r v. ANISHA, 2020 QCCQ 8890

R. c. Moore 2020 QCCQ 8890 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL Criminal and Penal Division No: 500-01-177680-185 DATE: September 25 th , 2020 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE PIERRE DUPRAS, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

ANISHA MOORE Accused ______________________________________________________________________ DECISION ON SENTENCE. ______________________________________________________________________ Introduction [ 1 ] On November 28 th , 2019, the Court declared Anisha Moore guilty of assault with a weapon on the person of Shelaya Davis. [ 2 ] The facts are summarized in paragraphs 2 to 32 of the original judgement. It will suffice, for the purpose of this decision on sentence, to outline them this way. [ 3 ] On September 14 th , 2018, a violent fight took place between the offender and Mrs. Davis at a bus stop in Montréal.

During the course of that fight, the offender stabbed the victim numerous times causing her important bodily harm. EVIDENCE ON SENTENCE [ 4 ] The defence presented evidence during the sentencing hearing. First, the offender testified reiterating mainly what was already apparent in the presentence report that had been prepared by the probation and parole officer of the Ministry of the Solicitor General of Ontario. [ 5 ] That evidence established that she does not have a prior criminal record, that she now lives in Mississauga and that she is working to save up money to go back to school.

She wishes to attend le collège Boréal in order to complete her studies and eventually open her own daycare center. [ 6 ] The presentence report states that it is evident that she is remorseful for her actions.

Her testimony, on the sentencing hearing, appeared frank and truthful so much so that the Crown modified her position on the appropriate sentence to be imposed to the accused once she had heard the evidence. [ 7 ] Achievement records from the ministère de l’Éducation et de l’Enseignement supérieur du Québec were also entered into the file to support her testimony. [ 8 ] The Crown did not present evidence but admitted that the presentence report was a positive one. The Crown, on the other hand, did supply information to the Court of outmost importance, that is that Mrs.

Davis was not left with physical sequelae following that very sad episode. POSITION OF THE PARTIES [ 9 ] The Crown said that before the offender’s testimony she was going to suggest a detention period of a duration of 12 to 18 months, but after hearing the evidence of Mrs. Moore and because of her personal situation, she was ready to submit that a jail term of six to 12 months would serve the ends of justice. [ 10 ] The defence suggested that a conditional discharge including a follow up with a probation officer and community work would suffice in this particular set of circumstances. DECISION

[ 11 ] Sentencing is a very delicate exercise in balancing different interests, the fundamental objective of which is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions [1] . [ 12 ] These sanctions can have one or more of the following objectives: to denounce unlawful conduct and harm done to victims or the community; to deter the offender or others to commit offences; to separate offenders from society where necessary; to assist in rehabilitating offenders; to provide reparation for harm done to the victims or community and, finally, to promote a sense of responsibility in offenders and acknowledgement of the harm done to the victims or to the community. [ 13 ] A Court that imposes a sentence must also take in consideration that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstance relating to the offence or the offender [2] . [ 14 ] As to these circumstances, the Court identified the following aggravating factors: • The importance of the bodily harm caused to the victim, she nearly lost consciousness during the commission of the offence and was stabbed to the face and the left side of her body.

Also, the violence of the assault caused a pneumothorax to the victim; • The fact that the victim was not carrying a weapon when the dispute occurred and the accused decided to resort to her knife. [ 15 ] Now, regarding the mitigating factors, they are as follows: • The evidence does not reveal any premeditation of the offence; • The offence took place very rapidly not leaving much time for the offender to reflect on the situation; • The offender appears to have been also hit by the victim that was bigger in size in relation to her; • There is some evidence to support the proposition that the offender was scared of the victim; • The victim won’t suffer physical sequelae from that event. [ 16 ] Turning to the personal circumstances of the offender, the Court notes that she is a very young adult and she was 21 years of age when these events happened.

She has no criminal record. She is gainfully employed and is saving in order to return to school. She moved out of Québec which was of some comfort to the victim according to the Crown. She benefits from the support of her family and has professional projects for the future. [ 17 ] She had difficulties to express how she felt about the situation before the Court but, the presentence report contains the expression of that remorse that was discussed earlier. [ 18 ] The parties did not provide the Court with much case law on the matter except for the case of Réjouis of the Court of appeal [3] .

The Court also considered the case of Riendeau of the same Court [4] . [ 19 ] Looking now at the appropriate sentence in this matter, the Court has considered the suggestion of the defence in the light of its obligation to consider sanctions that are less restrictive than a deprivation of liberty. Further, the Court as also considered all available sentences other than imprisonment and that could be reasonable in the circumstances of this case.

In this context, one has to take into consideration sanctions that are consistent with the harm done to the victim or to the community. [ 20 ] Because of the importance of the harm done to the victim, the Court concludes that a discharge is not appropriate in the general circumstances of this case; it is simply contrary to the public interest. [ 21 ] The result of the ponderation of the different factors outlined earlier in this decision, indicate to the Court that a jail term is warranted in the case of this offender in relation to this offence in these circumstances. [ 22 ] As for the quantum, the decision of Riendeau [5] provided guidance to the Court even though it is a matter relating to an aggravated assault [6] . [ 23 ] In that case, the circumstances implicate a young woman without prior criminal convictions.

She was involved, with many others, in a fight just outside a bar in Saint-Jérôme. At one point, she was pushed by the victim in that case and she pushed him back. Eventually, the victim will fall to the ground and Riendeau will kick him in the face.

Unfortunately, she was wearing high heels and she hit the victim in an eye and as a consequence, essentially, he will lose sight in that eye. [ 24 ] After a lengthy debate on the appropriateness of the original sentence, the Court of appeal will substitute a six month sentence to the original decision. [ 25 ] This Court is of the opinion that a six months period of detention is the appropriate sentence in our matter and that it meets the objectives of denunciation and deterrence while not compromising the objective of rehabilitation of the offender.

FOR THESE REASONS, THE COURT SENTENCES Anisha Moore to a detention period of six months; DIRECTS that Anisha Moore comply with a probation order for a period of two years, the conditions of which are the following: • Keep the peace and be of good behaviour;

• Appear before the Court when required to do so by the Court; • Notify the Court or the probation officer in advance of any change of name or address, and promptly notify the Court or the probation officer of any change of employment or occupation; • Report in person to a probation officer within seven days of her release from detention; • Thereafter, when required by the probation officer and in the manner directed by that person; • Attend and actively participate in all assessment, counseling or rehabilitative programs, as directed by the probation officer for the duration of the probation; • Abstain to communicate directly or indirectly with Shelaya Davis; • Abstain to be in the presence of Shelaya Davis; • Abstain to be found within a radius of 100 metres of the domicile, work place or school attended by Shelaya Davis; • Abstain from owning, possessing or carrying any weapon; ORDERS that, pursuant to

section 109 of the Criminal Code , Anisha Moore be prohibited from possessing any firearm, other than a prohibited or restricted firearm, and any cross-bow, restricted weapon, ammunition and explosive substances for a period of 10 years after her release from imprisonment; ORDERS that, pursuant to the same section, Anisha Moore be prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life; ORDERS that, pursuant to paragraph 487.051 (1), samples of Anisha Moore’s bodily substances be taken in the number that is reasonably required according to the law. __________________________________ PIERRE DUPRAS, J.C.Q.

Me Anne Joncas-Côté Directeur des poursuites criminelles et pénales Crown attorney Me Jean-François Boudreault Defense attorney Date of hearing September 3rd, 2020.