r v. I., 2020 QCCQ 926

R. c. I.M. 2020 QCCQ 926 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Criminal and Penal Division No: 500-01-152306-178 DATE: February 28, 2020 ______________________________________________________________________ PRESIDING : THE HONOURABLE CHRISTIAN M. TREMBLAY, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v. I. M. Accused ______________________________________________________________________ JUDGMENT ON SENTENCE ______________________________________________________________________ RESTRICTION ON PUBLICATION This judgment is subject of an order restricting its publication under

section 486.4 of the criminal code . Offences and factual context [ 1 ] On October 17, 2019, the accused, Mr. M., was found guilty by the Court of sexual interference, contrary to s. 151 Cr. C. (count 1); invitation to sexual touching, contrary to s. 152 Cr. C. (count 2), sexual exploitation, contrary to s. 153(1)

a) Cr. C. (count 3) and sexual assault, contrary to s. 271(1)

a) Cr. C. (count 4). These offences were committed against his stepdaughter. Joint submission [ 2 ] On February 6, 2020, a period of detention of seven years for the four counts was suggested jointly by the parties, less the time served in preventive custody. [1] They also suggested a series of ancillary orders under s. 743.21 , s. 490.012(1) , s. 490.013(2.1) , s. 487.051(1) and s. 109(1) of the Criminal Code . The Court must therefore decide whether to depart from the joint submission.

Force of a joint submission [ 3 ] Joint submissions on sentence are essential to the criminal justice system, as they contribute to make it fair and efficient, whilst benefiting the different participants of the judicial system, including the accused, in multiple ways. It is recognized by the Criminal Code [2] and jurisprudence that judges are not obligated to go along with them. [3] However, as Justice Moldaver states in R. v.

Anthony- Cook , “a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest ”. [4] [ 4 ] This “public interest test” more precisely claims that a joint submission should be departed of if "it so inordinately lenient and markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a breakdown in the proper functioning of the criminal justice system”. [5] [ 5 ] Considering the high threshold needed to depart from the joint submissions due to their beneficial nature, a certain degree of restraint from the trial judge is therefore strongly advised.

This also means that a joint submission described as lenient or severe by the sentencing judge does not qualify as against the public interest. [ 6 ] Nevertheless, if a judge decides to reject the suggestion, he should follow certain guidelines, such as taking notes of the circumstances having led to the joint submission and justifying his departure from it. [6] [ 7 ] Considering these principles, the Court shall ask itself: does the joint submission bring the administration of justice into disrepute or is otherwise contrary to the public interest?

Factual context [ 8 ] The facts are well described in the judgment rendered October 12, 2019. [7] For the benefit of the present judgment, they can be

summarized as follows. [ 9 ] The accused was the stepfather of the victim, aged 12 years old when he married her mother. The sexual abuses took place over a period of seven years, from November 2000 to January 2008, while the victim was aged between 12 and 19 years old. [ 10 ] During this period, the accused came into the bedroom of the victim weekly to have complete sexual intercourse with her, including digital and vaginal penetration. The abuse would sometimes take place outside her bedroom, such as the basement or the shower.

He never wore a condom and always ejaculated on her stomach or chest, and once in his mouth after she executed fellatio. When she was menstruating, he asked her to perform oral sex on him or to masturbate him. He unsuccessfully tried to anally penetrate once. [ 11 ] He forced her to watch a pornographic film, asked her to shave her pubic hair and to clean herself because he performed oral sex on her, and he once urinated on her in the backyard. [ 12 ] To make sure she kept silent about the abuses, he used psychological pressure, such as threatening her of possible consequences to her mother’s health.

Determination of the appropriate sentence [ 13 ] The fundamental purpose of sentencing is to protect society and to contribute to respect for the law, as stated by s. 718 of the Criminal Code .

In the case of sexual abuses against children over a prolonged period, the sentencing objectives of denunciation and deterrence should be emphasized, given the deep psychological trauma caused to the most vulnerable members of our society. [8] Nonetheless, the Court needs to keep in mind that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [9] SOCIETAL VALUES [ 14 ] My colleague Justice Bédard made the following comments in R. v.

K.B. : [10] [11] Crimes against children have always been the object of numerous comments in jurisprudence because society feels deeply concerned for their future and wellbeing. Offenders are severely judged by society and the justice system, generally, reflects the views of the collectivity even if the sentences imposed do not go as far as some members of the collectivity would like. [12] In R. c.

L., Justice Otis wrote; “Il est des crimes qui témoignent des valeurs protégées par une collectivité humaine à un moment déterminé de son histoire et qui, à la faveur de l’évolution des sociétés, deviennent justement périmés. Il en va différemment des crimes sexuels commis sur des enfants en bas âge. Même avant que des lois pénales répressives ne sanctionnent ces délits, la protection des enfants constituaient l’une des valeurs essentielles et pérennisées par la plupart des sociétés organisées.

La fragmentation de la personnalité d’un enfant à l’époque ou son organisation naissante ne laisse voir qu’une structure défensive très fragile, engendra-à long terme- la souffrance, la détresse et la perte d’estime de soi. S’il est une intolérance dont une société saine ne doive jamais s’émanciper, c’est bien celle qui concerne les abus sexuels commis sur les jeunes enfants.’' [13] In R . v. D.M ., (Feldman J.A.), summarizes the principles outlined by Moldaver J.A. in R. v. D ., 788, and writes at paragraph 38: [72 ] Our children are our most valued and our most vulnerable assets.

We as a society owe it to our children to protect them from harm caused by sexual predators Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators. Adult sexual predators recognise that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow. Three such consequences are now well-recognised; (

i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood.

Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognised objectives of sentencing. [14] Still in R. v.

D. (D.) at paragraph 44 , Moldaver J.A. writes: [44] To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and is accompanied by other acts of physical violence, threats of physical violence or other forms

of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. [15] As we can see, and as far as we can go in jurisprudence, the Canadian society is extremely intolerant to crimes against children and more specifically crimes involving sexual abuse of children. This is reflected by the jurisprudence that in turn takes great care in distinguishing the aggravating factors and circumstances from one case to another. [16] The Legislator also acknowledged the above by increasing in 2015, minimum terms of imprisonment for sexual offenders namely under sections 151, 153 Cr.

C. [17] Considering all of the above, it becomes evident that the Canadian society as a whole, does not tolerate that children be subjected to ill treatment that jeopardize their future as functional members of their community. (References omitted) Objective gravity [ 15 ] The objective gravity of the crime also plays a role in the determination of the appropriate sentence. During the period in which the offences under s. 151 and 152 Cr. C. took place (2000 to 2002), the maximum sentence was of 10 years. During the period in which the offence under s. 153 Cr.

C. took place (2002 to 2004), the maximum sentence was of five years. Finally, the maximum sentence was of 10 years under s. 271 Cr. C. when the offences occurred (2004 to 2008). In 2015, the maximum sentences were raised to 14 years, reflecting the increased objective gravity of these crimes. [11] This was also acknowledged by the Legislator in 2015 when he increased the minimum terms of imprisonment under sections 151, 153 Cr.

C. [12] [ 16 ] Keeping in mind these principles, the Court should examine the different sentencing ranges for these types of offences, knowing full well that it is not bound by these, but can rather use them to compare the severity of the sentence as well as the circumstances leading up to it. [13]

Summary of submitted jurisprudence [ 17 ] The parties have submitted jurisprudence to the Court on which they claim to have based their joint submission. These sentencing judgments share a significant number of similarities with the present case, including the relationship the accused had with the victim, the nature of the offences as well as the length of the period in which they took place. [ 18 ] For instance, in the recent judgment of the British Columbia Supreme Court R. v.

S.S.S . [14] , the accused was found guilty of committing sexual offences against his granddaughter from 2002 to 2012, when she was between 6 and 16 years old.

As for the determination of the sentence, the judge first stated that “[w]ith respect to proportionality, in addition to reflecting the seriousness of the offence, the sentence must capture the degree of responsibility, or moral blameworthiness, of the offender”. [15] [ 19 ] Considering the length and frequency of the offences, their intrusive nature, the great psychological harm that they caused to the victim, but also the lack of previous criminal history of the accused, his age and the low risk of reoffending, he sentenced the accused to seven years in prison.

Because “[a]ggravating factors are those that arise in addition to the elements of the offence itself”, the judge did not consider an aggravating favour the fact that the victim was under the age of 18. [16] [ 20 ] In A.E. v. R. [17] , the appellant, convicted of committing sexual offences and assault against his stepdaughter while she was between 6 and 18 years of age [18] , was sentenced to a 68 months incarceration.

The Quebec Court of Appeal stated that the trial judge properly considered all the circumstances, such as the lack of criminal record of the accused [19] , but also the absence of any remorse, his position of authority, the inherent seriousness of the crime, the severity of the abuse and the premeditation involved. [20] [ 21 ] The appellant in R. v. D.D . [21] , found guilty of committing violent sex-related offences involving four young boys over a period of seven years [22] , was sentenced to nine years and a month in prison.

The judge emphasized on the harm caused by sexual abuse on children and in determining the appropriate range of sentence, he stated: [A]s a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms.

When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate.

Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted”. [23] [ 22 ] The judge also stated that the fact that the accused wasn’t diagnosed as a pedophile meant that his degree of moral culpability rose significantly; more importantly, this couldn’t constitute a mitigating factor. [ 23 ] In R. c. Bergeron from the Quebec Court of Appeal [24] , the prosecution appealed of a sentence of seven months. The accused had sexual contact twice with a 10-year-old child, one of which included penetration.

The judge first stated that the younger the victim is, the more she needs to be protected and that a bad treatment against a very young child demands a strong denunciation. Considering the sentence imposed by the trial judge as lenient, he sentenced the accused to 14 months minus one day. He based his conclusion on mitigating factors such as the guilty plea, the low risk of recurrence, the remorse expressed and aggravating factors such as the objective and subjective gravity of the crime, the high degree of premeditation and the psychological consequences suffered by the victim. [ 24 ] Finally, the decision R. v.

K.B. [25] is the one that share the most similarities with the present case; the accused committed sexual abuses that occurred over a few hundred times against his stepdaughter, including full vaginal and anal sexual relations, over a period of seven years starting from the age of six. [26] Stating that the Canadian society does not tolerate children to be subjected to abuses given the serious psychological harm they cause, the judge sentenced the accused to an imprisonment of eight years.

To come to this conclusion, he notably relied on the fact that the accused was in a position of authority, he had no prior convictions, the sexual abuses occurred on a regular basis for several years, the consequences that they caused, their nature and the threats that were used. [27]

Aggravating and mitigating factors [ 25 ] In deciding if the joint submission is appropriate in the present case and in consideration of the appropriate sentencing principles, the Court should consider as aggravating factors the following: - the position of authority of the accused [28] , as well as the fact that he was a parental figure; - the victim was under the age of 18; [29] - the length of the period on which the abuses took place, as well as their frequency; - the intrusive nature of the sexual acts, such as the vaginal penetration, the unsuccessful anal penetration and the fact that he never wore a condom; - the degrading nature of certain acts, such as the fact of urinating on the victim and ejaculating in her mouth and on her body; - the threats used as well as the grooming process in which the accused forced the victim, such as the viewing of a pornographic film; - the deep psychological trauma the abuses caused and are still causing to the victim, as is demonstrated by the victim impact statement. [30] [ 26 ] The Court should also consider the following mitigating factors: - the accused has no previous criminal record; [31] - the comportment of the accused since the perpetration of the infraction, such as his job, his remarriage, the fact that he committed no offences since and respected his release conditions. [ 27 ] According to s. 718.2(a)(iii), constitutes an aggravating factor the fact that the accused abused a position of trust or authority in relation to the victim.

It is largely recognized by jurisprudence that a stepfather is usually in a position of trust towards the victim [32] , as it is the case with Mr. M.. [ 28 ] The offences took place over a period of approximately seven years, during which the accused sexually abused the victim on an ongoing basis. He came into her bedroom at night multiple times a week.

In this case, the length and frequency, as well as the intrusive nature of the abuses significantly raise the moral responsibility of the accused as well as the inherent gravity of the crime. [ 29 ] The victim has made a victim impact statement, in which she explains how the abuse has affected her. Because of what the accused inflicted on her during the most formative years of her life, she has had academic, professional, relational, self-esteem and sleep difficulties. She also suffers from post-traumatic stress disorder, which sets off easily, that causes her to have flashbacks.

It is evident that she greatly suffered and is still suffering from all the past abuses she had to endure. These consequences play a significant role in the moral responsibility of the accused and consequently, in the determination of the appropriate sentence. [33] [ 30 ] As for the respect of release conditions, jurisprudence has repeatedly stated that it does constitute a mitigating factor. [34] [ 31 ] Finally, since no presentence report nor psychosexual report were submitted, the Court ignores whether there is a risk of reoffending. The Court did not get a chance to appreciate the accused’s profile.

Sentencing range [ 32 ] The authors Parent and Desrosiers established the case-law based range of sentences imposed by courts for sexual offences committed against children. When the imposed sentences are between 12 and 23 months of imprisonment, the condemned sexual acts are usually rare and performed on one victim. When the sentences are between 2 years minus 1 day to 6 years, the accused usually abused his position of authority, has no previous criminal record and no direct violence is used.

When they are between 7 and 13 years, they usually condemn prolonged period of abuse in a context of intimidation or violence, which includes full sexual relations, starting when the child is young. [35] [ 33 ] As for the sexual exploitation offence, it is relevant to examine sentences imposed in similar circumstances to the one at bar for the purpose of determining the appropriate sentence. In R. c. Leblanc , the accused, found guilty of sexual exploitation under s. 153 Cr.

C., has had multiple sexual relations with his young neighbour between 1989 and 1992. Because of the length and frequency of the abuses, the objective gravity of the crime as well as its inherent seriousness, the Court imposed a sentence of 36 months. [36] In R.L. c. R. , the Court of Appeal of Quebec confirmed a sentence of three years imposed by the trial judge for an accused found guilty of sexual exploitation under s. 153 Cr. C [37] .

The abuse took place between 1988 and 1990. [ 34 ] It shall be noted that, as for the third count, the Court cannot impose a sentence of seven years, because the maximum sentence at the time the offence of sexual exploitation was committed (2002 to 2004) was of five years under s. 153(1) Cr. C. [38] When the case was under advisement, the Court consulted with counsel on this matter and they were of the view that a sentence of three years is appropriate.

Appropriate sentence [ 35 ] Considering the aggravating and mitigating factors mentioned previously as well as the circumstances of the abuses, the sentence proposed by the counsels aligns with the third range of sentences and adequately serves the objective of denunciation and deterrence.

Therefore, the Court does not consider that the joint submission “would bring the administration of justice into disrepute or is otherwise contrary to the public interest”. [39] Since the abuses represent multiple continuous indictable offences taking place in the same period, the sentences on each count will be served concurrently. [40] [ 36 ] Because of the length and frequency of the abuse, as well as the psychological trauma the victim has had to endure, the Court finds that a three-year period of detention for the third count is proportional to the gravity of the offences committed and the offender's degree of responsibility.

This sentence is to be served concurrently to the ones imposed under counts No. 1, 2 and 4. Granting extra credit for presentence custody [ 37 ] Granting extra credit for pre-conviction custody is usually justified because the time on remand isn’t taken into consideration for parole eligibility and because it may be “hard time” due to the absence of educational and rehabilitative programs.

These reasons “are just as applicable when an offender serves remand time after conviction but before sentence”. [41] Although the process of granting such credit is discretionary, the discretion to deny it needs to be exercised on a principled basis. Indeed, the fact of denying it would result in an inconsistent treatment of similar offenders because of its pervasiveness.

It shall be noted that the fact that the accused spent time on remand awaiting his sentence as he was declared guilty does not constitute a principled basis. [ 38 ] Given that, in this case, the accused was detained between the conviction and the sentencing, extra credit should be granted.

Since the accused was in preventive custody for 134 days, a period of 201 days must be deduced from the sentence. [42] FOR THESE REASONS, THE COURT: [ 39 ] SENTENCES the accused to a term imprisonment of seven years to be served concurrently on the counts No. 1, 2 and 4, minus the time in preventive custody (6 months and 2 weeks). The time left to be served is of 6 years and 21 weeks. [ 40 ] SENTENCES the accused to a term imprisonment of three years for the count No. 3 to be served concurrently on the counts No. 1, 2, and 4. [ 41 ] RENDERS an order under

section 487.051 Cr. C. for the purpose on forensic DNA analysis; [ 42 ] RENDERS an order under

section 109 Cr. C., prohibiting the accused to have in his possession all the items and firearms listed in that section, for a period of 10 years; [ 43 ] RENDERS an order under

section 490.12(1) Cr. C., for life under

section 490.013(2.1) Cr. C.; [ 44 ] ISSUES a non-communication order under

section 743.21 Cr. C. during the custodial period, thus prohibiting the accused to communicate directly or indirectly with the victim X; __________________________________ CHRISTIAN M. TREMBLAY, J.C.Q. M e Jérôme Laflamme For the Prosecutor M e Jordan Trevick M e Benjamin Wilner For the Accused

Date of hearing: February 6, 2020