r v. X, 2022 QCCA 266

Unofficial English Translation of the Judgment of the Court R. c. X 2022 QCCA 266 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-003893-216 (135-01-006938-163) DATE: February 22, 2022 CORAM: THE HONOURABLE JOCELYN F. RANCOURT, J.A. STÉPHANE SANSFAÇON, J.A. MICHEL BEAUPRÉ, J.A. HER MAJESTY THE QUEEN APPLICANT – Prosecutor v. X RESPONDENT – Accused JUDGMENT WARNING: On January 7, 2021, the Court of Québec (the Honourable Richard Côté), District of Rimouski, made an order under s. 486.4 Cr.

C . directing that any information that could identify certain victims or a witness shall not be published in any document or broadcast or transmitted in any way. [ 1 ] The applicant seeks leave to appeal from the sentence imposed on June 11, 2021, by the Honourable Richard Côté of the Court of Québec, District of Rimouski, ordering the respondent to serve 12 months’ detention, less 36 days of pre-sentence custody, to be served consecutively to a sentence of four months’ committal to custody rendered the same day in another file (no. 100-03-002512-160), and subjecting him to a two-year probation order.

The motion for leave to appeal the sentence was referred to the Court by judgment dated August 26, 2021. [1] [ 2 ] For the reasons of Sansfaçon, J.A., with which Rancourt and Beaupré, JJ.A. agree, THE COURT : [ 3 ] GRANTS the motion for leave to appeal the sentence rendered; [ 4 ] ALLOWS the appeal; [ 5 ] SETS ASIDE the sentence rendered on June 11, 2021, by the Honourable Richard Côté of the Court of Québec in file 135-01- 006938-163, and replaces that sentence with a sentence of two years less one day, from which a period of 36 days of pre-sentence custody is deducted, for a sentence of 1 year and 328 days, to be served consecutively to the sentence imposed on June 11, 2021, in file 100-03-002512-160.

JOCELYN F. RANCOURT, J.A. STÉPHANE SANSFAÇON, J.A. MICHEL BEAUPRÉ, J.A. Mtre Normand Morneau-Deschênes DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the applicant

Mtre Caroline Bérubé DESAULNIERS, BÉRUBÉ AVOCATS For the respondent Date of hearing: December 17, 2021 REASONS OF SANSFAÇON, J.A. [ 6 ] The sentence against which the applicant seeks leave to appeal was rendered following a conviction pronounced on January 7, 2021, on the count of having, between November 24, 1975, the date on which the respondent reached the age of majority, and [...] 1980, committed indecent assault on a female, in this case, his minor sister, thereby committing the indictable offence under former s. 149 Cr.

C . [ 7 ] The acts committed by the respondent and accepted by the judge, which acts were committed when the victim was between 12 and 15 years old, are those of having touched her genitals and having digitally penetrated them while he was masturbating on several occasions, having masturbated and ejaculated on the victim’s breasts on several occasions, having the victim masturbate him on several occasions, having the victim perform fellatio on him on one occasion, and, on one occasion, having asked to have full sexual intercourse with her, which she refused.

From time to time, the respondent gave the victim money after the acts. [ 8 ] The acts were regularly performed in the victim’s bedroom or, on about fifteen occasions, in the respondent’s room. None of the acts in question occurred between the fall of 1975 and the fall of 1976, when the respondent was living in another city. The respondent is the victim’s brother and was her soccer coach for a few years.

Other than the intrinsic violence of the acts of indecent assault, the judge explained that there were no other acts of violence or threats surrounding the commission of the offence. [ 9 ] The appeal does not concern the sentence rendered at the same time in file no. 100-03-002512-160 in the Youth Division given the age of the respondent, who was a minor at the time he committed similar acts against the same victim. * * * [ 10 ] The applicant proposes as grounds of appeal that the judge erred in law in his

interpretation of R. v. Friesen , [2] and in his

interpretation of s. 11(

i) of the Canadian Charter . His alleged error is that he only partially took into account the current sentencing principles as defined by the Supreme Court in that judgment because the crime was committed more than 40 years ago. Given this error, the judge rendered a demonstrably unfit sentence.

The applicant therefore seeks a sentence of three or four years’ imprisonment rather than one year (the applicant sought five years’ imprisonment at trial). [ 11 ] According to the applicant, the errors committed by the judge are found in the following excerpt from his judgment: [ translation ] Proceeding now to the file before the Criminal Division for adults, at the outset, the Court must specify that the suggestion of a total sentence of five years’ imprisonment, proposed by the Crown, is clearly excessive and does not at all take into account the fact that the offence committed by the accused is punishable by a maximum of five years .

The prosecution relies in particular on the Supreme Court’s recent judgment in R. versus Friesen, reported at 2020 SCC 9 , to support its suggestion of a harsh sentence. In that judgment, the Supreme Court recalls that, in matters of sexual crimes against children, sentences must prioritize the objectives of denunciation and deterrence, without disregarding the principles of proportionality and parity.

It must be stated that, in that judgment, the Supreme Court’s objective was to remind courts of first instance that they must, in imposing sentences for this type of offence, respect Parliament’s decision to increase the maximum sentences through successive amendments to the Criminal Code over the past few years.

The Supreme Court also noted at paragraph 100, and I quote: “To respect Parliament’s decision to increase maximum sentences, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences. [...] Sentencing judges and appellate courts need to give effect to Parliament’s clear and repeated signals to increase sentences imposed for these offences.” End of quote. In the case of the accused, the offences were committed well before the legislative amendments that increased the maximum sentences.

The impact of Friesen is therefore relatively lessened in this file. The Court must impose a sentence on the accused taking into account the maximum statutory sentence at the time of the offence. It remains however that in nineteen eighty (1980) or seventy-nine (79), sexual crimes against children resulted in sentences that prioritized the objectives of [...] of denunciation and deterrence .

Considering all of the factors mentioned above, the Court concludes that a sentence of twelve (12) months’ incarceration, to be served consecutively to the sentence imposed in the Youth Division, would constitute a fit sentence. [Emphasis added.] [ 12 ] The applicant argues that the judge erred in law when he wrote that the impact of Friesen is relatively lessened in this case given that the criminal acts were committed over 40 years ago, at a time when the Criminal Code provided that a judge could impose a

maximum of 5 years’ imprisonment for this type of offence. It submits that the judge therefore [ translation ] “contextualized” the sentence and, in doing so, contravened the teachings of that judgment, which states that judges must take into account our society’s contemporary values, and not those that prevailed at the time the acts were committed. [ 13 ] To this argument, the respondent counters that the judge did not ignore Friesen . The judge could not go further in the application of that judgment because he also had to respect the respondent’s constitutional right, set out in s. 11(

i) of the Charter , to benefit from the lesser punishment between the punishment for the offence at the time of commission and the one at the time of sentencing.

Thus, and contrary to what the applicant argues, it submits that the judge properly took into account the fact that the offence of which the respondent was convicted was less objectively serious, which moreover is apparent from the maximum sentence in force at the time, such sentence being 5 years, whereas today, for similar acts, it is 14 years. * * * [ 14 ] In Friesen , the Supreme Court wrote that, while in the past, the focus of the sexual offences scheme was on sexual propriety, today it is on wrongful interference with sexual integrity.

At the time, this type of offence was based on notions of deprivations of honour, chastity, or bodily integrity.

Today, these offences aim instead at protecting potential victims from violations of trust, humiliation, objectification, exploitation, shame, and loss of self-esteem. [3] The harms that such interference can cause are now better known and understood, whether it is the emotional trauma caused by the sexual violence experienced by victims, the violation of victims’ integrity, sense of self-worth and control over their bodies, shame, embarrassment, a reduced ability to trust others and fear that people could abuse them and their body. [4] In addition, as the Supreme Court stated in the case of these acts committed against a child: [58] These forms of harm are particularly pronounced for children.

Sexual violence can interfere with children’s self-fulfillment and healthy and autonomous development to adulthood precisely because children are still developing and learning the skills and qualities to overcome adversity. For this reason, even a single instance of sexual violence can “permanently alter the course of a child’s life”.

As Otis J.A. explained in L. (J.-J.) , at p. 250: [ translation ] The shattering of the personality of a child at a stage where [the child’s] budding organization as a person has only a very fragile defensive structure, will result — in the long term — in suffering, distress and the loss of self - esteem. [5] [ References omitted ] [ 15 ] The Supreme Court also mentioned several other harmful consequences likely to arise from such acts. [ 16 ] The Supreme Court did not merely recognize this paradigm shift and the fact that it is reflected both in the successive amendments to the very description of the offences in the Criminal Code as well as in the maximum sentences applicable for such offences.

It invited courts imposing sentences for such offences to ensure that they correspond “to Parliament’s legislative initiatives and the contemporary understanding of the profound harm that sexual violence against children causes”. [6] Furthermore, the Supreme Court provided guidance to the courts by inviting them to (1) be aware of the fact that prior precedents and sentencing ranges may inadequately reflect the modern understanding of the consequences of such crimes, (2) that sexual offences against children should generally be punished more severely than sexual offences against adults, and (3) that sexual interference with a child should not be treated as less serious than sexual assault of a child. [ 17 ] Based on this, I find that the sentencing judge for such offences must fully consider the contemporary understanding of sexual violence against children, including the potential or actual harm to the victim, without needing to [ translation ] “contextualize” or otherwise reduce the sentence imposed for the sole reason that the same offence may have been drafted differently at the time it was committed, or because the maximum sentence then set out in the Criminal Code may have been less than the maximum sentence set out at the time of sentencing.

Any mitigation of the sentence based on the fact that the offence, at the time the act was committed, may not have been considered either by society or by Parliament as being as serious as it is now considered, must be treated as a minimization of its actual harmfulness, as it is now understood, and the sentence thus imposed is then subject to review by the Court since it is contrary to the Supreme Court’s guidance: [74] [...] In particular, taking the harmfulness of these offences into account ensures that the sentence fully reflects the “life-altering consequences” that can and often do flow from the sexual violence Courts should also weigh these harms in a manner that reflects society’s deepening and evolving understanding of their severity. [7] [ 18 ] In this case, the offence dates back 40 years, to a time when the acts were qualified as indecent assault rather than sexual assault and were punishable by a maximum sentence of five years’ imprisonment.

Despite this, following the case law, the judge should have taken into account the contemporary understanding of the harmfulness of the acts committed without reserve arising from the fact that they likely would have been treated differently had the sentence been rendered at the time they were committed. The sentence should therefore have reflected this contemporary understanding. [ 19 ] The respondent submits that the judge did not err, not only because he considered all of the relevant sentencing criteria, but also because the sentence the judge imposed on him was consistent with s. 11 (

i) of the Canadian Charter , which establishes the principle that the accused has the right to the more lenient punishment if the punishment for the offence of which he was found guilty has been varied between the time of commission and the time of sentencing. Thus, the judge could contextualize the sentence taking into account the maximum sentence which, at the time the offence was committed, was a third of what it is today. [ 20 ]

Section 11(

i) states: 11. Any person charged with an offence has the right 11. Tout inculpé a le droit :

(

i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

i) de bénéficier de la peine la moins sévère, lorsque la peine qui sanctionne l’infraction dont il est déclaré coupable est modifiée entre le moment de la perpétration de l’infraction et celui de la sentence. [ 21 ] With respect for the contrary opinion, it appears to the Court that this argument fails because it confuses the principles and purposes of sentencing with the sentence itself. [8] The principle enshrined in s. 11(

i) of the Charter applies only in respect of the sentence , strictly speaking: if, at the time the sentence is imposed, the maximum sentence that existed at the time the offence was committed has been increased or, conversely, if the maximum sentence that existed at the time the offence was committed has been decreased, the offender is entitled to the lesser maximum sentence. An offender is not, however, entitled to the application of the principles and purposes of sentencing that prevailed at the time of the commission of the offence for which he or she was found guilty.

This approach was adopted by this Court in L.L. c. R ., [9] by the Court of Appeal of Newfoundland and Labrador, [10] and by the Court of Appeal of Manitoba. [11] [ 22 ] Thus, the principles and purposes of sentencing that the judge must apply will always be those in force at the time of sentencing, but their application cannot lead to a harsher sentence than the maximum sentence set out at the time of the commission of the offence or at the time of sentencing. [12]

Section 11(

i) of the Charter does not guarantee the offender the right to the same sentence he would have received had the sentencing hearing taken place at the time of the commission of the offence.

Section 11(

i) solely entitles him not to receive a harsher sentence than the maximum sentence applicable at the time of the commission of the offence. [ 23 ] How does this apply to the case at bar? [ 24 ] The applicant argues that the sentence imposed by the trial judge is demonstrably unfit due to the error discussed above and therefore it does not reflect the seriousness of the offence as it is now understood.

The applicant proposes a sentence falling between three to four years’ imprisonment. [ 25 ] The sentencing judge considered, as he must, the important factors to take into account [13] with respect to the offender’s responsibility. Included among the aggravating factors considered were: the victim’s young age, the period during which the acts were committed, the frequency of the acts, the abuse of a position of trust, the seriousness of the acts committed (digital penetration, masturbation, etc.) and the serious consequences for the victim.

He also took into account the relevant mitigating factors, including the lack of prior convictions, the low risk of re-offending, and the openness to participating in therapy, despite low interest. The judge therefore appropriately individualized the sentence. [ 26 ] The sentence of 12 months he determined, however, was certainly below the range in which the acts committed by the offender fell, taking into account the ranges established in R. c. Cloutier , [14] a Court of Québec judgment that this Court has recognized on a number of occasions.

The sentence does not reflect the seriousness of the acts committed and the circumstances in which they were committed when analyzed in light of contemporary knowledge. As the Supreme Court stated: “sexual violence against children that is committed on multiple occasions and for longer periods of time should attract significantly higher sentences that reflect the full cumulative gravity of the crime”. [15] [ 27 ] The standard of review in sentencing is well known.

An appellate court must show great deference to the judge’s decision. [16] It is “trite law that appellate courts cannot interfere with sentencing decisions lightly”. [17] Appellate courts cannot intervene to vary a sentence unless it is demonstrably unfit, that is, “it constitutes an unreasonable departure” from the principle of proportionality set out in s. 718.1 Cr.

C. , [18] or the judge committed an error in principle that had an impact on the sentence. [19] Errors in principle include errors of law, a failure to consider a relevant factor, or the erroneous consideration of an aggravating or mitigating factor. [20] The weighing or balancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably”. [21] [ 28 ] In this case, despite the deference that the Court owes the trial judge in such matters, it appears to me that he imposed a light sentence as a result of his error in analyzing the factors he had to take into account with respect to the offender’s responsibility when he mitigated the sentence because he considered that Friesen had a lesser impact in this case due to the fact that the offence took place 40 years ago.

Without even considering the teachings in Friesen , the sentence, taking into account all of the relevant and individualized criteria, could easily have been within the middle range of over two years with the bulk of sentences falling between three to four years for offences where the offender has no criminal record and the offence took place in a context of abuse of trust, power, or authority, without any violence extrinsic to the offence, as in this case. [22] [ 29 ] Thus, taking into account the teachings of the Supreme Court, while accepting the individualized analysis of the significant factors accepted by the judge with respect to the offender’s responsibility, I consider that the sentence should have been two years less one day, taking into account the fact that, at the same time, the respondent received an additional four-month sentence for the acts committed against the victim before he reached the age of majority. [ 30 ] For these reasons, I propose to grant the application for leave to appeal the sentence rendered, allow the appeal, and set aside the sentence rendered on June 11, 2021, by the Honourable Richard Côté of the Court of Québec in file 135-01-006938-163, and replace that sentence with a sentence of two years less one day, from which a period of 36 days’ of pre-sentence custody shall be deducted, for a sentence of 1 year and 328 days, to be served consecutively to the sentence imposed the same day, June 11, 2021, in file 100-03-002512- 160.

STÉPHANE SANSFAÇON, J.A.