2019 QCCA 1864, 2019 QCCA 1864

A.E. c. R. 2019 QCCA 1864 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006378-176 (540-01-058600-134) DATE: November 4, 2019 CORAM: THE HONOURABLE JACQUES DUFRESNE, J.A. MARK SCHRAGER, J.A. CLAUDINE ROY, J.A. A. E. APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT THE PUBLICATION BAN RENDERED ON APRIL 8, 2016 BY THE HONOURABLE JUSTICE JEAN-JACQUES GAGNÉ IS STILL IN FORCE ON ANY INFORMATION THAT COULD IDENTIFY THE VICTIMS (s. 486.4 Cr.C . ) [ 1 ] Appellant seeks leave to appeal the sentence imposed on September 7, 2016 by the Court of Québec, Criminal Division, District of Laval (the Honourable Judge Jean-Jacques Gagné), which has been referred to this panel to be heard together with the appeal. [ 2 ] For the reasons of Schrager, J.A., with which Dufresne and Roy, JJ.A. concur, THE COURT: [ 3 ] GRANTS leave to appeal; [ 4 ] ALLOWS the appeal in part for the sole purpose of granting credit for the pre-sentence period of incarceration on a two to one basis, so as to reduce the carceral portion of the sentence to 68 months.

JACQUES DUFRESNE, J.A. MARK SCHRAGER, J.A. CLAUDINE ROY, J.A. Mtre Maxime Hébert Lafontaine LATOUR DORVAL AVOCATS For the Appellant Mtre Brenda Toucado DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the Respondent Date of hearing: September 26, 2019

REASONS OF SCHRAGER, J.A. [ 5 ] Appellant seeks leave to appeal the sentence imposed on September 7, 2016 by the Court of Québec, Criminal Division, District of Laval (the Honourable Judge Jean-Jacques Gagné), which has been referred to this panel to be heard together with the appeal. [ 6 ] Appellant was sentenced to 73 months of incarceration (in addition to the usual orders), having been found guilty of sexual interference regarding a minor ( s. 151 (

a) Cr.C . ), invitation to sexual touching regarding a minor ( s. 152 (

a) Cr.C . ), sexual exploitation of a young person ( s. 153(1) ( a ), (1.1) (

a) Cr.C . ), and assault with a weapon ( s. 267 (

a) Cr.C . ). The offences occurred between 1996 and 2007 with regard to one and the same victim, the daughter of the accused’s spouse while she was 6 to 18 years of age. [ 7 ] Appellant appealed the conviction on the basis of the delays in bringing the case to trial and, as such, has sought a stay of prosecution.

In separate reasons, I have proposed the dismissal of that appeal. [ 8 ] The facts found by the trial judge indicate that Appellant’s spouse had shared custody (during alternating weeks) of her daughter while the latter was between the ages of 6 to 18, during which period the offences were committed. [ 9 ] Appellant used corporal punishment with a belt and boots to discipline the child when she demonstrated lack of respect. [ 10 ] The sexual abuse commenced when the victim was 6 years old and evolved over time from touching genitalia to masturbation, fellatio and unprotected vaginal penetration when the victim was 12 years old, although the victim testified that there was never intra- vaginal ejaculation. [ 11 ] Upon the finding of guilt, the judge ordered the immediate incarceration of Appellant on April 8, 2016. [ 12 ] The sentencing hearing was postponed to allow Appellant to find a new lawyer, but, finally, on July 21, 2016, the court proceeded, with the accused representing himself.

He sought 30 months plus a “long probation”, while the prosecution asked for 8 years. [ 13 ] In an oral judgment, the judge observed the severity of the abuse on the range set down by this Court in R. v.

Bergeron . [1] He emphasized the sentencing principles of denunciation and deterrence while underlining the inherent seriousness of the crime and the high degree of moral culpability connected with Appellant’s position of authority, as well as the premeditation involved. [ 14 ] The judge referred to the fact that Appellant had no criminal record and noted the absence of any remorse, while recognizing that the accused proclaimed his innocence.

The latter only acknowledged sexual contact with the victim once she was of the age of majority and had consented. [ 15 ] The judge imposed 6 years concurrently, for the various sexual offences, plus 6 months consecutive for the assault with a weapon.

He deducted 5 months for the time served post-conviction but prior to sentence on a one for one basis, thus, rendering a sentence of 73 months. [ 16 ] Appellant submits that: (1) the judge erred in principle by not taking into account various pertinent factors which would have caused a less severe sentence; and (2) the judge erred in calculating the credit for detention prior to sentence. [ 17 ] Sentencing is largely a discretionary function, [2] and appellate intervention is limited to errors on questions of principle having a significant impact, [3] such that the sentence is manifestly unfit. [4] [ 18 ] Appellant argues that the judge failed to consider the absence of a criminal record, the prohibition of contact with his son ordered by the Youth Court and the delay in bringing the matter to trial and, thus, committed errors of principle justifying this Court in reducing the duration of the incarceration.

Absence of a criminal record [ 19 ] The judge noted that Appellant had no criminal record, but erred in stating that this is not a mitigating factor.

However, the nature of the offences and the circumstances of their commission are such that the error does not justify our intervention, given that the sexual assaults were numerous and occurred over a long period of time. [5] As well, the principles of dissuasion and denunciation take precedence in sex crimes against children. [6] Prohibition of contact with his son [ 20 ] The judge, in his discretion, could take into account this secondary effect of the charges, [7] but at the end of the day, the sentence must be proportionate “to the gravity of the offence and the degree of responsibility of the offender”. [8] [ 21 ] The record discloses that between February 2013 (when the charges were brought) and December 2013, Appellant’s visits with his son were supervised.

Thereafter, access was prohibited by the Youth Court, although the justification is not clear on the face of the materials in the present record. More particularly, it is not apparent to what degree the charges taken alone brought about the decision of the Youth Court. Therefore, I do not find it appropriate to intervene on such basis. Delay in bringing the matter to trial

[ 22 ] The appeal from conviction was based on the judge’s refusal to order a stay given the delays. [ 23 ] While such delays do not constitute an attenuating factor (having no impact on the gravity of the offence or the degree of an accused’s responsibility), they can, as an indirect consequence, be considered in the calculation of a fit sentence. [9] [ 24 ] While perhaps not argued by Appellant at the sentencing hearing, the judge, having dismissed the motion for a stay, was fully aware of the delays experienced in the file.

The prejudice incurred as a result of such delays and the other factors were not sufficient to warrant a stay of prosecution.

Given all the other circumstances, the sentence cannot be considered as demonstrably unfit merely because of the delays in the present matter. [ 25 ] The judge properly considered all the circumstances and correctly emphasized denunciation and dissuasion in imposing the sentence, with attention to the parity principle according to the range for such offences recognized by this Court in Bergeron . [10] [ 26 ] Accordingly, this ground of appeal does not succeed. * * * [ 27 ] The judge did commit an error in not crediting at least one and a half days for each day of pre-sentencing incarceration.

Respondent concedes this in its memorandum. [ 28 ] Although the process is discretionary, [11] the judge’s error in not granting credit beyond one to one because the incarceration came about after a guilty verdict is erroneous: [43] The mere statement by the trial judge that there is to be no extra credit simply because the time on remand was post conviction provides no information this Court can consider to determine if his discretion was exercised on a principled basis.

Consideration of whether or not to grant extra credit for pre-sentence custody has not historically been made on the basis of considering the time on remand only up to the date of conviction. The time served is generally referred to as pre-sentence remand. [44] I cannot find that a conviction, in and of itself, is a principled basis to decline any consideration as to whether there ought to be greater than one for one credit for time on remand between conviction and sentence.

Since, I cannot find a principled basis, or any reason, clear or implicit (as in Leyte ), for denying the longstanding practice of double credit, I would grant two for one credit for the 41 days on remand. [12] [Emphasis in original] [ 29 ] The practice applicable to the time the offenses were committed (i.e. prior to 2007), was to credit two days for each day of pre- sentencing incarceration. [13] Respondent’s counsel conceded this at the hearing before the Court. [ 30 ] A lengthy sentence delays eligibility for parole.

The record indicates that during the pre-sentence incarceration, Appellant was separated from the general prison population (albeit for his protection) and was thus deprived of the benefit of the usual prison facilities.

Accordingly, Appellant suffers a prejudice arising from the insufficient credit, which justifies intervention by this Court. [ 31 ] Accordingly, the 78 months should be reduced to 68 months, counting the five months of pre-sentence incarceration on the two to one basis. [ 32 ] Consequently, I would propose that leave to appeal be granted in order to allow the appeal for the sole purpose of granting credit on the two to one basis, as indicated above, so as to reduce the carceral portion of the sentence to 68 months. MARK SCHRAGER, J.A.