2021 QCCQ 14053, 2021 QCCQ 14053

R. c. Saviadjuk 2021 QCCQ 14053 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Criminal and Penal Division No: 500-01-163298-174 DATE: October 19, 2021 ______________________________________________________________________ BEFORE THE HONOURABLE JULIE RIENDEAU, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN v.

ADAMIE SAVIADJUK Accused ______________________________________________________________________ JUDGMENT ON SENTENCE ______________________________________________________________________ [ 1 ] The accused pleaded guilty to a sexual assault on the victim [1] . The events occurred in November 2017 in Montreal, where the accused came to study. [ 2 ] The day in question, in the middle of the night, he entered the victim’s room in a student residence, tried to take off her shorts, penetrated her, introduced a finger into her vagina and licked her anus.

During the events, the victim told him to stop and attempted to get him off of her. She finally made him fall off the bed. He was unknown to her. The door was closed when the accused entered the room and the victim was sleeping. [ 3 ] For the accused, the fact that he was in a new and unknown environment, subjected to a difficult and emotional moment because his girlfriend had just left him, and highly intoxicated, should be considered.

These circumstances, as well as him being a first nation member, moreover a first offender with a shining profile, makes a suspended sentence with a probation and 90 days of imprisonment, served in a discontinuous manner, a just sentence. [ 4 ] The prosecution, on its part, submits that the accused’s submission is unreasonable, even with the most shining profile, in view of the gravity of his actions. Also, there is no real link between the fact that he is a first nation member and the actual commission of the offence. Consequently, a sentence around 24 months minus a day would be a just sentence.

If the Court was to retain that there is a link between his status of first nation member and the commission of the offence, the sentence should be closer to 18 months. I. QUESTION AT ISSUE [ 5 ] The sole matter at issue is to determine the just sentence. II. ANALYSIS [ 6 ]

Section 718 of the Code provides that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention measures, to respect the law and the maintenance of a just, peaceful and safe society. [ 7 ] This sentencing purpose is met by the imposition of a just sentence, that reflects the sentencing objectives set out in

Section 718 of the Code , which are: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation, and the promotion of a sense of responsibility in the offender and acknowledgement of the harm caused to the victim and to the community [2] . [ 8 ] That said, a sentence must always be proportionate to the gravity of the offence and the degree of responsibility of the offender [3] . The principle of proportionality is central to the sentencing process [4] . [ 9 ] Other sentencing principles are listed in

Section 718.2 of the Code : the need to consider aggravating and mitigating circumstances, the principles of parity and totality, and the need to consider all available sanctions other than imprisonment that are reasonable in the circumstances. [ 10 ] In cases involving Aboriginal offenders, that last criteria should be considered with particular attention to the circumstances of being an Aboriginal offender [5] . The Court will come back later to the methodology to be used in such cases.

[ 11 ] In short, imposing a just sentence is an individualized process, in which the sentencing objectives are weighed in a manner that best reflects the circumstances of the case, including those that relate to the offence and to the offender. Since each case is different, there is no such thing as a unique sentence for a particular crime. This explains why determining a fair sentence is one of the most difficult and delicate tasks for a judge. [ 12 ] Thus, the objective gravity of an offence can be identified by looking at the maximum penalty set out by the legislator.

Here, sexual assault is punishable by ten years of imprisonment, which indicates that sexual assault is a very serious crime. However, there is no minimum sentence. [ 13 ] It should also be remembered that the Court of Appeal has consistently refused to establish starting points for the sentencing process. [ 14 ] As for the subjective seriousness of the offence committed, as well as the accused’s responsibility, it is useful to remind the following. [ 15 ] The accused was raised in Salluit in a tight, loving and supporting family.

His mother was a teacher, and his father was once a policeman, the town manager, and after the mayor for six years. According to him, his parents gave him a good structure while growing up, wanting him to focus on his studies. As well, his parents describe him as a nice and respectful child. [ 16 ] In regards to his family environment, the presentence report refers to the accused remembering episodes where his parents consumed alcohol and sometimes argued in such context, but this type of situation hasn’t occurred in a long time.

However, the sexological evaluation of sexual offenses (the sexual evaluation) notes that “questioned about his parents’ relationship, [the accused] described them as a good team”, that “he never saw them fighting”, and that the “communication between his parents was healthy and respectful”.

The same report specifies that the accused mentioned his parents were never violent with him and that alcohol was not an issue in his family. [ 17 ] Overall, the Court retains that the accused, as a kid and as a young adult, was raised in a loving and caring family, and was well surrounded by his parents and friends, which he had a lot. He remembers being popular, and very active.

The Court notes that before and after coming to Montreal, the accused worked in and for his community. [ 18 ] He graduated from high school, where he was a good student, and left for Montreal in order to start the prerequisite classes for college. There, feeling homesick, he started drinking, and he started to do so more excessively after his breakup with his girlfriend in November 2017. He had been drinking when he committed the sexual assault, while alcohol was never a problem before. In court, the accused said with regard to consumption “I was exploring I guess”, after explaining he also tried drugs.

The writer of the presentence report retains the above as factors that led to the acting out. Being away may have made him lose his landmarks. [ 19 ] As to the event, the accused mentions that he has no recollection. However, the writer of the sexological evaluation notes that when being interrogated by the police, the accused did acknowledge quite a few important facts similar to the victim’s version. That makes the writer of the sexual evaluation say the accused’s lack of memory is more a defense mechanism in order to protect himself.

That brings the Court to retain that the accused was more conscious of what he was doing at the time than what he now says. [ 20 ] It also has to be noted, with regard to the sexual expertise, that the accused does not suffer from any sexual deviance. [ 21 ] Taking into account the above, the Court sees as aggravating circumstances: 21.1. that the accused broke into the victim’s room; 21.2. that he forced himself on her while she was sleeping [6] ; 21.3. that the sexual assault was with vaginal penetration; 21.4. the inherent consequences on any sexually assaulted victim. [ 22 ] The Court does not retain that the crime is motivated by bias, prejudice or hate based on sex, as suggested by the prosecution [7] .

The fact that the accused mentions “the victim could have been any girl” doesn’t mean he assaulted her because of his hate for women. There is no evidence suggesting that the accused committed an assault because he was angry towards every women as his own girlfriend had recently left him.

The Court sees the accused’s assertion as meaning that he entered a room at random, not voluntarily choosing that specific room knowing the victim was in it. [ 23 ] As for the mitigating circumstances, the Court notes: 23.1. that the accused is a youthful first offender; 23.2. that he pleaded guilty. [ 24 ] The accused highlights the fact that he was new in town and incidentally had to face the challenges of a very different environment for which he was not prepared. As to this argument, the Court sees no difference between the present file and the file of any accused coming from another remote region.

Though, it is not considered as a mitigating circumstance. [ 25 ] Do the Aboriginal circumstances of the accused played a role in bringing him to commit the crime he is accused of? Did it affect in any way his moral blameworthiness? [ 26 ] In McNeil [8] , the Ontario Court of Appeal summarizes the applicable principles to this issue. [ 27 ] Based on Gladue [9] , Ipelee [10] and

section 718.2(

e) Cr.c., the Court reminds that judges have to use a different method of

analysis in determining a fit sentence for Aboriginal offenders. However, at the same time, it reaffirms that the correct analysis “should not be taken as requiring an automatic reduction of a sentence, or a remission of a warranted period of incarceration, simply because the offender is aboriginal”.

In fact, “the fundamental principle of sentencing remains the determination of a sentence that is “proportionate to both the gravity of the offence and the degree of responsibility of the offender [11] ”. [ 28 ] With regard to that different method of analysis, the Court of Appeal indicates that it is provided at para. 59 of Gladue : “When sentencing an Aboriginal offender, a judge must consider: (

a) the unique systemic or background factors which may have played a

part in bringing the particular Aboriginal offender before the courts; and (

b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection (Gladue, at para. 66 ).

Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report (Gladue, at paras. 83-84 ) [12] ”. [ 29 ] The Court of Appeal also refers to its own decision in F.H.L [13] to remind that “for an offender’s Aboriginal background to influence his or her ultimate sentence, the systemic and background factors affecting Aboriginal people in Canadian society must have impacted the offender’s life in a way that (1) bears on moral blameworthiness, or (2) indicates which types of sentencing objectives should be prioritized in the offender’s case [14] . [ 30 ] The Court of Appeal finally mentions that “the Supreme Court, in Ipeelee [15] , at para. 73 , elaborated on how an Aboriginal offender’s circumstances may affect their moral blameworthiness: Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development.

While this rarely—if ever—attains a level where one could properly say their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability [16] ”. [ 31 ] It must be noted, though, that “in assessing whether that bears on the appellant’s moral culpability for the offences in question, the jurisprudence is clear that a direct causal chain need not be shown [17] ”. [ 32 ] Here, the Court finds that systemic and background factors did not play a role in bringing the accused before the court.

Indeed, the Court cannot see how the systemic and background factors had any impact on the accused’s moral culpability, when looking at his childhood and young adult life, he was well surrounded and supported by a caring family. Moreover, nothing supports that, more generally, what he saw or observed in his community influenced his actions in any way.

Therefore, his sentence will not be diminished because of systemic and background factors. [ 33 ] Now, other facts have to be considered even if they do not constitute in themselves aggravating or mitigating circumstances linked to the accusations. [ 34 ] Thus, after being accused in the case at hand, the accused went back to Salluit in November 2017, where he lived with his family.

Accompanied by his father, he came back to Montreal in August 2018 to complete his first semester of prerequisite classes, after which he returned to Salluit in December 2018, where he now lives with his former girlfriend as they resumed their relationship. She has a son that he considers his own and raises, even though he is not the biological father.

The accused is also currently working as the recreation coordinator of Salluit. [ 35 ] Also, it is clear, that after hearing their testimony, the accused is close to his parents, as he was to his grandfather before his death, that they helped him during a rough time after the accusation was laid against him, and that the accused’s parents and his girlfriend are supportive of him.

The Court however notes that nobody is aware of the details of the event. [ 36 ] As for the presentence report, the Court retains that the accused was planning to go back to school here, in Montreal, where his girlfriend would have followed him, but without knowing if the plan changed, the Court notes that the accused is still in Salluit for the moment (the report was written in September 2019 and there is no update). [ 37 ] The presentence report contains other pertinent information. [ 38 ] First, the writer mentions that she believes the judicial process had a deterrent effect on the accused and that he expressed what seemed like genuine regrets for his actions.

However, both the presentence report and the sexual evaluation notes that the remorse and regrets tend to be more focused on the possible consequences on the accused’s own life than on the victim’s. In court, the accused apologized to the victim and her family, and said that he was angry at himself. That said, it remains that knowing that reports have been completed, the accused did not take cognizance of them.

Thus, despite his expression of remorse, this demonstrates a limited insight. [ 39 ] The prosecution highlights that the accused did not take any steps regarding possible therapies since the events as well as after the completion of the reports. [ 40 ] As previously mentioned, it is obvious that the accused could not have acted upon the conclusions of the report as he did not take cognizance of them, even if he should have done so. [ 41 ] Despite that, could the accused, seek professional help on his own? The Court notes that the social services are limited in Salluit.

In fact, his father testified that in order to benefit from therapy, his son would have had to seek help in the private healthcare sector and they do not have the means for this. However, the accused’s father states that he and the accused’s grand-father guided the accused through discussions and activities during a certain period after the events. [ 42 ] The presentence report also mentions that the accused has already taken steps to make positive changes in his life.

The writer also notes that “[the accused] rehabilitation plans are realistic and representative of a pro-social lifestyle”, as well as that “[he] is able of introspection, as he targeted areas of his life that needed improvement”. Furthermore, the accused “is well surrounded by his family and

his girlfriend”, and [he] does not seem to have anchored criminal values”. The writer concludes that “we evaluate the current risk of general recidivism as low”. [ 43 ] The court notes that the testimony heard generally confirms the observations contained in the presentence report. Also, most of the findings of the report are not contradicted whatsoever. However, the sexual evaluation asserts, with regard to the risk of reoffending, that it is moderate. Despite this last conclusion, the court believes that the risk of reoffending is low.

Indeed, this conclusion was made two years ago and since then the accused has shown an adequate behaviour. [ 44 ] To conclude on the reports, the Court notes that both emphasize that the accused would benefit from professional help, which might contribute to increase his empathy and awareness, as well as prevent the risk of reoffending.

The accused confirmed in Court that he was ready to partake a follow-up and undergo therapy. [ 45 ] Now, what is the range of sentences applicable in the circumstances? [ 46 ] In Oum [18] , our Court of Appeal recently upheld a sentence of imprisonment of 18 months in the case of a sexual assault with penetration committed while the victim was asleep and intoxicated. The accused was her roommate and friend. He had no criminal record, a favourable personal profile and was considered an asset for society.

He had prosocial values, was of low risk of reoffending, and was supported by his family. [ 47 ] In Oum , the Court confirms that the sentence of 18 months imposed by the first judge was within the range of sentences generally imposed for sexual assault committed in similar circumstances, which is between 12 to 20 months of imprisonment [19] .

In doing so, the Court refers to Côté [20] which underlines that this is the range for crimes relating to one assault on one victim. [ 48 ] This decision of the Court of Appeal is undoubtedly useful for our purposes, moreover since the two situations concern one victim and one event, both implicating penetration. [ 49 ] The Court of Appeal also reminds that a range of sentences is a useful guide, but remains a guide [21] . [ 50 ] Without discarding completely the jurisprudence submitted by the parties (which once again shows that each case is unique), this last judgement by our Court of Appeal necessarily bounds the Court due to its high resemblance with the case at bar. [ 51 ] But now what is the fit sentence within the range identified in Oum ? [ 52 ] As in Oum , the accused has a favorable profile, prosocial values, support from his family and girlfriend, and is of low risk of reoffending.

Contrary to Oum, the accused pleaded guilty here. However, as for the facts, the Court cannot ignore that the victim has to fight to get the accused off her, that even if she pushed him off, he turned her on her stomach and continued to assault her. Even after she had him leave her room, he remained at her door asking her to open while she was panicking. He was still there when she went out to run to the security guard’s office. The Court also cannot ignore that the accused did not take cognizance of the reports, which indicates, as already said, a limited insight. III.

CONCLUSION [ 53 ] In the circumstances, in light of all the above, the Court concludes that the appropriate sentence is 18 months of imprisonment. FOR ALL THESE REASONS, THE COURT: CONDEMNS the accused to 18 months of imprisonment; RENDERS a non-communication order prohibiting the accused from communicating directly or indirectly with B.W. during the custodial period of the sentence, under

section 743.21 of the Criminal Code ; RENDERS a probation order for a period of two years with the following conditions: • Keep the peace and be of good behaviour; • Be present in Court whenever required; • Notify the court or her/his probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation; • Abstain from communicating in any manner, directly or indirectly, with B.W.; • Abstain from being within a radius of 50 m of B.W. domicile, school or place of work; • Abstain from being in her physical presence; • Report to the probation officer within 7 days from his release from jail, and thereafter whenever required by the probation officer and in the manner directed in order to respect his recommendations; • Follow any recommendation of the probation officer, namely with regard to any therapy mentioned in the presentence or sexual reports.

RENDERS an order pursuant to

section 490.012 of the Criminal Code that the accused comply with the Sex Offender Information

Registration Act for a period of 20 years. RENDERS an order pursuant to

section 487.051(1) of the Criminal Code authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis. RENDERS an order pursuant to section 109 (1) a) (2)

a) and

b) of the Criminal Code prohibiting the possession of any firearms, crossbows, restricted weapons, ammunition and explosive substances for a period of 10 years, and also, for life, the possession of any prohibited firearms, restricted firearms, prohibited weapons, prohibited devices and prohibited ammunition. DISPENSES the accused to pay the victim surcharge (

section 737 of the Criminal Code ). __________________________________ JULIE RIENDEAU, J.C.Q. Bruno Ménard Attorney for the prosecution Tom Pentefountas Attorney for the accused Dates of hearing: May 14 and June 1 st , 2021