r v. Haissam, 2014 QCCQ 3909

JH 5280 R. c. Salaheddin 2014 QCCQ 3909 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-025941-094 DATE: 15 May 2014 _____________________________________________________________________________ BEFORE THE HONOURABLE PATRICK HEALY, J.C.Q. _____________________________________________________________________________ THE QUEEN Prosecutor v. Haissam SALAHEDDIN Accused _____________________________________________________________________________ JUDGMENT _____________________________________________________________________________ [ 1 ] Mr.

Salaheddin was found guilty of sexual assault upon J. N., a young woman whom he employed in his shop. The facts of this matter are stated in the judgment dated 12 March 2013. [1] [ 2 ] The prosecution proposes a sentence of imprisonment for six months followed by a term of probation with follow-up, including therapeutic conditions, and orders for registration as a sex offender and a sample of DNA. The defence proposes a suspended sentence and probation with follow-up or, in the alternative, an intermittent sentence of one day per week. [ 3 ] Mr. Salaheddin deliberately touched the breasts of the victim. This was

an act of opportunism and an abuse of his position as her employer. Despite his denials, it appears that this gesture was fuelled by the consumption of alcohol and indeed the evidence indicates that at the relevant time Mr. Salaheddin had a problem of excessive consumption of alcohol. He has shown no remorse for his actions and has in no way taken responsibility for them. At the trial he sought repeatedly to denigrate the victim. He said, among other things, that she was late for work and accused her of theft. [ 4 ] J. N. has said at the trial and again at the sentencing hearing that the offence committed by Mr.

Salaheddin was, and remains, upsetting and destabilising. She says the events diminished her self-esteem and that she remains nervous and uncomfortable whenever she is in the vicinity of the offence. No doubt she also feels still feels offended by Mr. Salaheddin's repeated denigration of her at the trial. [ 5 ] Mr. Salaheddin operates a clothing store in a shopping centre. This shop is his sole source of income. He claims that he now works alone but that occasionally, when necessary, he will ask a friend to operate the shop in his absence.

He said repeatedly that at the relevant time he drank regularly but denied drinking excessively while at work. The evidence of the victim and other indications in the file suggest otherwise. In any event, Mr. Salaheddin claims that he has since put an end to all drinking. He lives alone and, apart from his son, has no other family in Quebec. In the past year Mr. Salaheddin reports that he has been diagnosed with pericarditis. [ 6 ] A pre-sentence report and a psycho-social evaluation were prepared in this case. They are consistent in their observations. They report that Mr.

Salaheddin is narcissistic and impulsive, with little regard for others. They suggest that Mr. Salaheddin has had problems with excessive consumption of alcohol but both note his claims to have stopped drinking. They note that the risk of recidivism would appear to be low. [ 7 ] The defence notes that Mr. Salaheddin has no criminal record and no pending cases. He has followed his conditions of release. In addition to the low risk of recidivism the defence notes too that Mr. Salaheddin works in his shop every day of the week. As

for the offence, the defence suggests that the offence was an opportunistic act and quite probably fuelled by alcohol. For these reasons the defence proposes that the sentence in this case should emphasise the objective of rehabilitation. [ 8 ] For its part the prosecution says that a fit sentence must include a significant element of denunciation in response to the elements of opportunism and abuse of authority with regard to the young victim. The prosecution says that the offence was far from minor, as is demonstrated by its lasting effects on the victim.

The prosecution notes not only the total absence of remorse but the sustained attempts by Mr. Salaheddin to denigrate the victim. [ 9 ] At the trial and at the sentencing Mr. Salaheddin demonstrated repeatedly that his evidence is unreliable. Although I can only hope that he has now abandoned the consumption of alcohol, his assertions on this subject have been contradictory and incoherent. Nothing in this case provides a solid foundation for hope of genuine rehabilitation or for recognition of responsibility for the offence committed upon the victim. If Mr.

Salaheddin has given up the consumption of alcohol, there might be some further reason to believe that the risk of recidivism is remote and to this extent there remains hope of rehabilitation. In this regard I will not set aside the objective of rehabilitation but at the same time I agree with the prosecution that a fit sentence must include a clear element of denunciation. [ 10 ] A conditional sentence is not an option in this case.

In my view this would have been a case in which a conditional sentence, with appropriate terms, would have been a fit sentence because it would allow an appropriate blend of the objectives of denunciation and rehabilitation. As this option is no longer available, I must try to find another way to secure the same objectives. [ 11 ] I agree in principle with the defence that the unavailability of a conditional sentence does not ineluctably force a sentence of incarceration if other means can be found to impose a sentence that is proportionate to the gravity of the offence and the responsibility of the offender.

In some cases this might be achieved by a suspended sentence with probation. In this case, however, my conclusion that a conditional sentence would have been appropriate necessarily implies that a term of imprisonment is appropriate because that is what a conditional sentence is – imprisonment in the community. [ 12 ] There is another factor that I will take into consideration. In Pham [2] the Supreme Court concluded that it is appropriate to consider collateral effects of a sentence if those effects might lead to a disproportionate sentence. In this case I have heard that Mr.

Salaheddin works alone in his shop and that it is difficult for him to find a replacement. It is therefore reasonable to conclude that a period of continuous detention would have severe effects on the viability of his business and in turn on his prospects for rehabilitation.

While taking these collateral effects into account, I should add that such effects cannot be given undue weight so as to eclipse the legitimate objectives of sentencing and the fundamental principle of proportionality. [ 13 ] The sentence that I will impose is intended to express denunciation for a crime of sexual violation committed in an opportunistic way by an employer against a young and vulnerable victim who remains disturbed to this day by what occurred. At the same time it is intended to express a hope for rehabilitation within the context of strict supervision. FOR THESE REASONS, Mr.

Salaheddin, the sentence of the Court is as follows: ORDER Imprisonment 1. You will serve an intermittent sentence of imprisonment for a term of ninety (90) days in forty-five (45) consecutive weeks, to be served Sunday from 9h00 to Monday at 17h00, beginning 18 May 2014. Probation 2.

You will serve a term of probation for three years, beginning today and subject to the following conditions: 2.1 Keep the peace and be of good behaviour; 2.2 Report to the probation service in the Montréal Courthouse before 17h00 today; 2.3 Respect all appointments and recommendations made by your probation officer, including any recommendations of a therapeutic nature; 2.4 Refrain from any contact whatsoever, direct or indirect, with the victim J. N.. Other orders 3.1 Pursuant to

section 490.012(1) of the Criminal Code , you will comply with the Sex Offender Information Registration Act for a period of twenty (20) years from today. 3.2 Pursuant to

section 109 of the Criminal Code , it is forbidden for you to possess any weapons for a period of ten (10) years from today. 3.3 Pursuant to

section 487.051(1) of the Criminal Code , and considering sexual assault is super-primary offence, you will supply a sample of DNA. 3.4 All without costs or surcharge.

____________________________________ PATRICK HEALY, J.C.Q. M e Roxane Laporte For the prosecution M e Charles Benmouyal [3] For Mr. Salaheddin Date of hearing: 14 April 2014