2017 QCCQ 7015, 2017 QCCQ 7015

Translated from the original French R. c. R.P. 2017 QCCQ 7015 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF BEDFORD LOCALITY OF GRANBY "Criminal and Penal Division" No.: 460-01-027981-145 DATE: May 25, 2017 _____________________________________________________________________ THE HONOURABLE ÉRICK VANCHESTEIN J.S.C., PRESIDING _____________________________________________________________________ THE QUEEN Prosecutrix v. R... P...

Accused ______________________________________________________________________ SENTENCING JUDGMENT ______________________________________________________________________ [ 1 ] Following a trial, the Court found the accused guilty of acts of gross indecency and sexual assault against his nephew between July 27, 1979, and July 27, 1987, when the victim was between 7 and 15 years old. [ 2 ] At the time, the accused was between 44 and 51 years old.

Today he is 82 years old. [ 3 ] The judgment on the verdict describes the relevant facts in detail. [1] For the purposes of this judgment, it is sufficient to state that the abuse started with sexual touching of the genitals and, around adolescence, it progressed to acts of masturbation and fellatio and included sodomy. [ 4 ] The Crown suggests that the appropriate sentence is in the range of three-and-a-half years to five years of imprisonment. [ 5 ] Counsel for the defence admits that the facts weigh in favour of a prison sentence of about three-and-a-half years.

Given the accused’s state of health, however, he seeks imprisonment in the community as an exceptional measure. EVIDENCE ON SENTENCING [ 6 ] The victim testified on the consequences of the offences on his life. [ 7 ] He played high-level hockey until the age of 26 or 27. [ 8 ] Thereafter his life deteriorated due to his intense drug use and a problem with excessive masturbation. He battled his addictions for more than ten years. [ 9 ] Therapy helped him understand the impact of the sexual abuse he suffered during his childhood and adolescence and that it led to his issues with drug use and unhealthy sexuality.

He started to overcome it only after he reported it in 2012, but it remains a daily struggle. [ 10 ] The abuse destroyed his family, his relationship with his children, his job and his professional future. Therefore, the consequences are very serious and still present. [ 11 ] The defence submitted a medical report on the accused’s state of health. Among other things, the report states: [2] [ translation ] Mr. P. .is diabetic and has chronic atrial fibrillation, venous insufficiency of the lower limbs, high blood pressure, dyslipidemia, and a

history of angina; he also suffers from osteoarthritis and eczema. In addition, Mr. P.’s main health issue is a degenerative neurological disease, namely Charcot-Marie-Tooth disease. This progressive illness means that Mr. P. presents with progressive numbing of the four extremities, and in particular, decreased muscle strength and endurance, as well as spasticity with secondary deformity of the four limbs, principally the upper limbs. The progression of the illness has caused him to lose autonomy progressively, such that he recently had to be relocated.

In recent years, he has lived in his home with many services, but the increased risk for his safety made it preferable to place the accused in a resource where he can receive assistance. With respect to mobility, the accused remains at risk of falls due to a history of falls. He needs supervision and ideally someone to help with transfers. He can walk short distances with a walker, but he must use an electric wheelchair for distances of more than a few metres. Due to the spasticity of the upper limbs, he presents with difficulty feeding himself and his food must be cut up.

He also has difficulties with personal hygiene and therefore now needs someone to assist him. He is sometimes incontinent. He also needs someone to dress him. Due to these limitations, he is unable to participate in domestic life activities. Clearly, he can no longer use the stairs. Trips outside are complicated and difficult, so he limits them to a minimum and must use adapted transportation. [ 12 ] This illness has a significant impact on the accused’s physical capacities and on his autonomy. He has asked for his medication to be reduced with a view to stopping treatment. [ 13 ] Mr.

Allen, the correctional services officer, told the Court that it is not possible for a person in the accused’s condition to be detained in the Sherbrooke Correctional Centre. He would need to be transferred to a larger institution in Montreal or the city of Québec. [ 14 ] In any case, the accused would permanently be in the infirmary or the hospital. If the Court imposes a prison sentence, prison authorities will do what is necessary. [ 15 ] The same holds true of federal institutions.

Christine Perreault, the regional director, health services for penitentiaries stated that correctional services are equipped to provide health care and that they have the required medical staff. [ 16 ] If needed, they use partner external resources. [ 17 ] As soon as they arrive at the penitentiary, an inmate’s state of health is assessed and an appropriate treatment program is established. [ 18 ] In short, both provincial and federal penitentiary services stated they were able to take on a seriously ill person if the Court decides to impose a sentence of imprisonment.

ANALYSIS [ 19 ] In this case, both parties agree that the accused’s offence falls within the second range of sentences established in Cloutier , [3] in which sentences range from two years less one day to six years of imprisonment, with the bulk of sentences falling between three to four years. [ 20 ] Thus, an offence in that range would adequately satisfy the factors of deterrence and denunciation that must be emphasized for this type of offence. [ 21 ] Other than the accused’s lack of a criminal record, there are few mitigating factors in this case, and that factor alone is not sufficient to justify an exceptional sentence. [ 22 ] The aggravating factors are more significant: the victim’s age, the frequency of the acts, the escalation of the acts, the manipulation used by the accused, the fact that the ill-treatment involved a person under 18 years of age, the accused’s lack of acknowledgment of the harm caused and the consequences for the victim. [ 23 ] The objective gravity of the offences dictates a maximum prison sentence of five years for acts of gross indecency and of ten years for sexual assault. [ 24 ] Counsel for the accused correctly admits that this case calls for a sentence of imprisonment of about three or three-and-a-half years. [ 25 ] Thus, the only real issue in dispute in this case is whether the accused’s state of health constitutes an exceptional situation that justifies an exceptional conditional sentence. [ 26 ] Conditional sentences became available only in September 1996.

This type of sentence did not exist when the offences were committed. [ 27 ] In view of the principle in

section 11(

i) of the Charter , however, the accused has the right to the benefit of the lesser punishment if the punishment for the offence has been varied between the time of commission and the time of sentencing. Thus, a conditional sentence is now one of the possible sentences available to the accused. [ 28 ] Counsel for the accused requests that a conditional sentence be granted solely because this is an exceptional case due to the accused’s state of health, and it therefore requires an exceptional solution. [ 29 ] His colleague, Crown counsel, objects to the imposition of a conditional sentence because it does not adequately satisfy the objectives of deterrence and denunciation.

[ 30 ] Which criterion allows a court to impose a conditional sentence for medical reasons? [ 31 ] In R. c. D.B. [4] the Court of Appeal of Quebec stated: [ translation ] “...barring exceptional circumstances, the accused’s poor health does not in itself constitute a decisive factor in sentencing.” [5] [ 32 ] After reviewing the case law on the matter, the Court adopted the remarks of Hilton J.A. in R. c.

Alcius : [6] ...there has to be a considerable degree of medical misfortune or disability in place before health factors can be considered as a compassionate basis to impose a sentence of incarceration less than what it might be otherwise, especially as it relates to a crime of violence such as this one. [7] [ 33 ] Further, the Court of Appeal concluded: [ translation ] “...therefore, the fact that the accused’s state of health is uncertain or even precarious, and that imprisonment might constitute an additional burden does not mean that a conditional sentence can or should be ordered.” [8] [ 34 ] Recently, the Court of Appeal revisited the matter in Thibault c.

R. , [9] in which it stated [ translation ] “When the offender has a limited life expectancy, the sentencing objectives lose their functional value.” [10] [ 35 ] In R. v. R.(A) , [11] the Manitoba Court of Appeal took into account a 71-year-old accused’s state of health and imposed a conditional sentence because he had muscular dystrophy, used a wheelchair, and needed constant care.

The accused had committed similar offences to those committed in this case. [ 36 ] What about this case? [ 37 ] The medical evidence establishes without a doubt that the accused’s neurological impairment would be a very heavy burden for the penitentiaries. [ 38 ] The accused has no real autonomy since he can walk only a few metres without his electric wheelchair.

He has trouble eating, issues with personal hygiene, and occasional incontinence, and he needs someone to dress him. [ 39 ] Therefore, the accused has many limitations that make him totally dependant on his entourage to live. [ 40 ] In addition, the medical evidence establishes that the accused is preparing to stop treatment and he will inevitably die in the short or medium term. [ 41 ] The defence’s suggestion is that a conditional sentence be imposed 24 hours a day for the total duration of the sentence. [ 42 ] Whether or not the accused is detained in prison, his situation will remain exactly the same.

He must have constant care, either by a nurse in a correctional centre or in the care centre where he currently lives. In fact, his body has become his prison. [ 43 ] To reiterate the terms used by Twaddle J.A. of the Manitoba Court of Appeal: 46. Prison for this man would be a far worse punishment than for others. And, from a public point of view, one may well ask whether there is any purpose to be served in paying for him to be hospitalized for the duration of his sentence. [12] [ 44 ] Given his age and his lack of a criminal record, it is clear that the accused does not represent a danger for the community.

In addition, with respect to the objectives of deterrence and denunciation, the remarks of Twaddle J.A. remain relevant: 43. As far as general deterrence is concerned, I doubt that any prospective offender would be encouraged to commit a similar crime by the imposition of a non-incarceratory sentence in this case. Such a person would surely not wish to qualify for lenient treatment by being struck down by disabling muscular dystrophy. 44. That leaves denunciation as the remaining principle to be addressed. This principle usually requires a prison term for an offence of the kind involved here.

We must not forget, however, that the punishment must fit the offender as well as the offence. [13] [ 45 ] The medical evidence adduced by the accused convinces the Court that his state of health is deteriorating significantly and that it has before it an exceptional case, which warrants the analysis of an exceptional solution. [ 46 ] To reiterate the remarks of Twaddle J.A., “Justice without clemency, in appropriate circumstances, is injustice.” [14] FOR ALL THESE REASONS, THE COURT: On counts 1 and 2 : CONDEMNS the accused to a sentence of imprisonment of two years less one day to be served in the community on conditions that will be determined at the hearing; On count 3 : SUSPENDS the sentence and places the accused on supervised probation for a period of two years; MAKES an order prohibiting the accused from possessing firearms and other similar items in accordance with

section 109 of the Criminal Code , for a period of ten years. ORDERS the accused to provide bodily samples for the purposes of forensic DNA analysis, pursuant to

section 487.051 of the Criminal

Code ; REQUIRES the accused to comply with the Sex Offender Information Registration Act , pursuant to sections 490.012(1) and 490.013(2.1) Cr. C., in perpetuity; __________________________________ ÉRICK VANCHESTEIN, J.C.Q. Mtre Valérie Simard-Croteau Criminal and penal prosecuting attorney Mtre Nicolas Lemyre Cossette Counsel for the accused Hearing date: March 1, 2017