2015 QCCQ 8135, 2015 QCCQ 8135

Unofficial English Translation LSJPA — 1541 2015 QCCQ 8135 JG2072 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ... “Youth Division” N° : 525-03-055547-137 DATE: September 17, 2015 ______________________________________________________________________ PRESIDING: THE HONOURABLE MARIO GERVAIS ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

X Young person - accused ______________________________________________________________________ SENTENCING JUDGMENT ______________________________________________________________________ Note: The Youth Criminal Justice Act provides that no person shall publish the name of a child or young person or any other information that would identify them as having been dealt with under that Act or as having been the victim of an offence committed by a young person, or as having appeared as a witness in connection with such an offence, subject to a court order.

Whoever violates these provisions is subject to criminal prosecution [sections 75, 110(1), 111(1), and 138 Y.C.J.A .]. [ 1 ] On February 17, 2015, the accused pleaded guilty to the offence of sexual assault against his half-sister between October 1, 1991, and October 27, 1993. [ 2 ] The alleged acts took place over twenty years ago.

The accused was between 16 and 18 years old at the time, while the victim was four years younger than him. [ 3 ] A pre-sentence report favourable to the accused suggests that he receive a one-year probation with various specific conditions attached thereto and be ordered to make a donation to the Centre d’intervention en violence et agression sexuelle. [ 4 ] The prosecution agrees with the provincial director’s recommendation. It also seeks an order prohibiting him from possessing weapons for two (2) years pursuant to

section 109 Cr. C . and authorizing the taking of samples of bodily substances required for the purpose of forensic DNA analysis under

section 487.051 C . Cr . [ 5 ] The defendant seeks an absolute discharge. He challenges the order sought to prohibit the possession of weapons. The defendant does not challenge the taking of samples for the purposes of DNA analysis. Admitted sequence of events

[ 6 ] The facts on which the charges admitted by the accused are based are: ➢ The victim is the accused’s half-sister; ➢ The sexual assaults began shortly after the victim emigrated to Canada to join her family there, including the accused; ➢ Before she came to Canada, the victim and the accused had not had any contact for about six years; ➢ The sexual acts performed by the accused initially manifested as frequent touching of the breasts, over the victim’s clothing; ➢ Starting when the victim reached the age of 13 and until the end of the period indicated, the accused sexually touched her under her clothing on a number of occasions.

He fondled her breasts and her vagina. He touched her vulva, clitoris, and inserted his fingers in her vagina; ➢ On one occasion, the accused asked the victim to perform fellatio on him while he was sitting on his bed with his pants down, and the victim refused; ➢ On another, the accused tried to penetrate the victim but was not completely successful because of an inadequate erection. The factual dispute at sentencing [ 7 ] The victim and the accused give different accounts of the request for fellatio referred to above.

According to the victim’s statement, there was an aggravating circumstance. [ 8 ] The victim told the author of the pre-sentencing report that when the accused asked her to perform fellatio on him, she reacted strongly. Frightened and in tears, she refused. The accused held her arm and insisted.

She continued to refuse and managed to leave the room. [ 9 ] For his part, when meeting with the authors of the pre-sentencing and sexological reports and during his testimony before the Court, the accused denied that he displayed any violent conduct, made any threats, or intimidated the victim through words or actions to obtain a sexual favour from her.

He asserts that the alleged acts were always consensual... even though the victim never verbally expressed her consent. [1] [ 10 ] Let us briefly recall that during sentencing, the burden of proof beyond a reasonable doubt of the aggravating factors disputed by the defence rests with the prosecution and that hearsay evidence is admissible (ss. 723 and 724 Cr. C .). [ 11 ] The testimony of the accused, while brief, appears honest, sincere, and cannot be faulted. Assessed as against all of the evidence, he is contradicted only by a few lines in the pre-sentencing report.

The Court sides with the accused in deciding the factual dispute because the prosecution has failed to discharge its burden. [ 12 ] In doing so, the Court is not deciding that the victim’s version is not credible, it is merely concluding that the accused raises at least a reasonable doubt respecting the disputed aggravating circumstance.

The YCJA and the sentence [ 13 ] The Youth Criminal Justice Act provides a criminal justice system for young persons that is separate from that for adults and which has its own guiding principles. [ 14 ] In LSJPA — 1113 , [2] the Court of Appeal added that this statute sets out a [ translation ] “veritable code” governing sentencing whose provisions must be rigorously applied. [ 15 ] As the Court of Appeal recently noted in LSJPA — 1454 , [3] the most relevant provisions at the sentencing stage are the

preamble (reduced over-reliance on incarceration),

section 3 (declaration of principles that apply in the Act ), sections 38 and 39 (sentencing purpose and principles and restrictions to committal to custody) and

section 42 (youth sentences). [ 16 ] These provisions reconcile different values unique to the criminal justice system for young persons. They are complementary or contradictory, as the case may be.

They seek to establish a proper balance between the long-term protection of the public and the rehabilitation and reintegration into society of young persons through a fair and proportionate sentence that is appropriate to the offender’s situation and that promotes the long-term protection of the public. [ 17 ] In LSJPA — 1036 , [4] Michel Dubois, J. recalled the importance of considering the aforementioned provisions as a whole to accurately convey their underlying philosophy. He stressed the importance of fashioning an individualized sentence, adapted to the character of the young offender.

Dubois J. wrote as follows: [ translation ] [75] While having to reconcile a multitude of apparent contradictions or diverging interests, the Court often reminds prosecutors when it comes to sentencing young persons that they are not dealing with an à la carte menu, where everyone can choose what they want, but rather a table d’hôte, where everything is included.

It’s always a matter of [ translation ] “made to measure” rather than [ translation ] “ready to wear”. [ 18 ] Above all, the criminal justice system for young persons is based on the principle of fundamental justice, which states that young persons have diminished moral culpability compared to adults. [5]

[19] Consequently, the objective of reintegrating and rehabilitating young persons supersedes the punitive aspect of sentencing.

Onthis subject, the Court of Appeal wrote:[6] [translation] [20] It is because case law and doctrine recognize that the principle of diminished moral culpability arising from inherentcharacteristics relating to the development of a young person form part of the legal theories underlying the application of the YCJAwhereby emphasis must be placed on rehabilitation and reintegration into society rather than on punishment. [20] Ultimately, the primacy of the reinsertion and rehabilitation of young persons serves the long-term protection of society moreefficiently.

Discharge [21] It is now well established that a discharge under the YCJA, whether conditional or absolute, is not an exceptional measure.[7] [22] A discharge must nonetheless be imposed in accordance with the applicable principles and factors to be considered in sentencing.In particular, it must be just and commensurate to the offence, to the degree of responsibility of the young person, and to his or hercharacter.

Ultimately, it must not go against the objective of the long-term protection of the public. [23] As to the effect of discharges, in LSJPA — 1456,[8] Lyne Morin, J. stated: [translation] [42] According to the YCJA, a discharge ordered by the Court does not result in the absence of a conviction.

Indeed, before aconditional or absolute discharge may be ordered, there must necessarily be a guilty plea to the offence. [24] While Morin J. highlighted the existence of a guilty plea in the young person’s criminal record even in the event of a discharge,Pierre Hamel, J., for his part, considered the consequences of a guilty plea under the YCJA scheme in a very recent judgment and wrotethe following:[9] [translation] [38] A guilty plea carries certain consequences for the young person.

Not only are they imposed a sentence that often includesrestrictions on their freedom, but there are other consequences necessarily arising from the conviction and imposition of a sentencerelated to a criminal record. [39] Because of

section 82 of the YCJA, however, young persons are deemed not to have been found guilty when they areabsolutely discharged or as soon as the effects of the youth sentence imposed have ended. From that point on, the young person isdeemed to not have committed any offences. [40] This benefit is decisive because it allows young persons in the context of their civil lives to assert that they have neverbeen found guilty of a criminal offence. Although the conviction may still be raised in new criminal proceedings against the youngperson while the file remains accessible, young persons benefit from protection under

section 119 YCJA that aims to lessen the impact ofa conviction as long as they commit no further offences. [41] Young persons still have a record of the charges against them, the unfolding of the proceedings, the exhibits, if any, thereports ordered by the Court, and finally, the conviction and sentence imposed. [25] That being said, the requisite test for an absolute discharge whereby the punishment must be in the best interests of the youngperson and not contrary to the public interest does not apply to a conditional discharge.

On this point, Michèle Lefebvre, J. had this tosay:[10] [89] The attorney for the Crown argued that in order for a discharge to be considered in this case, the Defendant had to prove that itwas in his best interests and not contrary to the public interest. [90] With respect, while such criteria does indeed apply to an absolute discharge in compliance with paragraph 42 (2)(

b) of theYCJA, this criteria is not required in paragraph 42(2)(

c) of the YCJA which refers to a conditional discharge. [91] Section 42(2) states: (

b) by order direct that the young person be discharged absolutely, if the court considers it to be in the best interests of the young personand not contrary to the public interest; (

c) by order direct that the young person be discharged on any conditions that the court considers appropriate and may require the youngperson to report to and be supervised by the provincial director; [92] While one might argue that the same criteria is tacitly implied in paragraph 42(2)(

c) of the YCJA, the Supreme Court has recentlyruled otherwise in R. v B.W.P.; R. v. B.V.N., 2006 SCC 27 , 2006 S.C.C. 27, The Crown had argued that paragraphs 42(2)(

n) and 42(2)(

o) of the YCJA must be read in tandem so as to require the Court to impose two-thirds of the sentence in custody and one-third under supervision, in order to ensure that offenders sentenced under 42(2)( o ) [presumptive offence] spend at least as significant a portion of the sentence in a custodial custody as those sentenced under 42(2)( n ) [less serious offences]. Unanimously the Supreme Court rejected this

interpretation, declaring that it was clear from their wording that the two provisions were different, and since the ordinary meaning of the words was clear, they should be read accordingly. [93] It follows that paragraph 42(2)(

c) should be read as it is worded, the only criteria applicable being therefore the principles and purpose contained in sections 3 and 38 of the YCJA . [ 26 ] Finally, in the judgment cited previously, Hamel, J. ably and aptly summarized the circumstances and conditions usually prevailing upon a conditional or absolute discharge. [ 27 ] With respect to absolute discharges, he stated: [ translation ] [59] In the Court’s view, an absolute discharge is generally intended for situations where the young person has no criminal record and does not present a risk of re-offending, or perhaps a very low risk.

The young person has not caused damage or harm to a victim or to society or such harm is minimal or has already been remedied by the young person. Often, the judicial process alone has made the young person take responsibility for the offence committed so that no follow-up or supervision is necessary to avoid re- offending and ensure that the young person remains a law-abiding citizen.

Finally, this type of discharge may be granted only when there is cause to protect the young person from the negative impact that a conviction could have by judicially highlighting the positive nature of his or her personality and the low risk to society that he or she represents. This acknowledgment from the courts is such as to preserve the young person from possible disadvantages due to a conviction. [ 28 ] With respect to conditional discharges, Hamel, J. wrote: [ translation ] [76] ...

In the Court’s view, such a sentence applies in particular to young persons who present no or little risk of re-offending and who have few or no prior offences. Generally, the conditions imposed aim to remedy the harm or damage caused to the victim or to society with the purpose of encouraging the young person to take responsibility for the damage caused and lessen the impact of his or her actions.

Finally, as with absolute discharges, there is cause to protect the young person from the negative impact that a conviction could have by judicially highlighting the positive nature of his or her personality and the low risk to society that he or she represents. Analysis [ 29 ] The alleged actions are serious, repeated, and abusive. They stretch over two years and gradually increased in seriousness. [ 30 ] The victim left her home country, Haiti, to join her family in Quebec, hoping for a better life.

Betrayed by her own half-brother, she felt completely helpless before his sexual advances, unable to express her uneasiness and reluctance so that she could escape them. [ 31 ] The disclosure process, which started in 2011, has been difficult for the victim. After confronting her assailant, she grappled with highly emotionally charged recollections. [ 32 ] Her work in a Youth Center working with families in distress was affected.

Overcome by her emotions, the victim had difficulty separating elements of her own experience from those of the families she was helping. [ 33 ] Traumatized by her painful past and worried about the quality of her professional intervention, she took several months off work.

The victim went so far as to consider suicide. [ 34 ] The victim never had the support of her family and least of all of her mother, who considers the victim to be just as responsible for the events as the accused. [ 35 ] To heal her psychological wounds, the victim saw a health professional in 2012 and then began therapy with a specialized service for victims of sexual assault. [ 36 ] The police complaint was filed to ease a burden she found too heavy to bear. The victim views the judicial process as freeing.

She is not motivated by revenge or spite. [ 37 ] Accordingly, the victim hopes that her half-brother is not incarcerated and that he may keep his job. She is mostly concerned about him getting the therapy he needs. [ 38 ] In the longer term, the victim would like to re-establish a more normal fraternal bond with the accused and for family reunions to take place with both of them present. [ 39 ] As for the accused, he does not have a criminal record. [ 40 ] He has acknowledged the facts and pleaded guilty to spare the victim from the painful process of relating her experiences in an adversarial trial.

The accused expressed this intent in writing, through his counsel, as soon as the proceedings were filed against him. [ 41 ] The accused’s educational history reveals that he completed CEGEP and university while holding down various jobs to support himself. During this period, he displayed determination and to this day, he is the one his family turns to. He counsels his mother and has

taken on a father figure role for some of his siblings. [ 42 ] He has been a police officer with the Service de police de la Ville de Montréal (SPVM) since 2004. Because of these charges, however, he has been suspended without pay since February of 2015. The disciplinary process has begun and there is a possibility that he will be dismissed. [ 43 ] The accused’s employee file with the SPVM is exemplary.

The many evaluations over the years testify to his skill, effectiveness, insight, and courtesy toward his peers and the citizens. [ 44 ] The accused is also involved in the community as a volunteer for youth sporting, leisure, or vocational activities. [ 45 ] As for his own family, the accused lives with his spouse and their three-year-old child. He is also a father to two other children born from a previous relationship. He exercises his access rights consistently and is involved in the lives of all his children. [ 46 ] The accused embraces and complies with societal values.

In fact, just over twenty years separate the offences from the sentencing today, and he has never repeated a similar offence or indeed committed any other offence of any kind. [ 47 ] The accused has strong regrets and claims to take responsibility for the actions in question and the impact they had on the victim.

He claims to feel shame that his family, employer, and work colleagues have found out about them. [ 48 ] That said, he still tends to minimize his actions in that he sometimes attributes them to nothing more than youthful mistakes and questions the victim’s true motivation in reporting him. [ 49 ] For the last two years, the accused has been undergoing psychological counselling.

Between twenty and thirty meetings have taken place to discuss the actions in question and deal with his anxiety. [ 50 ] The attending psychologist is of the view that the accused is not struggling with a sexual issue and that there is no risk that he will re-offend with children. [ 51 ] With respect to this treatment, the accused considers that it has helped him understand the degree to which his actions were unacceptable and to confirm to himself that he is not a sexual deviant. [ 52 ] Moreover, the sexological expert report on sexual delinquency ordered by the Court adds a nuance to his risk of re-offending.

Although it characterizes the risk as weak because protective factors have been identified, it also recommends that the accused participate in the sexual delinquency awareness program offered by the CIDS, which involves thirteen meetings in all. [ 53 ] In this case, the accused has many distinguishing and positive elements to submit, especially when considered in light of the principles and objectives of the YCJA . [ 54 ] All these elements in the accused’s favour, taken with the sentencing provisions of the YCJA , clearly support a lenient sentence. [ 55 ] The accused has become an honest and responsible man whose career has been dedicated to protecting society.

He is now an asset to that society. [ 56 ] The many years since the last wrongful act, the accused’s personal and professional history , and his supportive social network and spouse are all protective factors that strongly reduce the risk of re-offending, although in these matters, there can never be absolute certainty. [ 57 ] No sentence will ever heal the victim’s wounds, which still affect her both personally and professionally.

They have hindered her career and to this day affect her quality of life. [ 58 ] The leniency desired by the victim for the accused – avoiding incarceration and the loss of his job – testify to her good heart and generous spirit. [ 59 ] At the very least, the accused has admitted to the acts denounced by the victim by pleading guilty to the charge. The judicial process has therefore validated the victim, thus contributing, if only modestly, to her search for peace. This last remark is directed only at the victim personally because of all the information concerning her that was brought to the Court’s attention.

This remark is not a general assertion. [ 60 ] Taking into account all of the above, the Court intends to order a conditional discharge. [ 61 ] In doing so, the Court deems it necessary to consolidate the accused’s rehabilitation by ordering that he participate in the sexual delinquency awareness program offered by the CIDS. [ 62 ] Although the accused states that he has understood the degree to which the actions in question were inappropriate, his assertion is weakened by the following: ➢ His insistence on characterizing the offences as youthful mistakes, when they stretch over two years, were repeated and gradually increased in seriousness, until he reached the age of majority; ➢ The theory raised by the accused that the victim’s denunciation might arise from a desire to seek revenge on the part of both the victim and his ex-wife.

Not only is this not the case, but above all, at its basis, the complaint is well-founded in fact and in law. This theory, in addition to the fact that the victim is not recognized as such by her family, is but another attempt to diminish her status. The Court cannot state this

strongly enough: this case is one where there is an assailant and a victim; there is no doubt about that. There is nothing justifying anymitigation of empathy for the victim. [63] In this context, the Court agrees with the remarks of the author of the pre-sentencing report, who pointed out the importance ofincreasing the accused’s level of responsibility and empathy for the victim and with the remarks of the sexologist for the CIDS whostated that steps should be taken to educate the accused about sexual delinquency through a program like the one it offers to strengthenthe protective factors. [64] The accused has further informed the Court that he risks losing his job permanently. Under

section 119 of the Police Act,[11] hisdismissal, while not automatic, is probable. [65] He submits that an absolute discharge might make it easier for him to to obtain leniency from the Police Ethics Committee. [66] More specifically, the accused maintains that an absolute discharge, by its very nature, would likely improve his ethics file andpossibly have an impact on its outcome. [67] In this sense, the absolute discharge is a measure that would have much more “meaningful” consequences for him.[12] [68] The Court takes only slight notice of this argument because the evidence sheds little light on the weight absolute discharges carryin police ethics hearings. [69] Without making it a general rule that, to obtain an absolute discharge, an accused must show that it would be a determining factorin avoiding negative consequences,[13] the Court finds a discharge cannot be based primarily on mere conjecture.[14] The order prohibiting the possession of weapons under s. 109 Cr.

C. [70]

Section 51 of the YCJA subjects young persons to the provisions of sections 109 et seq. Cr. C. concerning the prohibition againstpossessing weapons, yet adapts the duration of such prohibition. [71] Their application to young persons is explained by Béatrice Clément, J. in LSJPA – 1226:[15] [translation] [17] In

section 109, Parliament included designated offences carrying an automatic prohibition, which do not require the court’sassessment. We refer to subparagraphs 109(1)(b), (c), and (

d) Cr. C. Sexual offences are not among the specific designated offences. [18] Consequently, the Court finds that to assert that there is inherent violence and therefore a form of automatism in cases of sexualoffence would be contrary to Parliament’s intent. The Court must perform a specific analysis of the circumstances of each case todetermine whether the conditions of paragraph 109(1)(

a) have been met. If that is the case, the Court cannot use its discretion and mustissue the order of prohibition. [19] In the case at issue, the offences are hybrid. The Crown has exercised its discretionary power and charged the young person withan indictable offence, which for adults is punishable by a ten-year maximum prison sentence. The first criterion of

section 109 istherefore met. [20] The second criterion is for

an act to be committed in “which violence against a person is used, threatened, or attempted”. [21] Many judgments have interpreted the violence required under

section 109 Cr. C. Deschênes, J.’s decision in Guy Bossé v. R. byDeschênes, J. is one of them:[16] In addition, several courts in this country have held that a sexual assault, or

an act of sexual interference contemplated in s. 151 ofthe Criminal Code, is, in and of itself, a violent act triggering the mandatory application of a prohibition order. No other form ofviolence or threat of violence is required: in this regard see R. v. G.W.H., [2004] A.J. No. 1526 (Alta. Prov. Ct.) (QL); R. v. L.P.G., 2000ABQB 745 , [2000] A.J. No. 1280 (Alta. Q.B.) (QL);R. v. L.H., [2002] N.J. No. 59 (Nfld. & Lab. Prov. Ct.) (QL); R. v.R.D., [2004] O.J. No. 3265 (Ont. Prov. Ct.); R. v. S.P., [2004] N.J. No. 182 (Nfld. & Lab. Prov. Ct.)(QL). In K.L. v.

The Queen,[17] however, a case involving sexual assault, the Court of Appeal of Quebec posited the principle that a charge ofa sexual nature is not in and of itself a violent crime. Other judgments have also been rendered along the same lines, including Lonegren, in which Barrow, J. reviewed the judgments that hadbeen rendered on the issue. Like our Court of Appeal, he found that: The wording of the

section and the authorities noted above support the proposition that it is possible to commit the offence of sexualinterference without violence. That will only rarely be the case when the victim is a child. If one were compelled to find a unifyingprinciple from these authorities, it may be that where the child's vagina or anus is penetrated, or the child is made to perform oral sex,then the offence necessarily rises to the level of violence such that the

section is engaged. It will also be engaged by acts that involvelesser degrees of violation of the victim's sexual integrity if those acts are accompanied by overt violence or threats of violence.[18]

The judge explains the basis of his reasoning at greater length: There are several reasons why I consider this to be an appropriate

interpretation of the section. First, it respects the distinction between force, which is an essential element of assault, and violence, which is not. Second, it is preferable to determining the issue on the basis of the impact of the offence on the victim, as is suggested by some of the authorities and the dictionary references to which I earlier alluded. To approach the matter in that way could result in one offender being subject to a prohibition while another offender, guilty of the very same acts, would not if, by happenstance, the victim in the former situation responded to the offence adversely and the victim in the latter did not. Next, it advances the purpose of the

section in that the risk of future misuse of firearms must bear some relationship to the degree to which the conduct under consideration derogates from that which the law and society in general expects. Conduct that involves a violation of a child's bodily integrity in the manner posited is a significant derogation from those standards, and thus a person who commits such acts may be considered sufficiently at risk to misuse firearms to warrant the imposition of the prohibition. Finally, this approach is, in my view, practical. [22] The Court agrees with this reasoning, which is consistent with the wording chosen by Parliament for

section 109. … [26] Sexual offences invariably have consequences on the victims, especially when they are children. The impact on the victim is fully assessed during sentencing. The prohibition under

section 109 is not part of the sentence but is intended to prevent persons with violent natures who are therefore at risk of abusing the privilege of using firearms from doing so. This is a fundamental distinction. [ 72 ] In LSJPA –1456 , [19] Lyne Morin, J. cited with approval the above excerpts and added: [ translation ] [63] ... It would be contrary to Parliament’s intent to automatically make a prohibition order when sexual offences have been committed. The Court must take into consideration the circumstances related to the commission of the offence, as the Court of Appeal showed us in K.L. v.

R . , because offences with sexual overtones are not, perhaps, themselves violent in and of themselves. [20] [ 73 ] The Court is of the view that the indictable acts of the accused, as described in paragraphs [6] and [9] of this judgment, were not committed in a situation where violence against a person was used, threatened or attempted. [ 74 ] This conclusion, which is in accordance with relevant case law, does not in any way lessen the characterization of the actions of the accused as serious, repeated, and abusive. [ 75 ] The nature of the offence, however, and the lack of violence gives the Court discretion as to whether or not to issue the order sought prohibiting the possession of weapons. [ 76 ] In this case, in light of the evidence as a whole and especially because of the personal and professional paths taken by the accused that reveal his rehabilitation, the Court does not see how the security of the public, that of the accused, or any other consideration related to the protection of the public could justify such an order. [ 77 ] The Court therefore dismisses the prosecution’s application to this end. [ 78 ] As for the order for the taking of bodily substances for the purposes of forensic DNA analysis, the Court does not have any discretion in this matter and must make that order. [ 79 ] FOR THESE REASONS, THE COURT: [ 80 ] ORDERS the conditional discharge of the accused, with the following conditions: ➢ That the accused participate in the sexual delinquency awareness program offered by the CIDS; to be completed prior to June 30, 2016; ➢ That the accused pay a $1,000 donation to the Centre d’intervention en violence et agression sexuelle, within six months. [ 81 ] ORDERS the taking of bodily samples from the accused for the purposes of forensic DNA analysis. ________________________________ Mario Gervais, J.C.Q.

Mtre Isabelle Desmarais Criminal and penal prosecutor Mtre Julie Bolduc For the accused

[11]

Section 119: Any police officer or special constable who is found guilty, in any place, or

an act or omission referred to in subparagraph 3 of the first paragraph of

section 115 that is triable only on indictment, shall, once the judgment has become res judicata , be automatically dismissed. A disciplinary sanction of dismissal must, once the judgment concerned has become res judicata, be imposed on any police officer or special constable who is found guilty, in any place, of such

an act or omission punishable on

summary conviction or by indictment, unless the police officer or special constable shows that specific circumstances justify another sanction Police Act , R.S.Q., c. P-13.