r v. T. N., 2023 QCCQ 10314

R. c. T.N. 2023 QCCQ 10314 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Criminel and Penal Division No: 500-01-230877-224 DATE: December 20, 2023 ______________________________________________________________________ BEFORE THE HONOURABLE SUZANNE COSTOM, J.C.Q. ______________________________________________________________________ HIS MAJESTY THE KING Prosecutor v. T. N. Accused ______________________________________________________________________ JUDGMENT NOTE – The Court has made an order pursuant to

article 486.4 of the Criminal Code directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. [ 1 ] The accused pleaded guilty to sexually assaulting X, his girlfriend’s daughter, on February 5 and 6 2022, contrary to

section 271 (

b) of the Criminal Code . [ 2 ] The prosecution submits that the appropriate sentence is a 6-month term of imprisonment. The defence recommends the imposition of a conditional sentence of imprisonment, without specifying a duration. THE FACTS [ 3 ] In February 2022, the accused was living with his girlfriend and her 16-year-old daughter (the victim). On February 5, when he was in the kitchen with her, he put his hand under her shorts. Later that night, the family was watching a movie together in the living room and the accused put his hand in the victim’s shirt and touched her breasts for a couple of seconds.

Still on February 5, he put his hands in her shorts again and moved his fingers around, although he did not penetrate her. [ 4 ] The victim advised her brother what had happened, and they installed a video camera in a stuffed animal. [ 5 ] On February 6, while the family was sitting on the couch, the accused touched the victim’s back and moved his hand close to her buttocks. This lasted a couple of seconds and was partly caught on video. [ 6 ] The Director of Youth Protection (DYP) became involved following the incident. The victim moved out of her home although she maintained a relationship with her mother.

THE CONSEQUENCES OF THE CRIME FOR THE VICTIM [ 7 ] In an email written to the investigator [1] , the victim shares that since the incident she suffers from extreme anxiety. She has nightmares and sometimes feels depressed. She has other symptoms which are not easy to overcome. [ 8 ] Fortunately, she is able to count on her boyfriend as well as her female friends who have supported her and helped her regain her ability to laugh and smile. With good reason, she is proud that she is surrounded by such a wonderful support system.

THE ACCUSED [ 9 ] The accused is 63 years old and has no criminal record. [ 10 ] According to the presentence report [2] (PSR), he grew up in Vietnam but fled to Canada in the 1980s because of political changes in his native country. He and his wife lived in a refugee camp for 1½ years in Manitoba before eventually making their way to Québec. He studied hairdressing and worked as a hairdresser in the same salon until his retirement. [ 11 ] The accused got married at age 21 and he and his wife have 2 children who are now ages 30 and 24. His wife died 7 years ago.

A few years later, he met his new partner, the mother of the victim in the case. He soon began living with her and her children.

[ 12 ] Following the incident forming the basis of the charges, the accused moved out, but he and his girlfriend remain a couple and she is supportive of him. [ 13 ] Around the time of the incident, the accused consumed 2 to 3 cans of beer a day to relax. According to his testimony at the sentencing hearing, he has reduced his consumption and now drinks much less frequently. [ 14 ] The author of the PSR notes that despite some cultural and language barriers, the accused was open and respectful.

She suggests that the crime was opportunistic, given the accessibility of the victim, and possibly brought on to a certain extent by the disinhibition associated with the consumption of alcohol. [ 15 ] The PSR describes the accused as well integrated into society and qualifies the risk of recidivism as low. [ 16 ] That being said, the author of the report remarks that the accused’s capacity for introspection is quite low and that it would be beneficial for him to undertake therapy with a view to examining in more depth his sexual dynamics and the factors contributing to the commission of the offense.

The Period Following the Offences [ 17 ] The accused testified at the sentencing hearing and described his state of depression following the commission of the offenses. He spent hours on end alone in his room and could hardly eat. He recognized the pain that he caused to both his girlfriend and her daughter, and he was inhabited by regret. He began speaking with a therapist who eventually helped him to overcome the depression.

He became determined to use the incident as an opportunity to become a better person. [ 18 ] According to the letter from his social worker [3] , the accused engaged in ten weekly telephone counselling sessions between August and October 2022. Five of the sessions were devoted to learning healthy strategies and tools to deal with his depression.

The other five were focused on understanding and addressing the incidents that led to the criminal charges. [ 19 ] The letter written by the social worker reads as follows: “You were able to learn and understand the seriousness of laws pertaining to offences to young children. You reported that you are remorseful and recognize the pain and hurt that affected others including your partner and her child. You gained insight into your actions and acknowledged it was a mistake.

You reported that you want to better yourself […].” [4] [ 20 ] The accused testified that he is remorseful, has learned his lesson and that the incident never leaves his mind. SENTENCING PRINCIPLES [ 21 ] According to

section 718 of the Criminal Code , the fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society. This is done by imposing just sanctions that have one or more of the following objectives: denunciation, deterrence, the separation of offenders from society were necessary, rehabilitation, providing reparations for harm done to victims or to the community, and promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community. [ 22 ]

Section 718.01 instructs judges that when imposing a sentence for an offence that involves the abuse of a person under the age of 18, primary consideration must be given to the objectives of denunciation and deterrence. [ 23 ] In all cases, sentences must be proportionate to the gravity of the offense and the degree of responsibility of the offender. [ 24 ] The principle of parity is such that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

The principle of restraint requires that all sentences other than imprisonment should be considered, and offenders should not be deprived of liberty if less restrictive sanctions may be appropriate [5] . [ 25 ] In fashioning an appropriate sentence, the courts must evaluate the objective and subjective gravity of the offence. The objective gravity of the offense is gleaned by reference to the maximum sentence prescribed in the Criminal Code . The subjective gravity involves an analysis of the aggravating and mitigating factors in any particular case. [ 26 ]

Section 718.2 sets out a number of statutory aggravating factors including evidence that the offender, in committing the offense, abused the offender’s intimate partner or a member of the victim’s family [6] ; evidence that the offender, in committing the offence, abused a person under the age of 18 [7] ; and evidence that the events had a significant impact on the victim, considering their age and other personal circumstances [8] .

Sentencing for offences of a sexual nature The decision of the Supreme Court of Canada in Friesen [9] [ 27 ] On April 2, 2020, a unanimous panel of 9 judges of the Supreme Court released its decision in Friesen . This case provided the opportunity for the Supreme Court to provide direction to sentencing judges to ensure that the sentences they impose “fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children” [10] . [ 28 ] The Court’s reasons include a detailed description of the harm done to both the actual victims and to society in general through

the perpetration of sexual crimes against children. The Court underscores that these crimes constitute a violation of both the physical and sexual integrity of the victims, and also cause psychological harm [11] . [ 29 ] The Supreme Court in Friesen also highlights the legislative amendments which over the years have led to an increase in the severity of sentences imposed for sexual crimes against young people.

The evolution in our understanding of the gravity of these offences is such that sentences must be more severe than they were at the past [12] . [ 30 ] While the principle of proportionality remains central to the sentencing process [13] , Courts must take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle.

This reality impacts both the gravity of the offence and the degree of responsibility of the offender [14] . [ 31 ] Also in Friesen , after discussing the appropriate general approach to be taken to punishing those who commit sexual crimes against children, the Supreme Court discussed a number of aggravating and mitigating factors [15] .

These include the likelihood of recidivism [16] , abuse of trust or authority, the length and frequency of the sexual violence [17] , the age of the victim [18] , the degree of physical interference, the presence or absence of a guilty plea [19] and the expression of remorse [20] . [ 32 ] The Supreme Court also discussed a certain number of factors which are irrelevant to the sentencing process.

It emphasized that while the type of physical act can be a relevant factor to determine the degree of physical interference “it is an error to understand the degree of physical interference in terms of a type of hierarchy of physical acts” [21] . Indeed, the harm done to the victim does not depend on the type of physical act [22] , and sexual violence against children remains inherently wrongful regardless of the degree of physical interference. Other guiding principles [ 33 ] In R . c.

L.(J.-J.) [23] , the Québec Court of Appeal outlined the following list of factors helpful in identifying the criminal responsibility of offenders convicted of sexual offenses .

These factors remain relevant [24] : • the nature and intrinsic gravity of the offence, as illustrated, for example, by the use of threats, violence, psychological constraints, manipulation, etc. • the frequency of the offences and the time span within which they took place. • abuse of confidence or trust. • disorders underlying the commission of the offense: psychological distress, pathology and deviance, intoxication, etc. • the offender’s prior convictions: their nature as well as how close in time they are to the offenses at hand. • the behaviour of the offender following the commission of the offenses: confessions, cooperating with the investigation, involvement in a treatment program, potential for rehabilitation, financial assistance to victims if applicable, compassion and empathy towards victims (remorse, regrets, etc.). • any delay between the commission of the offenses and the declaration of guilt as an attenuating factor depending on the behaviour of the offender (the age of the offender, their social and professional situation, the commission of other crimes, etc.). • the extent of the violation of the physical and psychological integrity of the victim as illustrated by the nature and scope of the assault, its frequency and duration, the age and personality of the victim, his or her vulnerability (mental or physical challenges ), abuse of confidence or trust, traumatic consequences, etc. [25] Sentencing ranges for sexual assault [ 34 ] Although no two cases are identical, the Québec Court of Appeal has cited with approval [26] the sentencing ranges for sexual crimes set out in the case of Cloutier [27] . [ 35 ] They are described by authors Parent and Desrosiers [28] as follows: Shorter sentences (sentences of less than two years) : These sentences are for sexual acts that are not very serious or that occur on rare occasions or during a short period of time, committed against a single victim.

Mid-range sentences (sentences of two years to six years, with a concentration of three-to-four-year sentences) : Cases falling within this category include offenders with no criminal record, abuse of trust, power and authority, but no direct violence (other than that inherent to the nature of the offence). Longer sentences (sentences of over six years) : These sentences are generally imposed because of special circumstances of violence beyond the sexual acts and/or the presence of a criminal history, and in connection with offenses involving high objective gravity. [29]

[ 36 ] While these sentencing ranges are useful guides, they are not binding, and the Court must always respect its duty to impose a proportionate sentence [30] . The Conditional sentence of Imprisonment [ 37 ] When a Court imposes a sentence of imprisonment of less than 2 years, it may order that the offender serve the sentence in the community if:

a) The court is satisfied that service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing.

b) the offence is not an offence punishable by a minimum term of imprisonment.

c) the offence is not specifically listed as one which is excluded from the conditional sentence of imprisonment regime. [31] [ 38 ] In Proulx [32] , the Supreme Court of Canada outlines the approach to be taken in determining whether these criteria are satisfied. The Supreme Court as well as the Québec Court of Appeal instruct us that where the prerequisites for a conditional sentence of imprisonment are fulfilled, Courts must give serious consideration to the possibility of pronouncing this type of sentence [33] . This is a reflection of the principle of restraint set out in paragraphs 718.2 (

d) and (

e) of the Criminal Code . [ 39 ] Other than the offences that are specifically excluded in the Criminal Code , there are no crimes or categories of crimes which are ineligible or presumptively ineligible for conditional sentences.

APPLICATION [ 40 ] The maximum sentence for a sexual assault, when prosecuted summarily, is a term of imprisonment of no more than 18 months. [ 41 ] In terms of the subjective gravity, the Court considers the following aggravating factors : • the fact that the victim is the daughter of the accused’s girlfriend, and that he was in a relationship of authority and trust in her regard [34] . • the age of the victim, just 16 years old [35] . • the fact that the events took place within the sanctity of the victim’s own home, a place where she should feel safe and comfortable. • the consequences for the victim which continue until today [36] . • the number of incidents - 4 over the course of 2 days. [ 42 ] The Court notes the presence of the following mitigating factors : • the fact that the offender pleaded guilty, making it unnecessary for the victim to testify. • the absence of prior convictions. • the remorse expressed by the accused. • the low risk of recidivism. [ 43 ] The Court also takes into account the therapy undertaken by the accused to better understand the laws in relation to offences committed against children, as well as his willingness to undertake further therapy.

This therapy is in fact recommended by the author of the presentence report who writes that the accused’s “criminological thought process” needs to be developed further. [ 44 ] In addition, the Court notes the testimony of the accused to the effect that he has significantly lessened his consumption of alcohol. [ 45 ] The Court also considers that the 4 incidents all took place within a period of 2 days, lasted only a few seconds, and that the acts fall at the lower end of the range of physical interference [37] .

Is a Conditional Sentence Appropriate? [ 46 ] Given his low risk of recidivism, the Court finds that it would not pose a danger to allow the accused to serve his sentence in the community. Furthermore, the appropriate sentence falls within the “under 2 years” range.

It is to be recalled that the Prosecution is suggesting a 6-month prison sentence which in fact falls squarely within the lowest range of sentence for this type of offence set out by Parent and Desrosiers [38] . [ 47 ] The real question here is whether a conditional sentence of imprisonment would be consistent with the fundamental purpose and principles of sentencing? [ 48 ] The starting point for this analysis is that the sentence to be imposed must prioritize denunciation and deterrence [39] . As

explained in Friesen : [105] Parliament’s choice to prioritize denunciation and deterrence for sexual offences against children is a reasoned response to the wrongfulness of these offences and the serious harm they cause. The sentencing objective of denunciation embodies the communicative and educative role of law […]. It reflects the fact that Canadian criminal law is a “system of values”. A sentence that expresses denunciation thus condemns the offender “for encroaching on our society’s basic code of values”; it “instills the basic set of communal values shared by all Canadians” […].

The protection of children is one of the most basic values of Canadian society […].

As L’Heureux- Dubé J. reasoned in L.F.W ., “sexual assault of a child is a crime that is abhorrent to Canadian society and society’s condemnation of those who commit such offences must be communicated in the clearest of terms […].” [40] [ 49 ] In Proulx , in discussing the nature of a conditional sentence, the Supreme Court emphasized that the fact that a conditional sentence does not involve the same deprivation of liberty as a traditional prison sentence does not mean that “the conditional sentence is a lenient punishment or that it does not provide significant denunciation and deterrence […]” [41] . [ 50 ] In summarizing how courts may determine whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing, the Supreme Court went on to say: 114 Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction.

This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence.

Conversely, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served. 115 Finally, it bears pointing out that a conditional sentence may be imposed even in circumstances where there are aggravating circumstances relating to the offence or the offender.

Aggravating circumstances will obviously increase the need for denunciation and deterrence. However, it would be a mistake to rule out the possibility of a conditional sentence ab initio simply because aggravating factors are present. I repeat that each case must be considered individually. [42] [ 51 ] In sum, the presence of aggravating factors does not rule out the availability of a conditional sentence.

A conditional sentence which includes onerous conditions, and of a duration which goes beyond the duration of a jail sentence that may ordinarily have been imposed, can achieve significant denunciation and deterrence. [ 52 ] It must also be noted that despite the priority which must be given to denunciation and deterrence in sentencing offenders who commit sexual crimes against children, the Supreme Court in Friesen reiterated that proportionality remains at the heart of sentencing in Canadian criminal law [43] .

The Court states: [104] […] [W]hile s. 718.01 requires that deterrence and denunciation have priority, nonetheless, the sentencing judge retains discretion to accord significant weight to other factors (including rehabilitation and Gladue factors) in exercising discretion in arriving at a fit sentence, in accordance with the overall principle of proportionality. [44] [ 53 ] Indeed, the predominant role given to the objectives of denunciation and deterrence in sentencing for sexual crimes against children does not negate the relevance of other sentencing objectives and principles, in appropriate cases. [ 54 ] The Court considers this to be one such case: While it cannot be denied that the objective and subjective gravity of the offense are high, including an abuse of trust and authority as well as the other aggravating factors listed above, there are also significant attenuating factors which incite the Court to ascribe some weight to the objective of rehabilitation and to the principle of restraint. [ 55 ] The accused is a 63-year-old man with no criminal record, who worked throughout his lifetime.

He voluntarily undertook therapy following the commission of the offence and is prepared to continue these consultations. Despite his less than perfect mastery of the English language, the court accepts his expression of remorse to be sincere.

The risk of recidivism is low. [ 56 ] In the specific circumstances of this case, despite the presence of important aggravating factors, the Court is convinced that a long conditional sentence of imprisonment which includes onerous conditions, and the obligation to complete the maximum number hours of community service authorized by law, would place the necessary emphasis on denunciation and deterrence and be consistent with the fundamental purpose and principles of sentencing.

FOR THESE REASONS, THE COURT : IMPOSES a term of imprisonment of 18 months, to be served in the community: o For the first 10 months of his sentence, the accused shall remain at his home 24 hours a day, 7 days a week. o For the remaining 8 months of the sentence, the accused shall be at his home between 10 PM and 6 AM. except o For employment purposes, upon providing a

schedule to his surveillance officer. o For medical emergencies or to engage in therapy. o To attend therapy.

o To meet with his supervisor. o Once a week, on Wednesday, from 12 PM - 4 PM to attend to his essential needs. o With the written permission of his supervisor. IMPOSES a 2-year probation, with follow-up, which will begin upon the expiration of the conditional sentence of imprisonment, subject to all of the statutory conditions and the specific condition that the accused PERFORM 240 hours of community service within a delay of 18 months.

IMPOSES the following conditions which apply throughout the duration of the conditional sentence of imprisonment and the probation: o prohibition on communicating directly or indirectly in any manner whatsoever with the victim X. o prohibition on being within a radius of 300 meters of the victim X. o prohibition on being at the home, school or place of employment of the victim X. o prohibition on being in the physical presence of X. o undertake any therapy recommended by the supervisor or probation officer. AUTHORISES the taking from T.

N. of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis, pursuant to

section 487.051 of the Criminal Code . __________________________________ SUZANNE COSTOM, J.C.Q. Me Anna Levin Counsel for the DPCP Me Audrey Amzallag Attorney for the accused Date of hearing November 17, 2023