2018 QCCA 1250, 2018 QCCA 1250

Blondeau v. R. 2018 QCCA 1250 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-003393-175 (415-01-028109-153) (Seq. 002) DATE: AUGUST 2, 2018 ______________________________________________________________________ CORAM: THE HONOURABLE LOUIS ROCHETTE J.A. JACQUES J. LEVESQUE J.A. SIMON RUEL J.A. ______________________________________________________________________ PIERRE-FRANÇOIS BLONDEAU APPELLANT - Accused v. HER MAJESTY THE QUEEN RESPONDENT - Prosecutrix ______________________________________________________________________ RECTIFICATORY JUDGMENT Non-publication Order under

section 486.4 of the Criminal Code ______________________________________________________________________ [UNOFFICIAL TRANSLATION BY CENTRE DE TRADUCTION ET DE TERMINOLOGIE JURIDIQUES] [ 1 ] The appellant appeals from a judgment delivered orally on July 7, 2017, by the Superior Court, Criminal and Penal Division, District of Arthabaska (the Honourable François Huot), sentencing the appellant to 30 months of imprisonment. [ 2 ] For the reasons of Ruel J.A., concurred in by Levesque J.A., THE COURT : [ 3 ] DISMISSES the appeal.

[ 4 ] For his part and for other reasons, Rochette J.A. would have allowed the appeal, set aside the sentence imposed and substituted a sentence of 12 months of imprisonment. ___________________________________ LOUIS ROCHETTE J.A. ___________________________________ JACQUES J. LEVESQUE J.A. ___________________________________ SIMON RUEL J.A.

Yves Savard Julien Grégoire Savard Pigeon For the Appellant Éric Thériault Louis-Charles Bal Criminal and Penal Prosecutors For the Respondent Date of Hearing: January 19, 2018 ______________________________________________________________________ REASONS OF RUEL J.A. ______________________________________________________________________ OVERVIEW [ 5 ] This is a case of a gang sexual assault that occurred in the context of an “electro” style party. The victim was 15 years old. The events took place over several hours and involved three assailants.

The victim suffered significant bodily harm, particularly to the genital and anal areas. [ 6 ] A jury found the appellant’s two co-accused guilty of sexual offences causing bodily harm, while the appellant was found guilty of sexual assault simpliciter . [ 7 ] In their submissions on sentence, the parties agreed that the appellant’s criminal responsibility was limited to being fellated in a vehicle. They jointly recommended a sentence of 12 months of imprisonment. The judge rejected the parties’ version of the facts.

Instead, he considered that there had been an attempt to penetrate, which constitutes a more serious act. He rejected the joint submission. [ 8 ] Despite the existence of mitigating factors, the judge found that the appellant bore a high degree of responsibility. He sentenced him to 30 months of imprisonment. [ 9 ] The appeal must be dismissed. [ 10 ] The judge was not bound by the joint submission on sentence made by the parties after the verdict. In any event, the judge informed the parties of his concerns and gave them the opportunity to plead.

Having acted fairly, he could therefore depart from a joint submission that could bring the administration of justice into disrepute and was contrary to the public interest.

[ 11 ] Given the context of the gang sexual exploitation in which the events took place, a situation of which the appellant was fully cognizant, the judge should have found that fellatio and ejaculation constituted sexual assault . A subsequent attempt at penetration, admitted by the appellant, is part of the continuum of events that occurred over a short period of time in the vehicle.

The judge could also take this into account. [ 12 ] The appellant continues to downplay the import of his actions, describing himself as a passive player in the events, which allegedly occurred over a limited period of time in a vehicle. However, the appellant was found guilty of sexually assaulting the young victim, in the context of a gang sexual exploitation, at events that he attended and in which he participated for most of the night. He took advantage of the victim’s vulnerability. [ 13 ] The appellant reacted to the charges offhandedly and arrogantly.

The judge was right in finding that his conduct reflected a profound lack of understanding of the seriousness of the situation and of the consequences of his actions with respect to the young victim. [ 14 ] Appellate courts must show deference with respect to the sentencing decisions of trial judges. The 30-month sentence imposed on the appellant, while severe, is not demonstrably unfit.

THE CONTEXT AND THE JUDGMENT UNDER APPEAL The relevant facts [ 15 ] The 15-year-old victim was sexually assaulted several times in the context of an “electro” style party in Victoriaville, during the night of October 24 to 25, 2014. Three assailants were involved: Dominic Vézina, Jean-Christophe Martin and the appellant, Pierre- François Blondeau. [ 16 ] A jury found Vézina and Martin guilty of sexual assault causing bodily harm to a person under the age of 16 years, of sexual assault of a person under the age of 16 years and of sexual interference with a person under the age of 16 years.

They received the minimum sentences of five years of imprisonment. [ 17 ] The appellant Blondeau was charged with: (1) sexual assault causing bodily harm to a person under the age of 16 years; (2) sexual assault, with the participation of another person, of a person under the age of 16 years; (3) sexual interference with a person under the age of 16 years; and (4) incitement to sexual touching of a person under the age of 16 years. [ 18 ] The jury found the appellant guilty of the included offence of sexual assault simpliciter on the first two counts. He was acquitted of the other charges.

A conditional stay of proceedings was ordered on the second count. [ 19 ] In determining the sentence to be imposed on the appellant, the judge essentially considered the following facts. [ 20 ] On Friday, October 24, 2014, the victim attended an “electro” style party held for 15- to 25-year olds at Complexe Sacré-Cœur , in Victoriaville. She went there by chartered bus and drank between two and five tequila “shooters” with a friend. While she was there, she also took an amphetamine tablet (“speed”).

After having ingested this cocktail of substances, she experienced an [TRANSLATION] “uncontrollable sexual urge”. [ 21 ] The co-accused knew each other. The appellant, who was then 22 years old, acted as the host of the evening and Jean-Christophe Martin, who was then 21 years old, acted as the disc jockey. Dominic Vézina, who was then 21 years old, had a more secondary role assisting the appellant and Martin. [ 22 ] During the evening, the victim accompanied Vézina to a box reserved for the organizers of the party. Oral, vaginal and anal sexual activities took place between the victim and Vézina.

Martin and the appellant entered the box and observed the abuse. The victim testified that Martin and the appellant said words of encouragement to Vézina such as [TRANSLATION] “you didn’t invite us or pig”, “oink go ahead”. The manager of the Complexe intervened and ordered a stop to the activities. [ 23 ] At the end of the party, around 2:00 a.m., the victim accepted Vézina’s offer to spend the night in a motel in Victoriaville. To get there, she got into Martin’s Jeep together with the appellant and Vézina.

It was the appellant who drove the vehicle to the motel. [ 24 ] Again, vaginal and anal sexual activities took place between the victim and Vézina, this time in the back seat of the moving vehicle. The victim was also touched by the persons sitting in the front seat of the vehicle. [ 25 ] Once at the motel, Vézina and Martin left the vehicle, and the appellant joined the victim in the back seat. The evidence on the nature of the sexual activities that then ensued is contradictory. [ 26 ] According to the victim, the appellant penetrated her vaginally or anally.

She added that she may have fellated the appellant. [ 27 ] The appellant claims instead that the victim, on her own initiative, fellated him for five to eight minutes, at the end of which he ejaculated in her mouth. The victim then attempted to engage in vaginal sex by positioning herself on him, but without success. Thus, no penetration occurred in the vehicle. [ 28 ] Inside the motel, Martin and the victim had vaginal and anal sex in the bedroom and in the bathroom. [ 29 ] The victim also claims to have had sexual intercourse with the appellant in the motel bathroom.

The appellant denies these facts, although he admits that he was present in the motel room. [ 30 ] Early in the morning, the victim contacted a friend by phone and told her that she did not understand what had just happened and

that she did not know where she was. [ 31 ] The three assailants drove the victim back home in the morning, telling her not to talk about what had happened, [TRANSLATION] “you never saw us, you don’t know us”. [ 32 ] After the events, the victim noticed numerous bruises on her body, particularly on her breasts, shoulders, legs and buttocks, as well as welts and scratches on her buttocks. She also noted a certain pressure and burns near her anal cavity and some vaginal bleeding. [ 33 ] She testified that she did not consent to the sexual intercourse nor to the injuries inflicted.

She stated that she [TRANSLATION] “was really missing pieces” of the evening and that certain events come back to her in “flashes”. She doesn’t know how the co-accused inflicted so many bruises and injuries on her. Her conduct did not reflect her normal state. She didn’t understand why she agreed to unprotected sex and anal sex. [ 34 ] On May 19, 2017, the parties made a joint submission of 12 months of imprisonment for the appellant, followed by a 12-month probation period. The judge expressed his skepticism.

He asked the parties to plead on June 6, 2017. [ 35 ] On that occasion, the Crown prosecutors explained that they understood the verdict to mean that the appellant took reasonable steps to ensure that the victim was over 18 years of age; since the jury did not find the appellant criminally liable for bodily harm, this excluded acts of penetration of the victim; thus, fellatio remained the only act of a sexual nature for which the appellant would have been found guilty. [ 36 ] The judge then pointed out that the parties did not mention the attempt at penetration that occurred in the vehicle. [ 37 ] Counsel for the appellant answered that the attempt was initiated by the victim, that the appellant was not proactive and that penetration could not take place because he no longer had an erection. [ 38 ] The Crown prosecutor, for his part, acknowledged that attempted penetration may amount to penetration, but he confined himself to the joint submission that had been negotiated.

However, he explained to the judge that if he were to find that there had been an attempted penetration, a prison sentence would be required. He suggested a sentence of 30 months. The Judgment under Appeal [ 39 ] The judge rejected the parties’ joint submission and sentenced the appellant to 30 months of imprisonment. [ 40 ] He did not agree with the

interpretation of the verdict proposed by the parties. In his view, there was a reasonable doubt that the appellant had penetrated the victim. However, the appellant’s reprehensible conduct could not result from fellatio. The appellant was found guilty of sexual assault, which requires the use of force. [ 41 ] Indeed, according to the judge, the fact of being fellated does not, as a general rule, involve the use of force by the person being fellated.

Moreover, the evidence showed that the accused was passive during this fellatio. [ 42 ] If the use of force does not result from fellatio, it must result from another act. According to the judge, this was the appellant’s unsuccessful attempt to penetrate the victim in the back seat of the vehicle. [ 43 ] Since he did not accept the factual framework proposed by the parties and since there was no plea of guilty, the judge stated that he was not bound by the joint submission.

He considered that the proposed sentence would bring the administration of justice into disrepute and then conducted his own analysis, applying the sentencing objectives and principles set out in the Criminal Code . [ 44 ] With respect to the objective gravity of the offence, the judge pointed out that sexual assault is punishable by a maximum sentence of 10 years of imprisonment. [ 45 ] He then referred to the following factors, which are favourable to the appellant: the isolated nature of the acts; if a pre-sentence report had been prepared, it would have been positive; the appellant was not deviant; his young age; his lack of a criminal record; the restrictions that a criminal record would have on his career; his good prospects for reintegration into society. [ 46 ] However, the judge did not believe in the sincerity of the appellant’s apology, which was inconsistent with his statements and behaviour before the court.

He described his attitude as offhanded, unseemly and derisive. [ 47 ] Although the appellant did not, [TRANSLATION] “strictly speaking”, abuse a position of trust or authority, the judge considered that he exerted, [TRANSLATION] “ de facto , a significant influence over his young victim because of his status as a singer”. [ 48 ] The judge added that the appellant’s degree of responsibility was very high. In his view, there was a certain form of premeditation.

Moreover, the actions for which the appellant was charged were intrusive. [ 49 ] The judge applied the lower end of the range of 2 years less a day to 6 years of imprisonment for sexual assault in situations involving an abuse of a position of trust or authority, where the accused has no prior record and direct violence is not involved. Accordingly, he sentenced the appellant to 30 months of imprisonment. ANALYSIS Was the judge bound by the parties’ joint submission?

[ 50 ] Joint submissions on sentence are vital to the efficient operation, fairness and efficacy of the justice system. [1] Courts sitting in criminal and penal matters cannot lightly depart from a joint submission on sentence made as a result of plea bargaining. [2] [ 51 ] Before departing from such a joint submission, the judge must act fairly. [3] If the judge has concerns, he or she must notify the parties and give them the opportunity to respond. [4] The judge must also provide clear and cogent reasons for departing from a joint submission . [5] [ 52 ] My colleague Rochette J.A. states that the principles set out in the Supreme Court’s decision in R. v.

Anthony-Cook [6] are applicable, and that the trial judge was required to defer to the parties’ joint submission on sentence. [ 53 ] With respect, I differ from my colleague on this point. [ 54 ] In the case before us, the joint submission on sentence was made after the appellant was found guilty by a jury . [ 55 ] The sentencing judge is not required to show the same degree of deference with respect to such a submission, as opposed to a submission for a full disposition of the case, including a plea of guilty. [7] [ 56 ] On a joint submission including a plea of guilty, the parties have been given the opportunity to assess the strengths and weaknesses of their respective positions.

They agree to a resolution that they consider fair and consistent with the public interest. [8] The judge is not cognizant of all the strategic considerations that may have warranted the agreement between the parties. That is why judges should not reject such joint submissions lightly. [9] [ 57 ] By contrast, where a joint submission is made after the verdict, as in the case before us, the judge has heard all the evidence.

He is in a position to assess all considerations relevant to sentencing. [ 58 ] In any event, joint submissions are not “sacrosanct” [10] , and the judge may depart from them if he or she believes that the proposed sentence would bring the administration of justice into disrepute or is contrary to the public interest. [11] [ 59 ] Here, the judge found that the joint submission of 12 months of imprisonment would bring the administration of justice into disrepute and was contrary to the public interest. He did not share the parties’

interpretation of the facts. He also considered that the parties had not taken into account the sexual exploitation context in which the events took place, a context of which the appellant was fully aware. Moreover, counsel did not refer to this context in making their joint submission. [ 60 ] Consistent with the requirements set out in R. v. Anthony-Cook , the judge informed the parties of his concerns and gave them the opportunity to make additional submissions.

Having acted fairly, he could thus depart from the parties’ joint submission considering that it constituted an impediment to the efficient operation of the justice system. He explained his decision in a reasoned judgment. Did the judge err in defining the nature of the assault? [ 61 ] The appellant argues that the judge erred in law in finding that there had been an attempted penetration. In his view, the verdict rendered is unambiguous and shows that the jury did not accept the victim’s version of the facts with respect to penetration.

The judge further erred in law in stating that the fact of being fellated does not involve the use of force required to constitute sexual assault. [ 62 ] Following a jury’s verdict of guilty, the sentencing judge “must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury’s verdict”. [12] Two principles apply in this regard. [ 63 ] First, the judge is bound by the express and implied factual implications of the jury’s verdict. [13] The judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty”. [14] [ 64 ] Second, “when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts”. [15] [ 65 ] In this case, the jury’s verdict with respect to the appellant is not entirely clear.

The victim claimed to have been penetrated by the accused in the vehicle and in the motel room. The appellant denied the acts of penetration.

The judge stated that: [TRANSLATION] Insofar as the jury determined that both Vézina and Martin had contributed significantly to the bodily harm suffered by the victim, it would be illogical to conclude that it was also satisfied, beyond a reasonable doubt, that Pierre-François Blondeau also penetrated the victim either vaginally or anally, otherwise this same jury could only have concluded that the accused also contributed significantly to the bodily harm suffered by the victim. [ 66 ] What therefore were the facts consistent with the verdict of sexual assault simpliciter that the judge could consider for sentencing purposes? [ 67 ] The judge focused on fellatio.

He considered that the fact of being fellated does not generally imply the use of force by the person being fellated.

Accordingly, [TRANSLATION] “the intentional use of force must necessarily characterize Pierre-François Blondeau’s unsuccessful attempt to penetrate in the back seat of the Jeep”. [ 68 ] Respectfully, I do not agree with the judge’s finding regarding fellatio. [ 69 ] Sexual assault is comprised of an assault, that is the intentional use of force, directly or indirectly, against a person without that person’s consent, which is committed in circumstances of a sexual nature, such that the victim’s integrity is violated. [16] The amount of

force required is minimal, given that a simple touch may constitute sexual assault. [17] [ 70 ] Although the appellant was passive, so he claims, during the fellatio, the use of force here resulted from the sexual relation itself, where there was an intentional contact between the appellant and the victim. [18] Ejaculation in the victim’s mouth also constituted the use of some form of force with respect to the victim. [19] These events took place in circumstances of a sexual nature, specifically in the context of a gang sexual exploitation of the young victim. [ 71 ] Moreover, the aborted attempt at penetration was part of the continuum of events that occurred in the vehicle.

This is a fact admitted by the appellant, which the judge could accept. In his instructions to the jury, the judge also stated that [TRANSLATION] “Pierre-François Blondeau admits to having unsuccessfully attempted to have [vaginal intercourse]”. [ 72 ] The appellant in fact testified that the victim wanted to continue having sex by taking his penis and attempting to make it penetrate her.

He described the chain of events as follows: [TRANSLATION] “ I wasn’t giving her what she wanted , and because she was expecting intercourse after that” (my emphasis). [ 73 ] In his testimony, the appellant had stated that he had been [TRANSLATION] “trying to elicit some solidarity from the men on the jury, but after there has been an ejaculation, well, one is a little out of commission , so to speak” .

He also testified that the victim [TRANSLATION] “seemed full of hope”, despite his ejaculation. [ 74 ] The judge stated that these statements were [TRANSLATION] “irreconcilable with his claim that the victim had attempted, by herself, to bring about a penetration that was by and large unsuccessful”. [ 75 ] I agree with him. [ 76 ] In addition to the fellatio, the judge could therefore conclude from the appellant’s admissions that there had been an attempt at penetration. He could also conclude that, but for physiological reasons, the appellant would have persevered.

It is undisputed that the victim did not consent to these acts. Did the judge err in principle in sentencing? [ 77 ] The appellant submits that the judge erred in considering the influence he allegedly had over the victim because of his status as a singer and in punishing him for sexual assaults committed in the context of an abuse of a position of trust or authority. [20] [ 78 ] I do not believe that the judge erred on this issue. He clearly stated that the appellant had not abused a position of trust or authority.

However, he held that the appellant in fact exercised a significant influence over his young victim because of his status as a singer. It is undisputed that the appellant took advantage of the victim’s vulnerability. [ 79 ] Moreover, the appellant testified that during the very first minutes of his encounter with her, the victim expressed her great admiration for his songs that she was [TRANSLATION] “crazy about”.

The judge, who heard all the evidence, was in the best position to make these findings. [ 80 ] In any event, the choice of sentencing range by the trial judge cannot in itself constitute a reviewable error. [21] Indeed, “[a]n appellate court may not […] intervene on the ground that it would have put the sentence in a different range or category”. [22] [ 81 ] The appellant is of the opinion that the judge erred in considering the young age of the victim as an aggravating factor. [ 82 ] It is true that the appellant was not found guilty of sexual interference with a person under the age of 16 years or of sexual assault of a person under the age of 16 years, the jury having clearly accepted, on the evidence, his defence of reasonable belief as to age. [ 83 ] There is no doubt, however, that the victim was a young person.

She was 15 years old at the time of the events. She testified that she did not disclose her age to the appellant nor physically suggest that she was older than her age. [ 84 ] The judge found the victim’s evidence credible. He appears, therefore, to have concluded that the appellant knew or should have known that the victim was under the age of eighteen years, when he indicated that the crime was committed against a [TRANSLATION] “young girl”. [ 85 ]

Section 718.01 of the Criminal Code provides that when a court imposes a sentence for an offence that involves the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence. [ 86 ] The judge considered this factor, among others, when he imposed a denunciatory sentence on the appellant.

In so doing, he committed no reviewable error. [ 87 ] According to the appellant, the judge erred in failing to consider his passivity during the sexual activities with the victim, whereas it was the victim who was proactive. [ 88 ] In addition to being an attempt to retry the case, these comments illustrate the appellant’s lack of introspection about his crime. [ 89 ] The appellant was found guilty of sexually assaulting the victim in the context of gang sexual exploitation, during the course of events at which he was present during almost an entire night and in which he participated. [ 90 ] The acts underlying his criminal responsibility are fellatio, followed by ejaculation and an attempt to penetrate the victim. [ 91 ] As the judge noted, [TRANSLATION] “Pierre-François Blondeau, who had already witnessed the abuse committed by Dominic

Vézina upon [the victim], voluntarily chose to follow his co-accused’s example by taking advantage of the situation”. [ 92 ] In short, contrary to what he claims, the appellant was not merely a passive witness to these unfortunate events. He perniciously took advantage of the young victim’s vulnerability. [ 93 ] The appellant argues that the judge erred in considering the general context of gang sexual abuse: [TRANSLATION] “the appellant and the victim were alone during the sexual activities in the vehicle, so the context of gang abuse ... cannot be taken into account in order to reject the joint submission”. [ 94 ] This

interpretation of the facts proposed by the appellant is very simplistic. He seeks to isolate the acts charged without regard for the context. [ 95 ] As noted, the appellant was present during the entire chain of events. He witnessed the sexual assaults in the box of the Complexe , even offering encouragement to Vézina. He was also present and drove the vehicle in which other sexual assaults upon the victim were taking place, before he himself followed suit. [ 96 ] The judge could – and was required to – take into account the general context of gang sexual abuse in which the appellant participated.

That is what he did when he said: [TRANSLATION] Having witnessed what Dominic Vézina did to the victim in the organizers’ box and the behaviour of the same co-accused in the back seat of the Jeep Wrangler during the drive to Auberge Hélène , Pierre-François Blondeau could not have been unaware of the context of sexual exploitation to which [the victim] was subjected during that evening.

Was the sentence imposed by the judge demonstrably unfit? [ 97 ] Finally, the appellant argues that the prison sentence is demonstrably unfit, given the presence of several mitigating factors, including the admission that if a pre-sentence report had been prepared, it would have been favourable to the appellant. [ 98 ] In conducting the sentencing exercise, the trial judge rightly considered that the parties’ joint submission of 12 months of imprisonment would bring the administration of justice into disrepute and was contrary to the public interest. [ 99 ] After having analyzed the sentencing factors and objectives, the judge made the following comments: [TRANSLATION] Given the facts of this case and the mitigating and aggravating factors previously put forward, the Court considers that the sexual assault perpetrated upon [ the victim ] by Pierre-François Blondeau falls within the lower range of the second category of sentences described above.

The Court is of the view that a prison sentence is warranted having regard to the acts committed by Pierre-François Blondeau, the influence he had over the young victim because of his status as a singer, as well as the general context of gang sexual abuse perpetrated upon a young girl of fifteen (15) years.

The Court points out that, in this case, it will not take into account the principle of parity in sentencing with respect to the co-accused Vézina and Martin, who were sentenced to minimum prison sentences of five (5) years for the offence of sexual assault causing bodily harm, an offence which involves a higher degree of objective gravity than the offence of sexual assault simpliciter of which Mr.

Blondeau was found guilty. [ 100 ] It is clear from the wording of the sentencing judgment that, even taking into account the mitigating factors relating to the appellant’s situation, particularly his rehabilitation, the judge prioritized the objectives of denunciation and deterrence, [23] having regard to the appellant’s high degree of moral blameworthiness and the context of gang sexual exploitation of a vulnerable young victim. [ 101 ] A sentencing judge has broad judicial discretion, and an appellate court will only intervene in those rare instances where an error of law or an error in principle having an impact on the sentence imposed is demonstrated. [24] It is indeed “well established that appellate courts cannot interfere with sentencing decisions lightly”. [25] [ 102 ] Moreover, this Court has reiterated these principles, most recently in Caron Barrette v.

R. : [TRANSLATION] The appellant therefore has the burden of proving that the trial judge imposed a sentence that is demonstrably unfit or made significant errors of law or significant errors in principle that had a significant impact on the sentence.

In reviewing the sentence, the Court must thus avoid substituting its opinion for that of the trial judge simply because it would have imposed a different sentence or because it would have weighed the relevant factors differently. [26] [References omitted] [ 103 ] I am of the view that the judge did not err in principle by prioritizing the objectives of denunciation and deterrence. [27] [ 104 ] In fact, I adopt the words used by my colleague Bich J.A. when she wrote in R. v. Bergeron that: [TRANSLATION]

These words are largely applicable to adolescents who, although they are no longer toddlers, are nevertheless also vulnerable persons at a crucial stage of their personal development. Their vulnerability often stems from the fact that they appear to consent, desire, and even surrender to abuse perpetrated against them, which makes them ideal victims who do not resist the hold that is exerted over them. There are countless adolescents, for example, who become infatuated with a teacher, a coach or other mentor figure, and it is precisely this attraction, which increases their fragility, that adults cannot and do not have the right to take advantage of .

Section 718.01 of the Criminal Code therefore requires that primary consideration be given to the objectives of denunciation and deterrence in their case, as in the case of small children. [28] [Emphasis added] [ 105 ] In short, the appellant has not shown any error of law or error in principle that had a decisive impact on the sentence imposed by the trial judge in the exercise of his judicial discretion.

The sentence, while harsh, is not demonstrably unfit, given the particular context of this case. [ 106 ] Accordingly, I would dismiss the appeal. ___________________________________SIMON RUEL J.A. ______________________________________________________________________ REASONS OF ROCHETTE J.A. ______________________________________________________________________ [ 107 ] Having reviewed the record and read the very well written reasons of my colleague Ruel J.A., I cannot – and I say this with great respect – agree with his position. [ 108 ] The trial judge based his decision on the following considerations: [29] • The appellant’s acquittal of the charge on the first count and his conviction on the lesser and included offence of sexual assault means that a doubt persisted in the jury’s mind that the victim had been penetrated; • This does not mean that the appellant’s reprehensible conduct is limited to [TRANSLATION] “having been fellated in the back seat of the vehicle”; • The intentional use of force is an essential element of the offence of sexual assault, but it is not required for a conviction for sexual interference [30] as charged under the third count in respect of which the appellant was acquitted; • The appellant having been found guilty of sexual assault, it must be assumed that the jurors rejected his defence of honest but mistaken [belief] that there had been consent and found, beyond a reasonable doubt, that he intentionally applied force to the victim; • The fact of being fellated does not generally involve the use of force, and there is no evidence that the appellant did anything in order to be fellated.

He was completely passive; • That being the case, the intentional use of force must necessarily be linked to the appellant’s unsuccessful attempt to penetrate in the back seat of the vehicle; • The appellant’s claim that the victim attempted, by herself, to bring about an unsuccessful penetration was rejected; • The judge did not believe the appellant, but accepted the victim’s testimony on her sexual exchanges with the appellant in the vehicle, despite the fact that she was intoxicated; • The judge was not troubled by the fact that the victim [TRANSLATION] “could not accurately describe the type of penetration she was subjected to” and concluded that the appellant did in fact attempt to penetrate the victim in the vehicle and that he used the minimum amount of force to warrant a conviction for sexual assault. [ 109 ] After reviewing the applicable sentencing principles, the judge supported his reasoning as follows: • He listed the mitigating circumstances: if a “pre-sentence” report had been prepared, it would have been positive; the appellant exhibited no sexual deviance and this was an isolated incident; [31] the appellant’s young age and lack of a criminal record; his prospects for reintegration into society are good; the appellant has good family support and comes from a stable environment; he has had to revise his career plans, which could be limited by his criminal record; • Counsel for the appellant suggested that the appellant’s apology, the media coverage he received and the fact that there was no abuse of a position of trust or authority be taken into account as mitigating factors; • The judge rejected the apology expressed at the hearing, finding it insincere and inconsistent with the appellant’s attitude during his testimony, which showed that he took the charges lightly;

• He rejected the argument based on media coverage and, with respect to the abuse of a position of trust or authority, he wrote: [TRANSLATION] Finally, it is true, strictly speaking, that the accused did not abuse any position of trust or authority with respect [ to the victim ]. However, this last mitigating circumstance must be put into perspective having regard to the fact that the record shows that Mr. Blondeau exercised de facto a significant influence over his young victim because of his status as a singer.

Moreover, the evidence shows that, earlier in the evening, even before the slightest sexual act was committed against her, [ the victim ] had recognized Blondeau as the singer “Midaz” in a corridor in Complexe Sacré-Cœur .

During a brief exchange, she had indeed expressed her admiration for his work . [Emphasis added] • Pierre-François Blondeau could therefore not have been unaware, at the time of perpetrating the acts of which he was found guilty, that he had a certain influence over the young adolescent; • The judge then considered the aggravating circumstances: the very high degree of responsibility of the appellant, who witnessed Vézina’s actions in the box and in the vehicle and could not have been unaware of the context of sexual exploitation of the victim; there was a certain form of premeditation; • Fellatio and attempted penetration [TRANSLATION] “are intrusive acts involving a significant degree of intrusiveness”; • If the appellant had had the physical ability to complete the attempted penetration, he would have done it, so that [TRANSLATION] “his moral blameworthiness is [...] just as serious as if he had been able to”; • The judge pointed out, referencing case law, that terms of imprisonment between two years less a day and six years generally apply to sexual assaults [TRANSLATION] “involving an abuse of a position of trust, power or authority and where the accused has no criminal record”, and not involving direct violence; • The judge placed the appellant’s sexual assault at the lower end of this category and sentenced him to [TRANSLATION] “30 months in prison”. [ 110 ] The trial judge concluded that: [TRANSLATION] The Court is of the view that a prison sentence is warranted, having regard to the acts committed by Pierre-François Blondeau, the influence he had over the young victim because of his status as a singer, as well as the general context of gang sexual abuse perpetrated upon a young girl of fifteen (15) years.

Facts that are essential to the verdict of guilty [ 111 ] Following a jury trial, the judge shall, at the sentencing stage, accept as proven the facts, express or implied, that are essential to the verdict of guilty.

He or she may also accept other relevant facts disclosed by evidence at the trial. [32] He or she must not accept any evidence consistent only with a verdict rejected by the jury. [33] [ 112 ] When the factual implications of the verdict are ambiguous, the judge should come to his or her own independent determination of the relevant facts . [34] To rely upon an aggravating fact, the judge “must be convinced of the existence of that fact […] beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities ” . [35] [ 113 ] With respect to this approach, the Supreme Court added: [...] It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand.

The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues. [36] [ 114 ] It is not open to the judge to go beyond what is required to deal with the sentencing issues before him or her, or to attempt to reconstruct the logical process of the jury. [37] [ 115 ] In the case before us, the facts on which the verdict was based were somewhat ambiguous, and the judge attempted to dispel this ambiguity in the judgment appealed from.

He drew from this exercise that, as mentioned above: the intentional use of force must be demonstrated on a charge of sexual assault; this element could not be derived from the evidence of fellatio; the use of force must therefore necessarily be linked, in the verdict rendered, to an unsuccessful attempt at penetration. These would be facts that are essential to the verdict.

The following excerpt from the judgment appealed from is worth quoting: [TRANSLATION] Pierre-François Blondeau having been found guilty of sexual assault, it must therefore necessarily be concluded that the jurors, instead, rejected the defence of honest but mistaken belief that there was consent and that they were, moreover, satisfied beyond a reasonable doubt that Pierre-François Blondeau had intentionally used force upon the person [ of the victim ]. The fact of being fellated does not generally involve the use of force by the person being fellated . There is nothing in the evidence to

indicate that Blondeau did anything whatsoever to receive such pleasure. Both his testimony and that of [ the victim] show that the accused was completely passive during the fellatio . It should be pointed out that, unlike sexual assault, the use of force is in no way required for a conviction under s. 151 of the Criminal Code . [38] If, therefore, the intentional use of force could not, in this case, arise from the fellatio, it necessarily had to characterize another act of a sexual nature, the existence of which the jury was satisfied beyond a reasonable doubt .

The Court is of the view that the intentional use of force must necessarily, in the case before us, characterize Pierre-François Blondeau’s unsuccessful attempt to penetrate in the rear seat of the Jeep. [Emphasis added] [ 116 ] With respect, I find it very difficult to follow the judge’s reasoning in this regard, and even more so when I refer to certain excerpts of his instructions to the jury on April 29, 2017, concerning the offence of sexual assault, which were intended to inform their deliberations: [TRANSLATION] So, I repeat that the use of force can be direct, such as, for example, the accused using a part of his body such as a hand, a finger, a foot or a penis .

Or indirect, when the accused uses, for example, an object such as a stick or an instrument. The force used can be violent or light . Force includes any physical contact with another person, including even a simple light touch . For there to be an assault, however, Mr. Vézina, Blondeau and/or Martin must have used force intentionally. “Intentionally” means deliberately or, if you prefer, not accidentally . To decide whether Dominic Vézina, Pierre-François Blondeau and/or Jean-Christophe Martin intentionally used force, you will have to consider all the circumstances surrounding the use of that force .

Take into account the nature of the contact and the words or act that accompanied it, as well as any other evidence that gives you an indication of the attitude and state of mind of the accused involved at the time he used force on the person of [ the victim ]. Remember that Mr. Vézina, Blondeau and Martin each individually admitted having committed acts on the person [ of the victim ]. They also acknowledged the intentional nature of these contacts. [Emphasis added] [ 117 ] Indeed, the appellant admitted having been fellated as well as the intentional nature of the act.

The victim, for her part, acknowledged that that fellatio was “possible”. That being the case, it seems clear to me that the essential elements of the included offence of sexual assault were established in the manner set out by the judge in his instructions.

These are the facts that are essential to the verdict that was rendered, and the judge could simply refer to them in order to impose the appropriate sentence. [ 118 ] This led the Crown prosecutor to make the following observation during counsels’ joint submissions on sentence: [TRANSLATION] So, for us that’s where we.... then as I put it to you, unfortunately, that’s not our theory of the case, but we sort of have no choice but to face the fact that, firstly, he raised a doubt as to age, presumably, he was acquitted on counts 3 and 4.

And also that, by acquitting him of the harm and also of the participation, well he succeeded, and there again, I tell you, unfortunately, it was not our theory of the case, but in raising a doubt about the penetrations. […] And I’m repeating myself, it gives me no pleasure, but listen, one has to be a good sport and... I mean, and as I told you, it’s not a decision that I made alone on the edge of the desk, we talked about it with Mr.

Bal, we tried to dissect it and we came to the conclusion that what they found, beyond all reasonable doubt, was a fellatio. [ 119 ] With that in mind, I find that the decision reached by the judge in the judgment appealed from, that the intentional use of force could not arise from the fellatio and necessarily had to characterize another act of a sexual nature, the existence of which the jury was satisfied beyond a reasonable doubt, is wrong in law and is inconsistent with his instructions to the jury.

Moreover, this inference introduces a new aggravating factual element, the attempted penetration, that does not seem to me to be consistent with the jury’s verdict, which excludes any penetration. [ 120 ] The judge conceded that the jury did not accept as proven beyond a reasonable doubt that the appellant penetrated the victim in any manner whatsoever on the night of the events. But he went further and concluded from his

interpretation of the evidence that there had been an attempt at penetration , which would amount to an intentional use of force by the appellant . However, the evidence adduced on this point is ambiguous, even contradictory. If it was an aggravating fact, as I am inclined to view it, the judge had to be satisfied beyond a reasonable doubt that it was. [ 121 ] The appellant testified as follows with respect to the events that followed the fellatio: [TRANSLATION] Q. What happened afterwards? A. Afterwards, she... she moved into the position of... well, in short, to try to get on top of me.

Q. In what way? A. Facing me, if you will, there. Q. Face to face. Okay, it was face to face? A. Yes. Q. And her, where were her legs? A. On either side of my thighs, if you will. Q. Okay. What... what happened then? A. Very nice to say in court — then, I’m trying to elicit some solidarity from the men on the jury — but after there has been an ejaculation, well… one is a little… out of commission , so to speak. Q. What happened then? What was she doing, [the victim]? A. Well, she’s trying to get... a... get me to penetrate her, but... Q. What did she do to attempt penetration? A.

She took my penis and she very clearly tried to get it in. Q. Did it work? A. Not at all. Q. After these attempts were made... A. Yes. Q. ... what happened next? A. You know, honestly, it was starting to... there was a bit of uneasiness because clearly, I wasn’t giving her what she wanted, and because she was expecting intercourse after that, so, there was even a certain point at which she tried again to fellate me, then tried again to get back on top of me, and then, I mean, by that time, it was... it was over, it was no longer possible for me. […] Q.

So, I understand that apart from the fellatio with the ejaculation you had with her in the Jeep... A. Yes. Q. ... did you have any other sexual contact with her, with [the victim]? A. Absolutely not. […] Q. You heard what Mr. Vézina came to say. And you, you say that Mr. Vézina came to join you? A. Not join me.

What I’m saying is that as she continued to try to have penetration, I felt — as I have explained — the uneasiness gradually increasing. [ 122 ] If one follows the judge’s reasoning in the decision appealed from, which I do not, the appellant testified that during this sequence, which is part of one continuum, he adopted a passive attitude, which undermines the distinction made between fellatio and [TRANSLATION] “attempted penetration”. [ 123 ] The appellant also denies the allegations made against him by the victim as to what happened in the motel bathroom.

It should be recalled that the victim alleged that she and the appellant had full sexual intercourse in the vehicle, although she could not say how long it lasted nor describe its true nature, and full vaginal intercourse in the bathroom of the motel room, the duration of which she could not specify. [39] [ 124 ] Without inferring that the jury believed the appellant, one has to admit that his testimony necessarily raised a reasonable doubt in light of the verdict that was rendered. Yet, the judge then ruled on the relative weight to be given to this contradictory testimony.

He considered that the appellant’s version of events did not hold water and criticized him for a [TRANSLATION] “broad attempt at avoiding responsibility”. On the other hand, he accepted the victim’s testimony, assumed that by claiming that there had been penetration in the vehicle she was referring to partial penetration, and concluded that the appellant [TRANSLATION] “attempted to penetrate the victim in one way or another”, also adding that [TRANSLATION] “only physiological reasons prevented him from seeing this undertaking through”. [ 125 ] In so doing, the judge usurped the role of the jury a posteriori .

The facts that the judge considers proven with respect to the attempted penetration are neither express, nor implied, nor essential to the jury’s verdict. The judge wrongly questioned the jury’s assessment of the relative weight of the evidence and made a finding of fact that is, with respect, inconsistent with the verdict rendered.

[ 126 ] To conclude on this point, I find that the judge erred in law by ascribing to the appellant, for sentencing purposes, attempted penetration in addition to fellatio. Sentencing [ 127 ] There is a cardinal principle in sentencing: proportionality.

That means that the sentence imposed must be proportionate to the objective gravity of the offence and the degree of responsibility of the offender. [40] [ 128 ] Sentences imposed must be just [41] and reflect the general penological objectives of the Criminal Code , among which we find denunciation and deterrence, [42] but also the specific principles of sentencing, including the principle of individualized sentencing. [43] Under this principle, the judge must assess the aggravating and mitigating circumstances. [44] [ 129 ] Abusing a position of trust or authority in committing an offence is an aggravating circumstance. [45] According to authors Parent and Desrosiers, [TRANSLATION] “[i]n the case of offences committed in the context of an ‘abuse of a position of ‘trust’ or ‘authority’’, denunciation and deterrence should be prioritized in order to demonstrate the full extent of the courts’ disapproval of the acts committed”. [46] [ 130 ] It is true that appellate courts must show great deference to the sentencing exercise carried out by trial judges. [47] However, they may intervene where the judge makes an error of law or an error in principle that has an impact on the sentence, or indeed where the sentence is demonstrably unfit. [48] [ 131 ] In R. v.

Rezaie , the Court of Appeal for Ontario clarified what is meant by error in principle: […] Error in principle is a familiar basis for reviewing the exercise of judicial discretion.

It connotes, at least, failing to take into account a relevant factor, taking into account an irrelevant factor, failing to give sufficient weight to relevant factors, overemphasizing relevant factors and, more generally, it includes an error of law : […] If the sentencing judge commits an error in principle, the sentence imposed is no longer entitled to deference and an appellate court may impose the sentence it thinks fit. [49] [References omitted] [Emphasis added] [ 132 ] With respect to this issue, this Court recently added that: [TRANSLATION] [...] Intervention is justified only if the sentencing judge erred in law or in principle, and only where that error had a significant impact on the sentence, making it demonstrably unfit or clearly unreasonable. [50] [ 133 ] In the case before us, when considering the mitigating circumstances and in response to the argument of appellant’s counsel that [TRANSLATION] “the offence was committed without any form of abuse of a position of trust or authority”, [51] the judge reacted as follows: [TRANSLATION] Finally, it is true, strictly speaking , that the accused did not abuse any position of trust or authority with respect [ to the victim ].

However, this last mitigating circumstance must be put into perspective having regard to the fact that the record shows that Mr. Blondeau exercised de facto a significant influence over his young victim because of his status as a singer. Moreover, the evidence shows that, earlier in the evening, even before the slightest sexual act was committed against her, [ the victim ] had recognized Blondeau as the singer “Midaz” in a corridor in Complexe Sacré-Cœur .

During a brief exchange, she had indeed expressed her admiration for his work. [52] [Emphasis added] [ 134 ] The judge then returned to the subject, pointing out that custodial sentences between two years less a day and six years are generally imposed for sexual assaults [TRANSLATION] “involving an abuse of a position of trust, power or authority and where the accused has no criminal record”, and not involving direct violence.

Yet, the judge placed the appellant’s sexual assault precisely at the lower end of this category, which became his reference point, and sentenced him to serve [TRANSLATION] “30 months in prison” . [ 135 ] The trial judge concluded: [TRANSLATION] The Court is of the view that a prison sentence is warranted, having regard to the acts committed by Pierre-François Blondeau, the influence he had over the young victim because of his status as a singer , as well as the general context of gang sexual abuse perpetrated upon a young girl of fifteen (15) years. [Emphasis added] [ 136 ] There is no doubt that, in so doing, the judge used the aggravating circumstance stemming from an abuse of a position of trust or authority.

This amounts to an error in principle that will have a significant impact on the sentence. [ 137 ] In 1992, in Norberg v. Wynrib , the Supreme Court wrote the following with respect to the notion of submission to an authority figure:

The general notion of submission to an “authority” figure indicates an inequality of power between the parties such that the existence of genuine consent is questionable . […] The common element in power dependency relationships is an underlying personal or professional association which creates a significant power imbalance between the parties. […] Exploitation occurs when the “powerful” person abuses the position of authority by inducing the “dependent” person into a sexual relationship, thereby causing harm . [53] [Emphasis added] [ 138 ] A few years later, in Audet , the Supreme Court shed a different light on this concept, which is sometimes confused with the notion of trust: In the absence of statutory

definitions, the process of

interpretation must begin with a consideration of the ordinary meaning of the words used by Parliament. Le Grand Robert de la langue française (2nd ed. 1986) defines the French word “ autorité ” as a [TRANSLATION] “[r]ight to command, power (recognized or unrecognized) to enforce obedience”, which is, at least in substance, quite similar to the definition proposed by Proulx J.A. It adds that another meaning of “ autorité ” is [TRANSLATION] “[s]uperiority of merit or seductiveness that compels unconstrained obedience, respect, trust”. The Oxford English Dictionary (2nd ed. 1989) suggests similar

definitions for the English word “authority”: “[p]ower or right to enforce obedience” and “[p]ower to influence the conduct and actions of others”. I am in complete agreement with Proulx J.A. that the meaning of the term must not be restricted to cases in which the relationship of authority stems from a role of the accused but must extend to any relationship in which the accused actually exercises such a power . As can be seen from these

definitions, the ordinary meaning of the word “authority” or “ autorité ” does not permit so restrictive an

interpretation. […]. [54] [Emphasis added] [ 139 ] Pursuant to section 265(3) of the Criminal Code , it was held that authority should not be limited to those persons who can give orders or enforce obedience. [55] It extends to those persons who have the power to influence the conduct and actions of other persons, to be believed or to inspire trust. [56] Three elements must be established when the court considers whether the consent of a sexual assault victim could be vitiated by such a power relationship: 1) a power-dependency imbalance; 2) that is being exploited; and 3) the effect of the exploitation on the victim. [57] [ 140 ] With respect to the first element, it is the ability to dominate, influence or manipulate the other person that matters, much more than the personal or professional relationship. [58] The author Julie Desrosiers writes: [TRANSLATION] Each case must be considered on its own merits to determine whether, beyond the official status of one person in relation to another, there is a de facto relationship of authority . [59] [Emphasis added] [ 141 ] Next, it must be established that the accused took advantage of the power imbalance. [60] It is not the sexual relationship with a vulnerable person that constitutes an offence, but the inducement to consent by abusing one’s position of authority. [61] In other words, the mere existence of a relationship of authority does not support a finding that consent was vitiated; the accused must also take advantage of this power relationship to exploit the victim. [62] [ 142 ] Where the victim’s decision has been vitiated by the exercise of authority, the law deems an absence of consent. [63] Consent is vitiated if one party does not realize that he or she can decline the sexual invitation or is under the impression that he or she must submit to it. [64] [ 143 ] With respect to sexual assault and referring to s. 273 . 1(2)(

c) of the Criminal Code , the Court of Appeal for Ontario explains that this provision is broader in scope than s. 265(3) (

d) of the Criminal Code . It is intended to apply to more than situations of abuse of authority, such as those resulting from an abuse of a position of trust or power: The term “exercise of authority” in s. 265(3)(

d) suggests a coercive use of authority to overcome resistance to a consent. Inducing consent by abusing the relationships set out in s. 273.1(2) (

c) does not imply the same kind of coercion. An individual who is in a position of trust over another may use the personal feelings and confidence engendered by that relationship to secure an apparent consent to sexual activity . [65] [Emphasis added] [ 144 ] Julie Desrosiers summarizes as follows: [TRANSLATION] […] to vitiate consent within the meaning of s. 273.1(2) (

c) of the Criminal Code , the accused must have induced the complainant to consent by abusing his position of power or authority, but he need not have used his authority in a coercive manner. [66] [Emphasis added] [ 145 ] Whatever the preferred perspective for deciding whether or not we are dealing with a situation involving an abuse of a position of trust or authority, one requirement remains: it must be established that the accused did, in fact, take advantage of a power imbalance. The mere existence of a relationship of authority does not support a finding that consent is vitiated; the accused must still exercise that

authority [67] to abuse the victim: [TRANSLATION] It is not the fact of having sexual intercourse with a person who is vulnerable or who is in a state of inferiority that constitutes the offence (of sexual assault), it is rather the fact of having sexual intercourse with a person who does not consent or whose consent is vitiated, for example, by reason of his or her vulnerability or by the abuse of a position of trust or power.

It is in this context that vulnerability or abuse of a position of trust and power, as well as all the circumstances of the case, including the power imbalance, are relevant in determining whether or not there was valid consent. [68] [Emphasis added] [ 146 ] In the case before us, there is no abuse of a position of trust or authority nor has it been established that there was a power relationship at the victim’s expense. [ 147 ] The judge simply concluded from the evidence that the victim recognized the appellant early in the evening, before any sexual act, and that she told him of her admiration for him.

In his view, the appellant would have exerted de facto a [TRANSLATION] “significant influence” over the victim because of his status as a singer. At the time of the alleged acts, the appellant could not therefore have been unaware that he [TRANSLATION] “had a certain influence” over her. [ 148 ] However, it is not with the appellant, whom she met at the beginning of the evening, that the victim decided to go to the box reserved for organizers, but with Vézina who is neither the singer nor the disc jockey and who plays a role that is quite secondary.

The appellant arrived at the box later on, and the victim does not allege that, while there, he engaged in any sexual misconduct or exercised any authority or power over her. As for the sexual assault committed in the vehicle, the victim made no similar allegation against the appellant. [ 149 ] In short, the judge drew an adverse inference with respect to the appellant on the basis of a few words exchanged early in the evening, apart from any acts of a sexual nature.

He made an assumption that is not supported by the evidence relating to the commission of the offences, an assumption that the victim could have substantiated at the outset. That was not the case. [ 150 ] Having sexual intercourse with a person who is vulnerable or in a fragile state does not support a finding that there existed an abuse of a position of trust or authority. Moreover, the victim testified that, after having taken drugs, she experienced an [TRANSLATION] “uncontrollable sexual urge”, such that the accused took advantage of her vulnerability in varying degrees.

Their behaviour is appalling and shameful. That being said, and having regard to the overall context, there was no evidence that the appellant’s status as a singer had any bearing whatsoever on the course of events.

Conclusion [ 151 ] As a result of the errors in principle committed by the trial judge, this Court can intervene to substitute the appropriate sentence for the sentence imposed, especially since, as a result of these errors, the [TRANSLATION] “30-month prison sentence” can certainly, in my view, be characterized as demonstrably unfit. [69] [ 152 ] The principle of parity in sentencing [70] invites courts to consider judicial decisions that have established certain trends in sentencing for comparable offences committed in similar circumstances. [71] These “sentencing ranges”, as they have been called, are guidelines that can assist judges in the sentencing process while achieving a certain degree of uniformity and consistency in sentencing. [72] [ 153 ] The fact remains that the general sentencing ranges are only guidelines from which judges may deviate: [67] [...] Like the range itself, the categories it comprises are tools whose purpose is in part to promote parity in sentencing.

However, a deviation from such a range or category is not an error in principle and cannot in itself automatically justify appellate intervention unless the sentence that is imposed departs significantly and for no reason from the contemplated sentences. Absent an error in principle, an appellate court may not vary a sentence unless the sentence is demonstrably unfit. [73] [ 154 ] In light of the foregoing, I find that the trial judge erred in law by taking into account attempted penetration in addition to fellatio and by attributing to the appellant the status of a person in authority.

If the sentencing exercise were to be conducted again, setting aside the errors that were made, one has to admit that, in most cases, the offence of sexual assault simpliciter deserves a custodial sentence of no more than two years less a day. [ 155 ] At this point, a final look back is in order. [ 156 ] In Anthony-Cook , [74] the Supreme Court ruled that joint submissions on sentence, in exchange for a plea of guilty, are vital to the efficient operation of the criminal justice system. [75] With respect to the test to be applied in assessing the acceptability of a joint submission, Moldaver J. wrote, for the Court: [31] Having considered the various options, I believe that the public interest test , as amplified in these reasons, is the proper test.

It is more stringent than the other tests proposed and it best reflects the many benefits that joint submissions bring to the criminal justice system and the corresponding need for a high degree of certainty in them . Moreover, it is distinct from the “fitness” tests used by trial judges and appellate courts in conventional sentencing hearings and, in that sense, helps to keep trial judges focused on the unique considerations that apply when assessing the acceptability of a joint submission. […] […]

[32] Under the public interest test, a trial judge should not depart from a joint submission on sentence unless the proposedsentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest. […] [33] In Druken, at para. 29, the court held that a joint submission will bring the administration of justice into disrepute or becontrary to the public interest if, despite the public interest considerations that support imposing it, it is so “markedly out of line with theexpectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the properfunctioning of the criminal justice system”.

And, as stated by the same court in R. v. B.O.2, 2010 NLCA 19, at para. 56 , whenassessing a joint submission, trial judges should “avoid rendering a decision that causes an informed and reasonable public to loseconfidence in the institution of the courts”. [34] In my view, these powerful statements capture the essence of the public interest test developed by the Martin Committee.They emphasize that a joint submission should not be rejected lightly, a conclusion with which I agree.

Rejection denotes a submissionso unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons,aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that theproper functioning of the justice system had broken down.

This is an undeniably high threshold — and for good reason, as I shallexplain. [Emphasis added] [157] And a little further on: [44] [...] Crown and defence counsel are well placed to arrive at a joint submission that reflects the interests of both the public and theaccused (Martin Committee Report, at p. 287). As a rule, they will be highly knowledgeable about the circumstances of the offender andthe offence and the strengths and weaknesses of their respective positions. […] [158] The trial judge stated that that decision does not apply in this case.

With respect, I disagree. [159] Even if the context is different, since the joint submission of counsel was not made following a plea of guilty but a verdict ofguilty, several of the considerations that underlie the Supreme Court’s directions in Cook remain relevant in a case such as the one beforeus. The joint submission is certainly rarer, but I cannot imagine, in this case, a lesser standard for intervention.[76] Crown counsel is inas good a position to agree to a submission that meets the requirements of the public interest. [160] Leaving aside what I consider to be an error of law in the

interpretation of the verdict rendered, the judge had no choice other thanto defer to the joint submission of counsel. [161] Accordingly, I believe that a sentence of 12 months of imprisonment should have been imposed, in accordance with thissubmission. Moreover, this sentence is proportionate to the objective gravity of the offence committed by the appellant and is consistentwith the principle of individualized sentencing. The appellant should not be punished for the actions of his co-accused merely because hewas in their presence.

Nor should he be punished for acts with more far-reaching consequences that he could, according to the trialjudge, have committed if the circumstances had been different. [162] Accordingly, I would have allowed the appeal, set aside the sentence imposed and substituted a sentence of 12 months ofimprisonment. ___________________________________ LOUIS ROCHETTE J.A. [11] R. v. Anthony-Cook, 2016 SCC 43, at para. 32. [15] R. v. Ferguson, 2008 SCC 6, at para. 18. [18] See, by analogy, R. v.

Tremblay, 2016 ABCA 30, at para. 21, application for leave to appeal to the Supreme Court refused, June 30,2016, No. 36932, and N.D. v. R., 2006 QCCA 14, at para. 113. [22] R. v. Lacasse, 2015 SCC 64, at para. 51. [24] R. v. Nasogaluak, 2010 SCC 6; R. v. Lacasse, 2015 SCC 664; R. v. Suter, 2018 SCC 34. [32] S. 724(2), Criminal Code. [48] R. v. Lacasse, 2015 SCC 64, at para. 11. [74] R. v. Anthony-Cook, [2016] 2 S.C.R. 204, 2016 SCC 43.