2022 QCCQ 9412, 2022 QCCQ 9412

R. c. S.H. 2022 QCCQ 9412 COURT OF QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU “Criminal and Penal Division” No.: 550-01-123475-214 550-01-123476-212 DATE: December 09, 2022 ______________________________________________________________________ PRESIDING: THE HONOURABLE ANOUK DESAULNIERS, J.C.Q. ______________________________________________________________________ THE KING Prosecutrix v. S. H.

Accused ______________________________________________________________________ JUDGMENT ON SENTENCING ______________________________________________________________________ [ 1 ] The accused pleaded guilty to threatening his partner, Ms. K. M., committing an assault against her while carrying a weapon, and breaking a mirror. [ 2 ] The facts of this case are very serious. They are outlined in greater detail below. The accused sprayed lighter fluid on the victim and chased her outside of their bedroom while igniting his lighter.

The victim fled her home barefoot in the middle of the night, taking the couple’s six years old child with her. [ 3 ] The accused is 27 years old and does not have a prior criminal record.

Since his arrest, he has complied with stringent conditions for his release and has taken significant steps, including therapy, to address the underlying causes of his violent behaviour. [ 4 ] He asks the Court to grant him a conditional discharge, pleading that a criminal record would compromise his dream of obtaining a Class 1 driver’s licence and working in the field of cross-border transportation to and from the United States. [ 5 ] The Crown, on the other hand, submits that the criteria for a discharge are not met and recommends instead a twelve-month conditional sentence order.

ANALYSIS [ 6 ] The accused is 27 years old and does not have any prior criminal record. [ 7 ] He and Ms. M. have been together for approximately 11 years. They are engaged and have a daughter, who is now 7 years old. [ 8 ] The accused has been employed in the field in landscaping for all of his adult life. He has been working for a local company for the last five years, first as a labourer and then as a truck driver. This is full-time, seasonal employment.

In the winter, the accused does snow removal, but this is undeclared work. [ 9 ] For many years, the accused has aspired to obtain a Class 1 driver’s licence, which would allow him to drive heavy road vehicles and find employment in this field. However, he is currently precluded from applying for this licence because of outstanding demerit points on his driving record, which will not subside before spring 2023. 1. THE LAW 1.1 Purpose and principles of sentencing

[ 10 ] The purpose and principles of sentencing are provided at sections 718 to 718.2 of the Criminal Code ( Cr. C. ). [ 11 ] The objectives of sentencing include denunciation, deterrence, rehabilitation of offenders, acknowledgment of the harm they have done, and reparations for this harm. [1] [ 12 ]

Section 718.1 Cr. C. provides, as a fundamental principle in sentencing, that a sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the offender. Proportionality is achieved by reconciling the need to individualize the sentencing process and the need for parity of sentences. [2]

Section 718.2 Cr. C. provides, among other things, that a sentence should be adjusted to reflect aggravating or mitigating circumstances and be similar to other sentences imposed in similar circumstances on similar offenders. [3] The fact that the accused assaulted his partner, Ms. M., constitutes an aggravating circumstance, as provided at paragraph 718.2 ( a )(ii)) Cr. C. 1.2 Conditional discharge [ 13 ] Where a court directs that an offender be discharged of an offence, the offender is deemed not to have been convicted, [4] and no criminal record is imposed. [ 14 ] Section 730(1) Cr.

C. provides that a court may order that an offender be discharged “if it considers it to be in the best interests of the accused and not contrary to the public interest”. A court may only grant a discharge where the accused has demonstrated, on a balance of probabilities, that these two criteria are satisfied, considering the purpose and principles of sentencing. [5] [ 15 ] This decision will focus on the criteria relating to the best interests of the accused, which is at issue here.

The best interest of the offender [ 16 ] Generally, a discharge will be in an accused’s best interest where he or she is a person of good character and there is no need for deterrence from future offences. [6] Hence, the risk of recidivism should be taken into account, [7] as well as any steps toward rehabilitation taken by the offender. [8] The Court may also consider whether the imposition of a criminal record may have significant adverse repercussions for the offender, including professional harm and potential loss of employment. [9] [ 17 ] To meet this criteria, an accused need not demonstrate actual damage to his or her career or means of making a living; the possibility of such damage will suffice.

However, our Court of Appeal has stated on numerous occasions that this possibility must be more than theoretical or hypothetical; it must be supported by evidence. [10] For example, in Denis c. R ., [11] our Court of Appeal confirmed that the trial judge rightly concluded that the potential negative impact on the offender’s future employment had not been demonstrated where she had only contacted one potential employer and had taken little meaningful steps to look for a job. As we will see below, the accused finds himself in a similar situation in this case. 2.

THE LAW APPLIED TO THE FACTS 2.1 THE ACCUSED’S BEST INTERESTS [ 18 ] The accused submits that there is a real possibility that the imposition of a criminal record could damage his career or means of making a living in the future. Did he demonstrate, on a balance of probabilities, that a discharge would be in his best interests? [ 19 ] The accused testified that the imposition of a criminal record would not cause him to lose his current job in landscaping but, because he is employed in a small company, he would eventually want to “move on to greater things”, as he put it.

His aspirations involve obtaining a Class 1 driver’s licence and looking for employment in the field of long-distance, cross-border transportation. However, because of outstanding demerit points on his driving record, he will only become eligible to apply for this licence in the spring of 2023, and only if he manages to keep his driving record free of additional demerit points until then.

If his eligibility is confirmed, obtaining a full Class 1 licence may require up to three additional months. [ 20 ] The accused did not submit that a criminal record would preclude him from obtaining a Class 1 licence or would impair his ability to work as a Class 1 truck driver in Canada. A Class 1 licence concerns the operation of heavy road vehicles, it is not specific to cross-border transportation, and does not require its holder to be able to enter the United States.

In addition, no evidence was presented to show that the ability to enter into the United States is an essential requirement for finding employment as a Class 1 heavy vehicle driver. [ 21 ] Rather, this issue is raised here because the accused would prefer to eventually work in the field of cross-border transportation if he eventually obtains his Class 1 licence. However, the accused provided very little to explain his declared preference. Why is cross- border transportation to and from the United States more appealing to the accused than, for example, long-distance transportation within Canada?

He did not provide any information or explanation in this regard. The only evidence provided on this topic came from the accused’s uncle, who has never worked in cross-border transportation. He testified that he “thinks” this area of work is more lucrative. But his evidence is not convincing. [ 22 ] Speaking of his future plans, the accused only mentioned that he would like to work for a trucking company called Tomlinson because it offers benefits such as medical and dental plans.

But it does not seem that he has contacted this company, nor any other, to have a meaningful discussion on cross-border transportation and what is involved, and to inquire about employment opportunities, job requirements, work conditions, etc. In short, no evidence was presented to show that the accused has taken any steps to turn a vague preference into a credible plan for a future career.

[ 23 ] Although the accused seems sincere in his aspirations to obtain his Class 1 driver’s licence, which would not be affected by the imposition of a criminal record, his preference to work in the specific field of international transportation is, at this time, nothing more than a theoretical, unsubstantiated scenario.

Furthermore, this scenario is dependent on whether the accused obtains his Class 1 driver’s licence, for which he will not even be eligible for many months. [ 24 ] In addition, even if the accused were to eventually work in the field of cross-border transportation, he is unsure whether a criminal record would preclude him from entering the United States as part of his employment.

He testified that he would need to apply to the American Government for a waiver, which may or not be granted. [ 25 ] For all these reasons, the Court finds that the accused failed to show that the imposition of a criminal record may potentially damage his career or his means of employment. The damage he claims is but a vague hypothesis at this point.

The accused failed to demonstrate on a balance of probabilities that the imposition of a criminal record would be in his best interests. [ 26 ] The criteria for a conditional discharge is not met. 2.2 WHAT IS THE FIT SENTENCE IN THE CIRCUMSTANCES? [ 27 ] The accused pleaded guilty to two

summary conviction offences that are punishable by a maximum imprisonment of two years less a day. There is no minimum sentence. [ 28 ] Generally,

summary conviction offences are objectively less serious than indictable offences. [ 29 ] Subjectively, however, the facts of this case are very serious. [ 30 ] The parties signed and tendered a Joint Submission of Facts. [12] They submit that, on the evening of October 1, 2021, the accused had an argument with the victim, after which she went to bed and fell asleep. A couple of hours later, the accused sent her threatening text messages, in which he wrote that if he had to die, so did she, that they would meet in heaven or hell (“up there or down there”) and that he hoped she would “burn a horrible death”.

A few minutes after that, the victim was awoken by the sensation of something being thrown against her while she lay in bed. She saw that the accused was spraying lighter fuel on her. She asked him what he was doing, and the accused responded that it would be “him or her”, while igniting his lighter. [ 31 ] Ms. M. got out of bed and ran to the kitchen. The accused followed her, continuing to spray lighter fluid on her and igniting his lighter. She tried unsuccessfully to calm him down.

The accused broke a mirror during their argument, and the noise woke up the couple’s six years old daughter, who had been sleeping in an adjoining bedroom. Ms. M. went to get her and fled their home barefoot, seeking refuge at a friend’s place nearby. The accused continued to send her threatening and disturbing messages, including the following: “I didn’t go fast enough I’m too scared”. Ms. M.’s friend convinced her to call the police and the accused was later arrested. [ 32 ] These very serious events.

The fright that the victim must have felt when she woke up, and the repeated threats against her are all aggravating factors in this case. [ 33 ] The fact that the victim is the accused’s partner also constitutes an aggravating factor, as mentioned earlier. [ 34 ] The couple’s young daughter is also an indirect victim of the accused’s violent outburst on the night of the events. She was awoken when her father broke a mirror during his violent outburst against her mother. She witnessed him being out of control in rage. She had to flee from him and seek refuge at a friend’s place.

All of this can be very traumatising for a six-year-old child. This is also an aggravating circumstance. [ 35 ] A pre-sentencing report was prepared; it is generally favourable to the accused. It does mention, however, that he tends to downplay the seriousness of what took place on September 19, 2021. The Court made a similar observation when the accused testified. He seemed to attribute his violent behaviour solely to a lack of communication between him and the victim, not quite acknowledging how violent and erratic his response was.

In determining the appropriate sentence, the Court must ensure that the sentencing objective set out in

section 718 (

f) Cr. C. is met, i.e., that the sentence promotes a sense of responsibility in the accused and his acknowledgment of the harm he did to Ms. M. and their child. [ 36 ] The accused also lied to the probation officer, hiding the fact that he had started consuming methamphetamines after his arrest as a coping mechanism for his anxiety. The accused only put an end to this addiction two weeks before his last meeting with the probation officer. [ 37 ] On a brighter note, there are many mitigating factors in this case. [ 38 ] After his arrest, the accused lived at his uncle’s home, where Ms.

M. and their child visited him on weekends. Ms. M. testified at sentencing that these visits went very well and that she has seen great changes in the accused since his arrest. [ 39 ] Also, since his arrest, the accused has had eleven meetings with a social worker, who reports that the accused has made obvious and genuine efforts to improve his anger management and emotional self-control. The social worker does not think it is necessary to continue her involvement with him.

The accused also successfully completed the first phase of a therapeutic program specifically aimed at addressing family violence (“Donne-toi une chance”). He is on a waiting list to start the second phase of this program. [ 40 ] The accused’s aunt, his mother and Ms. M. testified that he is now better at communicating and managing his emotions. In addition, Ms. M. and the probation officer report that the accused expresses remorse for what he did and is ashamed to find himself before the Court. [ 41 ] In addition, the accused pleaded guilty, and the victim did not have to testify at trial.

This is a mitigating factor.

[ 42 ] Ms. M. is confident the accused will not reoffend, and the probation officer also finds that the short-term risk of recidivism is low. [ 43 ] The accused had to comply with very stringent conditions of release, which required him, among other things, to move out of his home and, for almost a year, live with his uncle’s family. The accused could only see his daughter under supervision. At sentencing, Ms. M. testified that she was eager to see the accused return to their family home and have unrestricted contact with her and their child.

Evidence of the accused’s rehabilitation was so convincing that, at the end of the sentencing hearing, the accused’s Order of Release was amended, with the Crown’s consent, to allow for this. [ 44 ] The Court finds that the accused’s rehabilitation, as a sentencing objective, is well underway. Although the accused tends to downplay the offences, he does regret them and is ashamed. Also, the accused has taken very meaningful steps, through counselling and therapy, to ensure that he never puts himself and his family in similar circumstances.

So there is no need here to specifically deter the accused. [ 45 ] In light of the above, the Court finds that a conditional sentence of five months, followed by probation of one year, with a reporting obligation, and the imposition of 75 hours of community work, is a fit sentence in this case. FOR THESE REASONS, THE COURT: ORDERS that the accused serve a five-month conditional sentence in the community, subject to the conditions outlined in the attached document, including the obligation to perform 75 hours of community service. __________________________________ ANOUK DESAULNIERS, J.C.Q.

Mtre Simon-Pier Cossette Criminal and penal prosecutor Mtre Mélina Cham Counsel for the accused Dates of hearing: January 19, 2022, June 2, 2022, August 29, 2022 [ NDLE : Document non reproduit en l’espèce.]