r v. B., 2018 QCCQ 4362

R. c. K.B. 2018 QCCQ 4362 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC CITY OF MONTRÉAL "Criminal and Penal Division" N° : 500-01-109510-146 DATE : June 19, 2018 ____________________________________________________________________ BEFORE THE HONOURABLE JUSTICE DANIEL BÉDARD, J.C.Q. ____________________________________________________________________ THE QUEEN Prosecutor v. B., K., Accused ____________________________________________________________________ JUDGMENT-SENTENCE ____________________________________________________________________ NOTICE This judgment is subject of an order restricting its publication under

section 486.4 of the Criminal Code (« Cr . C. »). INTRODUCTION [ 1 ] On February 23, 2018, the Court declared K. B. guilty of sexual assault causing bodily harm, sexual touching, invitation or incitation to sexual touching, threats and anal intercourse. A total of seven counts. [ 2 ] Considering the time frame in which the criminal offences were committed, more specifically between May 1997 to May 2004, minimum punishment of imprisonment did not apply under sections 151 and 153 and 272)1)c)2)b Cr . C .

CONTEXT [ 3 ] The backdrop related to the criminal offences committed by the accused can be described as follows: the accused was the common law spouse of the victim’s mother, from 1993 to 2004. They married in 2004 and separated in 2006. [ 4 ] The sexual abuses started in 1997 and lasted until 2004. The mother put an end to the relation in 2006 and left with the victim and her brother. [ 5 ] The sexual abuses include fellatios, digital, vaginal and anal penetration over a period of seven years and occurred a few hundred times. Sexual abuses could occurred two to three times per week.

The victim was, when the first incident took place aged six years old. VICTIM [ 6 ] X is now 27 years old. She has filed a victim impact statement and wrote a letter. She reads both documents in Court. She is diagnosed as suffering from generalized anxiety disorder, panic disorder and post-traumatic stress disorder. She is under medication. The sexual abuses has affected her in many areas of her life.

Nightmares, sexual difficulties, guilt, shame, fear, low self-esteem, difficulties at work and isolation. [ 7 ] She is still a person struggling with her past abuses and her reconstruction as a functional, healthy and happy woman is an objective that remains very actual. The letter expresses anger, relief that the judicial process is coming to an end and reproaches towards the accused. [ 8 ] It is very saddening to see that after so many years, her everyday functioning is so fragile. At age 27, the sexual abuses suffered for so many years as a child, still impact her daily adult life. ACCUSED [ 9 ] K.

B. is 43 years of age, lives in Ontario and works as a truck driver. He files letters from his common law spouse, her parents and his parents. They described the accused as a very functional and caring person. A role model for the children of his spouse.

[ 10 ] A very good employee as revealed by a letter signed by his employer. SOCIETAL VALUES [ 11 ] Crimes against children have always been the object of numerous comments in jurisprudence because society feels deeply concerned for their future and wellbeing. Offenders are severely judged by society and the justice system, generally, reflects the views of the collectivity even if the sentences imposed do not go as far as some members of the collectivity would like. [ 12 ] In R. c .

L . [1] , Justice Otis wrote; “Il est des crimes qui témoignent des valeurs protégées par une collectivité humaine à un moment déterminé de son histoire et qui, à la faveur de l’évolution des sociétés, deviennent justement périmés. Il en va différemment des crimes sexuels commis sur des enfants en bas âge. Même avant que des lois pénales répressives ne sanctionnent ces délits, la protection des enfants constituaient l’une des valeurs essentielles et pérennisées par la plupart des sociétés organisées.

La fragmentation de la personnalité d’un enfant à l’époque ou son organisation naissante ne laisse voir qu’une structure défensive très fragile, engendra-à long terme- la souffrance, la détresse et la perte d’estime de soi. S’il est une intolérance dont une société saine ne doive jamais s’émanciper, c’est bien celle qui concerne les abus sexuels commis sur les jeunes enfants.’' [ 13 ] In R . v. D.M . [2] , (Feldman J.A.), summarizes the principles outlined by Moldaver J.A. in R. v. D . [3] , 788, and writes at paragraph 38: [72 ] Our children are our most valued and our most vulnerable assets.

We as a society owe it to our children to protect them from harm caused by sexual predators Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators. Adult sexual predators recognise that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow. Three such consequences are now well-recognised; (

i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood.

Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognised objectives of sentencing. [ 14 ] Still in R. v.

D . (D.) at paragraph 44, Moldaver J.A. writes: [44] To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms.

When the abuse involves full intercourse, anal or vaginal, and is accompanied by other acts of physical violence, threats of physical violence or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. [ 15 ] As we can see, and as far as we can go in jurisprudence, the Canadian society is extremely intolerant to crimes against children and more specifically crimes involving sexual abuse of children.

This is reflected by the jurisprudence that in turn takes great care in distinguishing the aggravating factors and circumstances from one case to another. [ 16 ] The Legislator also acknowledged the above by increasing in 2015, minimum terms of imprisonment for sexual offenders namely under sections 151, 153 Cr .

C . [ 17 ] Considering all of the above, it becomes evident that the Canadian society as a whole, does not tolerate that children be subjected to ill treatment that jeopardize their future as functional members of their community. [ 18 ] If there is a difference within the Canadian society, as subtly or delicately suggested by the Prosecution, it can be found in the length of the terms of imprisonment imposed in different regions of the country for similar offences, where more emphasis is put on the punitive aspect.

SENTENCING RANGES [ 19 ] Jurisprudence establishes, for numerous type of crimes, different ranges of imprisonment terms. [ 20 ] In R . c. Rodrigue [4] , the Court writes and repeats what had been written in Godin [5] , concerning sentencing principles: “Au niveau des principes qu’il suffise de rappeler que l’imposition d’une peine doit refléter ce critère prépondérant de proportionnalité entre la gravité de l’infraction et le degré de responsabilité de son auteur. Dans cette perspective, la peine est individualisée et s’ajuste en fonction de l’ensemble des circonstances aggravantes et atténuantes.

C’est sans recourir à un tarif spécifique ou un point de départ que le tribunal chargé de l’application de la peine recherche finalement la peine appropriée la plus juste dans les circonstances. La neutralisation de l’individu par l’emprisonnement s’avère nécessaire lorsque la protection de la société le requiert, tant pour éviter que la sentence prononcée ne reflète mal la gravité objective du délit que pour pénaliser

le contrevenant en raison d’une conduite criminelle passée qui démontre une dangerosité marquée.’’ [Emphasis added] [21] More recently, in R. c. Lacasse[6], 2015 SCC 64 , 2015, 3 RCS 1089, the Supreme Court writes at paragraph 56: “Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all theprinciples and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximumsentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles andobjectives.

However, they should not be considered “averages”, let alone straightjackets, but should instead be seen as historicalportraits for the use of sentencing judges, who must still exercise their discretion in each case.” [22] In R. c. Régnier[7], the Québec Appeal Court repeats the principle that ranges are the result of the principle outlined in section718.2

b) Cr. C. that a sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances. [23] That being said the Court also concludes, at paragraph 30, that a range can become obsolete or outdated. [24] All of the above implies that a range cannot have more weight as a guideline than the individualization of a sentence as aprinciple.

It also implies that a range, used as a guideline, is subject to distortion or may bring an erroneous application, when weighingsentencing principles, if automatically referred to, since each case is unique as for the totality of circumstances.

As can be understood inthe Régnier case, when the Legislator modifies the Criminal Code. and imposes more severe sanctions, the range established by thejurisprudence, for a specific crime, can be affected and modified in consequence. [25] In the case at bar, the position of the parties as will be seen, is directly linked the above comments: the Prosecutionrecommends, if the Court understands correctly, a departure from the range outlined in the R. v. Cloutier[8], and recommends analignment with the range set in R. v. D. (

D) Moldaver J.A., in 2002, and since followed by numerous law cases, mostly outside Québec.If not a departure, a move to a higher quantum in the spectrum. [26] The Prosecution is demanding to the Court to put more emphasis on the punitive aspect of sentences when the crimes arerelated to sexual offences committed on children. In a sense, to upgrade the range set in Cloutier.

Should not be forgotten that forcategory 3 offences in Cloutier, the range goes from 7 to 13 years. [27] The understanding of the Court is that the Prosecution is recommending to reach, as for the quantum, the near maximum ofcategory 3 offences, even if all the particulars circumstances, as listed in Cloutier, are not present, namely the violence above the violentact itself and the prior convictions. [28] The position of the Prosecution is that society has changed, the range is outdated and the Legislator has confirmed, with theintroduction of minimum terms of imprisonment for sexual offenders.

CONCURRENT OR CONSECUTIVE SENTENCES AND GLOBALITY [29] The Legislator modified the Criminal Code. in 2015 and, as a consequence, when an accused is found guilty of sexual offencesagainst a child, sentences imposed are to be served consecutively, but only when an offence under

section 163.1 Cr. C. is concerned orwhen more than one offence is committed and involves more than one child, excluding an offence under

section 163.1 (section 718.3 (7)Cr. C. [30] This modification, does not alter the principle and the general rule remains, as explained by Pennou, J.C.S. in Lesage[9], atparagraph 41: [41] En principe, les crimes constituant des transactions criminelles distinctes entraînent des peines consécutives, sous réserve duprincipe de la totalité. [31] In J.V. c. R.[10], the Québec Appeal Court summarizes the procedure to follow at paragraph 28 and writes at paragraph 29 : “[29] Le principe de totalité s’applique lorsque des peines consécutives sont infligées.

Il faut alors s’interroger si la peineconvient à la culpabilité morale du délinquant.

Ruby s’exprime ainsi sur le principe de totalité : A cumulative sentence may offend the totality principle if it is substantially above the normal level of a sentence for the mostserious of the individual offences involved, or if it is “a crushing sentence” not in keeping with the offender’s record and futureprospects.” [Je souligne.] [32] In the case at bar, the Prosecution is demanding that the three sentences be served consecutively, and that the total not bereduced in regards to the totality principle because the offences are distinct and the moral culpability of the offender is high.

Furthermorethe total length of the sentences does not offend in the sense where it is in line with sentences imposed elsewhere, for similar offenders,in similar situations, and in similar circumstances. The Prosecution refers to a range that comes from R. v. D. (D), as seen earlier. [33] The Defence is asking that the sentences be served concurrently because it is one continuous criminal transaction. The threatsand the sexual assaults, as in evidence, take place at the same time. The Defense bases its demand on the range found in R. c. Cloutier,offences of category 2. POSITION OF THE PARTIES

[ 34 ] The Prosecution, for counts of sexual abuse more specifically counts n o 1, 2, and 3, recommends a detention term of eight years. For counts 4, 6 and 7, all related to threats, a detention term of one year and for count n o 8, a detention term of three years. The totality, more precisely 12 years, corresponds to the highest range outlined in R . v.

D. (D), when Moldaver J.A, refers to “low double digit” or the near highest in Cloutier , category 3 offences. [ 35 ] The Defence suggests a global sentence between 40 and 60 months, thus referring to category 2 range in Cloutier . [ 36 ] The ranges set in the above two cases have been used as guidelines for nearly 20 years and are based on law cases prior to 2002 or 2004. In the case at bar, the sexual offenses were committed in nearly the same time frame. Today, counts 1 and 2 would have warranted minimum terms of imprisonment until recently (see Caron Barrette c. R ., 2018 QCCQ 516 ).

Whereas under section 272 (1)c)2)

b) Cr. C ., the offender is liable to a maximum detention term of 14 years, as was the case in 2004. [ 37 ] Both parties agree that detention is necessary and that it should take place in a penitentiary, thus recognizing that separation of the offender from society is necessary to achieve the objectives of denunciation and deterrence outlined in

section 718.01 Cr. C . [ 38 ] Should also be noted that a range can be viewed as obsolete, not only because the outcome is a lenient sentence according to some, but also because the outcome is a too severe sentence according to others. [ 39 ] But above all, the circumstances warranting a shift in the spectrum must be present. For example, when physical violence above inherent violence of a sexual abuse is present, it is viewed as an aggravating factor and it impacts on the moral culpability of the offender.

If absent, it will not move the quantum in the spectrum even if society has become less tolerant to the nature of the crime. Unless specific evidence is tendered and convinces the Court that even in the absence of particular circumstances, emphasis must be put on the punitive aspect of the sentence. No such evidence has been tendered. [ 40 ] For the Court, increased awareness concerning sexual offenses committed on children and their impact on their development, security and integrity, does not necessarily mean that society requests a more punitive approach that the one integrated in the existing ranges.

The Court does not have in the case at bar, evidence to that effect. DECISION AND SENTENCE [ 41 ] The Court considers the following aggravating and mitigating factors concerning Mr. K.

B.. 1) He has no prior convictions; 2) He was an acting parent, according to his testimony; 3) He was exercising parental authority, he was in a position of trust; 4) He abused a person under the age of 18 years; 5) The sexual abuses occurred on a regular basis for several years, starting when the victim was six years; 6) The sexual abuses included digital, vaginal and anal penetration; 7) He ejaculated in her mouth, vagina and anus; 8) He would laugh at her following anal penetration, when she had diarrhea symptoms; 9) The sexual abuses also include fellatios; 10) The sexual abuse was rougher after the police and DYP interventions in 1999; 11) Vaginal penetrations provoked bleeding, at least at the beginning since the victim quite young, was a virgin; 12) He used ongoing threats to silence the victim and carry on the abuses; 13) He depreciated the victim with his remarks; 14) He never used any protection (condoms); 15) He maintained the victim in a climate of anxiety. [ 42 ] As for X the victim, her impact statement and the letter she read demonstrate that today she is still not well, struggling with her past and suffering from the consequences of the sexual abuses.

Therapy and medication help, but do not solve her problems. The Court considers that she is extremely fragile and anxious. Her life as an adult is difficult. The sexual abuses broke down and fragmented her childhood and jeopardizes her adult life. Some children succeed with specialized help to become functional adults, and transcend the traumatic impacts of sexual abuses. This is not a case where the Court can make such a finding. The thin skull rule applies in these cases. [ 43 ] All the sexual abuses were done in an atmosphere of control and fear.

Indeed as confirmed by the testimonies of the victim and her mother, the accused was in the family, a very controlling person, often rude, very strict with a potential for violence. [ 44 ] Before imposing the sentence, a last comment is necessary concerning the notion of criminal transaction. In the case at bar, except at the beginning of the abuses, vaginal and anal penetration occurred most of the time, during the same episode of abuse.

An act of anal penetration on a child is certainly an aggravating factor, but at the same time, above all, it is a sexual assault.

[ 45 ] In 2004, the person found guilty under

section 272, was liable to a term of imprisonment of 14 years and 10 years under

section 151, 152 and 159 Cr. C. [ 46 ] For the sexual offences committed day after day, week after week and year after year, in the context described above, the Court imposes a sentence of seven years under

section 272 Cr. C. (count n o 3) and three years for the sexual assault of anal penetration (Count n o 8). Both sentences to be served concurrently. In R . v. Desjardins [11] , the Québec Appeal Court at paragraph 55 : […] Or, notre Cour, dans R. c. L. (J.J.) , s’appuyant sur une abondante jurisprudence, a énoncé que la fréquence des infractions et l’espace temporel qui les contient sont des facteurs de qualification permettant de mesurer la responsabilité pénale d’un délinquant afin d’établir la peine pour des infractions d’ordre sexuel.

Il s’agit là d’un principe qui s'applique aussi pour évaluer la justesse de la totalité de la peine imposée. J’ajouterais que le nombre de victimes impliquées est aussi un facteur pertinent. [ 47 ] For the offences committed under sections 151 and 152 Cr. C ., the Court considers that the detention term of two years concurrent between them must be served concurrent to the sentence of seven years under

section 272 Cr. C . Those offences were committed at the beginning, but are included within the same time frame specified in each count of sexual abuse. [ 48 ] As for the threats (counts n o 4, 6 and 7), they constitute distinct criminal offences committed mostly after the sexual abuse, to silence the child and continue the sexual abuse in the future, the Court imposes a sentence of one year concurrent on counts n o 4, 6 and 7, but consecutive to the sentence of seven years.

The threat received by the victim before meeting the police and the DYP in 1999, that brought her to deny the sexual abuse is considered by the Court as an aggravating factor. [ 49 ] The threats made to the child must be viewed, in the Court’s opinion, even if made during the same criminal transaction, as a distinctive transaction permitting each time to put serious and undue pressure on the child, so as to continue the sexual abuses in the future and maintain the child in a state of fear and anxiety. FOR THESE -, THE COURT: SENTENCES the accused to a term imprisonment of eight years; RENDERS an order under

section 487.051 Cr. C. for the purpose on forensic DNA analysis; RENDERS an order under

section 109 Cr. C. , prohibiting the accused to have in his possession all the items and firearms listed in that section, for a period of 10 years; RENDERS an order under

section 490.12(1) Cr. C., for life under

section 490.013

(2.1) Cr. C. ; ISSUES a non-communication order under

section 743.21 Cr. C. during the custodial period, thus prohibiting the accused to communicate directly or indirectly with the victim, X; ORDERS the accused to pay a victim surcharge fine in accordance with

article 737 Cr. C. _________________________________ DANIEL BEDARD, J.C.Q. M e Philippe Vallières-Roland Attorney of the DPCP M e Charles B. Côté Attorney of the accused Dates of hearings: December 11 and 12, 2017 January 9 and 10, 2018