Both res gestae and the phrase “while committing” are narrower than the expression “facts forming part of the circumstances of the offence” employed in s. 725(1)(c).  The “circumstances” of an offence are more than the immediate transaction in the course of which it transpires.  Thus, in addition to encompassing the facts of a single transaction, s. 725(1)(c) also applies, in my view, to the broader category of related facts that inform the court about the “circumstances” of the offence more generally.

55                               “Facts” (or uncharged offences) of this sort that have occurred in various locations or at different times cannot properly be said to form part of the transaction covered by the charge for which the offender is to be sentenced.  Recourse to s. 725(1)(c) may nevertheless be had where the facts in question bear so close a connection to the offence charged that they form part of the circumstances surrounding its commission.  In determining whether they satisfy this requirement of connexity, the court should give appropriate weight to their proximity in time and to their probative worth as evidence of system or of an unbroken pattern of criminal conduct.

56                               In this case, Sansfaçon J.C.Q. made plain in his reasons that it was of the very essence of the enterprise that cannabis would be exported and sold in the United States and that the proceeds would be repatriated to Canada.  From the perspective of both object and modus operandi, this enterprise did not stop at the border.  Its constituent elements were seamlessly connected and, considered globally, the offences charged were in fact committed partly north and partly south of the border.  Accordingly, I am satisfied that the facts set out in all three notes “form[ed] part of the circumstances of the offence” and therefore met the requirement of connexity.

57                               The second requirement of s. 725(1)(c) is that the facts “could constitute the basis for a separate charge”.  The question is whether that means a separate charge in Canada.  I believe that it does.  To hold otherwise would permit Canadian courts, through the indirect mechanism of s. 725, to punish for crimes entirely committed abroad and thus to arrogate unto themselves an extraterritorial jurisdiction not vested in them by Parliament. 

58                               This jurisdictional requirement is particularly relevant to the third note entered by the trial judge.  It relates to an uncharged offence that was committed entirely in the United States and, in particular, to an incident that occurred in Vermont on May 31, 2002.  Acting on information provided by the RCMP, the American Drug Enforcement Administration (“DEA”) began on that day to follow Mr. Larche as he headed towards the Canadian border with US$110,000 in cash.  Mr. Larche sensed that he was under police surveillance.  In the apparent hope of later recuperating the money, he deposited it precipitously as a down payment on a “Yankee Barn” home.  The DEA, however, was by then not far behind —  and “beat him to the draw”.

59                               The test for territorial jurisdiction according to Libman v. The Queen, [1985] 2 S.C.R. 178, is a “real and substantial connection” to Canada (United States of America v. Lépine, [1994] 1 S.C.R. 286).  Facts that form “part of the circumstances of the offence” may often — but will not always — have a real and substantial connection to Canada.  The two phrases are neither synonymous nor co‑extensive, though the inquiries they mandate may sometimes overlap.  Thus, my earlier conclusion that the third note forms part of the circumstances of the offence does not necessarily mean that it also has the required “real and substantial connection” to Canada.

60                               A real and substantial connection has been found to be absent in more compelling cases than this one.  For example, in R. v. B. (O.) (1997), 116 C.C.C. (3d) 189 (Ont. C.A.), a Canadian trucker sexually assaulted his 13-year-old Canadian granddaughter in his Canadian registered vehicle while travelling through the U.S. en route back to Canada.  It was held that Canadian courts did not have jurisdiction.

61                               While on the day of the “Yankee Barn” home incident Mr. Larche intended to operate in the same fashion as usual, fate intervened and he never made it back to Canada with the money.  The event took place entirely in the United States.  I agree with the Court of Appeal that Canadian courts therefore have no jurisdiction over it, and I would dismiss the cross-appeal formed by Mr. Larche in that regard.

62                               On the facts of this case, considering the criminal enterprise as a whole, a real and substantial connection to Canada did exist, however, for the facts contained in the first two notes.  These facts are analogous to the foreign component of a transnational fraud headquartered in Canada, over which Canadian courts have jurisdiction according to Libman.

VI

63                               Since the first two notes of Sansfaçon J.C.Q. meet both of the prerequisites of s. 725(1)(c), the only remaining question is whether in the exercise of its discretion the sentencing court should nevertheless have declined to take them into consideration. Specifically, what is the relevance of international comity to the exercise of the discretion conferred by s. 725(1)(c)?

64                               Assuming that international comity can, as a theoretical matter, militate against the application of s. 725(1)(c) in appropriate cases, there was no reason for Sansfaçon J.C.Q. to consider it decisive in this case.  Despite a January 2003 letter indicating that the United States “intends to seek the extradition of Defendant Larche in the very near future” (A.R., at p. 361 (emphasis added)), there was no request for extradition at the time of sentencing, nor had any been acted on by the time this matter had passed through the Court of Appeal on its way to this Court.

65                               To have refused to apply s. 725(1)(c) in a case where no request for extradition was forthcoming would be to have deprived Canadian law of its intended effect on a basis that might never materialize.

66                               Moreover, it is not obvious to me how the principle of international comity would apply under s. 725(1)(c), even where a request for extradition has been made.

67                               If there is competing jurisdiction between Canada and the United States, as it would appear there was in this case, the applicable law is Article 17 bis of our bilateral extradition treaty (Extradition Treaty between Canada and the United States of America, Can. T.S. 1976 No. 3 (am. Can. T.S. 1991 No. 3, Art. VII)).  The principle embodied there is a choice of jurisdiction rather than a sharing of jurisdiction.  This choice is made at the executive level, and the appropriate time for comity to be given effect is before either jurisdiction presses charges.  The comity principle will at that stage favour an agreement as to where the offender ought to be prosecuted for a single transnational offence. 

68                               The choice of forum envisaged by the treaty has already been made once either jurisdiction has in fact charged and convicted the accused.  Punishing the offender for all aspects of the transaction over which the sentencing court has jurisdiction well serves the treaty end that one signatory — not both — should try and punish an accused. The United States apparently has a provision similar to s. 725(1)(c), and Canadian courts have not objected to its application in a way that prevents us from punishing the prisoner afresh in Canada: see United States of America v. Fordham (2005), 196 C.C.C. (3d) 39, 2005 BCCA 197.

VII

69                               The  Crown has asked for guidance on the best procedural avenue for contesting a decision under s. 725.  As this Court recently reaffirmed in R. v. Russell, [2001] 2 S.C.R. 804, 2001 SCC 53, certiorari is reserved for cases where there is an excess of statutory jurisdiction or a denial of natural justice, which is tantamount to an excess of jurisdiction.

70                               It seems clear in light of this Court’s decision Sanders v. The Queen, [1970] S.C.R. 109, that an appeal is the appropriate procedural vehicle whenever an appeal lies.  The same is true for the Crown.  A key factor in Dubois v. The Queen, [1986] 1 S.C.R. 366, where the Court held that the Crown could seek certiorari, was the absence of a right of appeal (even though the Crown had other remedies such as direct indictment or recharging open to it).  Similarly, it has been held that certiorari is not available to the Crown to quash an order staying proceedings since s. 676(1)(c) provides a full right of appeal from such an order: R. v. Mallet, [2000] N.B.J. No. 197 (QL) (C.A.).

71                               Where the Crown wishes to attack the sentence imposed by the trial judge, as in this case, s. 676(1) (d) of the Criminal Code  grants the Crown a statutory right of  appeal with leave of the Court of Appeal.  Indeed, the Crown formed such an appeal in parallel to its application for certiorari.

72                               An appeal, not certiorari, was therefore the appropriate remedy in this case.

VIII

73                               For all these reasons, I would, as mentioned at the outset, dismiss both the Crown’s appeal and Mr. Larche’s cross-appeal.  Notes 1 and 2 entered by the trial judge should thus be left intact, while note 3 should be set aside, as ordered by the Court of Appeal.

Appeal and cross‑appeal dismissed.

Solicitor for the appellant/respondent on cross‑appeal:  Attorney General of Canada, Montréal.

Solicitor for the respondent Jean‑Paul Larche/appellant on cross‑appeal:  Thomas P. Walsh, Sherbrooke.