2015 QCCQ 924, 2015 QCCQ 924

Unofficial English Translation R. c. Machouf-Khadir 2015 QCCQ 924 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL " Criminal and Penal Division " No.: 500-01-071481-128 500-01-074128-122 500-01-074129-120 DATE: February 16, 2015 ______________________________________________________________________ PRESIDED BY: THE HONOURABLE JEAN-PIERRE BOYER, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v. Yalda MACHOUF-KHADIR Accused ______________________________________________________________________ SENTENCING

Section 718 et seq. Cr. C. ______________________________________________________________________ I. INTRODUCTION [ 1 ] On March 17, 2014, Yalda Machouf-Khadir pleaded guilty before me to the following charges: 500-01-071481-128 Count 1 On or about February 16, 2012, at Montreal, District of Montreal, did commit mischief against property, the value of which did not exceed $5,000, to wit: a vending machine, thereby committing an offence punishable on

summary conviction under paragraphs 430(1) ( a ) (4)(

b) of the Criminal Code . 500-01-074128-122 Count 2 On or about April 12, 2012, at Montreal, District of Montreal, did conspire with Zachary Daoust, Simon Langlois and Xavier Philippe-Beauchamp to commit mischief, thereby committing an offence under paragraph 465(1)(

c) Cr. C. Count 4 On or about April 12, 2012, at Montreal, District of Montreal, was disguised with the intent of committing an indictable offence, the whole in violation of sub section 351(2) of the Criminal Code . 500-01-074129-120 Count 1 On or about April 13, 2012, at Montreal, District of Montreal, did break and enter into a place other than a dwelling-house and commit mischief therein , the whole in violation of paragraphs 348(1) ( b )(

e) of the Criminal Code .

Count 4 On or about April 13, 2012, at Montreal, District of Montreal, was disguised with the intent of committing an indictable offence, the whole in violation of sub section 351(2) of the Criminal Code . [ 2 ] Unlike the

summary conviction offence, which carries a maximum fine of $5,000 or a maximum prison sentence of 6 months, or both such a fine and such a sentence, all the other offences carry a 10-year maximum prison sentence. II.

FACTS [ 3 ] The offences to which she has pleaded guilty were committed during the unfortunate events that occurred during the [ translation ] "2012 student protests". [ 4 ] On February 16, 2012, in solidarity with the protesters occupying Cégep du Vieux-Montréal, she tipped over a vending machine. [ 5 ] On April 12, 2012, while masked, she obstructed the work of security officers by blocking their view as others ransacked the premises of Université de Montréal. [ 6 ] Finally, on April 13, 2012, she ransacked the offices of the Minister of Education, Line Beauchamp. III.

POSITIONS OF THE PARTIES [ 7 ] Counsel for the prosecution requests that the Court stay the sentencing and order the accused to comply with the conditions of a two-year probation order. [ 8 ] He suggests that this order should include the obligation for the accused to perform two hundred and forty hours (240) of community service. [ 9 ] Counsel for the accused submits that it would be in the best interests of his client and not contrary to public interest for the Court to direct that Yalda Machouf-Khadir be conditionally discharged. IV.

PERSONAL SITUATION OF THE ACCUSED [ 10 ] Yalda Machouf-Khadir is currently 21 years old and studying at the political science and law faculty of the Université du Québec à Montréal.

She has been enrolled as a full-time student in the Certificate in Social and Labour Law since the fall term of 2014. [ 11 ] Counsel for the accused filed several support and reference letters and various documents attesting to his client's active involvement in Quebec society. [ 12 ] Whether through her social commitment or her personal progress in terms of her education, the character and determination of Yalda Machouf-Khadir are indisputable and the Court is impressed by this evidence. [ 13 ] The Court believes it useful to reproduce, in a

schedule to the present judgment, examples of the reference letters, namely, those written by Dr. Réjean Thomas, the chief executive officer of the A medical clinic and Mr.

Luc Ferrandez, mayor of the Plateau Mont- Royal borough. [ 14 ] Following her arrest, the accused was detained for six days before being released and has since complied with all the conditions imposed on her. [ 15 ] During submissions on sentencing, she addressed the Court and read a letter (SD-2) in which she claimed to be saddened by the harm inflicted on third parties, admitted that some persons may have felt threatened by incidents that occurred during the student strike of 2012, and expressed her sincere regrets for her involvement in the misconduct that occurred during these events. V.

ANALYSIS [ 16 ] Subsection 730(1) of the Criminal Code provides that a discharge may be granted for offences that are not punishable by a minimum sentence or by imprisonment for fourteen years or life; in such a case, the Court must determine "if it considers it to be in the best interests of the accused and not contrary to the public interest". [ 17 ] Subsection 730(1) of the Criminal Code does not cover only trivial or technical violations, it is not an alternative to probation or a suspended sentence, and it must not be applied routinely to certain categories of offences; in other words, it is not an exceptional measure. [1] [ 18 ] Moreover, the best interests of the accused, who has never had any run-ins with the law, means that it is in her interest to conclude this episode without her having to suffer excessive consequences to either her personal or professional life. [ 19 ] The best interests of the accused are assessed on the basis of that individual's reality.

Our Court of Appeal has added that it is not necessary to show that the negative consequences of a conviction will actually occur. In R v. Moreau , a case in which the trial judge and the Superior Court judge had both dismissed an application for a discharge from a professor who had pleaded guilty to the theft of a

piece of clothing because she had failed to prove that her job would be endangered or affected, Rothman, J.A. had the following to say: I don’t think we can presume that a conviction will have no effect on appellant's career. After 19 years of teaching, she probably doeshave considerable seniority and security of tenure, but that does not mean that she would be unscathed professionally by a conviction.Persons who have been convicted of criminal offences are not always considered the best role models for children or for youngercolleagues.

Her ability to attend professional conferences outside of Canada, could easily be restricted, and her chances of promotioncould easily be diminished.[2] [20] The discharge must not be contrary to public interest and the sentence must not defeat the objective of general deterrence.Discharges are not exclusively reserved for a single category of offence, but the more serious the offence, the less appropriate adischarge may be. The trivial nature of an offence or the particular circumstances of an accused may justify a discharge in some cases: R.v. Sanchez-Pino, (1973), (ON CA), 11 C.C.C. 2d, 53 Ont. C.A. [21]

Section 730 of the Code is found in the part of the Criminal Code devoted to sentencing. The public interest must thereforeinclude a consideration of both the individual to be sentenced and the circumstances of the offence for which the individual is convicted. [22] The accused's application must therefore be considered on the basis of these criteria. [23] In R. v.

L.M., 2008 SCC 31 , [2008] 2 S.C.R. 163, LeBel J. described the Court's role in sentencing as follows: ♦ Far from being an exact science or an inflexible predetermined procedure, sentencing is primarily a matter for the trialjudge’s competence and expertise.

The trial judge enjoys considerable discretion because of the individualized nature of the process.To arrive at an appropriate sentence in light of the complexity of the factors related to the nature of theoffence and the personalcharacteristics of the offender, the judge must weigh the normative principles set out by Parliament in the Criminal Code: (1) the objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, andacknowledgment of and reparations for the harm they have done (s. 718 Cr.

C.); (2) the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibilityof the offender (s. 718.1 Cr. C.); (3) the principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that asentence should be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should beidentified and that available sanctions other than imprisonment should be considered (s. 718.2 Cr.

C.). [24] The accused's degree of responsibility cannot be compared to that of some individuals who could be labelled trouble-makers. [25] Far from supporting this street revolt, the Court nevertheless observes that the objectives of the accused cannot be compared tothose of individuals who are indisputably hoodlums and who took advantage of the chaos to commit acts of vandalism. [26] The personalization of the sentence, the principle codified under paragraph 718.2(

a) Cr.

C., requires that the sentence beadapted to account for any aggravating or mitigating circumstances relating to the commission of the offence or the situation of theoffender. [27] The following elements are considered to be aggravating factors: − The accused's conduct is tantamount to a certain form of civil disobedience; − She displayed a lack of judgment by occupying the premises of a democratically elected person; − Even if the accused's involvement is less significant than that of other members of her circle, she was nevertheless in contact withsome of the leaders of this unrest. [28] As for mitigating circumstance related to the accused's situation, the Court accepts: − The guilty plea; − The impact of the legal process; − The many favourable shows of support for the accused; − Her compliance with the conditions of her release since 2012; − The 6 days of preventive detention; − Her sincere expression of regret for her actions. [29] The mitigating circumstances relating to both the commission of the offence and the offender's situation clearly outweigh theaggravating circumstances in number, importance, and relevance. [30] The impossible court calendar often results in legal wait times that are much too long but may also be a blessing in disguise;that is what counsel for the accused submits to the Court when concluding his arguments with the expression [translation] "time hasdone its work". [31] The Court is of the view that it is in the best interests of justice and society in general for Yalda Machouf-Khadir, who

represents a productive element of society, to continue her student and professional life following this unfortunate episode; a well- informed public will understand that no one would benefit from a conviction obstructing the accused's path. [ 32 ] The Court finds that, taking into consideration the interests of the accused and of society, a discharge would be appropriate but with probation. VI.

CONCLUSION [ 33 ] FOR THESE REASONS, THE COURT − DISCHARGES the accused conditionally in all the files; − ORDERS that Yalda Machouf-Khadir will be subject to a probation order for three (3) years under the mandatory conditions set out in subsection 732.1(2) Cr.

C. and the following additional condition: • To report to room 11.09 of the Courthouse (probation office) today and enter into an agreement with this department to perform 240 hours of community service within 18 months. − EXEMPTS the accused from paying the victim surcharge in every file and the costs in file 500-01-071481-128. ________________________ JEAN-PIERRE BOYER, J.C.Q. Mtre Martin Chalifour For the prosecution Mtre Pierre Poupart For the accused SCHEDULES ♦ Letter from Dr. Réjean Thomas, chief executive officer of the A medical clinic. ♦ Letter from Mr.

Luc Ferrandez, mayor of the Plateau Mont-Royal borough.