r v. BRIAN BOUCHER, 2019 QCCQ 3827

JC00T9 R. c. Boucher 2019 QCCQ 3827 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Criminal and Penal Division” No: 500-01-149312-172 500-01-151291-173 DATE: June 21, 2019 ______________________________________________________________________ BY THE HONOURABLE JUSTICE PATRICIA COMPAGNONE, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

BRIAN BOUCHER Accused ______________________________________________________________________ DECISION [1] This decision is subject to a publication ban (486.4(1) Cr.C .). ______________________________________________________________________ [ 1 ] The accused was found guilty of having sexually assaulted a young boy, X, while acting as his parish priest, and confirmation sponsor, between 2008 and 2011. [ 2 ] During the trial, the crown adduced similar fact evidence, in relation to sexual assaults committed by the accused, on another young boy he knew while also acting as his parish priest, Y, years before, between 1995 and 1999. [ 3 ] The accused denied all allegations made against him, contending that X fabricated his claim in 2015, as retaliation for telling X’s mother, in 2011, that he had engaged in sexual activity with a girl on church premises in 2011. [ 4 ] He also denied having sexually assaulted Y. [ 5 ] On January 21, 2019, following the guilty verdict of January 8, 2019 concerning X, the accused plead guilty to having sexually assaulted Y, recognizing the facts put forward regarding Y. [ 6 ] Crown and defense are suggesting, in a joint submission, that the Court impose a prison term of 8 years as an appropriate sentence for these crimes.

THE ISSUE [ 7 ] Should the Court follow the joint submission on sentence? CONTEXT

[ 8 ] For the purpose of this decision, the Court refers to the facts outlined in the decision rendered in the file 500-01-149312-172, on January 8, 2019. [ 9 ] In addition, the accused is a 56 year old man, a priest for most of his life, brother to three siblings. His mother is 86 years old. [ 10 ] Crown and defense suggest a total prison term of 8 years. Five years with respect to the matter involving X and three years, to be served consecutively, with respect to the matter regarding Y. ANALYSIS [ 11 ] The fundamental principles of sentencing are codified in sections 718 and following of the Criminal Code .

The goal of sentencing is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society [2] . [ 12 ] This goal is met by the imposition of sanctions intended to meet one or more of the following objectives: to denounce unlawful conduct [3] ; to deter the offender and others from committing offences [4] ; to separate offenders from society when necessary [5] ; to assist in rehabilitating offenders [6] ; to provide reparation for harm done to victims or to the community [7] ; and to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community [8] . [ 13 ] A sentence should also be similar to sentences imposed on similar offenders for similar offences [9] . [ 14 ] Also, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender [10] . [ 15 ] The objective gravity of offences is illustrated by the maximum penalty set out by the legislator.

The maximum penalty, at the time of the events, for the crimes committed by the accused is 10 years imprisonment. [ 16 ] For the matter regarding X the minimum was 45 days imprisonment. [ 17 ] Joint submissions on sentence — that is, when Crown and defense counsel agree to recommend a particular sentence to the trial judge, in exchange for the accused entering a plea of guilty — are vitally important to the well-being of the criminal justice system, as well as the justice system at large [11] . Generally, such agreements are unexceptional and they are readily approved by trial judges without any difficulty [12] .

Occasionally, however, a joint submission may appear to be unduly lenient, or perhaps unduly harsh, and trial judges are not obliged to go along with them [13] . [ 18 ] Here, the submission is not in exchange of a guilty plea. Still, it is recognized that Crown and defense counsel are well placed to arrive at a joint submission that addresses the interests of both the public and the accused. Trial judges should not reject a joint submission lightly [14] .

They should only do so where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system. A lower threshold than this would cast the efficacy of resolution agreements into too great a degree of uncertainty [15] . [ 19 ] Applying the public interest test, the Court finds the sentence proposed by the parties does not warrant a departure from the joint submission. [ 20 ] The Court cannot say that it is unduly lenient, nor unduly harsh.

[ 21 ] With respect to the degree of responsibility of the offender, the Court takes into account the aggravating and mitigating circumstances summarized below. Aggravating circumstances [ 22 ] The accused abused of two young boys entrusted in him by family members because of his position of trust as their priest. [ 23 ] Clearly, the behavior of the accused in committing these crimes, had significant impact on both his victims, considering their age and personal circumstances. Their testimony at trial and at the sentencing hearing is eloquent in that respect.

Because of the accused’s behavior, they carry a life sentence with them. No sentence imposed on the accused will give them back what was taken from them by him. Still, these consequences carry a lot of weight in the present case. [ 24 ] The nature of the sexual assaults are also aggravating. X was submitted to anal penetration on at least three occasions while he was a teenager.

No protection was used by the accused. [ 25 ] Y was submitted to different contacts of sexual nature even simulating full intercourse. [ 26 ] Both were subjected to the obligation of performing oral sex on the accused and letting him touch them in a sexual manner, including him performing oral sex on them. [ 27 ] The frequency of the assaults are also considered aggravating. These were not isolated incidents.

Undeniably, the accused abused both X and Y for the purpose of his sexual gratification, almost as sex toys. [ 28 ] Also, the accused used fear and religion to ensure both victim’s silence. [ 29 ] Him being their priest, he was able, to some degree, to plan ahead of time some moments alone with both of them with the prospect of abusing them. This can easily be assimilated to premeditation. [ 30 ] Finally, in addition to being subjectively significant, the offences are also objectively serious, being punishable by a maximum of 10 years imprisonment.

Mitigating circumstances [ 31 ] The accused plead guilty to the offences regarding Y Still, even if this can be categorized as a mitigating factor, not much weight can be given to it in the present case. [ 32 ] The guilty plea was registered on the morning of what was supposed to be the first day of trial, two years after the laying of the charges by the Crown. [ 33 ] All this, in the context of Y having already testified at the preliminary inquiry.

[ 34 ] Y also testified in support of a similar fact evidence motion in the trial regarding X. The defense cannot be criticized for this. But still, this guilty plea was after the accused vehemently denied both victim’s narrative of the crimes he committed. [ 35 ] All the Court can acknowledge here is that the accused accepted the guilty verdict and waived his right to appeal it. [ 36 ] Finally, the accused has no prior convictions. Appropriate sentence [ 37 ]

Section 718.01 of the Criminal Code orders a court that imposes a sentence for an offence involving the abuse of a person under the age of 18 to give primary consideration to the objectives of denunciation and deterrence of such conduct. [ 38 ] An exhaustive review of case law applicable in these matters, more particularly when committed by a clergy member, indicates that sentences range between some months prison time to 19 years imprisonment, with a concentration between 8 and 19 years imprisonment for the most serious ones [16] . [ 39 ] Justice Moldaver, now a justice at the Supreme Court, then writing for the Ontario Court of appeal in Woodward [17] , while dismissing the sentence appeal against the five-year sentence imposed for the offence of sexual interference, observed the following : [ 75] Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term.

The five-year sentence imposed on the appellant for the sexual assault he committed on the 12-year-old complainant is not excessive. In the light of the appellant's past criminal activity and the lack of any meaningful mitigating factors available to him, if anything, it was lenient. While acknowledging that trial judges retain the flexibility to fashion a fit and just sentence in the particular case, crimes like those committed by the appellant will typically warrant mid-to upper-level single-digit penitentiary sentences.

The additional 18 months the appellant received for the offence of luring was entirely appropriate and did not render the global sentence excessive. [76] In so concluding, I wish to emphasize that when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it.

While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence. [ 40 ] Our Court of appeal, in R.B. v. R . [18] , agrees with Justice Moldaver and underlines the increasing severity in sentencing such behavior. [ 41 ] Without a doubt, these principles apply here.

It is also probably why the parties are presenting this suggestion for sentencing. [ 42 ] Here, the accused is the only one responsible for the commission of these crimes, not the Church, not the victim’s parents nor their caretakers and certainly not X nor Y. [ 43 ] X and Y are to be honored and respected for having denounced the accused’s behavior, whatever the moment they chose to do so. It is never too late to report such devious and inappropriate behavior. [ 44 ] Denouncing has the advantage of stopping the behavior, contributing to it not continuing or being repeated on another person.

It also is liberating in the sense that victims get to retake control over their lives. Control that had been taken by their abuser. [ 45 ] Let’s not forget that X and Y, though they are the victims of the accused, they are not victims in themselves. Only the accused

made them his victims. Nobody else. As was outlined by the prosecutor, they are survivors. They faced their abuser throughout the legal process, without any guarantee about the outcome but certainly about the right to be heard.

The justice system gave them a voice and, through all its participants, it gave them listening ears. [ 46 ] It is with relief that the Court finds the Church, through Bishop Dowd’s actions, investigated the allegation of the accused’s abuse of his power in sexually assaulting young boys, by seeking Y out. [ 47 ] Still, when a wolf is in sheep’s clothing, what can be done to detect or deter him?

The Church certainly has a lot of reflection to do regarding this. [ 48 ] Here, the Court can definitely say that X and Y, though it is not their responsibility, through their complaints, are working for the Church and certainly not against it, in the sense that all of the Church’s followers will undoubtedly benefit from their actions and, consequently, of it being rid of a child abuser. So will the public, whose safety is of the upmost importance in such matters. [ 49 ] The Court, not having heard from the accused on sentencing, cannot qualify the risk of reoffending.

But, in the context of their being two victims, for almost three years each, over a span of 16 years, one can infer the risk is definitely present. The parties agree. [ 50 ] Of course, the Court cannot ignore the public disgrace, loss of status, damage to reputation, stigma of conviction, and loss of employment that has resulted to the accused from this offence. These can count not as a mitigating factor, but as denunciation and deterrence, for the accused himself or any other tempted to do the same. [ 51 ] Justice L’Heureux-Dubé, then a member of the Quebec Court of Appeal, in Marchessault v.

R. [19] , said this: translation ] On a subjective level, it is clear that whenever a crime is committed by a public figure, a person in authority, a star, etc., all the factors mentioned, or almost all, are present: the crime and the punishment receive greater publicity, the shame and opprobrium are that much greater, the financial loss resulting from the loss of employment is commensurate with the high income etc… Popular wisdom has it that the further one falls, the more it hurts…Nobility obliges.

Such an argument would mean the higher the rank or position the figure occupies in society, the more well-known he or she is, the lighter the sentence should be and, conversely, the more humble or obscure the figure is, the harsher it will be. I do not accept this proposition: the scales could not accommodate these two unequal measures.

Justice must be the same for everyone, great or small, rich or poor. [ 52 ] Justice L’heureux-Dubé’s opinion in 1984 still resonates today, 35 years later, and the Court agrees with her. [ 53 ] Totality being a principle by which the Court is bound, the suggestion of an 8 year prison term is deemed appropriate in the circumstances at bar. [ 54 ] The Court agrees with the parties and finds their joint submission to be a fit and just sentence. [ 55 ] The parties agree on all mandatory orders provided by law, except the application of

section 161a) of the Criminal Code , the prohibition from attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre. [ 56 ] The defense argues the facts of these cases do not require for this prohibition to be ordered. The Crown leaves it to the Court’s discretion.

[ 57 ] Such an order is to protect vulnerable children from sexual predators and from the risk they represent. Here, the accused, though he did not act illegally in a park or such area as prescribed by

section 161a) , was a predator to young boys, bringing them to different public areas while they were in his care. Not having heard from the accused regarding this specific prohibition and considering the impossibility of qualifying or quantifying the risk of reoffending, the Court feels it is necessary to impose such a prohibition. [ 58 ] The facts and principles regarding such a prohibition support such an order but it will be modulated with the condition suggested by the defense, though a bit modified. An adult aware of this prohibition will have to accompany the accused if he is ever to attend such an area.

CONCLUSION [ 59 ] Consequently, the Court finds the joint submission to be a reasonable and fit sentence.

FOR THESE REASONS, THE COURT: CONDEMS the accused to 5 years imprisonment regarding count number two in file 500-01-149312-172; CONDEMS the accused to 5 years imprisonment regarding count number three in file 500-01-149312-172, to be served concurrently to count number two; CONDEMS the accused to 3 years imprisonment regarding count number one in file 500-151291-173, to be served consecutively to any other sentence; CONDEMS the accused to 3 years imprisonment regarding count number two in file 500-151291-173, to be served concurrently to count number one but consecutively to any other sentence; FOR A TOTAL of 8 years imprisonment.

FORBIDS the accused from communicating, directly or indirectly, during his detention, with X and Y, following

section 743.21 of the Criminal Code ; ORDERS the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis, following

section 487.051(1) of the Criminal Code ; ORDERS the accused to comply with the Sex offender information registration Act for life, following

section 490.011 of the Criminal Code ; FORBIDS the accused, for life, from attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre, following

section 161a) of the Criminal Code , EXCEPT if accompanied by an adult aware of this order; FORBIDS the accused, for life, from seeking, obtaining, or continuing any employment, whether or not the employment is remunerated, or becoming a volunteer in a capacity that involves being in a position of trust or authority towards a person under the age of 16, following

section 161b) of the Criminal Code ;

ORDERS the accused be prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substances, prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition, for life, following section 109(3) of the Criminal Code . __________________________________ PATRICIA COMPAGNONE, J.C.Q. M e Annabelle Sheppard Counsel for the Crown M e James Cocciardi M e Mark Paci Counsel for the Accused Date of hearing: March 25, 2019