r v. BEN MAIER, 2023 QCCQ 3891

R. c. Maier 2023 QCCQ 3891 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Criminel and Penal Division No: 500-01-195442-196 DATE: June 19, 2023 ______________________________________________________________________ BEFORE THE HONOURABLE SUZANNE COSTOM, J.C.Q. ______________________________________________________________________ HIS MAJESTY THE KING Prosecutor v. BEN MAIER Accused ______________________________________________________________________ JUDGMENT ON SENTENCE 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article 486.4 of the Criminal Code directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 ] Mr. Ben Maier was found guilty of sexual assault causing bodily harm ( Criminal Code , section 272 (1) c ) (2) b)). The incident took place on September 15, 2019. [ 2 ] The facts were related in detail in the judgement of the Court dated October 25, 2022 [1] . In

summary, the accused and the victim met shortly before the sexual assault, which took place on the night of their first date. Over the course of that evening, they attended two bars and then went back to the apartment of the accused where they chatted and consumed cannabis together. After some consensual kissing, the accused sexually assaulted the victim. He performed oral sex on her, tried to get her to perform fellatio on him and penetrated her vaginally while choking her, slapping her, spitting at her and calling her a slut.

The victim was eventually able to free herself from the accused and ran out of the apartment. [ 3 ] The Prosecution urges the Court to impose a term of five years in the penitentiary. The defence suggests a conditional sentence of imprisonment for a period of two years less a day, with the obligation to complete 240 hours of community service during the term of the conditional sentence.

This would be followed by a probation for a term of three years during which time the accused would be required to respect a series of conditions including the requirement that he perform an additional 240 hours of community service. [ 4 ] This is the Court’s decision on sentence. THE VICTIM [ 5 ] The victim (H.M.) testified at the sentencing hearing and read out her statement outlining the devastating consequences that the sexual assault had and continues to have on her to this day. [ 6 ] She described the months following the incident as being filled with loneliness, shame, paranoia and fear.

She had nightmares that she was being choked to death and, in order to avoid them, would stay up for 40 hours at a time. When in school, she would experience flashbacks and panic attacks. Ultimately, the lack of sleep and inability to concentrate prompted her to drop out of school and lose the scholarship that she had been awarded. [ 7 ] H.M. lived in a constant state of fear that the accused would come get her as revenge for his arrest, or that she would be sexually assaulted again in the middle of the night.

There were times when she was not even able to go back to her apartment because she was scared that someone would be waiting for her. In her words, “her sense of safety was completely taken from her”.

[ 8 ] H.M. isolated herself from everybody that she loved because they could never understand what she had lived. She never felt so alone and unwell in her life. [ 9 ] She began to auto-medicate with alcohol in order to dull the feelings of shame and humiliation about what happened. [ 10 ] In May 2020, eight months after the sexual assault, H.M. experienced what she describes as an episode of psychosis, stemming from an acute fear of being attacked, and expressed suicidal thoughts.

After that, she began to pull her life together. [ 11 ] In June 2020, realizing that she needed to leave Montréal in order to feel safe, H.M. moved to Toronto to be closer to her family. Although things began to improve, she describes living with “the shame that comes with feeling like people don’t quite believe you”. She feels toughened in ways that she does not like. It didn’t used to be difficult for her to become close to people, but now it is, although it is getting better. [ 12 ] Clearly, the sexual assault has dramatically affected every sphere of the victim’s life and continues to do so to this day.

The Court recognizes how difficult the court process has been for her and salutes her strength in sharing her experience both at the trial and sentencing stage. THE ACCUSED [ 13 ] The accused is 34 years old and has no criminal record. He grew up in British Columbia where he completed high school. He then entered the job market where he worked as a chef apprentice. [ 14 ] In 2012, he moved to Montréal where he had a number of friends.

Since that time, he has worked in numerous restaurants - first as a cook, then as a sous-chef and eventually as a head chef. [ 15 ] During the pandemic, there was limited opportunity in the restaurant business and he did a number of odd jobs. He was recently hired to begin a full-time job as a chef and was set to begin in the days following the sentencing hearing. [ 16 ] Between May and October 2022, Mr. Maier did volunteer work for a food bank. He stopped only because the food bank lost its storage facility but hopes to resume whenever this becomes possible. [ 17 ] Mr.

Maier was detained for two weeks following his arrest. He testified that he lost his job as well as the trust of friends and family members. The proceedings have had a significant impact on him - he has trouble eating and sleeping and is fearful for the future. [ 18 ] Although he maintains his innocence, the incident has prompted reflection.

In the future, he will take more time to get to know someone before becoming intimate and will communicate with potential sexual partners more effectively. [ 19 ] He would be open to receiving counselling, in particular regarding how to deal with impulse control when he is drinking. He also thinks it would be helpful to speak to somebody about the impact that the criminal proceedings have had on him. [ 20 ] Although he denies having sexually assaulted her, the accused feels empathy for the victim and recognizes her pain. He knows that he did not treat her kindly and with respect. [ 21 ] Mr.

Maier also described the impact that his conditions of interim release have had on him. Since the fall of 2020, he has been unable to leave the province of Québec, has been respecting a curfew requiring him to be home between 8 p.m. and 8 a.m. except for the purposes of work, and has been prohibited from being alone with a woman in a private place. This has prevented him from having any intimate relationships.

THE PRINCIPLES OF SENTENCING [ 22 ] The fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offense and the degree of responsibility of the offender [2] . [ 23 ] The purposes of sentencing include denouncing unlawful conduct, deterring offenders and others from committing offences, providing reparations for harm done to victims or to the community, promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims or to the community, and assisting in rehabilitating offenders [3] . [ 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. Sentences must reflect any relevant aggravating or mitigating circumstances relating to the offense or the offender [4] . [ 25 ] In R . c.

L. (J.-J.) [5] , the Québec Court of Appeal outlined the following list of factors helpful in identifying the criminal responsibility of offenders convicted of sexual offenses [6] : • 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 offenses 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. [7] [ 26 ] The jurisprudence also makes clear that sentencing for sexual crimes must place particular emphasis on denunciation and deterrence [8] .

That being said, other sentencing objectives are still to be considered. Sentencing ranges for sexual assault [ 27 ] Although no two cases are identical, the Québec Court of Appeal has cited with approval [9] the sentencing ranges for sexual crimes set out in the case of Cloutier [10] . [ 28 ] They are described by authors Parent and Desrosiers [11] 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. [12] [ 29 ] That being said, while these sentencing ranges are useful guides, they are not binding, and the Court must always respect its duty to impose a proportionate sentence [13] . Jurisprudence submitted by the parties [ 30 ] The DPCP relies on the following cases in support of its position.

The common denominator is that in each one, the violence perpetuated on the victim went beyond the violence which is inherent to any sexual assault: − R . v. Hoggard , 2022 ONSC 5919 The 38-year-old accused was convicted of sexual assault causing bodily harm. He and the victim connected on social media and agreed to meet in order to have sex. Over the course of four hours, despite the victim’s objections, the accused subjected her to repeated acts of non-consensual sex including forced oral, vaginal and anal penetration. At some point, he took away her telephone.

On multiple occasions he forced his penis into her mouth after removing it from her anus. The accused called the victim names, choked her, spit in her mouth and slapped her. At one point, she thought she would die. The accused pulled the victim off the bed and then dragged her by her feet to the bathroom. He eventually kicked her out. The victim suffered bleeding from her vagina and anus as well as extensive bruising. The emotional consequences were significant and lasting. The accused had no criminal record. He submitted multiple glowing character references and had the support of his family.

He was a successful musician who lost his career as a result of the charges. The case was subject to extensive media coverage. He was facing a civil suit in the amount of $2.8 million. The Court emphasized the gratuitous degradation and use of violence by the accused and the extensive injuries suffered by the victim. Describing the relevant range as between 3 to 5 years, a sentence of 5 years was imposed. − R . v. Clase , 2017 ONSC 2484 The 36-year-old offender was found guilty of sexual assault. The accused and the victim met on the night of the assault. He pushed her onto a bed and ripped her pants off.

After a struggle, the accused raped her for 15 to 20 minutes. The victim was bruised and suffered significant emotional consequences. The accused had no criminal record, was gainfully employed and submitted good character references.

The court described the relevant range of sentence to be between 3.5 to 5 years. Emphasizing the predatory nature of the assault, a sentence of 5 years was imposed. − R. v. Nelson , 2014 ONCA 853 The 31-year-old accused was found guilty of sexual assault causing bodily harm, uttering threats, unlawful confinement and assault with a weapon. The victim and accused were acquaintances. He had written to her in the weeks prior to the event trying to convince her to go out with him. After a night at a club, they went back to the apartment of the accused where he sexually assaulted her over the course of a few hours.

He cut off her clothing and penetrated her vaginally. He threatened her with a knife or scissors held to her throat, attempted to choke her, hit or punched her in the eye and pinned her legs in a painful position, refusing to let her leave. The victim managed to call the police when the accused went to the bathroom. The accused had no prior convictions but the sentencing judge took into account a prior incident involving a woman who refused his advances as evidence of a potentially problematic attitude towards women [14] . A sentence of 5 years was confirmed on appeal. − R. c.

Aurélien , 2013 QCCQ 12890 The accused, a technician who attended the home of the victim to do a repair, was found guilty of sexual assault. He penetrated the victim with so much violence that she was bleeding extensively from her vagina. The incident lasted a few minutes, and was a breach of trust, in the victim’s own home. The accused had no prior convictions. A sentence of 4 years was imposed. − R . c. Paul , 2021 QCCQ 5231 The accused, who was found guilty after trial, pushed the victim on the bed and held her down as he sexually assaulted her for 3 to 4 minutes.

The crime was premeditated - he had threatened to rape her in the past and said that he was even willing to go to jail in order to have sex with her. He also threatened her after the sexual assault in order to dissuade her from going to the police. This was a particular vulnerable victim with no friends or family in Canada. The accused, who was 37 years old and had no criminal record, was sentenced to a term of imprisonment of 3.5 years . − R . v. Gamble , 2014 SKCA 101 The accused was convicted after trial of two counts of sexual assault causing bodily harm.

He had a “limited record” [15] .The victim was walking on the street, highly intoxicated. The accused stopped and offered her a lift. Shortly after she entered the car, he forced his penis into her mouth. When she resisted, he struck her with a closed fist on multiple occasions on her head, face, and body, and proceeded to have intercourse with her. A sentence of 5 years was upheld on appeal [16] . [ 31 ] The accused submitted one decision (which itself refers to numerous other decisions on sentence for sexual offences): − R. c .

Gravel, 2023 QCCQ 397 The accused and the victim had been involved in an intimate relationship in the past. They ran into each other and spent an evening together. During the course of sexual relations, the accused inserted his penis into the victim’s anus without seeking her consent. She expressed her lack of consent, but the accused continued to penetrate her anally for approximately 10 seconds. The sexual assault had significant, long-lasting consequences for the victim. The accused was 35 years old at the time of the commission of the offense and has no criminal record.

A presentence report and sexological assessment indicated that although the accused denied sexually assaulting the victim, he was introspective, and was empathetic towards her. This was an isolated incident and inconsistent with his usual behaviour. The risk of recidivism was low. He had also been in therapy for approximately three years in relation to the incident. The event was publicized on social media, leading to a deterioration in the accused’s psychological health and the loss of job opportunities. At the time of sentencing, eight years has passed since the incident.

The accused had the support of his family. The Court concluded that the rehabilitation of the accused was well underway. A conditional sentence for a term of 20 months which included the obligation to do 150 hours of community service, followed by a two-year probation was imposed. [ 32 ] Both parties also referred to: − Lemieux c. R. , 2023 QCCA 480 In this recent decision, the Québec Court of Appeal upheld a sentence of 12 months for sexual assault. The victim was feeling ill following the consummation of MDMA and went to rest.

The accused, who was aware of her state, touched her breasts, her stomach and her vagina and tried to put his penis in her mouth. Eventually she pushed him away and he left the room. The accused had no criminal record, a stable family life and was described by the trial judge as an asset to society. On appeal, the accused asked the Court to consider the imposition of a conditional sentence of imprisonment, a possibility that had become available while the case was on appeal.

The Québec Court of Appeal stated that this would be an inappropriate sentence in that particular case as it would not fulfill the objectives of denunciation and deterrence. More generally, the Court of Appeal wrote that given the recency of the amendment to the Criminal Code , it was too early for it to provide guidance as to when a conditional sentence may be an appropriate sentence for sexual assault.

APPLICATION [ 33 ] Sexual assault causing bodily harm is punishable by a maximum term of imprisonment for 14 years, which is the second most serious penalty set out in the Criminal Code . [ 34 ] The aggravating factors which this Court considers are as follows: • The accused’s use of physical and psychological violence throughout the sexual assault which included slapping, spitting, choking and name calling [17] . • The duration of the sexual assault: While the precise duration is unknown, it certainly lasted a number of hours [18] . • The many sexual acts which the accused perpetuated throughout the assault. • While this is not a classic case of “abuse of trust”, when the victim agreed to go to the home of the accused, she certainly trusted that she would not be attacked. • The significant, lasting and varied consequences of the offence on the victim, as outlined above [19] . [ 35 ] As for mitigating factors, the Court notes the following: • The accused has no criminal record. • Although the accused maintains his innocence, he acknowledged at the sentencing hearing that he did not treat the victim kindly or with respect.

He also testified that he would conduct himself differently in the future and that he empathizes with the significant pain which the incident occasioned in the victim’s life. [ 36 ] While the Court could not characterize these comments as demonstrating remorse [20] , they do demonstrate an attempt by the accused to view the situation through a perspective other than his own, and perhaps an embryonic degree of introspection [21] . • The accused has always worked and has done some volunteer work [22] . [ 37 ] Although not a mitigating factor, the Court considers it appropriate to take into account the strict conditions of interim release imposed upon the accused which include an 8 p.m. to 8 a.m. curfew, a ban on his leaving the province, and most significantly, a prohibition on being alone with a woman in a private place.

It is true, as pleaded by the DPCP, that these conditions were determined to be necessary in order to enable the accused to be released from detention and, in that sense, are simply a consequence of his actions.

However, this does not change the fact that the accused was bound by these conditions, which constitute significant restrictions on his liberty, for over two years [23] . [ 38 ] In light of the foregoing, what is the appropriate sentence? [ 39 ] The facts at hand command a sentence in the upper end of the mid-range described in Cloutier [24] , despite having some features of cases falling within the other two categories. [ 40 ] The behaviour of the accused was particularly degrading. His moral culpability is high.

The objective and subjective gravity of the offence are such that they command a term of imprisonment in the penitentiary. As such, the preconditions for the imposition of a conditional sentence of imprisonment are not present.

Furthermore, a conditional sentence of imprisonment would not meet the objectives of denunciation and deterrence which the sentence in this matter must emphasize. [ 41 ] While no two fact patterns or offenders are identical, having reviewed the cases submitted by the parties and keeping in mind the ranges set out in Cloutier , the Court concludes that a term of 54 months in the penitentiary is a proportionate sentence which reflects the gravity of the offense and the responsibility of the offender. FOR THESE REASONS, THE COURT : CONDEMNS Ben Maier to term of 54 months in the penitentiary.

PROHIBITS Ben Maier from communicating with H.M, directly or indirectly, during this term of imprisonment , pursuant to

section 743.21 of the Criminal Code . AUTHORISES the taking from Ben Maier 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 . ORDERS that Ben Maier comply with the Sex Offender Information Registration Act for a period of 20 years, pursuant to

section 490.012(1) and 490.013(2) (

b) of the Criminal Code . PROHIBITS Ben Maier from being in possession of: • any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years. • any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

__________________________________ SUZANNE COSTOM, J.C.Q. Me Jérôme Laflamme Attorney for the DPCP Me David Leclair Attorney for the accused Date of hearing April 25, 2023