r v. SAMIR SHUKR, 2021 QCCQ 14

R. c. Shukr 2021 QCCQ 14 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL CITY OF MONTREAL « Criminal Division » No: 500-01-172225-184 DATE: January 7, 2021 ______________________________________________________________________ BY THE HONOURABLE LOUISE PROVOST, J.Q.C. ______________________________________________________________________ THE QUEEN Prosecutor v. SAMIR SHUKR Accused ______________________________________________________________________ JUDGMENT ON SENTENCE ______________________________________________________________________ Pursuant to

section 486.4 of the Criminal Code , an order has been made prohibiting the publication of any information that could identify the complainant in this matter. INTRODUCTION [ 1 ] On March 4, 2020, after trial, Mr. Samir Shukr (the accused) was found guilty of one count of having sexually assaulted K.J.D. in Montreal, between June 9 and June 16, 2017. This judgment was given orally. THE CONTEXT [ 2 ] The prosecution’s evidence was essentially based on the testimony of the complainant and of two civil witnesses.

The accused denied having done any inappropriate sexual gestures. [ 3 ] On Friday June 9, 2017, the complainant, born in 1994, had just started an internship at the accused’s office who was supervising her internship of three months for accounting. [ 4 ] The sexual misconduct started Monday, her second day of internship, and ended the following Thursday. The last day, the complainant was accompanied by her boyfriend because he wanted to protect her.

It happened three or four times a day, mostly in the accused’s office, for very short periods of time. [ 5 ] The sexual assaults started by caressing up and down her legs over her pants, touching once her vagina, then by touching her breast over her clothes, kissing her breast to finally attempting to kiss her on the mouth. He also grabbed her face which she didn’t like. [ 6 ] The accused and his son testified for the defense.

The accused’s testimony was disbelieved and did not raise a reasonable doubt. [ 7 ] Facing a context of conflicting testimonial accounts, the W .( D. ) [1] framework applied and the accused was declared guilty. [ 8 ] The verdict was rendered on March 4, 2020 and the file was postponed to June 10, 2020. Because of the pandemic, the file was then adjourned until July 7, 2020. [ 9 ] On that day, sentencing submissions were presented by the prosecution including K.J.D.’s short testimony. Then, the defense tried to produce a Psychosexual Expertise by Dr. Marc Ravart, psychologist and sexologist, who was not present.

The prosecution was not aware of this expertise, nor the Court, and had not receive any legal notice. [ 10 ] Consequently, the file was again adjourned at a date suitable for the parties and the expert. On November 3, 2020, the expert and

the accused’s son testified. The defense submitted its recommendations as to the appropriate sentence. [ 11 ] The accused was never heard at the sentencing hearing. The victim [ 12 ] K.J.D. is a young lady. She was then 22 years old. [ 13 ] Her testimony was remarkably clear and the gestures in question, despite the passage of time, were still fresh is her mind. Between a few sobs, she testified slowly but courageously. [ 14 ] The complainant admitted that she considered herself to be reserved and vulnerable.

A few years before, she was diagnosed with a border personality disorder but was never prescribed a medication. [ 15 ] She knew that this internship of three months was her last step to graduation. This is why she did not know what to do when confronted with this situation in the first week of her internship so much that she spoke with her boyfriend and, on the last Friday, he showed up in the office after lunch and sat in the waiting area until she could leave. [ 16 ] At the onset of the internship, the victim appears, to the accused to be weak, lacking in self-confidence and shy.

The accused took advantage of her. [ 17 ] She was still in shock both at the trial and at sentencing. She testified with her head down, her demeanour showed her frailty. Her situation was unchanged. [ 18 ] K.J.D. suffered immensely from the behaviour of the accused. She never expressed her expectations as to the sentence that the Court should impose upon the accused. [ 19 ] Maybe was she expecting apologies but they never came. Her community impact statement [2] was filed into the Court record on June 10, 2020. [ 20 ] She wrote the following as to the emotional impacts: […] I am anxious by everyone arround me.

Being out in public, accidentally getting bump by someone or just someone the touches my back to get my attention, I either freeze or jump, breakdown and/or scream with my fist in the air. Emotionally, I still have a hard time going back to our school building or even arround the internship surroundings because those two places traumatizes me. I used to be more outgoing, but now, I stay away. I distance everybody around me.

Due to this situation, I fell into a mild depression, in my opinion, I didnt go out, I didnt, eat or do anything, all i did was lay in bed. afraid to face reality. [ S ic ] [ 21 ] Concerning her physical impact, she stated : Physically, I am sensitive by that, I mean that any touch or scare when I don’t see it coming I would breadown, freeze, jump or scare.

When Im out at a store and need to ask for a clerk, I rather ask a female, or keep looking unless I have no other options then I would ask a male clerk. [ S ic ] [ 22 ] As to her fears for security, they are the following : I am scared that once this is all over, I will see him or interact with him. Even now, I can’t see his face. I fear that once this is all over, he might revenge on me.

The accused [ 23 ] Samir Shukr is presently 66 years old. [ 24 ] At the trial, he described himself as a business man who owns and manages three companies under the same roof in an office space in Ville St-Laurent. [ 25 ] He first runs a company specialized in business consulting, development and accounting for almost forty years. K.J.D.’s internship was linked with this company. [ 26 ] His son Jason, 34 years old, works for a third company specialized in Internet-related services which he started with his father 4 years ago.

He testified at the trial and when the defense submitted its recommendations at the presentence hearing. [ 27 ] In July 2017, when the sexual assaults occurred, his wife, who passed away in September 2018, was battling with cancer and health issues for many years. [ 28 ] Both his lawyer and his son Jason told the Court that the accused met a woman at the end of 2019, that he remarried last June, 2020. The situation has caused some tension between the accused and his two children because they were still in the grieving process.

Today, the situation is restored. [ 29 ] His new wife is 35 years old and the mother of a 9 years old boy. [ 30 ] Requested by his lawyer M e Ginzburg, the accused met Dr.

Marc Ravart, psychologist and sexologist, to provide a Psychosexual Expertise and determined whether or not the accused had a sexual problem or deviation toward women. [ 31 ] This evaluation also provided an estimation of his overall level of sexual dangerousness and risk of sexual recidivism. [ 32 ] In the analysis, the Court will come back on this evaluation of 4 hours. [ 33 ] All other details, such as the accused’s personal history were either provided by the expert or by his son Jason. [ 34 ] Born in Lebanon, Mr. Shukr is the eldest son of a family composed of 7 children.

There is no history of childhood developmental problems. His parents expressed prosocial values. [ 35 ] The Court summarizes that the accused is well educated and that he faced no juvenile history of emotional psychological or mental problems, nor history of school misconduct, delinquency or violent behaviours. [ 36 ] He excelled in school. He and his first wife immigrated to Canada in 1980. [ 37 ] In 1983, he pursued university studies at Concordia University and completed a double major in economics and management information systems.

He subsequently followed accounting courses at McGill University to become a certified professional accountant but didn’t finish the program. [ 38 ] He had a happy marriage and denies any problems or history of conjugal violence or of any other nature. [ 39 ] He had two children, a daughter of 32 years old and a son of 34 years old. [ 40 ] The accused also attended 3 meetings with a psychologist between January and March 2020 [3] in relation with the passing of his wife.

THE POSITION OF THE PARTIES [ 41 ] The prosecution recommended a 90 days jail term accompanied by a two years’ probation order, without follow-up, but with the following conditions: a prohibition from communicating directly or indirectly with K.J.D.; a prohibition from being in her physical presence and a prohibition from being within a radius of 300 meters of the victim’s house, school or place of work. [ 42 ] A special prohibition was also suggested that the accused professionally should not be in contact with women where he would be in a situation of authority or of trust, in a paid job or not.

A few mandatory orders were also proposed. [ 43 ] The defense suggested that a conditional discharge under

Section 730.(1) of the Criminal Code should be imposed with a probation order including an obligation to perform 50 hours of community work within a 12 month’s delay. [ 44 ] Both parties have presented many court decisions to support their recommendation.

THE SENTENCING PRINCIPLES [ 45 ] The purpose and principles of sentencing can be found in Sections 718 and following of the Criminal Code : Purpose and Principles of Sentencing 718 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: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 46 ] A sentence must be individualized proportionately to the gravity of the offence committed and to the degree of responsibility of the accused. [ 47 ]

Section 718.1 of the Criminal Code reads as follow : Fundamental principle

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 48 ] A court shall also take into consideration other sentencing principles of

Section 718.2 of the Code : Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim , (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, […] shall be deemed to be aggravating circumstances; (my emphasis) ANALYSIS The expert report [ 49 ] The accused has been evaluated by Dr.

Marc Ravart, a clinical psychologist and sexologist, who provided a lengthy Psychosexual Expertise [4] of 18 pages to the Court. [ 50 ] As to the psychological evaluation, the expert wrote that he “did not identify the presence of a personality disorder and found no evidence of antisocial or psychopathic character traits, according to the PCL-R” [5] . [ 51 ] Concerning the sexological evaluation, Dr. Ravart “ found no evidence of hypersexual behavior problems or sexual obsessions and compulsions ”.

He also wrote that he found no evidence of paraphilias or other deviant, aggressive or violent sexual interests and behaviours [6] . [ 52 ] The expert finally concludes by the following paragraph : Considering my examination of Mr. Shukr and the results of accepted risk instruments for sex offenders, it is my belief that he currently represents a very low risk for sexual reoffending. [ 53 ] In these circumstances, he did not recommend a sex offender related counseling. [ 54 ] However, a few excerpts of this report leaves the Court pensive.

They are the following [7] : Psychometric evaluation The MMPI-2 is a well-known psychometric instrument used to measure psychopathology, mental disorders, and maladaptive personality traits. The instrument includes validity and clinical scales. […] Results of the MMPI-2 validity scales revealed a valid profile that must be interpreted with some caution. There are signs Mr. Shukr deliberately concealed problems and presented himself in a more favorable light.

People with a similar validity profile present a moderate-high defensive posture toward the exam and self-disclosure, and are more likely underreporting their problems and trying to appear adequate, in control, and better adjusted psychologically. People with a similar profile generally resort to denial mechanisms and lack self-criticism. […] Results of the MMPI-2 clinical scales suggest an absence of psychopathology or any serious emotional, psychological or behavioral problems. Aggressive or antisocial behaviors and attitudes are rare.

People with similar clinical profiles are well adjusted psychologically and emotionally stable. They function well in all aspects of their life and deny having any particular worries. They identify very strongly to traditional masculine interests, and may be described by others as macho, manipulative and lacking self-control. […]

Considering the results of the MMPI-2 validity scales, the results for the following instruments should also be interpreted with caution. The BDI is a widely used psychometric instrument for measuring the presence and severity of symptoms related to depression. Mr. Shukr’s score was very low, suggestive of a total absence of depressive symptoms. He reports he does not feel sad, guilty, discouraged or experience any other symptoms of depression. The STAI evaluates the presence of symptoms of anxiety, their severity, and nature (situational or character trait). Mr.

Shukr’s score was very low and suggests he currently feels no stress and has no worries or preoccupations. Generally, people with similar scores are not anxious and have no problems with stress and anxiety. Results of these two instruments suggest Mr.

Shukr’s psychological and emotional state is considerably better than what would be normally expected of someone going through his problem situation. […] The Bumby Rape Cognitive Distortions Scale evaluates the presence of abusive sexual attitudes and beliefs or cognitive distortions (e.g., thinking errors, rationalizations, justifications, irrational ideas) frequently found among sex offenders against women. Mr. Shukr strongly disagreed to most of the items (75%). He seems well aware of the harm caused by sexually exploiting women and is against most beliefs that support such behaviors.

However, he did respond in a more ambivalent and relaxed way to the remaining items (25%), which suggests he may have certain sexual attitudes considered inappropriate toward women. His cultural and religious values may partly explain this finding [8] . Psychological evaluation […] Mr. Shukr was quite self-controlled and rational as we talked about his history and his case.

Toward the end of the evaluation, I questioned him about the results of psychological testing, notably the fact they suggest his psychological and emotional state is considerably better than what would be normally expected of someone going through his problem situation. He was surprised, he reacted defensively, and explained he answered without considering the impact of the accusations and verdict. It seems his defensiveness may be explained by the context of the evaluation and his position in his case. Interestingly, at this point, Mr.

Shukr shared for the first time how troubled, frustrated, preoccupied, and devastated he has been feeling about his case and the consequences of the verdict. I confronted him on how difficult it seems for him to be forthcoming, since he did not reveal these feelings through the course of the interview. Mr. Shukr seems to feel a lot of shame and admits he has difficulty sharing his personal feelings. However, he affirms he has no mental or sexual problems requiring professional help [9] . […] [ 55 ] Concerning the clinical impressions, the expert stated [10] : Clinical impressions Mr.

Shukr seems free of serious psychological or sexual problems. He appears to be functioning well in all domains. However, as noted, psychological testing with the MMPI-2 revealed a high level of defensiveness. People with similar profiles have difficulty being forthcoming of their feelings, may have a strong tendency to deny or conceal problems, and present themselves favorably. Despite this, I do not suspect Mr. Shukr is hiding an underlying deviant sexual problem toward women. As previously noted, his defensiveness seems more explained by the context of the evaluation and his position in his case. […] Mr.

Shukr admits he did not appreciate the victim and may have lacked consideration and offended her because of the supervisor approach he adopted with her. However, I did not identify in his discourse any hostile feelings, abusive attitudes or a propensity to sexually objectify women. (References omitted) [ 56 ] As the expert, the Court believes that the accused did deliberately conceal some information to present himself favourably as he did in Court when he testified at trial and said: “My reputation is gold”. [ 57 ] In R. c.

L.(J.-J .) [11] , the Quebec Court of Appeal stated : Parmi les facteurs de qualification permettant de mesurer la responsabilité pénale d’un délinquant en regard de la détermination de la peine concernant des infractions d’ordre sexuel, il convient de mentionner, notamment : - La nature et la gravité intrinsèque des infractions se traduisant, notamment, par l’usage de menaces, violence, contrainte psychologique et manipulation, etc. […]; - La fréquence des infractions et l'espace temporel qui les contient; - L'abus de confiance et l'abus d'autorité caractérisant les relations du délinquant avec la victime; - Les désordres sous-jacents à la commission des infractions: détresse psychologique du délinquant, pathologies et déviances, intoxication, etc.; - Les condamnations antérieures du délinquant: proximité temporelle avec l'infraction reprochée et nature des condamnations

antérieures; - Le comportement du délinquant après la commission des infractions: aveux, collaboration à l'enquête, implication immédiate dans un programme de traitement, potentiel de réadaptation, assistance financière s'il y a lieu, compassion et empathie à l'endroit des victimes (remords, regrets, etc.); - Le délai entre la commission des infractions et la déclaration de culpabilité comme facteur d'atténuation selon le comportement du délinquant (âge du délinquant, intégration sociale et professionnelle, commission d'autres infractions, etc.); - La victime: gravité des atteintes à l'intégrité physique et psychologique se traduisant, notamment, par l'âge, la nature et l'ampleur de l'agression, la fréquence et la durée, le caractère de la victime, sa vulnérabilité (déficience mentale ou physique), l'abus de confiance ou d'autorité, les séquelles traumatiques, etc.

La nature et la gravité intrinsèque des infractions se traduisant, notamment, par l’usage de menaces, violence, contrainte psychologique et manipulation, etc. […] [ 58 ] Taken by indictable offence, under

Section 271. (

a) of the Criminal Code , the sexual assault is liable to a maximum imprisonment for a term of 10 years. La fréquence des infractions et l’espace temporel qui les contient. [ 59 ] In the matter at hand, the victim was assaulted on 4 days, three or four times a day. These inappropriate gestures has started the second day, a Monday and lasted until Thursday.

Nothing happened on Friday, K.J.D.’s boyfriend being in the waiting area of the office until she finished working. [ 60 ] It is important to recall that the following Sunday, while being at church with her best friend and girls that all grew up together, she told everyone what happened to her. [ 61 ] On Monday the 19, she went with her father to her school and reported the situation. [ 62 ] Her internship ended immediately after the police was seized of a complaint and not because the accused realized his wrongdoings.

L’abus de confiance et l’abus d’autorité caractérisant les relations du délinquant avec la victime. [ 63 ] The accused was the owner of the company and her direct supervisor. In committing the offence, the evidence showed that the accused abused a position of trust and authority towards J.K.D. This constitute an aggravated factor. As a reminder, he had the complete control of her internship.

Les désordres sous-jacents à la commission des infractions: détresse psychologique du délinquant, pathologies et déviances, intoxication, etc. [ 64 ] The court has previously reproduced excerpts of the Psychosexual Expertise in relation with this criteria. Les condamnations antérieures du délinquant: proximité temporelle avec l’infraction reprochée et nature des condamnations antérieures. [ 65 ] The accused has no previous record.

Le comportement du délinquant après la commission des infractions : aveux, collaboration à l’enquête, implication immédiate dans un programme de traitement, potentiel de réadaptation, assistance financière s’il y a lieu, compassion et empathie à l’endroit des victimes (remords, regrets, etc.). [ 66 ] The Psychosexual Report included numerous details concerning the defense tendered by the accused at his trial and much more. On page 6, the expert reiterated that Mr.

Shukr did not like the victim and found her weak and lacking in the required skills. [ 67 ] Surprisingly, on the third day of her internship, he offered her to work for him overtime from her home in the evening. At his trial, he admitted making this offer but that she refused his offer. [ 68 ] On page 4 of his report, the expert wrote: “The victim is presented as a shy and nervous person, lacking self-confidence and weak in her administrative skills. She describes herself in Court to be reserved, religious and vulnerable”.

Le délai entre la commission des infractions et la déclaration de culpabilité comme facteur d’atténuation selon le comportement du délinquant (âge du délinquant, etc.) [ 69 ] This criteria is not applicable.

La victime: gravité des atteintes à l’intégrité physique et psychologique se traduisant, notamment, par l’âge, la nature et l’ampleur de l’agression, la fréquence et la durée, le caractère de la victime, sa vulnérabilité (déficience mentale ou physique), l’abus de confiance ou d’autorité, les séquelles traumatiques, etc. [ 70 ] Previously, the Court has reproduced what the victim wrote in her community impact statement. [ 71 ] The victim is still suffering immensely from the behavior of the accused. [ 72 ] The accused is not responsible for her weaknesses before he met her, but the Court believes that he took advantage of her vulnerability to commit his sexual assaults. [ 73 ] Although those sexual gestures were not the most serious in the spectrum of sexual assaults, they had a major impact on this young adult.

Moreover, Mr.

Shukr abused his position of trust and authority as her supervisor. [ 74 ] The Court underlines the aggravating factors such as: - the seriousness of this indictable offence liable of 10 years; - the assaults occurred 3 to 4 times daily for four days on a total 6 days; - the accused abused his position of trust and authority; - the assaults have ended when a complaint was filed; - the impact on the victim is important; - the lack of honesty in front of his expert to present himself in a more favourable light. [ 75 ] The Court highlights those mitigating factors: - the accused has no previous record; - he has been working all his life and he is a successful businessman; - he represents a low risk for sexual reoffending. [ 76 ] The defense suggested that a conditional discharge should be granted with a 12 month’s period of probation including an obligation to perform 50 hours of community work [12] . [ 77 ] This sexual assault, taken by indictable offence, is a serious crime liable of not more than 10 years of jail term. [ 78 ] The Court can pronounce a conditional discharge if two conditions are met: it is satisfied that it is in the best interest of Mr.

Shukr and it is not contrary to the public interest. [ 79 ] The accused’s son testified that due to the nature of his business, his father needs to travel outside Canada and internationally for business development as he is the one who directs the company. He has traveled in the past to Europe and in the United States [13] . [ 80 ] Moreover, his brother who lives in Florida had been diagnosed with cancer in 2017. His condition does not allow him to travel to Canada.

He wishes that the accused visits him as he did at least once or twice a year in the past [14] . [ 81 ] The first condition for a discharge presupposes the following: that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against the accused in order to deter him from future offences or to rehabilitate him, and that the entry of conviction against the accused may have significant adverse repercussions [15] . [ 82 ] As to the second condition, the Court must consider whether or not a discharge would be contrary to the public interest and it is not sufficient to ask whether a discharge would be in the best interest of the community [16] . [ 83 ] Clayton C.

Ruby also wrote: “The need for deterrence of other individuals is no doubt a factor which the court can take into account. […] It will be more difficult to get a discharge where the offence is a break of trust because in breach of trust cases, denunciation and deterrence are paramount considerations.” [17] [ 84 ] Each case is a specific case. In many of the Court cases tendered by the defense, such as R . c. Gravel [18] and R . c. H.T.N . [19] , there were minor or no consequence on the victim and no aggravating factor such as the breach of trust or authority. [ 85 ] In R . c.

Zong [20] , the accused entered a guilty plea on

summary conviction and there was only one event of touching in a sexual manner that lasted less than a minute. He also offered sincere regrets and had started a rehabilitation program. [ 86 ] In R . c. Akplogan [21] , the accused also registered a guilty plea taken by

summary conviction after his therapy was completed. Moreover, he manifested shame and regrets. [ 87 ] The facts in R. v. J.L.B . [22] are quite similar to our case. The offender, 52 years old, is the owner of a store and the complainant,

20 years old, was his employee. She has been able to move past her trauma and is now doing well. The gestures were also alike. But the offender had completed a sex offender treatment program. There were also immigration consequences in the case of J.L.B. [ 88 ] All those offenders have benefited of a discharge for obvious reasons. As in R . c. Rell [23] , the judge found that the objective of rehabilitation should prevail because he pleaded guilty to an assault taken by

summary conviction and had begun a process of acknowledging responsibility for his actions. Moreover, the offender will continue his therapy. [ 89 ] Given all the circumstances, the Court considers that the accused does not meet the public interest criteria and determine that a conditional discharge is not appropriate to fulfil the objectives of deterrence and denunciation in this case. [ 90 ] The prosecution recommended a 90 days jail term with Mr.

Shukr being place on probation for a period of two years. [ 91 ] The prosecution stated that dissuasion and deterrence are important objectives in cases where a vulnerable victim suffered serious consequences of this assault more than three years after it occurred. In short, a conditional discharge is too lenient in this specific case. [ 92 ] When the offence involves the abuse of a person vulnerable, even if she is over the age of eighteen years old,

section 718.02 of the Criminal Code provides that primary consideration must be given to the objectives of denunciation and deterrence, specially when the offender abused a position of trust or authority in relation to the victim. [ 93 ] A fit sentence takes into account the aggravating and mitigating circumstances relating to the offence or the offender. [ 94 ] The sentence must also always be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 95 ] The aggravating factors are numerous and the victim is left with serious emotional scars that she has to deal with and which are still affecting her today.

She also still fear for her security. [ 96 ] At the trial and in front of his expert, the accused denigrated the victim saying he did not appreciate her [24] and found her weak and lacking in the required skills [25] . No doubt, she must feel offended and that does not help enhancing her self-esteem. [ 97 ] Furthermore, the Court is convinced that K.J.D. never made up the allegations because she was angry about the accused lacked consideration toward her as he pretends.

The Court had the opportunity for at least two full days to examine the victim and the accused. [ 98 ] Even if the assaultive behavior in this case is at the low end of the spectrum, the Court emphasizes that the charge of sexual assault in an employer – employee context mandates an emphasis on denunciation and deterrence. [ 99 ] Jurisprudence has also been provided by the prosecution to support their recommendation. [ 100 ] In R . c. Turk [26] , the circumstances of the offence were similar to our case. Mr. Turk has also been found guilty after trial in a case of employer – employee.

The submissions as to the sentence were also similar. [ 101 ] Before he imposed a jail term of 60 days to be served intermittently, the judge wrote: [70] Je rappelle plus précisément que je retiens que l’accusé profite de l’absence de son restaurant d’autres employés ou de sa conjointe pour se porter à des gestes de nature sexuelle sur une jeune employée mineure, de 30 ans sa cadette, alors que celle-ci vient à peine d’être engagée et est donc une inconnue pour lui. [71] Il m’apparaît complètement inacceptable qu’une jeune femme – ou quiconque – qui a besoin de travailler pour gagner sa vie soit ainsi sujette à être massée, embrassée, palpée par un employeur aux mains trop longues, et qu’elle sente que le maintien de son emploi – dont l’importance est souvent capitale pour la victime – dépende de sa capacité à endurer ces comportements honteux. [ 102 ] Although the circumstances are different in R. c.

El-Dahdouh [27] , the following excerpt in this judgement is highly relevant: [56] Ici, il ne s’agit clairement pas de gestes ponctuels et irréfléchis. Ils étaient prémédités et répétitifs. Le Tribunal considère qu’une absolution nuirait à l’intérêt du public en ce qu’il enverrait un bien mauvais message au public quant au respect qui doit être accordé à l’intégrité physique des personnes et plus particulièrement, des femmes.

Une personne raisonnable et bien renseignée comprendrait difficilement l’octroi d’une absolution pour des crimes commis dans les circonstances décrites précédemment par un individu qui ne fait pas preuve d’une quelconque démonstration de sa réhabilitation. Les femmes doivent savoir que les Tribunaux verront à sanctionner les personnes qui s’attaqueront à leur intégrité physique. Il en va de la confiance du public dans l’administration de la justice.

Ainsi le Tribunal conclut que l’accusé ne se qualifie pas pour une absolution. [ 103 ] The two assaults and the sexual assault had occurred in a spa where the accused had pretended to be a reflexology expert and a kinesiologist. The accused was sentenced to a jail term of 90 days to be served intermittently for the sexual assault for a behaviour similar to the one in the present case.

CONCLUSION FOR ALL THOSE REASONS, THE SENTENCE OF THE COURT IS THE FOLLOWING : - A jail term of 60 days to be served intermittently, beginning Saturday, January 16, 2021 at 8:30 a.m. until Sunday, January 17, 2021 at 5:00 p.m. likewise for the next 29 Saturdays and Sundays; - A probation order for a period of 2 years with the following conditions: ▪ A prohibition from communicating directly or indirectly with K.J.D.;

▪ A prohibition from being in K.J.D.’s physical presence; ▪ A prohibition from being within a radius of 300 meters of K.J.D.’s residence, place of work or place of study; - Pursuant to Section 109 (2) (

a) of the Criminal Code , the Court orders that the accused be prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition, and explosive substance for a period of 10 years; - Pursuant to Section 109 (2) (

b) of the Criminal Code , the Court orders that the accused be prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life; - Pursuant to

Section 487.051 of the Criminal Code , the Court authorizes the taking of samples of the accused’s DNA for forensic DNA analysis; - Orders that the offender be registered under the Sex Offender Registration Act for a period of 20 years by virtue of Sections 490.012 (1) and 490.013

(2) b) of the Criminal Code ; - Orders the accused to pay a victim surcharge find in accordance with

Section 737 of the Criminal Code . __________________________________ LOUISE PROVOST, J.Q.C. M e Amélie Rivard For the prosecution M e Adam Ginzburg For the accused Dates of hearing: January 15 and 16, 2020; March 4, 2020; June 10, 2020; July 7, 2020; November 3, 2020. ANNEX For the prosecution: R . c. Turk , 2019 QCCQ 7727 R. c. El-Dahdouh , 2020 QCCQ 970 R. c. Chikhi , 2018 QCCQ 2383 R. c. Yacinthe, 2017 QCCQ 2189 For the defense: R. c. Grave l, 2018 QCCA 1114 R . c. H.T.N ., 2006 QCCQ 7302 R . c. Zong , 2018 QCCQ 8259 R . c. Akplogan , 2018 QCCQ 3024 R. v. J.L.B ., 2017 BCPC 24 R . c. Rell , 2017 QCCQ 13035 R. c. Dumais , 2017 QCCQ 11020