2017 QCCQ 16564, 2017 QCCQ 16564

R. c. Morgan 2017 QCCQ 16564 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Criminal and Penal Division No: 500-01-147749-169 500-01-147750-167 DATE: October 18, 2017 ______________________________________________________________________ BY THE HONOURABLE JULIE RIENDEAU, Q.c.j. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

JONATHAN MORGAN Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The accused was found guilty of assault causing bodily harm, uttering death threats or bodily harm, and breach of a probation order. [ 2 ] The plaintiff and the accused were seeing each other at the time of the events, notwithstanding conditions the accused had in several probation orders that forbidden him to do so.

On the night of December 14 th , 2016, after a heated argument, the accused punched the victim repeatedly on the head, and later threw her on the ground, her head strongly hitting the floor. [ 3 ] For the accused, an appropriate sentence would be a jail term of 12 months.

It would take into account mainly the nature of the offences, the consequences on the victim, the conclusions of both the presentencing report and the psychological assessment report, without excluding the objective of rehabilitation. [ 4 ] For the prosecution, a fair sentence would be a jail term of 2 years, considering, added to the above, the fact the offences occurred in a domestic violence context, the commission of the offences while on probation, and the accused’s criminal record. [ 5 ] Both the accused and the prosecution suggests that the sentence be assorted with a probation order of three years. I.

QUESTION AT ISSUE [ 6 ] The sole matter at issue is to determine the appropriate sentence, the fair sentence. II. CONTEXT [ 7 ] The victim lengthily testified at trial and at sentencing hearing about the consequences of the accused’s gestures. [ 8 ] The night of the events, she was brought by ambulance to one hospital, then transferred to another one in the Trauma care

section for a scan. She was having headaches, she was nauseated and she had aching hands after trying to protect her head. She was also feeling numbness in her hands. After a while, she also felt her back and her neck aching. [ 9 ] Documents from the Lakeshore hospital indicate that the CT-scan showed evidence of possible aneurysm and the straightening of cervical lordosis. The plaintiff was then transferred to the General Hospital.

She was released from the General Hospital with the recommendation to go to her own doctor or to the emergency in Ontario for a follow up. [ 10 ] In March 2017, she had one treatment administered by intravenous for cerebral commotion. [ 11 ] She still sees a neurologist, as well as a physiotherapist respectively for severe migraines and for her back and neck problems. [ 12 ] She takes medication to control strong migraines. The medication has secondary effects: dry mouth; headaches (as oppose to migraines); she is not functional before 11 am, and it affects her short term memory.

She considered going back to school but concluded that she would not be able to do so considering her memory problems. [ 13 ] With relation to her physiotherapy follow-up, she has to do the prescribed exercises every day and put heat and cold on her neck.

[ 14 ] She has problems sleeping, is very paranoiac, and does not trust anyone. [ 15 ] She meets with a person from the Ontario Witness Protection Program on a regular basis for a follow-up, as well as with a person from another provincial organism that has the mandate to establish a security plan for her and her family until the Court or the Police deems the situation is more stable.

Since the events, she changed her routine and her and her family were relocated. [ 16 ] She fears the moment the accused will be released. [ 17 ] She finally mentions the accused contacted her 96 times while he was in prison contrary to a probation order in a previous file.

He was convicted in Ontario and was sentenced to a suspended sentence considering the previous detention of 75 days. [ 18 ] A presentencing report as well as a psychological assessment report is filed. [ 19 ] The reports indicate the following. [ 20 ] The accused has an alcoholism problem since his twenties, and despite numerous therapies, still faces difficulties to remain sober. He attends the AA support group in prison and entertains what is for the writer a wishful thinking that he will maintain his sobriety when released from prison.

Consequently he is ambivalent to attend support groups when released. [ 21 ] He abrogates responsibility from himself and blames the victim for all his current problems, including his professional instability, and he maintains resentment opposite to her. Consequently, any empathy towards the victim is inexistent.

The accused tends to call in question rationalization and minimization to justify his actions. [ 22 ] The accused is facing an anger management problem. [ 23 ] The fact that the accused is presently saying he is willing to invest himself in any recommended therapy seems, in the circumstances, utilitarian to the writer of the presentencing report. [ 24 ] Keeping in mind the accused’s criminal and personal dynamic, the risk of violence in a conjugal context his high, and the risk will persist until the accused undertake a psychological treatment to resolve among other, his alcohol problem and his anger issue. [ 25 ] Since the accused’s incomplete introspection, the risk of recidivism is considered as high as his level of dangerousness. [ 26 ] Taking into consideration his previous condemnations, which include jail terms for physical violence, harassment, threats and breaches of various probation orders, a conclusion can be reached with regard to the previous sentences that the measures didn’t have the desired dissuasive effect on the accused. [ 27 ] The reports finally mention an adequate collaboration from the accused and the fact he demonstrated openness and the possibility of an Attention Deficit Disorder. [ 28 ] As for the previous convictions of the accused, they are the following: 28.1.

May 2017 – Breach of a probation order – probation of 2 years considering 75 days of presentence detention; 28.2. May 2016 – Breach of probation – 12 days of detention and a probation of 3 years; 28.3. March 2016 – Breach of a recognizance and of a probation order, criminal harassment, assault – 90 days of discontinuous detention and a probation of 3 years; 28.4. March 2016 – Operation of vehicle while impaired – fine of $1000 and 1 year prohibition to drive a motor vehicle; 28.5. October 2015 – Assault – probation of 1 year; 28.6. February 2013 – Assault and uttering threats – unconditional discharge; 28.7.

November 2012 – Breach of a recognizance – probation of 1 year. III. ANALYSIS [ 29 ] Sections 718 , 718.1 and 718.2 of the Criminal Code detail the various criteria that the Court must take into consideration when determining the appropriate sentence. [ 30 ] The imposition of a sentence has many objectives. Firstly, the respect of the law and the maintenance of a just and calm society. Secondly, the sentence must have the effect to denounce the inappropriate behaviour and to dissuade others who would be tempted to commit such offences.

The sentence must also encourage and favour, when possible, the rehabilitation of the offender. [ 31 ] As well, the sentence must be just and reasonable, when taking into consideration the offences committed and the responsibility of the accused. [ 32 ] Objectively, the offence of assault causing bodily harm is considered a serious offence as the legislator provides a maximum term of incarceration of 10 years.

The offences of uttering threats and breach of a probation order are not objectively as serious an offence as the assault since they are liable to a maximum term of incarceration of 5 years and 18 months respectively. However, in the

context, they are not minor offences. [ 33 ] A sentence must also weigh the mitigating and aggravating factors. [ 34 ] An offence committed in a conjugal context constitutes an aggravating circumstance. [1] In matters relating to domestic violence, the Court’s sentence must denounce the offence and must also strive to deter the commission of such offences by other persons.

The Court’s sentence must be in accordance with these principles. [2] [ 35 ] A sentence should take into account the principles of consistency and totality of the sentence, incarceration is to be used as a last resort, and all non-custodial sanctions should be considered. [ 36 ] A sentence has to be individualized. Every case is unique. [ 37 ] The sentence must not be disproportionate as to its effects on the person receiving it. [ 38 ] In the circumstances, what is the appropriate sentence? [ 39 ] The responsibility of the accused is complete.

Nothing justify his gestures and he is fully blameable for his actions. Not only did he brutalized the victim once, but came back after a moment to attack her again. [ 40 ] His behaviour, when he phoned her trying to convince her to drop the charges, is somehow supporting his absence of consciousness with regard to his actions, but also the fact that he does not give much weight to a court order.

The numerous breaches of probation in his criminal record also support that last comment. [ 41 ] Also, the accused poses a threat to the victim’s safety as the author of the presentencing report mentions serious doubt that the accused will be able to abstain from communicating with the victim in the near future. [ 42 ] Accordingly, taking into account the whole portrait of the situation, as drafted in both the presentencing report and the psychological assessment, one can affirm without any doubt that the rehabilitation of the accused, even if always possible, will take time and a major commitment.

He will have to work on many aspects such as his alcohol problem and his anger management problem, which highlights psychological distortions. Yet the accused seems reluctant to invest himself as much as the situation would require him to do so, even if the presentencing report acknowledged the fact that he is ready to invest himself. Indeed, the report also mentions that this openness to invest himself appears rather utilitarian. [ 43 ] With regards to the aggravating and mitigating circumstances, other than the fact the offence was committed in a conjugal context, here are the aggravating factors: 43.1.

The seriousness of the offences, mainly the assault committing bodily harm; 43.2. The physical and mental consequences on the victim; 43.3. The lack of introspection and empathy which leads in part to the high risk of recidivism; 43.4. The high risk of recidivism; 43.5. The dangerousness of the accused; 43.6. The previous convictions of the accused; 43.7. The commission of the offences while on probation; 43.8.

The recidivism against the same victim (previous sentence of 90 discontinuous days of prison); [ 44 ] As for the mitigating factors, there is none. [ 45 ] However, the Court takes note of the adequate collaboration of the accused while encountering the writers of the reports, and the fact that his social history may have played a role in his current inability to deal with his alcohol problem and his anger management problem. [ 46 ] With regard to the sole judgment submitted by the accused, it has to be distinguished from this case, since in the other case the accused had no criminal record.

FOR ALL THESE REASONS, THE COURT: CONDEMNS the accused to 2 years of imprisonment; RENDERS a non-communication order prohibiting the accused from communicating directly or indirectly with Julie Sénécal during the custodial period of the sentence, under

section 743.21 of the Criminal Code ; RENDERS a probation order for a period of three years with the following conditions: • Keep the peace and be of good behaviour;

• Be present in Court whenever required; • Notify the court or 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 Julie Sénécal and her family; • Abstain from being within a radius of 500 m of Julie Sénécal domicile, school or place of work; • Abstain from being within a radius of 100m of her physical presence; • Abstain from consuming alcoholic beverages; • Abstain from having in his possession or using any drug unless in accordance with a validly obtained medical prescription; • Abstain from having in his possession and carrying, for any purpose whatsoever, offensive weapons; • Abstain from using the social media in any manner; • Abstain from going to Prescott Russel County and Champlain County, Ontario; • Has to 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; 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. ORDERS the accused to pay the victim surcharge fine pursuant to

section 737 of the Criminal Code . RENDERS an order pursuant to section 109 (1)

a) and (a.1)

i) 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. CONDEMNS the accused to 6 months of imprisonment in file 500-01-147750-167, to be served concurrently to any other sentence. __________________________________ JULIE RIENDEAU, Q.c.j. Me David Landry Attorney for the prosecution Me Antonio Perfetto Attorney for the defense Date of hearing: September 26, 2017