2023 QCCQ 8876, 2023 QCCQ 8876

R. c. Choi 2023 QCCQ 8876 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Criminal and Penal Division No: 500-01-216310-216 DATE: November 16 th , 2023 ______________________________________________________________________ BY THE HONOURABLE ANTOINE PICHÉ, Q.C.J. ______________________________________________________________________ HIS MAJESTY THE KING Prosecution v.

CHUL CHOI Accused ______________________________________________________________________ JUGEMENT ON SENTENCE ______________________________________________________________________ INTRODUCTION [ 1 ] At the end of a trial lasting several days, the accused was found guilty of criminal harassment. [ 2 ] The facts leading up to this verdict are set out at length in the judgment rendered on May 30, more specifically from paragraph 6 to 94, to which the Court refers the reader. [1] [ 3 ] In short, the accused harassed the victim in many ways over a period of about 7 months. [ 4 ] The prosecution is of the opinion that a sentence of 12 months of incarceration followed by a probation order of 3 years is warranted to give full effect to the denunciation and deterrence principles. [ 5 ] For its part, the defence believes that a conditional sentence of 12 months, including 240 hours of community work, followed by a probation order of 3 years is fit and appropriate.

SENTENCING EVIDENCE [ 6 ] No witnesses were heard during the sentencing hearing. [ 7 ] Both parties submitted documentary evidence instead.

The Pre-Sentence Report [ 8 ] To obtain more information about the accused and to understand what might explain what led him to commit the offence for which he was found guilty, the Court requested a pre-sentence report. [ 9 ] Since the accused resides in Ontario, the report was prepared in that province. [ 10 ] From the very first page, it is apparent that the author of the report has not consulted the investigation file or even read the judgment finding the accused guilty of criminal harassment. [ 11 ] No facts related to the offence are included in the report.

[ 12 ] The discussion with the accused about the offence was no more enlightening for the Court, as he claimed to be the victim of a miscarriage of justice. [ 13 ] No evaluation of the risk of reoffending is done by the writer. [ 14 ] The recommendations are not adapted to the accused’s situation neither, which include prohibiting him from associating with criminalized person and to make reasonable efforts to maintain employment and provide proof of such to supervising officer while the association with criminalized peers is not at issue in this case, and the accused has always maintained a high-level employment. [ 15 ] The report therefore leaves the Court with the same question it had at the outset: What explains that the accused, who seems to have everything going for him, methodically harassed a young woman of his office for months?

Victim’s impact statement (S-1) [ 16 ] It is often difficult for victims to expose the extent of the consequences of the criminal harassment they have suffered. [ 17 ] One reason for this is that the psychological consequences of such a crime are intangible. [ 18 ] For Mrs. F., it was an escalation of feelings. [ 19 ] At first, she thought it was a bad joke.

As we remember, the harassment began with anonymous calls during which the accused simulated sexual activity. [ 20 ] Then she realized that she was under attack, that she was targeted, that someone really wanted to hurt her. [ 21 ] She explained that at the beginning she felt shame. Then shame gave way to fear.

She was scared and constantly tense because she was afraid that something might happen to her. [ 22 ] Considering the precautions taken by the accused, the victim had no idea where all this could have come from. [ 23 ] Although it might seem unreasonable from the outside, she still feels that same fear today. Whether she's walking alone on the street or receiving a call or message from an unknown number, she immediately thinks that it might be the same harassment again. It is a recurrent thought. [ 24 ] She was so scared, she rented out her apartment and moved elsewhere.

Then she decided to move definitely to a new place and to sell her apartment. That was not part of her plan before the harassment of the accused. That caused her unexpected expenses, stress and uncertainty. [ 25 ] She is still receiving psychological treatment today, almost 5 years after the event. [ 26 ] She still does not understand why the accused undermined her security, attacked her reputation, and endangered her mental health the way he did.

Employment Letter (SD-1) [ 27 ] The accused provided a letter from Okta Inc that confirmed that he has been employed by this company since December 17, 2019. [ 28 ] This means that the accused found a new employment after a little less than 5 months after being fired by Deloitte, and has maintained it ever since. [ 29 ] This seems to be a stable and high-quality employment. Reference letters from the accused's entourage (SD-3, SD-4 and SD-5) [ 30 ] Those letters are useful. [ 31 ] It gives the Court a better insight into the accused.

Without them, the Court would only know him through the offence he has committed and the little of his personal life that the pre-sentence report contains. [ 32 ] These letters, from people who have known the accused for over 20 years, describe him as someone dedicated to his family, hard-working, polite, successful, extremely supportive to his two adult daughters, and someone you can rely on. [ 33 ] It leads to conclude that the accused is a positive and active member of our society and that he is appreciated by those that he shares his life with. [ 34 ] This being said, the writers of those letters seem unaware of the facts that led to his dismissal in 2019. [ 35 ] They also seem unaware of the facts that led to his conviction in May 2023.

THE SENTENCING PRINCIPLES [ 36 ] Sections 718 to 719 of the Criminal Code prescribe the fundamental purpose and the various principles of sentencing. [ 37 ] The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions that have one or more of the following objectives [2] : 1. to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct [3] ; 2. to deter the offender and other persons from committing offences [4] ; 3. to separate offenders from society, where necessary [5] ; 4. to assist in rehabilitating offenders [6] ; 5. to provide reparations for harm done to victims or the community [7] ; 6. to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or the community [8] . [ 38 ] Furthermore, as a fundamental principle of sentencing, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [9] [ 39 ] Moreover, a Court that imposes a sentence shall take into consideration several other principles of sentencing. [ 40 ] Firstly, a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [10] [ 41 ] Secondly, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [11] [ 42 ] Thirdly, where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. [12] [ 43 ] Fourthly, an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. [13] [ 44 ] Fifthly, all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [14] [ 45 ] In Harbour [15] , Justice Vauclair reminds that, to be appropriate, a sentence must be informed by all the penological objectives, not only some of them.

Only balancing of all the objectives will lead to a fit sentence. [ 46 ] Finally, considering that the accused is a first offender, the Court must carefully explore other alternative before imposing a custodial sentence and impose it only if the circumstances are such or the gravity of the offence is such that no other sentence is appropriate. [16] [ 47 ] In the case at bar, the defence proposes a conditional sentence as an alternative to custodial sentence. [ 48 ] The analytical framework to determine the appropriateness of a conditional sentence is well known. [ 49 ] It implies a two steps analysis. [17] [ 50 ] At the first step, the Court does not have to specifically determine a term of imprisonment of a fixed duration.

Rather, at this stage, the Court simply has to exclude two possibilities: probationary measures and penitentiary term.

If either of these sentences is appropriate, then a conditional sentence should not be imposed. [ 51 ] In making this preliminary determination, the Court need only consider the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 to the extent necessary to narrow the range of sentence that should be applied to the accused. [ 52 ] At the second stage, the Court must determine whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 Cr.

C. [ 53 ] Unlike the first stage, the principles of sentencing are considered comprehensively.

Further, it is at the second stage that the duration and venue of the sentence should be determined, and the conditions imposed if a conditional sentence is retained. [ 54 ] In determining whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing, the Court should consider which sentencing objectives figure most prominently in the factual circumstances of the particular case before them. [ 55 ] Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. [ 56 ] In determining whether restorative objectives can be satisfied in a particular case, the Court should consider the offender’s prospects of rehabilitation, including whether the offender has proposed a particular plan of rehabilitation; the availability of appropriate community service and treatment programs; whether the offender has acknowledged his or her wrongdoing and expresses remorse; as

well as the victim’s wishes as revealed by the victim impact statement (consideration of which is now mandatory pursuant to s. 722 of the Code ). This is not an exhaustive list. [ 57 ] Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction.

This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence. [ 58 ] Conversely, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served. [ 59 ] Finally, a conditional sentence may be imposed even in circumstances where there are aggravating circumstances relating to the offence or the offender.

Aggravating circumstances will obviously increase the need for denunciation and deterrence. However, it would be a mistake to rule out the possibility of a conditional sentence ab initio simply because aggravating factors are present. Each case must be considered individually. ANALYSIS [ 60 ] Both parties suggested a global sentence to be applied over the next 4 years. [ 61 ] The Court agrees with the parties that a sentence of imprisonment must be impose to Mr.

Choi and that it must be followed by a probation order. [ 62 ] The main question is to determine whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing or not. [ 63 ] A look back at the facts is in order. [ 64 ] The accused and the victim hardly knew each other. They both were working for Deloitte, a company that does business across Canada and abroad. [ 65 ] The accused was working at Deloitte’s Toronto office, and the victim was working at the Montreal office. [ 66 ] The accused acted as supervisor of a project entrusted to the victim.

For that project, he was in a position of authority over the victim and completed a performance report review of the victim. [ 67 ] They had to work together for a short period of time. The harassment of the accused began shortly after. [ 68 ] The gradation of harassment intensity is singular. All acts of harassment are sexual in nature. [ 69 ] It began by anonymous phones calls during which the accused simulated sexual activity. A lot of phones calls. [ 70 ] Then the harassment intensified.

The victim received text messages, some of them led her to believe that the harasser knew where she was living [18] . [ 71 ] The victim began to get really scared. [ 72 ] The accused continued. [ 73 ] Taking it to the next level, he sends his first package to Deloitte's Montreal office. [ 74 ] The accused knew she was working there and to whom he was sending the package but he took care not to write the victim’s name on the envelope, ensuring that it will be opened by someone other than her at the office who could see her full name and address in the letters and the content of those letters that imply that she would be an escort. [ 75 ] It is indisputable that the accused deliberately acted in this way with the purpose was to humiliate the victim, denigrate her and damage her reputation in her workplace. [ 76 ] At this point, the victim panicked, making the connection with everything she had experienced since December 2018. [ 77 ] The accused continued, sending a second package [ 78 ] He again took care to ensure that the letter was not opened by the victim, but rather by a mailroom employee.

That time, the accused wanted the victim's workplace to believe that she is a pornographic actress. Which she obviously was not, and the accused is well aware of this. [ 79 ] Once again, it was yet another way for the accused to humiliate, denigrate and damage the victim’s reputation in her workplace. [ 80 ] Then the victim received a promotion.

That led the accused to amplify his harassment. [ 81 ] He sent two other packages referring directly to the victim promotion in which the accused written that she like the title “Climbing the Corporate Ladder” and “Fuck the corporate ladder” for what would be her first pornographic movie.

[ 82 ] Then the accused used the victim’s professional email on RedTube and Pornhub websites always with the aim of harassing the victim, damaging her reputation, humiliating, and denigrating her. [ 83 ] To say the least, it is difficult to imagine a more twisted, malicious and cowardly way of committing the offence of which the accused was charged.

Risk of recidivism [ 84 ] The Defence alleged the risk of reoffending of the accused is low based on his lack of criminal record, his past and the fact that he complied with his conditions since the beginning of the proceedings. [ 85 ] With respect, that assessment is inaccurate because it disregards the crime committed by the accused that still unexplained and inexplicable. [ 86 ] As justice Proulx mentioned in Rondeau [19] , albeit at a different stage of the proceedings, the equation between an individual's past and the assessment of the risk he or she represents becomes dubious if no account is taken of the incident that interrupted, in time, what was considered an unblemished past. [ 87 ] Nothing explains why this seemingly model citizen set out to poison the life of a young woman as he did.

Unbeknownst to those around him, he managed to harass the victim for 7 months. Had it not been for the work of Deloitte’s internal investigation team, the accused would have otherwise have enabled him to torture the victim anonymously and with impunity. And for how longer? [ 88 ] The Court concludes that the accused can both behave in a conformist manner and display prosocial values, while maintaining deviant criminal behavior for 7 months without his entourage noticing. [ 89 ] Such an ability is very worrying.

Proportionality principle, s. 718.1 [ 90 ] In Arcand [20] , the Alberta Court of Appeal mentioned that the "degree of responsibility of the offender" referred to in s. 718.1 certainly includes the level of mens rea required to formulate the intent or to demonstrate the recklessness or wilful blindness associated with the actus reus of the crime committed. [ 91 ] In making this assessment, the courts can draw heavily on the principles of criminal law. The more serious the harm intended by the offender, or the greater the degree of recklessness or wilful blindness, the greater the moral culpability. [ 92 ] Mr.

Choi desire to harm the victim is obvious. [ 93 ] Hiding behind his anonymity, the accused first sought to harm the victim personally and psychologically. He then set out to destroy her professional reputation. [ 94 ] The gravity of the offence and the gravity of the way it was committed is particularly high, and the degree of responsibility of the accused in relation to this offence is equally high. [ 95 ] As the Quebec Court of Appeal stated in El Hami [21] , in criminal harassment cases, general deterrence and denunciation had to be emphasized.

The aggravating and mitigating factors [ 96 ] The aggravating factors outnumber and outweigh the mitigating factors. [ 97 ] The Court considers the following aggravating factors: - The gravity of the offence. - The clear pattern of escalating harassing behavior toward the victim. - The premeditation required for the elaborate scenarios imagined by the accused their severity and their diversity. - That the harassment took place over a period of 7 months, and which was only brought to an end by his dismissal of Deloitte once its investigation team discovered that the accused was behind that harassment. - The profound impact of his actions on the victim. [ 98 ] As for the mitigating factors, the Court takes into account that Mr.

Choi: - Has no criminal record. - Has been employed throughout his adult life.

Similar sentences for similar offenders [ 99 ] In Butler [22] , the Newfounland and Labrador Court of Appel indicated that in its province, the range of sentence for the offence of criminal harassment extending from suspending of sentence to fifteen months of incarceration. [ 100 ] The Court Appeal indicated 4 decisions from other Courts of Appeal across the country for which the range for criminal harassment in somewhat comparable circumstances resulted in custodial sentences of two years and higher. [ 101 ] In Vinet [23] , my colleague, Justice Galiatsatos presents a extensive review of sentencing of criminal harassment cases.

Sentences range from conditional discharge to 4 and a half years' imprisonment. [ 102 ] There are no perfect comparable. No two cases are identical. [ 103 ] What sets this case apart from others, however, is the anonymity with which the accused acted. [ 104 ] This made it impossible for the victim to protect herself from the accused's harassment. [ 105 ] The psychological impact on the victim is all the greater, as she finds herself doubting and fearing everyone else, and no longer knowing who she can trust. Conclusion [ 106 ] The appropriate sentence to impose to Mr. Choi was difficult to decide.

For the Court, it is a borderline case. [ 107 ] Having consulted all the case law submitted by the parties and having weighed up each of the applicable principles, the Court considers that the appropriate period of detention could not be less then 2 years less a day. [ 108 ] No other sentence can be proportionate to the gravity and the degree of responsibility of the accused. [ 109 ] The Court very seriously considered imposing a long term of incarceration to Mr.

Choi, considering the extent to which the aggravating factors outweighed the mitigating ones, and that the principle of proportionality also militates in favor of such a sentence in this case. [ 110 ] Denunciation and general deterrence are also quite pressing in the present case. The principles set out in

section 718 paragraphs a),

b) and

f) also militate strongly in favor of incarcerating the accused. [ 111 ] This being said, the Court has to keep in mind that Mr. Choi is a first offender, and that he is not limited to the offence he has committed. [ 112 ] Despite its hesitations, the Court concludes that the following sentence will best serve the interests of society. [ 113 ] The Court hopes that one day the accused will be able to acknowledge the harm he has caused Mrs. F., understand what led him to act as he did and ensure that it never happens again.

FOR THESE REASONS, THE COURT: SENTENCES the accused, to 2 years less a day conditional sentence. ORDERS the accused to respect, during that period, the following conditions: - Keep the peace and be of good behavior; - Appear before the Court when required to do so; - Report to a supervisor within 48 hours; - Notify the Court or the supervisor of any change of address, name or occupation; - Abstain from communicating directly or indirectly with L.

F.; - Be at his residence at 24 hours a day for the first 16 months, and for the remaining 8 months between 10PM and 6AM, except: • To attend pre-scheduled appointments with his supervisor;

• To appear before Court as a witness or party to a dispute; • To appear before Court if required to do so by the Court in this matter; • For religious purposes, at a specified place, and at the time specified in writing by his supervisor; • To receive medical treatment for himself or a member of his immediate family; • To purchase food or necessary goods or services for himself or a member of his immediate family on Saturday between 9 and 12 AM; • For any serious and/or urgent reason, with the prior written authorization of the supervisor. • For work purposes at Okta Inc. • To perform community work. - Answer all phone calls from the supervisor during periods of curfew or house arrest, and take the necessary steps to do so; - Maintain a ground telephone line and answer all phone calls from your supervisor; - Not be subscribed to a service of transfer of calls; - Facilitate access to his residence by the supervisor; - Notify the supervisor of any change of phone number within 24 hours; - Follow all of the supervisor’s written instructions regarding the application of the conditional sentence of imprisonment; - Abstain from acquiring, possessing or carrying any type of weapon; - Perform 240 hours of community work in a delay of 18 months; - Sign this conditional order without delay.

ORDERS that the accused be placed on probation for a period of 2 years following this conditional sentence, without a follow-up. He will have to comply to the following conditions: - Keep the peace and be of good behavior; - Appear before the Court when required to do so; - Abstain from communicating directly or indirectly with L. F.; - Abstain from owning, possessing or carrying any type of weapon.

PROHIBITS the accused from being in possession of: • any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, and explosive substance for a period of 10 years. • Any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. __________________________________ ANTOINE PICHÉ, J.C.Q.

M e Christine Desjarlais Counsel for the Prosecutor M e Diana Sitoianu M e Gabriel Babineau Counsels for the Accused Date of hearing: September 14 th , 2023