r v. Chad, 2021 QCCQ 3473

R. c. Ofter 2021 QCCQ 3473 JP 2213 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL N° : 500-01-184922-190 DATE: April 27, 2021 BEFORE THE HONOURABLE YVAN POULIN, J.C.Q. HER MAJESTY THE QUEEN Prosecutor v. Chad OFTER Accused SENTENCE [ 1 ] On September 2, 2020, Mr. Ofter was found guilty of sexual assault regarding events that occurred on the evening of January 7, 2017. At the time of the incident, Mr.

Ofter was 21 years old and the victim was 19. [ 2 ] The facts described in the written judgment [1] rendered on September 2, 2020 should be considered to form part of the present judgment. [ 3 ] On the day of the events, the victim went to Mr. Ofter’s house to watch a hockey game. Although mutual and consensual kissing and touching occurred on the couch and on the bed, the victim resisted and refused, by her actions and words, several attempts by Mr. Ofter to go further. [ 4 ] S he refused to let him take off her bra by saying no and redoing the clasp.

She stopped his hand from going down under her leggings to penetrate her with his finger. She stopped him when he tried to roll down her leggings to undress her. And she explicitly said that she was not ready for sex on the first date. [ 5 ] At trial, the victim testified that she was forced to perform oral sex on Mr. Ofter,

an act that she had never done before in her life. For his part, Mr. Ofter claimed that she consented to do so. [ 6 ] After considering all the evidence, the Court determined beyond a reasonable doubt that the victim did not consent to oral sex and that Mr. Ofter knew that she was not consenting. [ 7 ] The Court must now determine the just and appropriate sentence to impose on Mr. Ofter. I - THE EVIDENCE ON SENTENCING [ 8 ] Following the verdict of guilt, the court obtained a presentence report and a psycho-sexual evaluation regarding Mr. Ofter.

At the hearing, the victim read a victim impact statement and she was cross-examined by defence counsel. [ 9 ] Mr. Ofter’s mother testified for the defence and read a letter about the impact of the events on her son and family. Moreover, seven letters written by friends, family members and a psychologist were read and entered into evidence, in addition to newspaper articles about the present case, which were published after the verdict. II - THE VICTIM [ 10 ] At the time of the events, the victim was a university student and was still living with her parents.

Following the events, she continued studying and obtained her degree. She studied abroad for some time as part of her curriculum. She also continued to compete in the sporting activity in which she had been involved for a long time. [ 11 ] The victim stated that she was, and still is, emotionally and psychologically affected by the events. She described the feeling of “ extreme shame ” and embarrassment following the assault and the difficulty of coming to terms with having been a victim of this crime.

[ 12 ] She suffered from panic attacks, which she did not have before, and her athletic performances were affected. She consulted the sports psychologist she was seeing before the offence, and was referred to a psychologist with experience with dealing with victims of sexual assaults. [ 13 ] The victim described feeling anxious and stressed as a result of the sexual assault. She has nightmares and needs medication to get through the night, suffering from anxious moments. She explained that she now has issues trusting men, which affects her relationships.

She stated that panic attacks resurface as soon as she develops a relationship. [ 14 ] The victim also mentioned that she lost confidence in herself and lives with constant anxiety. She still consults a psychologist to help her cope with the situation. She has found the judicial process very difficult and hopes to eventually be able to live a normal life. [ 15 ] At the hearing, defence counsel challenged the totality of the victim impact statement.

He filed photos that were posted by the victim on social media in the months following the events indicating she continued to live a happy life and was able to compete in sport at a high level. He submitted that no harm had been proven beyond a reasonable doubt. [ 16 ] The Court will deal with this question in more detail below. For the moment, it suffices to say that it was proven beyond a reasonable doubt that the victim suffered emotional and psychological harm. III - THE ACCUSED [ 17 ] Mr. Ofter is now 25 years old. He has no criminal record nor any pending charges.

He was born and raised in the West Island in a close-knit loving family. He has three older sisters, including one suffering from global developmental delay and a seizure disorder. He has always been very attentive and caring towards his sister’s special needs. [ 18 ] Mr. Ofter has always excelled academically. He graduated from a private high school and studied at cegep and university. He obtained a bachelor’s degree in sociology and took courses to become a real estate agent, like his parents and other family members.

He was on the verge of starting his career in real estate when the verdict in the present file was rendered. [ 19 ] While he was in school, he worked several jobs, first at a gym, then at David’s Tea and at a bank. He was always described as an engaging, well-liked, fun-loving and positive young man who spent a lot of time with his family. He was popular and had a large network of friends. He was good at sports and played rugby and football. [ 20 ] There is no doubt that going through the legal process has had a significant impact on Mr. Ofter.

Newspaper articles published after the verdict had an important effect on his state of mind and on his reputation. The letters filed into evidence by family and friends confirm the changes observed in Mr. Ofter since his arrest in 2018. These changes have been much more significant since his conviction in 2020, which led to an important increase in the frequency and amount of his alcohol consumption. [ 21 ] At the sentencing hearing, in an emotional testimony, his mother described the impact of the events on her son and family.

She explained that following the verdict, he isolated himself from those around him and rarely came out of the basement. Despite the support he receives from the entire family and friends, she observed a “ devastating change ” in his demeanor and she worries about his well- being and his mental health. [ 22 ] A few weeks after the verdict, Mr. Ofter started to see a psychologist. He requested a consultation in order to address the impact of the events on his mental health. He has since been in session every two weeks and openly discusses the impact the past few years have had on him.

He is described by his psychologist as a “ resilient and determined young man that aspires to be a productive member of society ”. [ 23 ] As for the present case, Mr. Ofter’s perspective is that the victim consented to perform oral sex on him. He believes that she filed a complaint because she was offended when he pushed her away after the oral sex. With regard to his after-the-fact behavior, he admitted to the sexologist that he was “ an ass ”, but maintained that he “ didn’t actually assault her ”. [ 24 ] The presentence report and sexual expertise confirm that Mr.

Ofter does not suffer from any sexual deviance. As a single man, he has had multiple casual sex partners he met in social settings and through social media used for this specific purpose. He also had two significant romantic relationships in his life, both described as healthy, respectful and free from any sexual coercion or abuse. [ 25 ] With respect to the present case, the presentence report states: Compte tenu de l’information que nous avons colligée sur le contrevenant, il nous est difficile d’identifier des causes claires au passage à l’acte de ce dernier.

À notre avis, il a probablement expérimenté une suspension temporaire du jugement et une décision d’obtenir une gratification sexuelle, plutôt qu’un comportement délinquant de prédation, mûri et prémédité. Le délit pourrait découler d’un contrôle pulsionnel déficient; par exemple une excitation sexuelle importante lors du passage à l’acte. Dans un contexte de sexualité impersonnelle, la victime est vue comme un moyen d’obtenir satisfaction. [2] [ 26 ] The presentence report and sexual expertise mention that Mr.

Ofter represents a “ low risk ” of reoffending and does not have “ the characteristics generally associated with individuals committing crimes ”. Both reports also recommend that he continue his therapy with his psychologist, which could include a component on free and informed consent. [ 27 ] As regards to the impact a conviction could have on a job in the real estate industry, his mother raised some potential difficulties and complications, which were not specifically substantiated.

IV - POSITION OF THE PARTIES [ 28 ] Given all the circumstances and the applicable principles, the Crown submits that a term of imprisonment of 18 months would be a just and appropriate sentence. In support of its submission, the Crown relies on case law [3] in which similar sentences have been

imposed. [ 29 ] T he defence submits that the present case does not call for a severe sentence. The defence challenges the testimony of the victim on the harm done and submits that it should be entirely set it aside when determining the just and appropriate sentence. [ 30 ] Given all the circumstances, the defence argues that a conditional discharge would sufficiently serve the interests of justice in the present case.

In support of its argument, t he defence relies on sexual assault cases [4] in which more lenient sentences have been imposed to defendants with a good profile and a favorable presentence report. [ 31 ] Alternatively, the defence contends that a suspended sentence would be an appropriate sentence. The defence further submits that if the Court contemplates a term of imprisonment, it should be less than 90 days and be served intermittently pursuant to

section 732 of the Criminal Code . V - ANALYSIS The principles [ 32 ] The objectives of sentencing long recognized at common law have been codified in s. 718 of the Criminal Code . They are: the denunciation of unlawful conduct; deterrence, both general and specific; the separation of the offender from society where necessary; rehabilitation; repair of harm done to the victims or the community; promoting a sense of responsibility in offenders; and acknowledgement of the harm done. [ 33 ]

Section 718.1 of the Criminal Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It requires that a sentence be similar to those imposed on similar offenders in similar circumstances.

It also requires consideration of all available sanctions, other than imprisonment, that may be appropriate in the circumstances and consistent with the purpose and principles of sentencing. [ 34 ] The fact that the accused is a young man and a first-time offender is a factor that the Court must take into consideration [5] . [ 35 ] It must be emphasized that the determination of a fit sentence is a fact-specific exercise. The facts of the offence, the consequences, the circumstances of the accused and his moral blameworthiness are all factors that the Court must consider.

In the words of the Supreme Court: “ the determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation ” [6] . [ 36 ] Given the wide range of behavior constituting a sexual assault, sentences imposed for this offence vary considerably [7] . While the maximum sentence for this offence is 10 years of imprisonment, the Criminal Code does not provide for a minimum penalty. [ 37 ] The protection of the physical and sexual integrity of all individuals is one of the most fundamental values of our society.

Thus, sentences imposed for this type of offence should reflect the wrongfulness, harmfulness and seriousness of such conduct. [ 38 ] In general, denunciation and deterrence are significant factors when imposing sentence for sexual offences. In R . c.

Gravel [8] , at paragraph 15, the Court of Appeal held: [15] Quoique l’emprisonnement ferme soit la sanction privilégiée en matière d’agression sexuelle, cette règle d’application générale comporte des exceptions : L’emprisonnement ferme est donc la sanction privilégiée en matière d’agression sexuelle, qu’il s’agisse de victimes mineures (les crimes d’agression sexuelle étant alors greffés de peines minimales d’emprisonnement) ou de victimes majeures.

Évidemment, toute règle d’application générale comporte des exceptions et dans des circonstances appropriées, une peine plus clémente pourrait être envisagée. [ 39 ] Moreover, according to authors Hugues Parent and Julie Desrosiers: […] les arrêts récents de la Cour d’appel du Québec indiquent clairement que des gestes de la nature d’attouchements, même lorsqu’ils sont perpétrés au cours d’un incident unique et isolé, peuvent mener, voire mènent généralement, à l’emprisonnement ferme. [9] [ 40 ] Many examples of sentences imposed for sexual assault can be found in the jurisprudence.

Whereas long incarceration terms are imposed for the most serious offences [10] , courts can favor shorter terms of imprisonment [11] , intermittent jail terms [12] , or alternatives to incarceration [13] , where circumstances allow for more weight to be given to the principle of rehabilitation. [ 41 ] Some examples of sentences in the Court of Appeal of Quebec are summarized below: ➢ In Oum v. R . [14] , the Court recently upheld a sentence of imprisonment of 18 months in the case of a sexual assault with penetration committed while the victim was asleep and intoxicated. The accused was her roommate and friend.

He had no criminal record, a favourable personal profile and was considered an asset for society. He had prosocial values, a low risk of reoffending, and was supported by his family. Despite the mitigating factors, the Court imposed an 18-month term of imprisonment; ➢ In Roy c. R. [15] , the Court recently upheld a 90-day intermittent jail term for a sexual assault, which consisted of sexual touching. The accused and the victim were coworkers and the incident occurred at work. The victim was emotionally and psychologically harmed. The accused had a criminal record, other than in sexual matters.

He followed a therapy, expressed remorse and regret, and had a favourable profile; ➢ In R . c. Gravel [16] , the Court upheld a conditional discharge for a sexual assault. The accused had no prior convictions and expressed sincere remorse and regret. There was a low-risk of reoffending and a favourable personal profile. While acknowledging that the sentence was lenient, the Court of Appeal declined to intervene as no reviewable error had been shown;

➢ In Côté c. R . [17] , the Court upheld a sentence of imprisonment of 18 months in the case of a sexual assault committed while the victim was intoxicated. The accused had no prior convictions but the risk of reoffending could not be ruled out. [ 42 ] Furthermore, several decisions were rendered by first instance courts for sexual assault, such as: ➢ In R . c. Bitemo Kifoueti [18] , the accused was sentenced to a 3-month jail term after having been convicted for sexual assault, which consisted of sexual touching. The accused was a 47 year-old pastor with no criminal record and the victim was 21.

Given all the circumstances, the Court of Quebec determined that the submission of the defence for a discharge was too lenient; ➢ In R . c. Toupin [19] , the accused was granted a conditional discharge for a single sexual assault committed while the victim was intoxicated. Both the accused and the victim were studying at college level. The accused had no prior convictions and a good personal profile; ➢ In R . c. Côté-Nault [20] , the accused pleaded guilty and was granted a conditional discharge for digital penetration and cunnilingus. The offence was committed while the accused was intoxicated.

He took full responsibility for his actions and expressed sincere regret and remorse. The risk of reoffending was determined to be “low” and he was considered an asset for society; ➢ In R . c. Choukroun [21] , the accused was found guilty of sexual assault and sentenced to 12 months of incarceration. He had no prior convictions, had the support of his spouse and was an asset for society. The victim was a former sexual partner. The risk of reoffending was “ low to moderate ”; ➢ In R . v.

Allen [22] , the Ontario Court of Justice concluded that a sentence of 3 years was warranted in the case of an accused with numerous prior convictions who violently forced the victim to perform oral sex on him; ➢ In R . c. St-Pierre [23] , the accused was found guilty of sexual assault and sentenced to 18 months of imprisonment. The assault included digital penetration (vaginal and anal) and sodomy. The victim was an acquaintance and former sexual partner. The accused was an immature 19 year-old; ➢ In R . c.

Martel [24] , the accused, an 18 year-old man, was sentenced to a 90-day intermittent jail term for sexual assault on a 17 year- old friend. He had no criminal record, pleaded guilty and took full responsibility for his actions. He expressed sincere remorse and regret. He had suicidal thoughts and was stigmatized by students at his school when the events came to light; ➢ In R . v. Diotte [25] , a 90-day intermittent jail term was imposed to a real estate agent for sexual assault (forced fellatio) on a client. The accused had no criminal record and was described an asset for society.

The case attracted media attention and resulted in a loss of employment and a breakdown of his personal relationship. At the time of sentencing, he had to support his autistic child on his own; ➢ In R . c. Bouchard [26] , the accused was found guilty of sexual assault and sentenced to 14 months of incarceration for sexual intercourse without consent. He had no prior convictions. The accused and the victim had been former “friends with benefits”. Despite the positive personal profile of the accused and the fact that he had two young children, the Court concluded that a term of imprisonment was required.

The Court rejected the defence’s submission that a discharge would sufficiently serve the interests of justice. [ 43 ] It is understood that sentencing ranges “ are primarily guidelines, and not hard and fast rules ” [27] . Moreover, it bears repeating that proportionality must always guide judges in determining the sentence that is fair and appropriate in any given case. The fact that denunciation and deterrence should be emphasized does not mean that the other factors must completely be ignored [28] .

In the end, a sentence should always be individualized, proportionate to the gravity of the offence and the degree of responsibility of the offender, and consistent with the sentencing objectives already mentioned. The impact on the victim [ 44 ] In the present case, after reviewing all the evidence, the Court concludes that it was proven beyond a reasonable doubt that the victim was, and still is, emotionally and psychologically affected by the offence.

While it is true that she was able to pursue her studies and obtain her degree following the events, the Court concludes that emotional and psychological harm was established conclusively and convincingly pursuant to s. 724(3)

e) of the Criminal Code . [ 45 ] It must be remembered that victims of sexual assault react in different ways. The effects of an offence can vary from one victim to another, depending on their personal characteristics and circumstances. It must be stressed that psychological and emotional harm is often insidious and difficult to perceive from the outside.

Thus, the fact that a victim seems able to continue with her social, personal or professional activities does not necessarily mean that she has not suffered consequences from the crime. [ 46 ] In the present case, the Court believes the victim when she describes the emotional and psychological harm caused by the offence, both in her testimony and in the victim impact statement. In light of all the circumstances, nothing in her testimony or in the evidence affects her credibility or reliability on this issue.

Consequently, the Court rejects the defence’s argument that her statement must completely be set aside. [ 47 ] It must be emphasized that the fact that she posted pictures showing that she continued to live her life does not mean that the consequences she describes are untrue. One does not require or expect a victim to post photos of herself distraught on social media.

Victims are not required to openly show their wounds, as opposed to finding means to heal or cover them, in order for the court imposing sentence to take account of the consequences of a crime on them. [ 48 ] Moreover, the fact that the victim was able to continue to compete does not alter her view that she was no longer at the same level.

In sum, and in view of all the circumstances, the Court accepts the testimony of the victim as to the emotional and psychological consequences of the offence, which were proven beyond a reasonable doubt. [ 49 ] That being said, the Court concludes that it was not proven beyond a reasonable doubt that the irritable bowel syndrome was

caused by the events in the present case. Although the victim was told by her doctor that it might be the result of stress, the evidential link between this physical consequence and the assault has not been made. The appropriate sentence [ 50 ] The Court must now determine the just and appropriate sentence to impose on Mr. Ofter.

As to the aggravating factors, the Court takes into account: ➢ The emotional and psychological consequences on the victim; ➢ The fact that he pulled her hair and held her wrists throughout the time on the bed; and ➢ The fact that he ejaculated in her mouth. [ 51 ] With regards to mitigating factors, the Court considers: ➢ The fact that Mr. Ofter is a youthful first offender; ➢ The low risk that he will reoffend; and ➢ The positive profile and personal circumstances of Mr.

Ofter, as described in the presentence report and psycho-sexual evaluation, including the fact that he is an asset for society, that he is supported by his family and friends, and that he does not suffer from any sexual deviance. [ 52 ] The Court also considers the impact of the judicial process and media coverage as relevant contextual circumstances [29] . [ 53 ] After considering all the circumstances, the Court concludes that the position put forward by the defence is too lenient.

Although Parliament has left open the possibility of granting a discharge for a sexual assault, it would not be appropriate to do so here. [ 54 ] On the whole of the evidence, the Court concludes that a discharge would not be proportionate to the gravity of the offence and the degree of responsibility of Mr. Ofter. More specifically, it would not sufficiently take into account the seriousness of the offence, its consequences on the victim, the degree of responsibility of Mr.

Ofter and the sentencing objectives that were mentioned above. [ 55 ] Had it not been for the mitigating factors listed above, the Court would have imposed a longer term of imprisonment. However, having regard to the appropriate weight to be given to Mr.

Ofter’s favorable profile, including the fact that he is a youthful first offender, the low risk that he will reoffend, the impact of the legal process and all his personal circumstances, the Court is of the opinion that an intermittent jail term is the just and appropriate sentence in the present case, as it takes into account all the mitigating and aggravating factors, and adequately strikes a balance between the sentencing principles that apply in such cases. [ 56 ] For all these reasons, given all the circumstances, the case law and the applicable principles, Mr.

Ofter is hereby sentenced to a term of imprisonment of 90 days that will be served intermittently , from 9 a.m. on Saturdays to 5 p.m. on Sundays, starting May 15, 2021. [ 57 ] Moreover, the Court directs that he comply with the following conditions of a probation order for a period of 12 months : ➢ Keep the peace and be of good behaviour; ➢ Appear before the court when required to do so; ➢ Notify the court or probation officer in advance of any change of address, and promptly notify the court or the probation officer of any change of employment or occupation; ➢ Report to a probation officer within two working days of the present judgment and, thereafter, whenever required by the probation officer and in the manner directed by the probation officer; ➢ Abstain from communicating, directly or indirectly, with the victim; ➢ Abstain for being within a radius of 200 meters from the domicile, place of work or place of studies, if any, of the victim; ➢ Follow any recommendation of the probation officer, including participating in awareness sessions on free and informed consent; and ➢ Continue his sessions with his psychologist. [ 58 ] Pursuant to

section 490.012 of the Criminal Code , the Court directs that he comply with the Sex Offender Information Registration Act for a period of 20 years. [ 59 ] Pursuant to subsection 109(1)

a) of the Criminal Code , the Court prohibits the accused from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for a period of 10 years; and prohibits the accused from possessing any prohibited or restricted firearm, and any prohibited weapon, device or ammunition for life. [ 60 ] Pursuant to

section 487.051 of the Criminal Code , the Court authorizes the taking of samples of bodily substances for the purpose of forensic DNA analysis.

______________________________ YVAN POULIN, J.C.Q. Me Annabelle Sheppard For the prosecution Me Vincent Rose For the accused Dates of hearing on sentencing: December 9, 2020 January 29 and February 22, 2021