r v. Shubham SHARMA, 2019 QCCQ 4448

R. c. Sharma 2019 QCCQ 4448 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC CITY OF MONTRÉAL "Criminal and penal division" N° : 500-01-174344-181 DATE : July 18, 2019 BEFORE THE HONOURABLE JUSTICE ROBERT MARCHI, J.C.Q. THE QUEEN Prosecutor v. Shubham SHARMA Accused DECISION ON SENTENCE [ 1 ] On July 4 last, the Accused Shubham SHARMA (the Accused) has pleaded guilty before me on the following counts: that on June 6, 2018, he assaulted the victim Meeta Kalra (the victim), and that, between April 1, 2018 and June 7, 2018, criminally harassed the same victim. Both accusations having been laid as

summary conviction offenses. The context [ 2 ] The victim and the Accused are both from India and at the time of the offenses, they both studied at Concordia University. They met at work in 2018. [ 3 ] On the part of the victim, there was nothing more than friendship between them. According to the evidence, the victim made that clear to the Accused and she did so many times. Unfortunately, it was not as clear for the Accused who wanted more but she did not. It is in that context that the offenses to which the Accused pleaded guilty occurred.

The facts [ 4 ] As already mentioned, the victim and the Accused know each other since 2018. For the victim, there was no more than friendship between herself and the Accused and the evidence shows that she made that clear to him. [ 5 ] From about February 2018, the frequency of communications between the two diminished. By April 2018, the victim stopped communicating with the Accused. [ 6 ] At that time, she would receive from 15 to 20 phone calls a day as well as numerous text messages from the Accused.

Some of those were filed into evidence as exhibit PS-2. [ 7 ] At one point, the Accused even went to the classroom of the victim and told her that he wanted to talk to her. She said no. He said he wanted to hug her. She said no again. [ 8 ] That went on until June 5 th when the events leading to the accusation of assault took place. [ 9 ] The victim testified as to what happened on that day. She explained that on June 5, she went out for lunch with friends. She got calls from the Accused but did not answer when she saw it was the Accused calling. She then got calls from an “unknown caller”.

She first decided not to answer, but she finally did but immediately hung up when she recognized the voice of the Accused. [ 10 ] On that same day, after going out at night with her friends, on the way home, she saw shadows behind her and hands getting closer to her. It was the Accused. She then rushed to open the door of her apartment. The Accused came from behind and hit her on her right eye with his closed fist. She cried and shouted for help. [ 11 ] The Accused then questioned her about the persons she was with that day.

According to the victim, she had not told the Accused that she was with friends during the day. [ 12 ] She then told him to go. He refused and told her that he had money and that he could do anything to her or to her friends. In last resort, she told him that she was dating someone else. According to the victim, he then started slapping her very hard four times. Her face was swoolen. A photo of the victim has been filed as PS-3.

[ 13 ] This last part of the testimony of the victim is denied by the Accused. The Accused, who did not testify, has admitted slapping the victim “only” once with his hand opened. In any event, the victim started crying and the Accused left. [ 14 ] A picture of the victim was filed as exhibit PS-3. And an impact victim statement was filed as exhibit PS-4.

The position of the parties on sentence [ 15 ] The Prosecution recommends a suspended sentence with a probation order “avec suivi”, including the usual conditions prohibiting the Accused from contacting or from being in the presence of the victim and a period of community work. [ 16 ] Defence counsel recommends the exact same conditions. But he submits that those conditions be included in a conditional discharge instead of a suspended sentence. He submits that because of Sections 36 (1) and 36(3) (

a) of the Immigration and Refugee Protection Act ( IRPA ), a criminal record for harassment for the Accused would mean that he would become inadmissible in Canada on grounds of serious criminality and could be expelled from Canada. Crown counsel is of the same opinion as Defence counsel as to the collateral immigration consequences for the Accused. [ 17 ] For the Accused, the difference between a suspended sentence and a conditional discharge is therefore enormous. The accused [ 18 ] The Accused is from India and is 24 years of age. He is in Canada under a student permit.

He has no criminal record either in India or in Canada. He has obtained a masters degree in engineering from Concordia University in the month of May 2019. [ 19 ] In the past, he has made donations to community centres for children here in Canada and in India. He has also performed volunteer work in India. [ 20 ] On his own volition, he has completed a basic therapy for anger management at Pro-Gam. [ 21 ] The Accused addressed the Court pursuant to

Section 726 of the Criminal Code ( Cr.C .). Addressing the victim, who had then left the courtroom, he expressed that he was deeply sorry for the fear he caused to her and that it was not his intention. He recognized his rudeness. And he now understands that he should have let her go. The impact victim statement [ 22 ] The victim has filed an impact victim statement. She starts by saying that what she has suffered and still suffers from is hard to put into words. [ 23 ] As to physical injuries, they were limited to swollen red eyes and bruises on her face.

Obviously, those physical injuries are not what the victim has most suffered from. Those have healed normally. [ 24 ] She explains that she came to Canada by herself to pursue her studies at Concordia. She considered Canada as a safe place to live and to study. She now fears to go from one place to the other. [ 25 ] She has suffered and still suffers from past trauma stress disorder. At first, she needed help from psychological and psychiatric resources from Concordia and she still does today.

Her state of mind has affected her studies by causing her stress, lack of concentration and motivation. [ 26 ] Obviously this is a very short way of summarizing the most detailed victim impact statement of the victim. Suffice it to say that the victim is still suffering from past trauma stress disorder and still needs treatment and medication. Exhibit PS-2 [ 27 ] Before turning to the content of PS-2, you will permit me to say that I would have appreciated the English translation to bear dates and times of the various conversations.

I probably would have been able to better understand the interaction between the Accused and the victim. I could only draw from PS-2 that the Accused was most persistent, that he showed no respect for the victim, that he threatened to hurt her and her friends and that he was ready to go to her place to harass her. Purpose and Principles of Sentencing [ 28 ] The purpose and principles of sentencing are well known and are to be found in Sections 718 and following Cr.C .

That being said the basic principle is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Analysis [ 29 ] In this instance, even though the offences have been laid as

summary conviction offences, they still remain serious offences. [ 30 ] The harassment performed by the Accused in this case is serious. It lasted for more than two months, and comprised a variety of methods, i.e. numerous phone calls, numerous text messages, a visit to the place of study of the victim to try to talk to her and hug her, always against the will of the victim, and finally, a visit at her residence where the assault took place, late at night and the Accused attacking the victim from the back even though she was rushing to get into her home. [ 31 ] As to the assault, the “evidence” is contradictory.

I put evidence between brackets because even though the victim testified, the Accused did not. At the outset of Crown’s submissions, the Accused admitted slapping the victim “only” once. Counsel for the Defence invited the Court to stem from PS-2 that the Accused only slapped the victim once.

[ 32 ] Given the testimony of the victim, and given PS-3, especially the right part of the victim’s face, the Court is convinced beyond a reasonable doubt that things happened the way the victim described them. [ 33 ] Obviously, the nature of the offences are not the only factor to be taken into account when deciding to grant an accused a discharge or not. Character is also to be taken into consideration. As already alluded to, the Accused has no record, either here in Canada or in India, he is a university graduate and is of good character, given the evidence he put forward. [ 34 ]

Section 730 Cr.C . states that a discharge can be granted if the Court considers that it is in the best interests of the Accused and not contrary to the public interest. [ 35 ] Case law is to the effect that no offence is excluded, as long as it meets the criteria set in

Section 730 Cr.C . , i.e. as long as it bears no minimum sentence or that it is not punishable by a sentence of 14 years. This is obviously the case. [ 36 ] The issue in this case is not if the measure is in the best interest of the Accused. It is obvious it is.

Given the status of the Accused in Canada and given the consequences for the Accused to have a criminal record, granting him a discharge is very much in his interest. [ 37 ] That being said, even though the Accused is in Canada under a student permit, and even though a criminal record may affect his right to remain in Canada, the fact of having such a precarious status in Canada does not mean that a discharge will automatically be granted ( R. c. Peterson , 2007 QCCA 519 ). [ 38 ] A judge can take into account the immigration collateral consequences of a sentence as personal circumstances of the offender.

Collateral consequences related to immigration may be relevant in tailoring the sentence, but their significance depends on and has to be determined in accordance with the facts of the particular case. Therefore, the general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender.

In other words, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and to the degree of responsibility of the offender ( R. v. Pham , 2013 SCC 15 ). [ 39 ] Moreover, as Mainville J. wrote in Onwualu v. R. , 2015 QCCA 1515 at para. 50 , the analysis must not lead to circumventing or replacing the administrative and judicial mechanisms set out in IRPA .

It should also not lead to a parallel system of criminal justice for non-citizens in which the latter would receive lighter sentences than those imposed on Canadian citizens for the same offence committed in similar situations. [ 40 ] In light of all those principles, in this case, the real question is whether granting the Accused a conditional discharge is or is not against public interest.

Given all the circumstances of this case, it is the opinion of the Court that it would be against public interest to grant a discharge, even conditional. [ 41 ] The facts in this case do not equate to an “ étourderie de jeunesse ” as was the case in the decision of the Court of Appeal in Menguella t, 2005 QCCA 253 , nor do they equate to a thoughtless or spontaneous behavior by the Accused, especially the harassment against the victim. [ 42 ] The offences are serious crimes, the harassment was complete, in the sense that it comprised every prohibited conduct mentioned in Section 264(2) Cr.C .

It was premeditated, it lasted more than two months and it was committed against a defenceless young woman, who was followed by the Accused all the way home where the harassment culminated in an assault on the victim. Even taking for granted the version of the Accused as to the assault, such a behavior must be denunciated by society. In such circumstances, denunciation and deterrence must prevail. [ 43 ] Even though premeditated crimes are not excluded from the application of

Section 730 Cr.C ., the Court must take into account all the circumstances surrounding the commission of the offence. [ 44 ] In Suarez c . R , 2019 QCCA 649 , the Court of Appeal wrote that deterrence and denunciation should not preclude a discharge, particularly when the consequences are severe for the Accused and the offence a less serious one. This is not the case. The Court is not in the presence of a “less serious offence”. Moreover, this Accused is not in a particular situation as were the appellants in Suarez . [ 45 ] In Corbeil-Richard c.

R ., 2009 QCCA 1201 , the Court of Appeal wrote the following about the notion of “public interest”: [36] Ensuite l’absence de condamnation qui résulte de l’imposition de l’absolution ne doit pas nuire à l’intérêt public. Cela « ne signifie pourtant pas que l’absolution doit être elle-même dans l’intérêt public » [5] . [37] Clayton C.

Ruby et ses collègues s’expriment de la façon suivante concernant la notion d’intérêt public : The Court must consider whether or not a discharge would be contrary to the public interest, and it is not sufficient to ask whether a discharge would be in the best interests of the community. [6] […] The need for deterrence of other individuals is no doubt a factor which the court can take into account. [7] […] [38] Le juge Béliveau dans l’affaire Rozon déclare ce qui suit au sujet de la notion d’intérêt public : Quant à la notion d’intérêt public, elle doit prendre en cause l’objectif de la dissuasion générale, la gravité de l’infraction, son incidence

dans la communauté, l’attitude du public à son égard et la confiance de ce dernier dans le système judiciaire[9]. [46] See also: Denis c. R., 2015 QCCA 300. [47] That being the case, and despite the collateral immigration consequences for the Accused, a discharge, even conditional, wouldbe an unfit sentence in the circumstances. Moreover, it is the opinion of the Court that the sentence suggested by Crown counsel, asuspended sentence, is most lenient in the circumstances. [48] Finally, the Court will paraphrase from the decision of R. v. Denkers, (ONCA), even though we are not in anaccused-spouse or accused-common law relationship in the sense of

Section 718.2a)(ii) Cr.C. [49] This victim, and others like her, are entitled to live their lives normally and safely. Especially, they are entitled to live their livesfree of harassment by and fear alleged from other persons who cannot abide their rejection by a person whom they love and who was notdeterred by the victim's requests that he leave her alone.

The law must do what it can to protect persons in those circumstances. [50] For these reasons, the Court suspends the passing of sentence and directs that the Accused be released on a probation order fora duration of three years at the following conditions: • Keep the peace, be of good behavior and be present in Court whenever required; • Sign the probation order; • Meet with a probation officer before leaving the Courthouse today, notably to agree on the details of implementation of thecommunity work to be accomplished by the Accused; • Perform 120 hours of community work within the next 18 months; • For the whole duration of the probation, meet the probation officer as often as she or he sees fit and follow her or hisrecommendations; • It is prohibited for the Accused from communicating directly or indirectly with Meeta KALRA; • It is prohibited for the Accused from being in the physical presence of Meeta KALRA; • It is prohibited for the Accused from being in a radius of 300 meters from the residence, place of work or place of study of MeetaKALRA; • It is prohibited for the Accused to be in possession of any weapons. any firearm, cross-bow, prohibited weapon, restricted weapon,prohibited device, ammunition, prohibited ammunition and explosive substance. _________________________________ ROBERT MARCHI, J.C.Q.

Me Juliette LucasAttorney of the DPCP Me Hughes SurprenantAttorney of the Accused Date of hearing: July 4th, 2019.