Le juge de première instance ayant rendu une ordonnance permettant à l’accusé de purger sa peine d’emprisonnement dans la collectivité à partir des États-Unis, la Cour d’appel du Québec statue qu’il s’agissait d’une peine illégale :
[22] There is not much case law directly on this question and the parties submitted none. There is, however, the case of R. v. Goett, 2012 ABCA 215 (CanLII), from the Court of Appeal of Alberta, apparently known to counsel for the respondent but surprisingly not mentioned in her appeal book. In Goett, the appellant sought to serve a CSO in Texas after pleading guilty to federal income tax offences. Goett, a 71-year old resident of Alberta at the time of the offences, had moved to the United States permanently, apparently seeking treatment for serious medical issues.
[23] In Goett, the Court wrote at paragraph 14:
[14] The sentencing judge correctly concluded that an Alberta court has no jurisdiction to order that a conditional sentence be served in Texas. The conditional sentence and Criminal Code procedures which govern it are completely statutory: R v Bailey, 2012 ABCA 165(CanLII), [2012] AJ No 550. The Criminal Code speaks at length about territorial jurisdiction. It also defines those courts which are empowered under the Code. No foreign court is so identified. Sections 742.5 (1) and (1.1) provide for transfers of conditional sentence orders from one province or territory to another only where the Crown consents. There is no similar provision for the transfer of a conditional sentence to any other jurisdiction. Accordingly, there is no statutory authority to enable a Canadian court to ask a foreign court to administer a sentence imposed in Canada.
[My emphasis]
[24] I agree. Contrary to the respondent, I fail to see how that finding would have been different if Mr. Goett had arranged to be supervised in Texas. I would add that a CSO requires an efficient method of bringing the offender before the court if he does not comply with the conditions of the order. In the context of an offender being abroad, it is difficult to imagine how this may be achieved other than by relying on the offender to surrender. One must not forget that, though it may result in an order that the offender serve a portion of the unexpired sentence in custody, a breach of a CSO condition is not an offence: s. 742.6 Cr.C. and consequently, extradition is not possible. Moreover, hearings on CSO breaches should be held promptly. Community safety and the administration of the sentence themselves give the matter a sense of urgency: see s. 742.6(10)(11)(13)(14) Cr.C.
[25] I also rely on this passage from R. v. Greco, (2001) 2001 CanLII 8608 (ON CA), 159 C.C.C. (3d) 146 (C.A. Ont.), at paragraph 14:
[14] For example, if a probationer commits a breach of the order while abroad and fails or refuses to voluntarily return to Canada, then, absent a right of extradition or some other co-operative arrangement with the foreign state, Canada would likely be powerless to bring the offender to justice. Likewise, if the “offensive conduct” abroad is conduct that the probationer is required to engage in or refrain from under the laws of the foreign state, prosecution in Canada could well constitute an affront to the requirements of inter-national comity and result in our courts declining jurisdiction.
[Internal reference omitted]
[26] In Greco, it seems that Moldaver J.A. leaves open the possibility of a co‑operative arrangement with a foreign state, something that the Alberta Court of Appeal does not discuss in Goett. I do not need, however, to resolve the issue here because, firstly, there is no evidence of an agreement between Canada and the United States relating to the enforcement of a Canadian CSO and, secondly, it remains “that the principle of the sovereign equality of states generally prohibits extraterritorial application of domestic law”: R. v. Cook, 1998 CanLII 802 (SCC), [1998] 2 S.C.R. 597, at para. 26. Further, given that no offence is committed by a breach of a CSO condition, Canada is even more powerless to bring the offender to justice.
[27] In sum, absent a statutory authority to enable a Canadian court to ask a foreign court to administer a sentence imposed in Canada and seeing no possibility of enforcement of the CSO, I would allow the appeal and set aside the illegal sentences.
