2011 QCCA 568, 2011 QCCA 568

Unofficial English Translation LSPJA — 1111 2011 QCCA 568 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-08-000355-109 (700-03-013944-094) DATE: MARCH 28, 2011 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. ANDRÉ ROCHON, J.A. LORNE GIROUX, J.A. X APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] THE COURT; Ruling on the appellant’s appeal from the sentence imposed on him on June 28, 2010, by the Court of Quebec, Youth Division (the Honourable Judge Normand Lafond), under the Y outh Criminal Justice Act , S.C. 2002, c. 1, after he pleaded guilty to a charge of sexual assault under paragraph 271(1) (

a) of the Criminal Code ; [ 2 ] Having examined the file, heard the parties, and on the whole deliberated; [ 3 ] For the reasons of Chamberland J.A., with which Rochon and Giroux JJ.A. agree: [ 4 ] ALLOWS the appeal; [ 5 ] SETS ASIDE the judgment a quo; [ 6 ] RESCINDS the sentence imposed on the appellant; and [ 7 ] CONDEMNS the appellant to a five month youth custody and supervision sentence, starting today, of which the application is deferred, subject to the obligatory conditions set out in subsection 105(2) of the YCJA , in addition to the obligation 1) to be present at his home, every day of the week, from 7:00 p.m. until 6:00 a.m. unless remunerative work or medical reasons (including his participation in therapy for sexual offenders) oblige him to be absent, 2) not to contact or try to contact Y in any way whatsoever, 3) not to be alone with a child under the age of 12 unless a responsible adult who is aware of his sexual propensities is present and 4) to take

part in therapy for sexual offenders (such as that provided by Parents-Unis) and to complete it, the sentence to be accompanied by a probation order with a term of one year, starting at the end of the deferred custody and supervision sentence, on the following conditions:

a) keep the peace and be of good behaviour ;

b) appear before the court when required to do so;

c) make reasonable efforts to obtain and maintain suitable employment;

d) not contact or try to contact Y in any way whatsoever;

e) take

part in therapy for sexual offenders (such as that provided by Parents-Unis) and complete it;

f) not be alone with a child under the age of 12 unless a responsible adult who is aware of his sexual propensities is present; and

g) make a $1,000 donation to the Centre d’aide et de lutte contre les agressions à caractère sexuel des Laurentides (CALACS Laurentides). JACQUES CHAMBERLAND, J.A. ANDRÉ ROCHON, J.A. LORNE GIROUX, J.A. Mtre Tristan Desjardins DOWNS LEPAGE, SNA For the appellant Mtre Julie Lefebvre-Côté Criminal and Penal Prosecutor For the respondent Date of hearing: January 14, 2011 REASONS OF CHAMBERLAND, J.A. [ 8 ] With leave from a judge of the Court, the appellant appeals from the sentence imposed on him on June 28, 2010, under the Y outh Criminal Justice Act , S.C. 2002, c. 1 (YCJA) after he pleaded guilty to a charge of sexual assault under paragraph 271 (1) (

a) of the Criminal Code . [ 9 ] The appeal is based on two fundamental axioms. According to the first axiom, the appellant faults the trial judge for having found as fact certain events related by the victim, but denied by him, without assessing whether the proof of the events had been established beyond a reasonable doubt. According to the second one, the judge determined the sentence on the basis of inadequate judicial reasoning, by omitting in particular

a) to apply the sentencing principles set out in paragraphs 38(2) (

d) and (

e) of the YCJA ,

b) to consider alternatives to custody, as required by subsection 39(2) of the YCJA, and, lastly,

c) to justify his decision to impose custody, as required by subsection 39(9) of the YCJA. These errors would justify the Court performing its own assessment of the sentence without being bound by the standard of review of a sentence that is demonstrably unfit or clearly unreasonable. [ 10 ] For the following reasons, I am of the opinion that the appellant is right and that it is appropriate to substitute for the sentence imposed in the first instance a deferred custody and supervision sentence, which in my opinion is better adapted to the circumstances of the case.

Proof beyond a reasonable doubt [ 11 ] The rule states that, in sentencing, the Crown must prove beyond a reasonable doubt the aggravating circumstances disputed by the accused ( R. v. D.B. , [2008] 2 S.C.R. 3, 2008 SCC 25 at paras 79-80 ). [ 12 ] In the present case, the appellant pleaded guilty to the charge of having sexually assaulted Y, between March 30, 2001, and December 31, 2005, thereby committing the criminal act provided in paragraph 271(1) (

a) Cr. C. He acknowledged all the impugned facts except two, the fact that he had complete sexual relations with his victim and the fact that everything took place in an atmosphere of threat and intimidation. [ 13 ] The Crown therefore had the victim testify, and the appellant testified in turn, with the first stating that penetration and threats had indeed occurred, and the second categorically denying it.

At the end of the hearing (January 27, 2010), addressing both the victim and the appellant, the trial judge said the following: [ translation ] …, the victim’s testimony is credible, and I believe the victim’s testimony regarding penetration. I am therefore going to ask for… to order a pre-sentence report with a report [by a sexologist specializing in sexual delinquency]. [1] [ 14 ] The appellant faults the judge for not having questioned whether the evidence established beyond a reasonable doubt the occurrence of complete sexual relations.

The judge apparently did not consider his testimony or his credibility, nor did he follow the reasoning that should be applied in the presence of contradictory versions. [ 15 ] The judge’s comments on the fact that the appellant’s version directly contradicted the victim’s are very succinct, too succinct

in my opinion, in light of their importance. [ 16 ] That being said, after having read the evidence and the judge’s comments while the evidence was adduced, I have concluded that he was indeed convinced beyond a reasonable doubt that complete sexual relations had taken place.

He did not use the words “beyond a reasonable doubt”, or explain why the appellant’s testimony had not raised a doubt in his mind, but such an omission does not make it possible to conclude that he was mistaken about the approach he had to take or that he applied it improperly. [ 17 ] We must therefore study the file by assuming that complete sexual relations did take place without being able to say whether that occurred only once, during the last event before disclosure – as Y said at the start of her testimony – or several times, starting from the time she, her mother and the appellant’s father went back to live in city A – as Y also said during the same testimony.

The trial judge did not express an opinion on this matter. Relevant sentencing purposes and principles of the YCJA [ 18 ] The sentence was handed down from the bench on June 28, 2010, at the end of a brief hearing during which the trial judge heard the submissions of counsel and the brief testimony of the appellant and of his father. [ 19 ] The judgment is very brief.

In it, the judge refers to the inadmissible nature of the acts committed by the appellant and the concern he felt regarding what he perceived as the appellant’s difficulty in acknowledging the odious nature of the situation and the very serious consequences of his behaviour for the victim. He believed it was important to impose a sentence that would enable the appellant to understand his tremendous need for rehabilitation. [ 20 ] The appellant faults the judge for having failed to consider several of the purposes, principles and factors that the YCJA sets forth concerning sentencing, more specifically: 3.

(1) The following principles apply in this Act: (

a) the youth criminal justice system is intended to (

i) prevent crime by addressing the circumstances underlying a young person’s offending behaviour, (ii) rehabilitate young persons who commit offences and reintegrate them into society , and (iii) ensure that a young person is subject to meaningful consequences for his or her offence in order to promote the long-term protection of the public; (

b) the criminal justice system for young persons must be separate from that of adults and emphasize the following : (

i) rehabilitation and reintegration , (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and (

v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time; (

c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should (

i) reinforce respect for societal values, (ii) encourage the repair of harm done to victims and the community, (iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration, and (iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; and …

(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1). 38.

(1) The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society , thereby contributing to the long-term protection of the public.

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in

section 3 and the following principles:

… (

d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons; and (

e) subject to paragraph ( c ), the sentence must (

i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community. 39.

(1) A youth justice court shall not commit a young person to custody under

section 42 (youth sentences) unless (

a) the young person has committed a violent offence; (

b) the young person has failed to comply with non-custodial sentences; (

c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of findings of guilt under this Act or the Young Offenders Act ,

chapter Y-1 of the Revised Statutes of Canada, 1985; or (

d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in

section 38.

(2) If any of paragraphs (1)(

a) to (

c) apply, a youth justice court shall not impose a custodial sentence under

section 42 (youth sentences) unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in

section 38.

(3) In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to (

a) the alternatives to custody that are available; (

b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance with previous non-custodial sentences; and (

c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances. …

(9) If a youth justice court imposes a youth sentence that includes a custodial portion, the court shall state the reasons why it has determined that a non-custodial sentence is not adequate to achieve the purpose set out in subsection 38(1) , including, if applicable, the reasons why the case is an exceptional case under paragraph (1)( d ). 42.

(1) A youth justice court shall , before imposing a youth sentence, consider any recommendations submitted under

section 41, any pre-sentence report , any representations made by the parties to the proceedings or their counsel or agents and by the parents of the young person, and any other relevant information before the court. …

(5) The court may make a deferred custody and supervision order under paragraph (2)(

p) if (

a) the young person is found guilty of an offence that is not a serious violent offence; and (

b) it is consistent with the purpose and principles set out in

section 38 and the restrictions on custody set out in

section 39. …

(9) On application of the Attorney General after a young person is found guilty of an offence, and after giving both parties an opportunity to be heard, the youth justice court may make a judicial determination that the offence is a serious violent offence and endorse the information or indictment accordingly. … (emphasis added) [ 21 ] In R. v.

D.B. , supra , the Supreme Court insists on the fundamental nature of the sentencing purposes and principles set out in the YCJA at paragraphs 42 to 45: [42] There are, for example, numerous sentencing provisions in the YCJA designed to protect, presumptively, young persons from custody. Confronted with a crime committed by a young person, police must consider whether alternatives, namely extra-judicial measures or extra-judicial sanctions, would be adequate before proceeding to court.

Section 4 (

c) of the YCJA declares that extra-judicial measures are “presumed to be adequate to hold a young person accountable . . . if the young person has committed a non-violent offence

and has not previously been found guilty of an offence”.

Section 10 of the YCJA declares that extra-judicial sanctions “may be used . . .only if the young person cannot be adequately dealt with by a warning, caution or referral [extra-judicial measures] . . . because of theseriousness of the offence, the nature and number of previous offences committed by the young person or any other aggravatingcircumstances”. [43] Sections 38 and 39 of the YCJA also restrict when custody is available.

Before sentencing a young person to custody, the courtmust: · believe that no reasonable alternative or combination of alternatives exists (s. 39(2)); · know that the previous use of a non-custodial sentence does not preclude another non-custodial sentence (s. 39(4)); · recognize that custody must not be a substitute for appropriate child protection, mental health or other social measures(s. 39(5)); · consider a pre-sentence report and any sentencing proposal made by the young person or the counsel present (s. 39(6)); · state reasons why a non-custodial sentence is inadequate (s. 39(9)); · require that the principles set out in s. 3 of the YCJA govern sentencing (s. 38(2)); · ensure that the sentence is no greater than might be afforded an adult under the same circumstances (s. 38(2)(a)); · consider all available sanctions other than custody first (s. 38(2)(d)); and · ensure that the sentence is the least restrictive one capable of holding the young person accountable, subject toproportionality concerns (s. 38(2)(e)). [44] This statutory preoccupation with ensuring that sentencing reflects the reduced maturity and moral sophistication of young persons,guided this Court in R. v.

C.D., [2005] 3 S.C.R. 668, 2005 SCC 78, where Bastarache J. noted the YCJA’s goal to “send a clearer messageto those involved in the youth criminal justice system about restricting the use of custody for young offenders” (para. 48).

Bastarache J.concluded that “the object and scheme of the YCJA, as well as Parliament’s intention in enacting it, all indicate that the YCJA wasdesigned, in part, to reduce over-reliance on custodial sentences for young offenders” (para. 50). [45] These considerations reveal that the approach to the sentencing of young persons is animated by the principle that there is apresumption of diminished moral culpability to which they are entitled. Like all presumptions, it is rebuttable.

Under the presumptiveoffences sentencing scheme, it is the young person himself or herself who is required to prove that the presumption should not berebutted, rather than the Crown who is required to show why it should be. The constitutional implications of this reversal of the onuscreate the legal knot we are asked to untie.

To do so, we must first determine whether the principle of a presumption of diminishedculpability is one of fundamental justice within the meaning of s. 7 of the Charter. [22] With due respect for the trial judge, I do not see anything in his judgment that indicates that he considered, as he ought tohave, the other options available – here, as suggested by counsel for the appellant during the trial, a deferred custody order – beforeconcluding there was a need for custody, the last of the alternatives within the meaning of the YCJA.

The judgment does not convey whya non-custodial youth sentence would not be sufficient in order to achieve the prevailing purpose in youth sentencing. [23] This deficiency constitutes an error of principle affecting the very process of youth criminal justice sentencing.

It is even moresignificant in that the authors of the pre-sentence report – which the YCJA states the judge must consider (subsection 39(6)) –recommended deferred custody. [24] As a result of this error in principle, the Court is justified in redoing the exercise and imposing the sentence that it considers fitwithout being bound by the standard of review of a sentence that is clearly unreasonable or demonstrably unfit. (R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500 at para 90, “absent an error in principle,…a court of appeal should only intervene to vary asentence imposed at trial if the sentence is demonstrably unfit”; R. v. Gagnon, (QC CA), [1998] A.Q. no. 2775(C.A.) at paras 6 and 7, reasons of Fish J.A.).

The fit sentence [25] Before continuing the analysis, I must comment on a matter that concerned the members of the panel during theirpreparations for the hearing and of which they seized counsel in a letter dated December 20, 2010: does the sexual assault committed bythe appellant constitute, as result of the psychological harm suffered by Y, a “serious violent offence”, which, under paragraph 42(5)(a)of the YCJA, would preclude a deferred custody and supervision order? [26] The question is as interesting as it is difficult, but it will not be necessary to decide it because, in this case, the approachdescribed in subsection 42(9) of the YCJA was not taken.

Indeed, the Crown did not ask the trial judge to deem the offence admitted bythe appellant a “serious violent offence”. In this context, it would be unfair to address the matter from this standpoint when the debatewas not raised in the first instance. Furthermore, at the hearing, Crown counsel recognized as much, in complete loyalty. [27] The acts committed by the appellant against Y are serious. They began before her sixth birthday and stopped when she was 10years and a few months old.

The appellant is six years older than the victim; he had just turned 12 when the first impugned actions in theindictment took place and he was 16 years and nine months old when they stopped. [28] The judge said that Y was the appellant’s half sister, which is not quite correct. Y is the daughter of the woman with whomthe appellant’s father was living at that time until early 2006, and the appellant saw her every other weekend when he visited his father.

The purpose of this clarification is not, of course, to exonerate the appellant, but to re-establish the facts. [ 29 ] The acts committed by the appellant had serious consequences for the victim, although it would probably be imprudent, in the absence of a genuine psychological profile of Y, to link all her personal and family difficulties to these acts.

In addition, according to Y’s mother, it was in grade six – about two years after the disclosure – that her daughter began to react to authority and her behaviour became problematic. [ 30 ] The pre-sentence report pointed out that the appellant acknowledged that he was accountable for his actions and that he regretted not having questioned his behaviour sooner. He appeared, however, to speak with detachment and without emotion about the harm caused to Y, so that the authors of the report could not perceive any empathy on his part toward the victim.

According to the probation officer who monitored him in 2008 and 2009, the appellant [ translation ] “has difficulty connecting with his emotions and expressing them,” which could explain why he has difficulty demonstrating empathy toward the victim and acknowledging what caused him to act as he did. [ 31 ] The appellant is open to the idea of therapy in order to understand what prompted him to act as he did toward Y. [ 32 ] The appellant’s risk of reoffending is low, but, according to the authors of the report, he nevertheless needs to be held accountable for his wrongdoing.

They proposed a deferred custodial youth sentence, because such a measure would enable him [ translation ] “to appreciate the seriousness of his wrongdoing , while ensuring significant consequences for his actions and an intervention context conducive to accountability” (p. 15). [ 33 ] The appellant is now 21 years old and is living (albeit in his mother’s home) with a young woman whom he has been seeing for several years.

He works in the transport industry but is considering a career in construction; while working, he has obtained a certificate of qualification as an apprentice bricklayer. [ 34 ] At trial, the prosecutor suggested a custodial sentence because of the objective seriousness of the offence and the fact that a deferred custodial sentence imposed in a previous case had not had the desired effect.

The case in question, however, was from 2007; it included charges of assault causing bodily harm, mischief, possession of firearms, and threats of death or bodily harm for which the appellant received a deferred custody and supervision sentence for a period of six months as well as one year’s supervised probation. [ 35 ] The impugned facts in the case under appeal occurred before those that gave rise to this deferred custodial sentence.

The appellant therefore did not reoffend and the Crown’s argument in favour of a custodial sentence does not hold up. [ 36 ] The file shows, moreover, that the appellant respected all the conditions of the stay and probation, keeping the prescribed appointments and taking

part in anger management workshops. [ 37 ] The YCJA stipulates that a youth justice court must impose “the least restrictive sentence possible” ( paragraph 38(2) ( c )) and that it “shall not impose a custodial sentence...unless the court has considered all alternatives to custody raised at the sentencing hearing” ( subsection 39(2) ). [ 38 ] The appellant’s actions are serious but so are the consequences of sending a youth to prison.

The appellant was not yet a “youth” within the meaning of the YCJA (he was less than 12 years old) at the time of his first sexual acts involving Y; [2] he is now 21 years old and will soon be 22. If he received a custodial sentence, he would go to prison with adult offenders. And that would occur exactly at a time when he seems to be taking himself in hand. [ 39 ] Despite all the sympathy that I feel for Y, I cannot see what the public would gain if the appellant were imprisoned.

In relation to the purpose set out in subsection 38(1) of the YCJA , I do not see how imprisoning the appellant would be conducive to his “rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public”. [ 40 ] I believe that the sentence proposed by the authors of the pre-sentence report constitutes an appropriate sentence.

A deferred custodial sentence on some fairly strict conditions would enable the appellant, as they pointed out, to appreciate the seriousness of his actions while fostering his rehabilitation and social reintegration, which, moreover, are well under way because he is working and living, as part of a couple, in his mother’s home with a young woman he has been seeing for several years and with whom he has made future plans. [ 41 ] The appellant was held in custody from June 28 to August 4, 2010, until he was released pending the appeal; it will be necessary to take that into account and to reduce the length of the sentence accordingly. [ 42 ] It would also be appropriate to consider the suggestion made by counsel for the appellant at trial that it would be appropriate to order him to make a $1,000 donation to a charitable organization. [ 43 ] For all these reasons, I would allow the appeal, set aside the judgment a quo, rescind the sentence imposed on the appellant and condemn him to a five month deferred youth custody and supervision sentence, starting from today, subject to the mandatory conditions set out in subsection 105(2) of the YCJA , in addition to the obligation 1) to be present at his home, every day of the week, from 7:00 p.m. to 6:00 a.m. unless remunerative work or medical reasons (including his participation in therapy for sexual offenders) oblige him to be absent, 2) not to contact or try to contact Y in any way whatsoever, 3) not to be alone with a child under the age of 12 unless a responsible adult who is aware of his sexual propensities is present and 4) to take

part in therapy for sexual offenders (such as that provided by Parents-Unis) and to complete it, the sentence to be accompanied by a probation order with a term of one year, starting from the end of the deferred custody and supervision sentence, on the following conditions, namely that he:

h) keep the peace and be of good behaviour ;

i) appear before the court when required to do so;

j) make reasonable efforts to obtain and maintain suitable employment;

k) not contact or try to contact Y in any way whatsoever;

l) take

part in therapy for sexual offenders (such as that provided by Parents-Unis) and complete it;

m) not be alone with a child under the age of 12 unless a responsible adult who is aware of his sexual propensities is present; and

n) make a $1,000 donation to the Centre d’aide et de lutte contre les agressions à caractère sexuel des Laurentides (CALACS Laurentides). JACQUES CHAMBERLAND, J.A.