r v. R. T., 2022 QCCQ 7194

R. c. R.T. 2022 QCCQ 7194 COURT OF QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT OF BEDFORD LOCALITY OF GRANBY “Criminal and Penal Division” No.: 460-01-037810-201 DATE : October 20, 2022 ______________________________________________________________________ PRESIDING: THE HONOURABLE SERGE CHAMPOUX, J.C.Q. ______________________________________________________________________ HIS MAJESTY THE KING Prosecutor v. R. T.

Accused ______________________________________________________________________ JUDGMENT ON SENTENCING ______________________________________________________________________ By order of the Court rendered under subsection 486.4(1) of the Criminal Code , any information that could identify the person described in the judgment as the complainant or the victim shall not be published or broadcast or transmitted in any way. [ 1 ] After a trial, R. T. was convicted of the following offence: 1.

Between April 15, 2020 and September 15, 2020, in Town A, district of Bedford, for a sexual purpose, did touch a part of the body of X, a person under the age of sixteen (16) years, committing thereby the offence punishable on

summary conviction provided by

section 151 (

b) of the Criminal Code . [ 2 ] The appropriate sentence must now be imposed. [ 3 ] A FEW FACTS [ 4 ] R. T. is the father of S., the victim in this case, and of three other children, with K. P.. At the time the crimes were committed, R. T. was 53 years old and S. was 11. [ 5 ] S.’s family situation can be briefly summarized as follows. She lives with her parents and the other three children. For a long time now, however, the relationship between her mother and the accused has no longer appeared to be a romantic one.

The parents live together to raise the children – the three youngest seem to be affected by several disorders – but they do not sleep in the same bed or even in the same room. [ 6 ] The presentence report that was requested stated that, although R. T. appeared to hold out some hope that he and K. P. could reconcile, she seemed to have turned the page once and for all. What is more, in the months preceding the crimes, she began a relationship with another man, with everyone’s knowledge, and was often away from the family home for long periods.

Given this situation, as I stated in the judgment on conviction, S. seems to have taken on considerable responsibilities towards the accused as well as towards her younger brother and sisters. [ 7 ] From the evidence as a whole, including for example text messages exchanged between the accused and S., [1] I understand that R. T. and the victim had developed a strong bond and were remarkably close. This relationship was completely destroyed by the accused’s acts. I will return to this. [ 8 ] These acts are described in the judgment on conviction, but they can be summarized as follows.

On a few occasions, always while S. was sleeping, dozing, or pretending to sleep, R. T. would approach her surreptitiously, place his hand under her shirt, and briefly stroke her breasts. She has a very specific memory of one of these incidents.

The other act, which was similar, also occurred while S. was supposed to be sleeping – although in this case, she was pretending to sleep – when the accused pulled down her underwear slightly and briefly stroked her buttocks. [ 9 ] ANALYSIS AND DECISION [ 10 ] A few specific aspects of this case should be pointed out. [ 11 ] First, the accused did not testify at his trial, as was entirely within his rights. After the conviction, however, the defence agreed to the preparation of a presentence report. It was expressly requested that a sexological aspect be considered, given the nature of the conviction.

[ 12 ] When the report was received, however, it was noted that the accused refused, apparently at his counsel’s suggestion, to discuss any issue relating to the offences.

This greatly limits the amount of information available to assess the level of risk the accused represents. [ 13 ] In addition, during submissions on sentencing, after the case had been postponed multiple times (often for no useful purpose), and when a victim impact statement dated only a few days prior was being presented, counsel for the defence sought another postponement, this time so that he could cross-examine S.’s mother about an allegation of self-harm that was in the impact statement. [ 14 ] The case then appeared on the roll for the 20th time. Counsel for R.

T. argued a cross-examination should take place on the issue of self-harm, because his client apparently had different information and alleged to understand the victim’s situation differently. He nevertheless did not say that his client would testify about it. [ 15 ] I stated that I would take the issue of the right to cross-examine K. P. under advisement and that I would decide later and possibly order the reopening of the hearing if this element appeared relevant. Ultimately, I do not find it necessary to postpone my decision.

Therefore, I will immediately render judgment instead of ordering such a postponement – another one – that would have no visible benefit to the case as a whole. [ 16 ] Because the issue as to whether S. engaged in self-harm appears to be contentious, I will not take it into account. [ 17 ] Finally, during submissions on sentencing, counsel for the accused complained that the author of the presentence report exceeded her mandate and in his view cast herself in the judge’s position by issuing hypotheses, and that the report was therefore vitiated. [ 18 ]

Section 721 of the Criminal Code [2] describes a presentence report as follows: 721

(1) Subject to regulations made under subsection (2), where an accused, other than an organization, pleads guilty to or is found guilty of an offence, a probation officer shall, if required to do so by a court, prepare and file with the court a report in writing relating to the accused for the purpose of assisting the court in imposing a sentence or in determining whether the accused should be discharged under

section 730. …

(3) Unless otherwise specified by the court, the report must, wherever possible, contain information on the following matters: (

a) the offender’s age, maturity, character, behaviour, attitude and willingness to make amends; (

b) subject to subsection 119(2) of the Youth Criminal Justice Act, the history of previous dispositions under the Young Offenders Act,

chapter Y-1 of the Revised Statutes of Canada, 1985, the history of previous sentences under the Youth Criminal Justice Act, and of previous findings of guilt under this Act and any other Act of Parliament; [ 19 ] The defence faults the criminologist who authored the presentence report for drawing conclusions and expressing hypotheses in her report.

If I understand it properly, the argument made before the Court is that the role of the author of a presentence report is solely to report – or in other words, to inventory – the facts presented in the case, without assessing them in any way. [ 20 ] This approach is misguided. [ 21 ] In 2010, the Court of Appeal for Ontario rendered judgment in Junkert , [3] stating the following: [4] [59] That said, I raise the issue of the pre-sentence report here for two purposes.

First, I think it is important to note the problems that became apparent with the pre-sentence report in this case so that hopefully similar problems do not arise in the future. A pre-sentence report is intended to be an accurate, independent and balanced assessment of an offender, his background and his prospects for the future.

When preparing pre-sentence reports, probation officers must be thorough and fair and should canvass the relevant information before commenting on a particular issue. [60] Clearly, it is an acceptable practice for probation officers to speak to arresting police officers and other police officers who may provide useful information about an offence and the offender. However, a pre-sentence report is intended to be more than a mere report of what the police think about the offence or the offender. Probation officers are professionals.

They have an obligation to the court and the parties to canvass all of the relevant information and to provide a professional assessment that the court can rely upon. [page296] (Emphasis added.) [ 22 ] My colleague Yvan Poulin J.C.Q., as he then was, commented on that judgment in R . c . Faivre : [5] [ translation ] [48] In view of all of the foregoing, the Court finds that the probation officer’s assessment in November 2018 took into account all the relevant circumstances of the case and provided a fair and objective portrait of the accused in the context of the crimes committed and his life story.

The issue of the weight that should be assigned to remorse and regret expressed subsequently will be discussed further on in these reasons. … [72] It is well established in the case law that the potential dangerousness of an accused is measured on the basis of his or her past conduct, including a consideration of the facts surrounding the commission of the offences.[12] It goes without saying that, for it to

be useful, the assessment must consider all of the relevant elements in the case and the circumstances revealed in the evidence.

It is also settled law that the experts responsible for this type of assessment must thoroughly consider all relevant information before commenting on the accused’s dangerousness and risk of reoffending.[13] (Emphasis added.) [ 23 ] The experts’ role is precisely to conduct assessments, present their scientific opinions, and enlighten the Court, and that is exactly what the criminologist Berthiaux has done here. [ 24 ] She has done so on the basis of the information available to her, which includes the facts in the record, but also those she gleaned from meetings with the accused.

It seems particularly regrettable that the author of the presentence report is being faulted for drawing erroneous conclusions or for improperly analyzing a situation, when the accused refused to give her information and provided no details, evidence, or expert assessment or opinion to offer a different perspective. [ 25 ] Therefore, on the basis of the evidence adduced at the trial and some of the information and opinions in the presentence report, I accept the following portrait. [ 26 ] R. T. is now 55 years old. He was 2 years old when his father abandoned his family.

Otherwise, it appears that the environment his mother raised him in had good social values. [ 27 ] His schooling was more tumultuous. R. T. stated that he was bullied and that he was an [ translation ] “easy target”. His highest level of education is Secondary 5. [ 28 ] He has held different occupations, and for a time operated a video store, but he has mostly worked at the [Station A] resort for the last 36 years.

He works there all year long, but has slightly different schedules in summer and winter. [ 29 ] In terms of his romantic relationships, he apparently has had four important ones in his life, the most significant being with K. P., the mother of his four children. [ 30 ] One of his relationships ended when his partner was unfaithful. He was responsible for ending the two other ones. [ 31 ] The fourth relationship, with K. P., started in 2008. The presentence report and the evidence indicate that this relationship was off-and-on and that sometimes they lived together and other times apart.

The evidence shows that, since 2019, from K. P.’s perspective, the relationship was over and the parties were rarely intimate, but the accused believed that the relationship could perhaps be revived. [ 32 ] More specifically, when Ms.

P. began a relationship with a new man, around the time the crimes against S. were committed, it was clear that she did not consider this “infidelity”, since the family arrangement, in her mind at least, was limited to raising the children and providing them with a home. [ 33 ] All of these facts provided the basis for the criminologist’s finding, which seems perfectly logical, that R. T. has low self- esteem.

It results from, among other things, his father’s abandonment, the bullying he suffered, his partner’s infidelity in a prior relationship, and his ability or willingness to remain in a relationship as one-sided as the one he has with K. P., in terms of meeting his own needs. [ 34 ] It is also worth adding that, of the four children that they have together, only S. does not appear to require any special care or suffer from health issues. [ 35 ] This is the portrait of the accused that has been sketched out.

He pursues a non-existent relationship with his children’s mother, who often spends time away with her new partner and leaves him alone to take care of the three children with significant needs, with S.’s help. What is more, during some seasons, he works seven days a week. [ 36 ] This finding is what led the criminologist to state: [6] [ translation ] It therefore appears possible that, in this marital situation where his needs were probably not being met, he found comfort in his inappropriate actions.

It also seems plausible that the fact that he thought his daughter was asleep facilitated his commission of the offences, allowing him to believe that he was the only witness to the events and therefore in no danger of denunciation, and thereby allowing him to avoid taking responsibility. The fact that he was convicted for these acts also leads me to question his regrets. [ 37 ] She added: [7] In this case, I have identified certain factors that might explain the context of the offences.

The accused was opportunistic, and he overstepped boundaries to compensate for the fact that one or more of his needs that were not being met, in particular by seeking to fulfill a need for affection that was intensified because unsatisfied and inhibited. It is also plausible to believe that he sexualized his emotional bond with his daughter. In this respect, his erroneous beliefs may have played a role in his commission of the offences and would merit greater attention from him.

Although he does not admit to any deviant sexual interests, the possibility of a lack of openness and/or the presence of defence mechanisms to avoid confrontation or a further weakening of his self-esteem cannot be ruled out. These remarks appear consistent with his plea of not guilty. Given these facts, I cannot rule out a risk of reoffending. This is especially true since Mr. T. has not engaged in therapy since his arrest. He is currently on the waiting list for professional help from the CLSC.

His lack of cooperation (refusal to discuss the offences) may be an obstacle to his progress. [ 38 ] I note that the last excerpt describing the accused’s lack of engagement in seeking out help for sexual offenders, the reference

he provided to a friend who believes he is innocent, [8] and the notes that were filed from the interview with R. T. and his other children with the Parenfant organization [9] are of no help. On the contrary, they present a worrying portrait of his character. [ 39 ] The question is not whether he behaves well with his other children, whether they show him affection or not, or whether he loves his children.

All of that evidence seems to be an attempt to retry the case, to raise a doubt as to the merits of the charges, with a specific objective that is hard to discern and that indeed escapes me. [ 40 ] In case it is necessary, I will repeat. I am absolutely convinced that the accused is guilty and that he committed all the acts I described earlier.

This judgment does not aim to retry the case, but to impose sentence for the commission of acts that have been established beyond a reasonable doubt. [ 41 ] The defence outlined its position on a reasonable sentence by describing the context of the crimes in the manner that was usual before Friesen , [10] emphasizing that the degree of physical interference was at the lowest end of the scale.

This perspective of the acts does not acknowledge the situation of the victim in any way. [ 42 ] In my view, this is not the right approach, and it does not reflect the teachings of the Supreme Court of Canada in Friesen . [11] I do not intend to conduct an exhaustive review of that judgment; rather, I will consider this case in light of what I understand to be the modern tests set out in Friesen . [ 43 ] As I stated in the judgment on conviction, in her video interview [12] with the police officer, and in her testimony before the Court, S. is revealed to be an impressive, indeed an exceptional, girl. [ 44 ] S. is lively, dynamic, intelligent, and bright.

Both her interview and her testimony show how well adjusted she is and how close to the accused, her father, she seemed to be. [ 45 ] From what I could see and hear, it appears that despite the arduousness of her tasks – in particular the care she provided to her younger brother and sisters – she took on her significant responsibilities with enthusiasm and competence, and saw herself, no doubt accurately, as being closely in step with her father in guiding the family. [ 46 ] For example, it is easy to imagine that the text messages she exchanged with the accused [13] could be what parents would write to each other about daily family tasks and responsibilities. [ 47 ] It can also be observed that the bond she had with him was almost completely shattered after the assaults.

After he touched her breasts, S. seemed prepared to wipe the slate clean, as it were, but that changed when R. T. began committing acts involving the lower part of her body. [ 48 ] What is clear – and uncontested – in the presentence report, as well as in S.’s victim impact statement, is that she refuses to see her father now. This is perfectly understandable, but I can only see this refusal as a measure of the impact and consequences of her father’s actions against her on her life. [ 49 ] This person, with whom she had such a trusting, affectionate, and close relationship, completely betrayed her.

He sexualized their relationship when she was a child – indeed, his own child. [ 50 ] I can only conclude that the consequences of the crime on her are extremely serious. [ 51 ] What sentence should be imposed? [ 52 ] The prosecution cites a recent judgment, R. v. E.F. , [14] with somewhat similar facts, but where the assault involved a certain level of violence and was committed against a girl who was older than S.. In general, the younger the child, the more vulnerable the child is, and the more the offender’s behaviour is likely the result of an underlying disorder.

Ultimately, in E.F ., [15] there was only a single assault, whereas in S.’s case there were multiple incidents. [ 53 ] I am not saying that the case law and the principles analyzed in R. v. E.F . [16] should apply here without qualification. I note, however, that in that case the judge found that the starting point for the sentences for “major sexual interference” is 3 years’ imprisonment. [17] [ 54 ] Kraus J. immediately defined what he understood by “major sexual interference”.

He wrote: [18] [39] The Alberta Court of Appeal in R v Hajar, 2016 ABCA 222 , set a starting point in Alberta for a major sexual interference at 3 years. The Court of Appeal defined “major sexual interference” as one where the sexual interference is “a serious violation of the physical and sexual integrity of the child and is of a nature or character such that a reasonable person could foresee that it is likely to cause serious psychological or emotional harm, whether or not physical injury occurs” (at para 53). This starting point assumes (

i) no guilty plea, (ii) an offender with no record, and (iii) an offender of ordinary or average good character. [ 55 ] It is in my view necessary to point out that a violation of S.’s sexual integrity by her father in the circumstances of this case – especially given their closeness, the trust she had in him, and the accused’s role in this preadolescent girl’s life at that time – meant that she would more than likely suffer serious psychological repercussions.

And that is exactly what happened. [ 56 ] I also note that Kraus J. states [19] that the starting point must be increased when the abuser is in a position of trust or authority in relation to the victim. [ 57 ] Finally, I note that the starting point referred to in that case is from before Friesen . [20] [ 58 ] Again, what sentence should be imposed? A review of the case law yields an extremely broad range of sentences, especially since the facts vary significantly from one case to another.

[ 59 ] I will rely on a few recent judgments, in addition to R. v. E.F ., to conform with the current range. Furthermore, I repeat that, in my view, pre- Friesen case law is of little use for this purpose. [ 60 ] In R. v. A.W.C. , [21] the judge sentenced the accused to 4 years in prison. The facts are certainly of a different magnitude from the ones at issue here, but it is interesting to remark that the judge referred to a judgment of the Court of Appeal of this province [22] rendered before Friesen , which suggests a starting point of 3 years’ imprisonment as the sentence for offences under

section 151 of the Criminal Code . [ 61 ] I am aware that the maximum sentence for an offence prosecuted by way of

summary conviction is 2 years less 1 day, but that it is 14 years when prosecuted as an indictable offence. The request to impose the “maximum sentence” for a charge prosecuted as a

summary offence is nothing exceptional. [23] [ 62 ] In R. v. P.H. , [24] the accused was ordered to serve an overall sentence of 18 months’ imprisonment for offences under

section 151 of the Criminal Code . He was a friend of the parents of the two young victims. R. T.’s position of trust and authority is necessarily more significant, and the abuse of trust involved is much greater. [ 63 ] In P.H ., the Ontario Court of Justice referred to a recent judgment of the Court of Appeal of that province, R. v . M.M. , [25] where a relatively distant relative manipulated a vulnerable 15-year-old girl, making her believe that she was in a romantic relationship with the 31-year-old accused, to whom she sent nude and explicit photos of herself. The accused had not asked for these photos.

He did not perform any other acts of a sexual nature other than exchanging emails with this type of content. The Court of Appeal for Ontario sentenced him to a custodial sentence of 15 months. [ 64 ] In R. v. Green , [26] a 51-year-old professor committed two acts against one of his students. On one occasion, he placed his hand on her thigh, and on another, on her breast. Once again, these acts were not committed in the context of a relationship of trust or authority like the one that I observe in this case between R.

T. and his daughter: a sentence of 18 months’ imprisonment was imposed. [ 65 ] As mitigating factors in the accused’s case, I note the absence of a criminal record and an uninterrupted employment history. I see nothing else. [ 66 ] As aggravating factors, I note the significant breach and abuse of his relationship of trust with S..

I hesitate to refer to a relationship of authority, because I find that the evidence on the whole, which includes the video interview with S., her testimony in Court, the text messages they exchanged, the presentence report, and the victim impact statement – from which I remove the allegation of self-harm – reveal a highly significant and very close bond between S. and her father. [ 67 ] This relationship was completely destroyed in the worst possible way by the accused, who betrayed his child’s trust and eroticized his relationship with her.

The established fact that S. no longer wishes to see the accused demonstrates the profound damage that has been suffered. [ 68 ] I must also highlight his total lack of remorse and regret and his failure to undertake any therapy or accept follow-up services to deal with his issues. It has also been proved that this was not a single event but that, after caressing his child’s breasts, he moved on to other parts of her body. The fact that the accused requested a hearing is not an aggravating factor.

It is also not aggravating that he spoke about bringing an appeal in the event of his conviction. [ 69 ] However, the accused cannot benefit from the mitigating factor of a guilty plea, which would necessarily mean that he fully acknowledged the facts and at the very least had an awareness that wrong was done.

The fact that he still claims that he did not commit the crimes does not alter my conviction beyond a reasonable doubt that he committed the offences with which he has been charged. [ 70 ] The sentence proposed by the Crown appears appropriate, and FOR THESE REASONS , the sentence will be 2 YEARS LESS 1 DAY followed by 3 YEARS of PROBATION . __________________________________ Serge Champoux, J.C.Q. Mtre Karyne Goulet Counsel for the prosecution Mtre Thomas P. Walsh Counsel for the accused Date of hearing: August 23, 2022