r v. Todor, 2015 QCCQ 8505

R. c. Todorov 2015 QCCQ 8505 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-034132-099 DATE: 10 September 2015 _____________________________________________________________________________ BEFORE THE HONOURABLE PATRICK HEALY, J.C.Q. _____________________________________________________________________________ THE QUEEN Prosecutor v. Todor TODOROV Accused _____________________________________________________________________________ JUDGMENT _____________________________________________________________________________ [ 1 ] Mr.

Todorov was found guilty of break, enter and sexual assault. [1] The facts of this matter are set out in the judgment of 15 April 2014 [2] and need not be repeated. No further demonstration of the objective and subjective gravity of the offence is required because these elements are self-evident. It is also self-evident that a fit sentence in this case requires a disposition that underscores the objectives of denunciation and deterrence. The prosecution proposes a term of two years less a day.

The defence proposes either a suspended sentence, with probation for two years, or an intermittent sentence of ninety days. [ 2 ] The victim in this case delivered a statement before the parties made submissions. In it she makes clear that the commission of the offence traumatised her at the time and that it has had lasting effects to this day. She noted that it caused continuing fear and anxiety and that it had adverse effects on her studies. In short, the victim’s statement confirms the objective gravity of the offence. [ 3 ] A pre-sentence report was prepared in this case, as was a “sexological” evaluation.

Neither report suggests that there is a significant risk of recidivism, although a risk of this nature cannot sensibly be excluded. Both reports suggest that Mr. Todorov would benefit from specialised counselling. They also suggest that but for the offence now before the court Mr. Todorov is stable in his employment and happy in his family life with his wife and two children.

The specialist report suggests that the offence was impulsive and opportunistic. [ 4 ] Even if the offence in this case was unique and aberrant, it remains nonetheless a serious offence that gravely violated the privacy, security and integrity of the victim. For this reason a fit sentence must emphasise the objectives of denunciation and deterrence. At the same time, a fit sentence must also address the other objectives of sentencing that are recognised in the Criminal Code and in the jurisprudence.

Foremost among these other objectives are rehabilitation and an enhanced sense of responsibility toward the community. [ 5 ] The subjective and objective gravity of the offence in this case leave no doubt that only a term of imprisonment is appropriate to reflect the objective of denunciation and deterrence. In this respect, the suggestion of the prosecution is reasonable and entirely consistent with settled jurisprudence. Indeed, that jurisprudence could support a sentence that is more severe than that proposed by the prosecution in this case.

I accept that either of the dispositions suggested by the defence in this case can include a punitive element. In this case, however, neither of these dispositions would be proportionate to the gravity of the offence or the degree of Mr. Todorov’s responsibility for it. A proportionate sentence requires more conspicuous attention to the objectives of denunciation and deterrence. [ 6 ] The gravity of the offence of which Mr. Todorov was found guilty is apparent upon a cursory examination of its constituent elements.

In effect, it includes the elements of two offences: unlawful entry into a dwelling house [3] and the commission therein of an indictable offence. The two forms of crime found in section 348(1) are distinguished by an aggravating element, which is either the intent to commit an indictable offence upon entry into a dwelling or the actual commission of an indictable offence upon entry. This aggravating element is what explains the severe maximum sentence. It is also what explains the necessity of a sentence that plainly underscores the objectives of denunciation and deterrence.

Parliament, as if to make obvious what the jurisprudence had long established, amended the Code to declare that circumstances such as those in this case should be regarded as aggravating factors. [4] [ 7 ] But this is not the end of the matter. The risk of recidivism in this case is slight. There is no evidence that Mr. Todorov poses a danger to the community. Moreover, the evidence suggests that apart from the matter now before the court Mr. Todorov is a law- abiding and productive member of the community. Although the sentence in this case must reflect in concrete terms the objectives of

denunciation and deterrence, it must also reflect other objectives of sentencing that are recognised in the Code and the jurisprudence. In addition to the low risk of recidivism in this case, there is also reason to believe that rehabilitation will be complete. Of course, rehabilitation is often a matter of hope, rather than achievement, but in this case it is reinforced by the absence of any suggestion that Mr. Todorov poses a danger to the community. For an offence committed today, Mr.

Todorov would not be eligible for a conditional sentence as a result of amendments to the Code since the commission of the offence. [5] But for an offence committed in 2009 such a disposition might still be a fit and appropriate sentence. [ 8 ] While I have no doubt that the sentence proposed by the prosecution is reasonable and consistent with the jurisprudence, I must determine whether a term of imprisonment must be served in a penal institution.

This question is precise: in the circumstances of this case, as between imprisonment in an institution and imprisonment in the community, is there a penal imperative that can only be served by a term of imprisonment in an institution? The objectives of denunciation and general deterrence are reasons that would militate in favour of a positive answer but I am not satisfied that these objectives stand alone with sufficient force to eclipse all other objectives. The absence of danger to the community and the prospect of rehabilitation weigh heavily in favour of a conditional sentence.

As a result, I am unable to say that only a term of imprisonment in an institution can reflect the principle of proportionality and the other relevant objectives in the determination of a fit sentence. There is no question that a conditional sentence is a term of imprisonment that serves punitive objectives. Moreover, unlike imprisonment in an institution, it must be served in full and allows no form of early release. [ 9 ] Although a conditional sentence might be a viable legal option among the range of sentencing dispositions, I cannot accept that it is appropriate in the circumstances of this case.

Once again, this offence includes the elements of two distinct offences and for this reason carries a severe maximum. Further, the principle of parity militates strongly against either of the options proposed by the defence. Indeed, in my view both of those options would be manifestly inadequate in the circumstances of this case. The range of sentences of imprisonment is variable but any account sexual assault following unlawful entry into an apartment dwelling-house by the custodian of the building is plainly more serious. [ 10 ] There remains another matter. Mr.

Todorov is a permanent resident and one of the consequences of this case is that he is now exposed to the risk of removal from Canada under the Immigration and Refugee Protection Act . [6] A conviction for an offence that carries a maximum sentence of more than ten years exposes a permanent resident to removal. For this reason alone, and quite apart from any sentence that might be imposed, Mr. Todorov risks an order of removal because he was found guilty of an offence that carries a maximum punishment of life in prison. [ 11 ] This unfortunate consequence of conviction might have profound effects on Mr.

Todorov and his family. Those effects lie within the jurisdiction of the authorities responsible for immigration and they are not within the jurisdiction of the criminal courts. I am fully aware of these possible effects but it is a consequence that in no way could justify a sentence that would be manifestly unfit. [7] A sentence of less than six months in this case would be manifestly unfit. It would breach the principle of parity with respect to comparable offences in other cases.

Further, it would privilege the circumstances of a permanent resident in a manner that would create a patent inequality with offenders who are otherwise similarly situated. In short, there is no question that the individualisation of sentences and the principle of mercy allow for a flexible measure of justice in the imposition of a sentence but they afford no power to impose an unfit sentence. As a result, a fit sentence might operate unfortunately for the offender but not unfairly. FOR THESE REASONS, the sentence is as follows.

ORDER Imprisonment for two years less one day, followed by probation for two years under the mandatory statutory conditions to keep the peace and be of good behaviour; According to

section 109 of the Criminal Code prohibition to possess any weapons for a period of ten years; According to

section 490.012(2) of the Criminal Code an order to comply with the Sex Offender Registration Act . Order for a sample of DNA in accordance with

section 487.05 (1) b ) (primary offense). There will be no surcharge. ____________________________________ PATRICK HEALY, J.C.Q. M e Roxanne Laporte For the prosecution M e Robert Brankin For Mr. Todorov Date of hearing: 6 October and 26 November 2014, 29 May 2015