2020 QCCQ 3905, 2020 QCCQ 3905

R. c. Sklivas 2020 QCCQ 3905 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL «Criminal and Penal Division» N o : 500-01-171922-187 DATE: September 16, 2020 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE MANLIO DEL NEGRO, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecution v. BEN SKLIVAS Accused ______________________________________________________________________ JUDGMENT ON SENTENCE ______________________________________________________________________ A non-publication and non-broadcast order in this proceeding has been issued under

section 486.4 (1) of the Criminal Code of Canada . Is it therefore prohibited to publish, broadcast or transmit, by whatever means, any information that could identify the victim. I. OVERVIEW [ 1 ] On August 6, 2019, the offender pled guilty to a charge of sexual assault that was modified from an indictable offence to a

summary conviction offence,

section 271b) of the Criminal Code . [ 2 ] This allegation stems from an incident which occurred on May 5, 2017, when the offender was 23 years of age, and the victim 19. [ 3 ] Following the offender’s plea, I ordered that the probation office prepare a presentence report (“PSR”) and sexual assessment of the offender. [ 4 ] The offender testified during the sentencing hearing on October 30, 2019.

During his testimony, he explained in detail the events which led to him being charged with sexual assault. [ 5 ] The offender did not minimize the fact that he crossed the line with the victim, he also assumed entire responsibility for what he did. The content of his testimony and demeanour demonstrated a sincere remorse for what he had done. [ 6 ] Let it be clear that both the victim and the offender lives have been seriously compromised after what occurred.

The victim will have to live with the fact that she was the victim of a serious crime, whereas the offender will have to bear the stigma of having a conviction related to sexual assault on his record for the rest of his life. [ 7 ] In a nutshell, the backdrop of facts leading up to the assault can be summarized as follows:

[ 8 ] The offender met the victim via a social media dating application generally known as “Tinder” about two and a half years before the incident. Afterwards, they communicated with each other via text messaging. [ 9 ] Surprisingly, they had never met before May 5, 2017; up to that point, their interactions were limited to text messaging one another. Their relationship can be described as a “texting relationship”.

It should be noted that the offender resided in Montreal, but lived in Nova Scotia during the school year where he was pursuing university studies. [ 10 ] The victim, on the other hand, resided in Montreal while pursuing her university studies in the city. II.

THE TEXT MESSAGES [ 11 ] The text messages exchanged between the victim and the offender were filed as Exhibits S-2 and S-3 by the Defence. [ 12 ] The perusal of the text messages exchanged from December 23, 2016, to June 6, 2017, clearly show that the exchange of text messages evolved from fairly mundane exchanges to what I would describe as hyper sexualized sexting. [ 13 ] Clearly, the content of the exchanges were salacious, revealing both parties’ eagerness to engage in some form of sexual encounter at some point. [ 14 ] The lasciviousness of their banter became more palpable over time.

Pictures and videos were exchanged which amplified the offender’s sexual desire for the victim. [ 15 ] Although it is true that the victim, during the course of these exchanges, expressed her wish to maintain her celibacy, and not engage in sexual intercourse with the offender, at times, her exchanges with the offender reveal her ambivalence about just how far, sexually speaking, she was willing to go with the offender after she met him. [ 16 ] A few weeks before the sexual assault occurred, the following text message exchange took place when they were making plans to see each other, following the completion of their exams. [1] Benjamin Sklivas : So if you’re going to do it just let me fuck you.

J.C . : alright if it’s gonna be the last tho it’s gotta be the most fucked up sex Benjamin Sklivas: Oh yeah and what kind of sex is that going to be then; J.C . : i don’t know i’m gonna make u black out though

Benjamin Sklivas : Oh yeah you’re going to make me black out. But then I won’t remember And you’re just going to be broken J.C . : it’s too late i’m already broken Benjamin Sklivas : Oh god stop it don’t be a pussy. I meant physically; J.C . : i know i was fucking with u there Benjamin Sklivas : But not Saturday So come get some dirty you dirty little slut; Dick* JC : kk when Benjamin Sklivas : Now …;) I want you to come and let me just use up every one of your holes mm J.C . : Isn’t ur fam home Benjamin Sklivas: Well not right now but my step dad will be home later I have been alone for the last 3 hours J.C.: shoulda invited me over Benjamin Sklivas :

Sorry I didn’t know you wanted to come thought you wanted to be alone Plus you’re celibate J.C.: yep but like u said if i’m gonna do it may as well right Benjamin Sklivas: So you’re actually going to do this? And you want me to be your last time J.C . : do u want to or not Benjamin Sklivas: Yes..

J.C.: what would you like me to wear (Emphasis Added) [ 17 ] The following day, it appeared that victim changed her mind about engaging in a sexual encounter but maintained her interest in going to meet the offender at his father’s home nonetheless. [ 18 ] The following exchange took place which sheds light on the victim’s change of mind in relation to engaging in a sexual encounter with the offender [2] .

Benjamin Sklivas : you at least message me to know you’re alive … J.C : i’m obviously alive why would i do anything Benjamin Sklivas : Well fuck idk You doing anything J .C . : yeah sleeping then working Benjamin Sklivas : No sleeping: (! Come over!!

J.C . : i’m not having sex with u Benjamin Sklivas : Did you change your mind abot everything J.C . : yep Benjamin Sklivas : Changed your mind about what to be exact? does that mean my chance is forever gone! J.C . : basically Benjamin Sklivas : Really… Alright But does that mean that I can’t even see you as a friend You mean something to me:$ I can’t lose you J.C.: haha alright i’m joking with us i’ll get over it in a lil Benjamin Sklivas: If it means nocsexuality I’m okay with that J.C.: it’s whatever u want sweets Benjamin Sklivas : Wait what do you mean:) :$:$

J.C.: i don’t know not banging u tho Benjamin Sklivas : yeah i realized that part, i think i could wait for that if you really want me to but i want to know what you meant J.C.: i’m not sure it’s exactly what i said it’s whatever u want Benjamin Sklivas : well its not whatever i want since i don’t get to have you anymore lol so loophole there J.C . : in what sense Benjamin Sklivas : well you said not banging so thats not whatever i want lol so thats a loophole in what you said J.C . : true u missed ur chance there Benjamin Sklivas : yeah i can see that, but i don’t think the chance is gone for good J.C . : if i make it passed tonight then ur next chance will be in october Benjamin Sklivas: what you mean if you make it passed tonight?

J.C . : just a joke i’m not gonna do anything

Benjamin Sklivas: okay cause you know i actually believe you (Emphasis added) III.

THE SEXUAL ASSAULT [ 19 ] Later on May 3, 2017, before she went to see him at his father’s home, other discussions took place about their plans of what they were going to do when they finally met: [3] J.C.: I would be so down to take ur cock whole Benjamin Sklivas: you love the idea that i can’t stop thinking of it don’t you … i can’t stop thinking of you i want to see you try and take the whole thing :$ J.C.: it’s too bad ur so lazy with seeing me because u would have been getting the best head of ur life for the past week Benjamin Sklivas: oh really? well its a good thing that I’ve started opening up my schedule. the best head of my life? ☺ really you so sure about that J.C.: okay maybe not the best depends on how much head you’ve had Benjamin Sklivas: Well I don’t think that I’ve had the best head of my life yet I’ve never finished under 5 mins J.C.:

good but finishing fast isn’t always fun u wanna enjoy u know once i sucked a guys dick n he came right away so i did again for an hour just so he could enjoy it Benjamin Sklivas: What you mean you did it again for an hour:$ Girls usually stop after 10 mins because it hurts their throat I do want to enjoy it I want to enjoy you..

J.C.: i’m not even joking i sucked dick for an hour and 14 mins i was crying Benjamin Sklivas: what … how could you do that was it big and he didn’t finish in that time shit J.C.: it was big he finished in 5 mins the first time but he wanted to cum twice so i kept going Benjamin Sklivas: oh shit so he lasted that long afterwards shit girl thats dedication, I’ve never had a girl go longer than 15 mins i love sloppy head:$ J.C.: yes ofc i’ll do anything to make u happy babe Benjamin Sklivas: really … i would do the same ah:$

so you’d go nice and deep and spit all over it i would want you to spit all over yourself at the same time as you take a breath of air and choke more :$ J.C.: i guess you’ll have to see when the time comes Benjamin Sklivas: mm well then when is that time going to come we should arrange something J.C.: guess so eh Benjamin Sklivas: like within the next couple days max if you’d let me can you just let me have you already:$ J.C.: would b nice Benjamin Sklivas: well that you that has to say yes! J.C.: hahaha don’t even don’t act like i’m the issue it’s u!!!!!!

Benjamin Sklivas: yeah i know its mostly my fault [ 20 ] In view of the foregoing text message exchanges, the issue of what the victim was prepared to consent to in terms of sexual intimacy with the offender is complex and nuanced. The text messages show her ambivalence as to how far she was willing to go after she met the offender at his father’s home. [ 21 ] When they finally met, it didn’t take long for them to engage in acts of sexual intimacy. In a nutshell, the consent of the victim was limited to oral sex whereas the offender’s perception of the situation was different.

Clearly, the sexual tension stemming from

the previous text message conversations reached a boiling point. He was barely able to contain his arousal to engage in sexual intercourse with the victim, whereas the victim’s consent to sexual activity was limited to giving him oral sex. [ 22 ] Shortly after the victim started to perform oral sex on him, the situation quickly deteriorated. He began pushing his private deep down into her throat, obviously feeling uncomfortable with what was happening, she tapped his leg to advise him to withdraw as it was difficult for her to breathe in these circumstances.

The offender didn’t take her cue, which provoked the emptying of the contents of her stomach onto his private. [ 23 ] Obviously distraught about what just happened, she sought refuge in the bathroom to get away from him. Minutes later, he followed her there, obviously still aroused by the circumstances of the situation. The victim, on the other hand, was in a state of distress about what just happened. Entirely oblivious to her vulnerability, he proceeded to pull her undergarment down in order to engage in unprotected sexual intercourse with her for a few minutes.

She vocalized her disapproval of his actions, telling him to stop, which he did. [ 24 ] Afterwards, she returned to the bedroom to get dressed. The offender followed her there, and while she lay on the bed, totally oblivious to her precarious situation, he proceeded to initiate intercourse with her once again, contrary to her will. At one point during intercourse, he asked her if she wanted him to stop, she pleaded that yes she wanted him to stop what he was doing, but he didn’t. He continued gratifying himself for a few more minutes before ceasing.

According to the agreed statement of facts, the offender did not ejaculate during intercourse. [ 25 ] Realizing that he “just did something wrong”, the offender apologized for what just happened.

After the victim left his father’s home, he communicated with her via text message to apologize for what he had done to her. [ 26 ] His text message communications read as follows: [4] Benjamin Sklivas : i understand if you never want to see me again … i/feel like the worst human being in the world holy shit :│ i hate myself i should have never done that I’m just going to go im sorry are you okay Can you please let me know you’re okay?

I haven’t been able to stop thinking about what happened Can you please just talk to me Can you please just tell me what happened I’m confused about everything and tripping out please say something idk what the fuck is happening im coming to see you J.C.:

i said no. Benjamin Sklivas : And I stopped [ 27 ] Later on May 16, 2017, the offender sent the victim the following messages: [5] Benjamin Sklivas: i really can’t stop thinking about what happened can you see me il do anything Mm You name it I need to talk to you I can’t stop thinking of yu.. J.C.: i want u to watch me die Benjamin Sklivas: what … you’re going to go through with it are you okay? :$ please don’t fuck with me i’m being really serious i would do anything to see you … J.C.: i’m not doing anything m i’m asking if u would do anything to see me then u can talk to me and watch me die anytime this week Benjamin Sklivas: so come over now J.C.: as long as u don’t get in the way

Benjamin Sklivas: i just want to see you come over we can chill i premis i will never touch you again promis does that mean no i understand ☹ J.C.: explain what happened then over text Benjamin Sklivas : call me wouldn’t that be easier if you want J.C.: no Benjamin Sklivas: i went against what you said. i wasn’t able to hold myself back i made you keep going after you puked on my dick and i didn’t want you to stop i didn’t take you into consideration when i did all of this and i was out of all a bad friend J.C.: u saw me crying in the washroom and then decided u weren’t done with me when i went in ur room to get my clothes Benjamin Sklivas: i know, its the most disgusting thing that I’ve ever done and i haven’t been able to stop thinking about it I’ve barely been able to sleep idk what got over me i completely understand why you don’t ever want to see or talk to me again, i just want you to know that i haven’t stopped thinking about you and i wish that i could make it up to you somehow anyways i want to see you what will it take :$

please just tell me what you want if its not to talk tell me il be a slave to you just tell me please I will pay you to see me … please… I’m sorry il stop you obviously don’t want anything to do wit me now i literally haven’t stopped looking at pics of you all night (Emphasis added) [ 28 ] The offender quickly recognized the gravity of the acts he committed, and the consequences for the victim. At one point, he mentioned to her that “this is my cross to bear”. [ 29 ] I have no difficulty in concluding that from the outset, the offender demonstrated genuine remorse and regret for what he had done. IV.

POSITION OF THE PARTIES [ 30 ] The prosecution’s position with respect to sentence stresses the factors of denunciation and deterrence. Denunciation relates to the objective of expressing society’s condemnation of the offender’s conduct. [6] [ 31 ] Deterrence refers to the “imposition of a sanction for the purpose of discouraging the offender and others from engaging in criminal conduct”.

When deterrence is aimed at the offender before the Court, it is called “specific deterrence”, when directed at others, it is called “general deterrence”. [7] [ 32 ] The prosecution drew attention to the serious nature of the crime committed by the offender, namely two unprotected sexual assaults involving penetration, committed on a vulnerable victim who was 19 years of age at the time. [ 33 ] From the prosecution’s perspective, the offender abused the trust that was built over time with the victim.

Lastly, the prosecution correctly stresses the significant emotional impact the crime had on the victim as described in her Victim Impact Statement. (V.I.S) [ 34 ] In light of the above-mentioned factors, the prosecution deems that a prison term is warranted. The quantum suggested by the prosecution is a term of incarceration in the range of 14 to 18 months with a probation order for a period of 3 years. In addition, the prosecution seeks a DNA order, a SOIRA order and the weapons prohibition order mandated by law. [ 35 ] During her submissions, the prosecution submitted the case of R. c.

Bouchard [8] which bears some factual similarities to the case at bar. [ 36 ] In the case of Bouchard , following a finding of guilt, the offender was sentenced to a term of imprisonment of 14 months. [ 37 ] The principle of parity guides courts to impose similar sentences for similar offenders and similar offences, committed in

similar circumstances. However, the principle is not absolute, as all sentences must be guided by relevant principles and factors including the individual characteristics of offenders and the nature and seriousness of the offences. [ 38 ] Each case should be evaluated on its own merit as sentencing is a highly individualized process of decision-making.

It is often said that each sentence should be tailored to each offender in order to fit like a made-to-measure suit. [ 39 ] The Defence’s position can be summarized as follows: [ 40 ] According to the Defence, incarceration in this case is not appropriate as the actions of the offender, although not justified, can be explained by the particular facts leading up to the assault. [ 41 ] The offender’s attorney emphasized that the build-up leading to their meeting, the offender’s lack of impulse control and the expectations he had of the victim following the sexting exchanges with her, served to blur his vision of the situation at hand. [ 42 ] The offender’s mental health issues were also feebly put forth as a possible contributing factor for what occurred. [ 43 ] It was also argued that the offender’s remorse as expressed by his text messages following the assault, his lack of premeditation, the spur of the moment reaction, and his guilty plea are all mitigating factors which should favour leniency on sentencing. [ 44 ] In terms of the sentence which the Court should levy on the offender, the defence attorney suggested several options excluding incarceration which, in his view, would serve the ends of justice in this case. [ 45 ] More specifically, the defence attorney suggested that the Court consider a conditional discharge or consider imposing a conditional sentence of incarceration to be served in the community as viable options on sentencing as opposed to a firm term of incarceration as suggested by the prosecution.

V. CIRCUMSTANCES OF THE OFFENDER AS DESCRIBED BY THE PROBATION OFFICER IN THE PRESENTENCE REPORT (“PSR”) [ 46 ] The offender is 26 years of age. At the time of the commission of the offence in May 2017, he was 23 years of age. [ 47 ] At the age of 11 he was diagnosed with ADHD (Attention Deficit Hyperactivity Disorder). He was also diagnosed as being dyslexic. [ 48 ] At the time of the offence he was a full-time university student in Nova Scotia. At the end of the semesters he would return to Montreal to live with his mother during the summer break. He graduated from university in April 2019.

He is currently gainfully employed as a sales representative for the company MindGeek [9] on a full-time basis. His yearly salary is $40,000 plus commissions based on job performance. Furthermore, the offender works on a part-time basis in the restaurant field as a waiter. The PSR report describes the offender’s profile as being immature, egocentric, and a carefree character with hedonistic tendencies. [ 49 ] In the probation officer’s view, the offender appeared defensive and not entirely transparent during the interview process.

The offender’s collaboration with the probation officer is described as being not forthcoming. The probation officer opined that the offender’s risk of recidivism is moderate. In this context, the probation officer suggested that the offender follow counselling specialized in treating sexual offenders in order to avoid recidivism in the future.

[ 50 ] In reference to therapy, it appears from the PSR and Sexual Offender Evaluation that the offender has undergone counselling since 2018. It seems that he has followed over 45 sessions from 2018 to 2019. Unfortunately, I was not given any further insight about the nature or outcome of the process undertaken by the offender concerning any progress, if any, since then. [ 51 ] The salient points of the PSR can be summarized as follows: [10] Aujourd’hui, monsieur assume la responsabilité de ses gestes délictuels et les regrette profondément.

À l’origine du passage à l’acte, il explique une certaine confusion découlant du fait qu’il avait longtemps échangé avec la victime sur une thématique sexuelle, et qu’il la pensait consentante à des expériences masochistes. Ainsi, il aurait interprété les larmes et les refus répétés de madame à une pénétration vaginale comme les simples expressions d’un « jeu de rôle ». Il indique n’avoir compris que tardivement que la victime n’était pas consentante, moment où il aurait arrêté la pénétration. Évaluations et recommandations Monsieur Sklivas a offert une collaboration mitigée au cours du processus évaluatif.

D’une part, il a accepté de nous rencontrer, nous a donné accès à des personnes-ressources significatives et nous a apporté une

partie des preuves demandées. Par contre, en entrevue, le précité a paru sur la défensive et a manqué de transparence. Il a été visiblement porté à rationaliser, à passer sous silence ou à nier ses difficultés, ainsi qu’à projeter constamment une image positive de lui-même. La description extrêmement linéaire et dépourvue de tout excès qu’il nous a fait de son vécu préalable au délit nous parait fort invraisemblable. Il tend visiblement à exagérer, afin de se faire valoir. Selon nous, son attitude dénote d’une grande méfiance et de sa volonté de tenir l’interlocuteur à distance.

Nous décelons aussi le désir de contrôler et de manipuler le flux d’informations afin d’éviter une remise en question dévalorisante. Nous sommes en présence d’un jeune homme dont l’histoire personnelle fait état de certaines carences affectives liées à ses rapports problématiques avec son père. En contrepartie, il parait avoir établi une relation plutôt fusionnelle avec sa mère, ce qui a probablement ralenti son intégration des limites. Monsieur nous parait immature, centré sur lui-même, véhiculant un penchant hédoniste, parfois insouciant.

Remarquons également la tendance du sujet à se représenter la réalité en couleurs dichotomiques, sa rigidité cognitive, sa difficulté à anticiper parfois les conséquences de ses actions, son autocritique défaillante . Mais son cheminement clinique nous semble toutefois encore lacunaire. Une certaine rigidité cognitive, une inappétence pour l’exploration de soi et une tendance à fuir le contact avec ses émotions douloureuses pourraient expliquer cet état de fait.

Dans le cas de monsieur Sklivas, on note la présence de trois facteurs statiques associés au risque de récidive : son jeune âge, avoir fait au moins une victime sans lien de parenté et ne pas avoir cohabité pour une durée de temps significative avec une partenaire. En raison de son profil et en accord avec le résultat de l’évaluation sexologique, nous estimons son risque de récidive par rapport à d’autres délinquants sexuels comme étant dans la moyenne.

En termes de réinsertion sociale, nous jugeons important que l’intimé s’engage dans un programme thérapeutique de groupe structuré, ciblant la délinquance sexuelle. Nous avons fait part au justiciable de nos recommandations et celui-ci s’est montré ouvert à travailler dans cette perspective. [ 52 ] In view of the foregoing comments, I conclude that the PSR does not paint a favourable picture of the offender.

a) Sexual delinquency report [ 53 ] The offender was evaluated by Steve Titley M.A., sexologist and psychotherapist at the request of the Court. [ 54 ] The therapist outlines the offender’s version of the events as follows: [11]

We first encounter ourselves when we found each other on Tinder. I was on a break from school. I had matched with Jen. I had an attraction for her. We started simple, getting to know each other. With time, we added ourselves on social network and we texted. Her and I, we started to get more intimate. We liked a lot of the same things. We evolved talking more about intimate things, more sexual. I realized through her explanations of her past experiences that she didn’t have a high self-esteem. I wanted to boost her confidence. We began to be more personal. She had told me she had a rough ex-boyfriend.

We began to be more explicit. She sent out videos of herself. She told me what she was into, a darker side of sexuality. I was saying what I think she wanted to hear. At one point, she told me she was celibate, which I was ok with. We continue to have dirty talks. There was a duality. We both sent pictures and videos. She mentioned she was open to kiss, for oral but no penetration. At one point, I was back home, I was saying she should come over. I remember she said she didn’t wasn’t to slip up; she didn’t want to put herself in a position where she would want to and slip up. We continued to talk.

Back in Montreal, I told her I wanted to meet her. For two years, there was a big build up. She agreed to meet for sex, but I wasn’t available. The next day, we agreed to meet another time, but this time, she said she wouldn’t want to have sex. For me, this was confusing. She came over to my place (my stepfather’s place on the West Island). She said she only had an hour, because she had to work. We went upstairs at the dining table. We talked for 30 minutes or so. She told me to stop talking. She asked me for my room. She brought me to the room. We started to make out heavily.

She started to take my pants off to do me oral. I remember she had told me in the past, she easily vomits. I had my hand on the back of her head. She started to vomit on me. She went to the bathroom first to clean herself. I followed her. She only had her underwear. She leaned over the sink, with her ass sticking out. I thought, maybe she would like that. I remembered she liked it rough and that she had vomit in the past, so I was still excited (I had an erection). I started to penetrate her. After a while, I saw her crying; she wasn’t enjoying it. I stopped and apologized.

She left the bathroom and went back to the room, tearing. She started to get dress. I came back to the room; I sat her down on the bed. I said I’m sorry. I thought this would be a time where she was slipping up or it was something she wanted. I putted her arms on the side of her head. I was still turned on, so I started to penetrate her again. I know I took advantage of her. After one minute, I realized I was doing something wrong. I stopped. I begged her for forgiveness, but she ran out of the house. She went to work. I wrote her. I asked her for forgiveness.

With time, we lost contact and about a year later, I had a call from the police. [ 55 ] From this perspective, the therapist comes to the following conclusions: [12] ● Admet : Certains gestes et faits : ▪ Avoir reçu une fellation (avoir placé sa main sur sa tête); ▪ Avoir pénétré la victime alors qu’elle se trouve à la salle de bain; ▪ Avoir retenu les bras de la victime alors qu’elle se retrouve sur le lit et l’avoir pénétré vaginalement; L’aspect délictuel de ses gestes : ▪ Avoir développé et entretenu une attirance envers la victime; ▪ La composante « excitation sexuelle » ; ▪ Son degré de responsabilité; ▪ L’abus de pouvoir; ▪ Les conséquences potentielles pour la victime; ▪ Un besoin d’aide sur le plan personnel. ● Minimise : ▪ Le degré de domination et de violence. ● Réfute : Certains gestes et faits : ▪ Avoir retenu sa tête lors de la fellation; ▪ Avoir dévêtu la victime dans la salle de bain; ▪ Avoir poussé la victime sur le lit.

[ 56 ] In view of the above, despite the offender’s nuanced commentaries, I accept that the offender accepted full responsibility for his actions. Concerning certain facts that he does not agree with which appear under the heading “Réfute”, in fairness to the offender, I cannot conclude that the offender attempted to minimize or alter the factual frame of the incident.

For both parties, I can envision that the factual frame of what occurred that day is a question of perception which risks becoming blurred despite both parties’ willingness to tell the truth about what happened. [ 57 ] In addition to what the offender described as being his version of the events, he adds the following comments: [13] Explications de monsieur par rapport à l’accusation : - Nous avons posé à monsieur la question suivante : how do you explain this situation? Monsieur nous a répondu: ʺ It was a giant mistake.” “Being in constant conversation with her, I started to feel for her.

I so wanted to show her how I felt through physical acts. There was a big buildup through our conversations.ʺ ʺ I lost control that day.ʺ ʺ Even though she did say she didn’t want to, through her messages, she was telling me otherwise.ʺ ʺ I felt we both wanted it.ʺ ʺ In the bathroom, seeing her in her underwear, it reminded me of her pictures, so I thought maybe she wants to continue on.ʺ ʺ From the bathroom to the bedroom, I don’t know why. Maybe, I was hoping I could make it up by having sex, but seriously, it was me taking advantage of her. In the bedroom, I ask her: tell me if you don’t want it.

I didn’t hear her saying it. She said she did . [ 58 ] In relation to these comments by the offender, the psychologist makes the following observations: [14] Monsieur évoque des explications intéressantes. Il a nommé avoir développé un grand intérêt sexuel pour cette femme et qu’il s’est créé de grandes attentes, dues à leurs multiples échanges à connotation sexuelle dans le passé. Étant aux prises avec des pensées sexuelles, un fort désir d’avoir un rapport sexuel avec cette dernière, il s’est convaincu qu’elle désirait les contacts sexuels.

Bien qu’elle ait vomi lors de la fellation, pour monsieur, ceci n’était pas un facteur suffisant pour le restreindre. Étant toujours fortement excité sexuellement et désirant poursuivre les activités sexuelles, il s’est convaincu qu’il pouvait poursuivre les contacts sexuels (que la victime accepterait ou serait excitée par la poursuite de l’acte), une fois dans la salle de bain et encore une fois revenue dans la chambre à coucher. Il s’est donné le droit de continuer l’acte sexuel, sans démontrer de compassion ou de considération pour la victime.

Monsieur évoque avoir perdu le contrôle de ses pulsions et il admet avoir exploité la victime pour tenter de combler ses besoins sexuels . [ 59 ] It goes without saying that the highly sexualized exchanges over a long period of time served to distort the offender’s sense of reality of the situation and particularly, the victim’s reluctance to consent to intercourse. [ 60 ] In his assessment, the psychologist did not address whether or not the offender’s mental health issues, namely ADHD and dyslexia could have had any impact on the offender’s behaviour.

Ultimately, the offender did not pursue any argument that the existence of neurophysiological and psychological impairments were somehow responsible for his behaviour that evening. This said, recently, the Supreme Court in R. v. Friesen [15] opined that “offenders who suffer from mental disabilities that impose serious cognitive limitations will likely have reduced moral culpability.” Seemingly, this was not the case for the offender.

b) The results of the diagnostic tests administered by the psychologist i. Échelle des croyances de viol de Bumby (ECVB) [16] : • Les réponses de monsieur suggèrent qu’il ne serait pas aux prises avec des distorsions cognitives favorisant ce type de comportements. ii. Internet Sex Screening Test: [17] • La conjonction de ces deux résultats indiquerait que monsieur présente un risque faible d’agissements sexuels sur Internet. iii.

Victim Empathy and Remorse Inventory (VERSRI) [18] • Les réponses de monsieur suggèrent un niveau d’empathie cognitif intéressant pour la victime. [ 61 ] The therapist’s clinical impressions in relation to the offences committed by the offender are as follows: [19] De notre avis, il est évident que monsieur Sklivas a développé un grand intérêt sexuel pour cette femme à la suite de leurs multiples échanges intimes à caractère sexuel au fil du temps (pendant environ deux ans).

Par les échanges de photos et de vidéos à caractère sexuel, par leurs discussions sur leurs préférences, leurs expériences passées, etc., monsieur a sexualisé cette dernière et l’a perçu comme une femme ouverte sexuellement et également intéressée à lui. Bien que madame lui ait affirmé ne pas vouloir de relation sexuelle lors de sa visite chez lui, monsieur s’est convaincu qu’elle pourrait changer d’avis et il s’est créé de grandes attentes. Le fait qu’ils s’embrassent, il est devenu très excité.

Lors de la fellation, des pensées associées au « rough sex » lui sont apparues et il s’est permis d’outrepasser les limites de la victime en lui retenant la tête, ce qui a mené madame à vomir. Étant toujours aux prises avec une forte excitation sexuelle et un fort désir d’avoir une relation sexuelle avec cette femme, il s’est convaincu qu’elle pourrait vouloir poursuivre les activités sexuelles et il a fait fi de ses refus et de ses pleurs et il s’est donné le droit de la pénétrer vaginalement dans la salle de bain, sans obtenir son consentement. Réalisant ce qui se passe (madame pleure), il arrête et s’excuse.

Une fois de retour dans la chambre à coucher, toujours aux prises avec un désir sexuel, il décide de s’imposer sur elle en plaçant les bras de madame de chaque côté de sa tête et il la pénètre vaginalement, encore une fois sans obtenir son consentement. À ce moment, la victime est perçue comme un simple objet sexuel afin de combler ses besoins sexuels. Après un certain temps, monsieur s’est arrêté et il s’est excusé. Madame a quitté les lieux. Ce délit sexuel semblerait être un acte impulsif, de type opportuniste et circonstanciel .

c) Risk of recidivism [ 62 ] In terms of the risk of recidivism for the offender, the psychologist expresses himself as follows: [20] Les scores à la Statique-99R et à la Stable-2007 sont ensuite combinés afin d’établir le niveau standardisé de risque de récidive sexuelle. Étant donné que M. Sklivas présente un niveau de risque dans la moyenne (niveau III) selon la Statique-99R et un niveau modéré en termes de densité des besoins criminogènes à la Stable-1007, la combinaison de ces deux évaluations le place au niveau III de risque standardisé.

Parmi l’échantillon normatif, les hommes qui avaient un profil de risque similaire à celui de M. Sklivas ont présenté un taux de récidive sexuelle de 3,8 % pour la première année, de 6,1 % pour la troisième ainsi que de 7,5 % pour les cinq années ayant suivi leur remise en liberté. [ 63 ] The therapist concludes his assessment by making the following recommendations : [21] i. Monsieur ne doit pas entrer en contact ni être en présence de la victime, à moins que celle-ci en fasse la demande. 1.

ii. Monsieur bénéficierait d’une démarche thérapeutique afin de consolider certains apprentissages. Le processus thérapeutique devrait inclure, entre autres, les composantes cliniques suivantes : • Le consentement libre et éclairé; • Les comportements sains vs inadéquats vs délictuels; • Le développement de stratégies d’adaptation saines; • La gestion saine de ses besoins affectifs et sexuels .

d) The impact on the victim [ 64 ] By virtue of section 722

(5) a) of the Criminal Code , the victim J.C. testified about the impact and repercussions the crime had on her. The statement she prepared for the Court was filed under Exhibit S- 4 which will be herein referred to as the Victim Impact Statement (« VIS »). [ 65 ] It should be noted that the definition of ʺvictimʺ is not confined to any particular offence.

From any victim’s perspective it should be mentioned that the Canadian Victims Bill of Rights provides that ʺevery victim has the right to present a VIS to the appropriate authorities in the criminal justice system and to have it consideredʺ ( S.C. 2015, c. 13, s. 2, s. 15 ). [ 66 ] During the sentencing hearing, I was able to observe the victim, and to be clear, her suffering was palpable. [ 67 ] She testified about the repercussions this crime had on her: difficulties recovering from the impact the crime ; loss of friends and employment; several suicide attempts which necessitated hospitalizations; having to drop out of school; therapeutic intervention requiring prescribed medication; emotional suffering; isolation, fear, loss, panic attacks, and nightmares, all became part of her life. [ 68 ] That said, the Defence made no submissions regarding which portions of the VIS should be judged inadmissible, and consequently not considered as aggravating factors on sentencing.

In particular, no arguments were advanced about the statement by the victim that she attempted suicide on three different occasions following the incident, or about whether any correlation can be established that the suicide attempts were a direct consequence of the incident. [ 69 ] Since this issue was not contested by the Defence, should the Court consider this fact as an aggravating factor on sentencing? [ 70 ] Concerning this issue, it is trite to say that aggravating factors tend to increase and mitigating factors tend to decrease the severity of a sentence. [22] [ 71 ] It is also well established that for any aggravating factor to be considered, the sentencing judge must be satisfied that the evidence is sufficiently cogent to enable him or her to find it proven beyond a reasonable doubt. [23] [ 72 ] That said, there is no presumption with respect to these factors.

If they are not proven, they are simply absent from consideration on sentence. [ 73 ] For the foregoing reasons, I will therefore not consider the suicide attempts by the victim as a specific aggravating factor on sentencing, as the prosecution has failed to establish, beyond reasonable doubt, any correlation between the victims’ suicide attempts and the crime.

VI. THE ISSUE [ 74 ] What is the appropriate sentence which the Court should levy on the offender for his criminal conduct in this case? VII. ANALYSIS [ 75 ] Initially, the offender was charged under

section 271 (

a) of the Criminal Code . The maximum term of imprisonment provided for that indictable offence is 10 years of incarceration. However, before a plea was registered by the offender, the charge was modified by the prosecution to a

summary conviction offence (section 271 (

b) of the Code ) thereby reducing the maximum term of imprisonment for the modified offence to 18 months of incarceration. [ 76 ] Let me be clear: as a result of this modification, the objective gravity of the offence from a sentencing perspective has been greatly diminished. VIII. SENTENCING PRINCIPLES [ 77 ] It is cliché to say that crafting an appropriate sentence ʺ is far from being an exact science or an inflexible predetermined procedure. The trial judge enjoys considerable discretion because of the individualized nature of the process.

To arrive at an appropriate sentence in light of the complexity of the factors related to the nature of the offence and the personal characteristics of the offender, the judge must weigh the normative principles set out by Parliament.” [24] [ 78 ] As Gendreau J. explained in R . c. S.T [25] . , sentencing is a difficult and delicate task: “Sentencing is arguably one of the most difficult and delicate tasks of the judiciary.

Indeed, finding and applying the fairest and most equitable standard for the accused while manifesting the appropriate social disapproval and ensuring the protection of society is a complex balancing exercise since it tends to ensure a balance between values which, without opposing each other, have different objectives.” [ 79 ]

Section 718 of the Criminal Code sets out the fundamental purpose and objectives of sentencing: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and

(

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 80 ] Moreover, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender ( s. 718.1 of the Criminal Code ). The proportionality principle requires that the punishment imposed be “just and appropriate, and nothing more” [26] . [ 81 ] A sentence may be increased or reduced to account for any relevant or mitigating circumstances ( s. 718.2 of the Criminal Code ). [ 82 ]

Section 718.2 codifies the principle of restraint in sentencing, mandating that : (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 83 ] Sections 718.2 (

d) and (

e) combined with

section 718 (f) (promotion of responsibility in offenders, and acknowledgment of the harm done to victims and the community) embody the concept of restorative justice. [ 84 ] In a relatively recent book on sentencing, Sentencing : principles and practice , the authors express themselves as follows concerning the principle of restraint: Sections 718.2(

d) and (

e) go beyond merely codifying the principle of restraint that may have existed in the common law prior to their enactment. They are remedial in nature and “specifically enacted, along with s. 742.1, to help reduce the rate of incarceration in Canada.”

Section 718.2 (

d) and (

e) together with 718 (f) (promotion of responsibility in offenders and acknowledgment of the harm done to victims and the community) embody the concept of restorative justice. “Restorative justice involves some form of restitution and reintegration into the community … do not usually correlate with the use of prison as a sanction.” The Supreme Court has concluded that through the enactment of these provisions, Parliament has indicated its intention to “expand the parameters of the sentencing analysis for all offenders.” Judges are being encouraged by Parliament to be creative and look for ways to achieve the sentencing objectives without jail.

However, even creativity must be tempered with restraint . […] [27] [References omitted] [ 85 ] In the realm of sexual offences, the case law is consistent; the principles of denunciation and deterrence are paramount.

On the other hand, this does not mean that in appropriate cases, the other principles of sentencing don’t have their place. [ 86 ] According to the case law, the appropriate sentencing range for a sexual assault prosecuted summarily varies from a suspended sentence with probation, to the imposition of a fine, to 18 months of incarceration. [28] [ 87 ] However, as mentioned before, a sentence needs to be individualized to the particular offender. Also, in this case, it must be borne in mind that the charge was modified to a

summary conviction offence punishable by a maximum term of 18 months of incarceration. [ 88 ] In R. v. M. (C.A.) [29] , Lamer C.J. pointed out the inherent limitations of parity in sentencing: “sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. ”

[ 89 ] It should be said that the Court had no input in the prosecution’s decision to modify the charge to an objectively less severe charge, as it is the prosecution’s unfettered discretion to do so. [ 90 ] In the seminal case on sexual assault sentencing, R . v.

L. (J.J.) [30] the Quebec Court Of Appeal listed a number of factors by which an offender’s criminal responsibility for sexual offenses could be measured: [TRANSLATION] • The nature and intrinsic gravity of the offenses, reflected in the particular by the use of threats, violence, psychological restraint and manipulation, etc.; • The frequency of the infringements and the temporal space which contains them; • The breach of trust and the abuse of authority characterizing the offender’s relations with the victim; • The disorders underlying the commission of offenses: psychological distress of the offender, pathology, deviance, intoxication, etc.; • The offender’s previous convictions: temporal proximity to the alleged offence and nature of the previous convictions; • The offender’s behaviour after the commission of the offenses: confessions, collaboration with the investigation, immediate involvement with a treatment program, potential for rehabilitation, financial assistance if necessary, compassion and empathy for the victim [remorse, regrets, etc.]; • The delay between the commission of the offence and the conviction as a mitigating factor depending on the behaviour of the offender [age of the offender, social and professional integration, commission of other offences, etc.]; • The victim: seriousness of the attacks on physical and psychological integrity, reflected, in particular, by the age, nature and extent of the attack, the frequency and duration, the character of the victim, her/his vulnerability [mental and physical impairment], breach of trust or authority, traumatic consequences, etc.; [ 91 ] In order to levy a fair and reasonable sentence, the Court will take into consideration several factors in its analysis in order to levy the sentence for the case at bar.

IX. THE AGGRAVATING AND MITIGATING FACTORS

i) The mitigating factors : • Youthful offender; • First-time offender; • Lack of premeditation in committing the offence; • Expression of sincere remorse; • Early guilty plea;

• Gainful employment – following completion of university degree; • Prospect for rehabilitation is somewhat positive. ii) The aggravating factors : • Inherent violence of the criminal conduct; • Unprotected penile penetration is an aggravating factor because it can create a risk of disease and pregnancy [31] ; • Abuse of trust in a sexually intimate relationship between adults is founded on a certain amount of trust and confidence, at least to the extent that each participant may reasonably expect that he or she will not knowingly be exposed by the other to serious and obvious perils [32] ; • Complete, unprotected intercourse on two successive occasions involving some degree of physical coercion; • The significant harm and dreadful consequences that this crime has caused the victim.

X. CASE LAW [ 92 ] Both parties submitted case law for the Court to consider during its deliberation. I have already discussed the case submitted by the prosecution. Defence counsel submitted several cases to the Court which the Court will analyze in order to assess how these cases can relate to the case at bar. [ 93 ] The following cases supported the Defence’s position for the granting of a conditional sentence of imprisonment: • R. v. M.B. , 2009 ONCA 524 ; • R. v. Afettouche , 2006 QCCQ 9828 ; • R. v. Regan , 2008 ONCJ court file no: 0024/07; • R. v. S.E.C. , 2008 NSSC 161 ; • Murphy v.

R. , 2004 PESCTD 31 . [ 94 ] The following cases supported the Defence’s alternate position that a conditional discharge be levied upon the offender: • R. v. Zong, 2018 QCCQ 8259 ; • R. c.

Gravel, 2018 QCCA 1114 . [ 95 ] From the outset, it is important to highlight that in Zong , the sexual assault involved inappropriate sexual touching, not unprotected sexual intercourse as in the case at bar. [ 96 ] Furthermore, in Zong , the fact pattern of the other cases analyzed by the judge, where a discharge was granted, does not correlate to the factual pattern of the case at bar. [ 97 ] Whereas, in the case of Gravel , the criminal conduct involved touching the victim’s breast, digital penetration and oral sex.

[98] To be clear, the cases submitted by the Defence in support of the granting of a discharge bear no similarities to the case atbar. [99] Since this case was argued, other judgments have emerged from the Court of Quebec. In the case of Nault[33], (originatingfrom the judicial district of Gatineau), a conditional discharge was granted for an offender who sexually assaulted the victim by way ofdigital penetration and by performing oral sex on her.

Again, the factual pattern of this case bears no similarity to the case at bar. [100] In another recent case from the judicial district of St-Jérome, a request to levy a conditional discharge on an offendercharged with sexual assault by way of digital penetration was denied. Instead, the judge sentenced the offender to serve a 90 day term ofincarceration to be served intermittently[34]. It should be noted that this case was prosecuted by indictment and not by

summaryconviction. [101] From a legal perspective, I instruct myself in law as follows, in order to analyze the Defence’s plea that a discharge begranted to the offender. [102] The sentencing option of a discharge contemplated by

section 730 of the Criminal Code does not exclude any offenceexcept for those offences involving a minimal sentence or offences punishable by a term of imprisonment for more than 14 years.[35]The Quebec Court of Appeal has decided that a discharge is not an exceptional sentence.[36] [103] In Harbour, Judge Vauclair expresses himself as follows regarding the Court of Appeal’s position that a discharge is anavailable sentencing option, even in cases where the principles of denunciation and deterrence are important sentencing objectives.[37] [95] That said, on appeal, an absolution sentence was granted or confirmed even in situations which normally involve the objective ofgeneral deterrence and denunciation, such as sexual assault on a minor child: Corbeil -Richard c.

R.,2009 QCCA 1201 (granted) ; R. c.Nadeau, 2013 QCCA 769 (confirmed) ; assault causing injury: R. c. Burke (1996), (NL CA), 108 CCC (3d) 360(CAT-N. & L.) (granted); R. v. Sorenson, (CAS) (granted); or the influence peddling by a senator: R. c. Cogger, (CAQ) (granted); drug trafficking: R. v. Berish, 2011 QCCA 2288 (confirmed). [ 96 ] Not surprisingly, these cases are rarer in the reported jurisprudence. This nonetheless demonstrates that the objective ofgeneral deterrence in the presence of crimes which are by nature more serious, does not constitute an absolute obstacle to absolution.

Thecircumstances surrounding their commission are inextricably linked. It is up to the judge to exercise his discretion, to assess everything,and to impose the sentence he considers just and proportionate: R. v. Berish, 2011 QCCA 2288, para. 34 . [ 97 ] While it is necessary, when assessing the public interest, to be sensitive to the reaction of a reasonable and well-informedperson: R. c. Hudon, 2012 QCCA 1731, par. 9, this sensitivity cannot lead the judge to refuse a sentence if it is adequate: R.c. Fallofield (1974), (BC CA), 13 CCC (2d) 450, 455 (CACB); and by analogy, R. v. Berish, 2011 QCCA 2288,para. 34 .

XI. THE TEST FOR GRANTING A DISCHARGE

Section 730 C.C. [104] Generally speaking, a discharge is unique because despite the finding of guilt, no conviction is entered. This factor is ofcrucial importance for the offender, as a criminal conviction will have greater collateral consequences on an offender’s employment andon his/her ability to travel. [105] The test provided by

section 730 Criminal Code is two-pronged.

[ 106 ] Recently, in Kanatsiak [38] , Judge Galiatsatos summarized the legal framework for the granting of a discharge. Judge Galiatsatos expresses himself as follows: [58] The discharge is one of the most lenient sentences available under the Criminal Code . [59] The Court’s authority to grant an offender a discharge is not based on some unfettered or arbitrary exercise of discretion. [60] Instead, s. 730 (1) C.C. sets out two conditions which must be met before a discharge may be granted by a sentencing Court: 1. A discharge must be in the best interests of the accused (“l’intérêt véritable”); and 2.

A discharge must not be contrary to the public interest. [61] Thus, a discharge will be permissible only when the Court is satisfied that the two prerequisites exist. [62] Strictly speaking, in common parlance, it will always be in the accused’s “best interests” not to have a criminal record. Alas, something more is required by s. 730 (1) C.C., beyond the generic and ever-present interest of every citizen to not have a criminal record. Otherwise the first criterion would be universally applicable, which runs against the well-entrenched principle of statutory

interpretation that Parliament does not speak in vain. [63] Similarly, the simple fact of being a young first offender does not suffice, in and of itself, to warrant a discharge. [64] In R. c. Corbeil-Richard , the Quebec Court of Appeal observed that “en principe, l’intérêt de l’accusé présuppose que ce dernier est une personne de bon caractère, qui n’a généralement pas d’antécédents judiciaires et qui ne présente pas de problème en matière de dissuasion spécifique et de réhabilitation”. [65] In R . v.

Elsharawy , the Newfoundland Court of Appeal similarly indicated that the first factor presupposes that the accused is a person of good character, usually without previous conviction or discharge, that he does not require personal deterrence or rehabilitation and that a criminal conviction may have significant adverse repercussions. This was quoting from the leading case of R. v.

Fallowfield , in which the British Columbia Court of Appeal explained that s. 730 should not be exercised as an alternative to probation or to suspended sentences, nor should it be applied routinely to any particular offence. [66] This requirement of significant consequences has been a constant in the case law since the early 1970s. In R . v. Sanchez-Pino , a shoplifting case, the Ontario Court of Appeal referred to “a person of good character, or at least of such character that the entry of a conviction against him may have significant repercussions”.

Other terms used have been “excessive and disproportionate prejudice caused by a conviction”,"very serious consequences”, “serious and disproportionate effects”, or “significant repercussions outside the ordinary consequences of a criminal conviction”. The consequences on one's employment or career is but one example that comes to mind. [67] As pointed out by the Quebec Court of Appeal in R. c.

Naimer , even though the possibility of professional consequences may suffice to establish the “best interests” of the accused in obtaining a discharge, said possibility must be beyond merely theoretical or hypothetical, it must be supported by evidence. [68] Through the years, other appellate courts have often similarly held that there should be some evidence of the potential consequences, significant repercussions or disproportionate effects, as opposed to pure speculation. Mere allegations will not suffice. [69] If the criterion of “best interests of the accused” is not met, the analysis is complete.

It will be unnecessary to assess the public interest factor.

[70] As for the second factor, it involves a consideration of the principle of general deterrence with attention being paid to the gravity of the offence, its incidence in the community, public attitudes towards it and public confidence in the effective enforcement of the criminal law. [71] Generally speaking, s. 730 will apply to what may loosely be described as less serious offences; it is only common sense that the more serious the offence, the less likely it will appear that an absolute discharge, or even a conditional one, is not contrary to the public interest. [72] Nevertheless, no type or category of offence is prima facie excluded, provided they are statutorily available for discharges. [73] In R. c.

Hudon , the Quebec Court of Appeal recognized that the “public interest” criterion requires the sentencing judge to be sensitive to the reaction of the reasonable and well-informed citizen if a discharge were to be granted. [References Omitted] [ 107 ] It is true to say that, just like any offender, a discharge is in the best interest of the offender. However, a discharge is not an outcome that is handed out automatically or, as it is often said in colloquial terms, “on a silver platter”.

Rather it is the responsibility of the offender to advance how a conviction would impact: employment; professional or licensed status; travel for family or work purposes; immigration or emigration; university admission; etc. [ 108 ] That said, the offender has not advanced any case-specific evidence that a discharge is in his best interest. [ 109 ] As such, no evidence of the potential consequences, significant repercussions or disproportionate effects that a conviction would have for this offender was presented. [ 110 ] Any perceived consequences are mere speculation at this point. [ 111 ] Therefore, I conclude that the criteria of the best interest of the offender has not been met and the analysis in this regard is complete. [ 112 ] The public interest factor need not be addressed as the offender has failed to establish any evidence of the deleterious consequences that would flow should a conviction be entered against him. [ 113 ] Consequently, the Defence’s plea for the granting of a discharge is hereby dismissed. [ 114 ] That being said, should I be mistaken in my analysis in not granting a discharge by virtue of “the best interest of the offender” criteria, I also conclude that the sentence of a discharge viewed from the perspective of the “public interest” criteria would not be an appropriate sentencing option in view of the seriousness of the crime for which the offender pleaded guilty. [ 115 ] Recently the Quebec court of Appeal described the notion of “public interest” as follows [39] L’intérêt public est une notion vaste et générale qui, dans le contexte de l’ article 730(1) C.cr ., prend en compte divers facteurs, dont l’objectif de dissuasion générale, la gravité de l’infraction, son incidence sur la communauté et la confiance du public dans le système judiciaire. [ 116 ] In sum, the gravity of the offence involving complete, unprotected, non-consensual intercourse on two successive occasions

on a vulnerable victim is, simply put, too serious an offence for a conditional or unconditional discharge to be an appropriate sentencing option. From this perspective, the case law submitted by Defence counsel simply did not support the granting of a discharge, either unconditional or conditional.

Furthermore, the Court was not able to find any case law where a discharge was granted in cases involving complete unprotected sexual intercourse. [ 117 ] In the case of Bouchard- Noël [40] Judge Magnan, of the Quebec Court, sitting in the judicial district of Quebec granted a conditional discharge to an offender who was charged with sexual assault by touching the breasts and pubis area of the victim.

The sexual misconduct was limited to touching, no sexual intercourse was involved. [ 118 ] While a conditional discharge for a sexual assault was upheld by the Quebec Court of Appeal in Umankanthan , [41] the factual pattern from that case is entirely different than the case at bar. The sexual misconduct was limited to touching the victim while the accused masturbated, no sexual intercourse was involved. [ 119 ] In my humble view, such a sentence would be contrary to public interest in view of the very serious nature of the offence, and the troubling repercussions this crime had on the victim. XII.

CONDITIONAL SENTENCE OF IMPRISONMENT:

SECTION 742.1 [ 120 ] As discussed above, the initial charge filed against the offender was modified to a

summary conviction offence, thereby allowing the Court the option of considering a conditional sentence (section 742.1 (

f) iii)) as a viable sentencing option, for the case at bar. [ 121 ] This sentence would allow the offender to serve his custodial sentence in the community rather than a jail setting.

Colloquially referred to as “house arrest”, it means that the offender will be confined to his home with certain exceptions, for the duration of the sentence. [ 122 ] Enacted in 1995, it is often considered to be an innovative tool to address the problem of over incarceration. [ 123 ] In the ground-breaking decision of Proulx [42] , a conditional sentence was described as follows ʺ… it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender.

However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence ʺ . [ 124 ] In R. v. Charbonneau [43] , the Quebec Court of Appeal underscores the following principles regarding conditional sentences: [12] Dire qu’une infraction interpelle les objectifs de dissuasion et de dénonciation n’élimine pas du même coup les autres objectifs de la peine énoncés à l’

article 718 du Code Criminel . Tout dépend des circonstances et c’est ce que la Cour rappelle dans R. c. Brisson , bien que le crime soit différent : [42] Invoquer l’objectif de la dissuasion générale ne suffira pas à justifier une peine d’incarcération plus lourde lorsque l’accusé n’a pas d’antécédents criminels et, dans tous les cas, ne permettra pas d’infliger une peine plus sévère que celle indiquée dans les circonstances.

En l’espèce, l’infliction d’une peine de prison de 18 mois emporte son lot de dissuasion. [14] Qu’une infraction interpelle les objectifs de dissuasion et de dénonciation ne permet pas non plus de conclure que l’emprisonnement, voire l’emprisonnement dans une prison ou un pénitencier, demeure l’unique réponse. Qui plus est, la Cour a déjà souligné que l’objectif de dissuasion générale présente des limites : R. c. Paré ; R. c. Brais .

[16] En affirmant que « les tribunaux disposent de très peu de moyens à

part l’emprisonnement pour satisfaire à ces objectifs », la Cour suprême n’a certainement pas voulu ainsi créer un point de départ en exigeant des peines d’emprisonnement aux infractions alors que le législateur a prévu l’applicabilité des autres peines ou affirmer l’incapacité des autres peines à atteindre les objectifs de dissuasion et de dénonciation ou encore écarter le principe fondamental de la proportionnalité voulant que la peine tienne compte à la fois de la gravité du crime et de la responsabilité du délinquant : R . c. McDonnell ; R . c. Proulx ; R . c. Nasogalu ak ; R . c. I peelee ; R . c.

Lacasse . [References omitted] [ 125 ] While it is true that the offender may have had an explanation for what happened, the Court deems that the explanation offered by the offender should not be construed as a justification or excuse for his criminal conduct. His lack of impulse control provoked several serious consequences for the victim and his moral culpability should be considered as high in the circumstances. [ 126 ] Clearly, the actions of the offender show an egregious lack of judgment in view of the victim’s refusal to engage in sexual intercourse.

Although, it may be argued that her intentions were otherwise during the “sextingʺ with the offender before the incident, it appears nonetheless, from the general gist of her comments during those exchanges, that she wanted ʺto remain celibate.” [ 127 ] Not long after her encounter with the offender at his father’s home on the day giving rise to the charges, she conveyed to him her decision that she was not willing to engage in sexual intercourse with him. [ 128 ] That said, the offender chose to ignore her wishes, preferring instead to satisfy his impulse to engage in intercourse with her without her consent on two successive occasions.

It was apparent that he decided to carry on with her, metaphorically speaking, as if they were engaged in a hard core pornographic movie. [ 129 ] Although he did cease sexual intercourse during the second assault in the bedroom, it was too late by then as he had already crossed the boundaries set by the victim. [ 130 ] It goes without saying that the blameworthiness of the offender is high as his actions constituted a serious intrusion of the victim’s most intimate, physical and emotional boundaries.

The assault, in my view, constituted a serious affront of the victim’s human dignity. [ 131 ] In Friesen [44] , the Supreme Court reiterated the principle that “all forms of sexual violence against adults, are morally blameworthy because they involve the wrongful exploitation of the victim by the offender- the offender is treating the victim as an object and disregarding the victim’s human dignity”. [ 132 ] The crime of sexual assault is justly recognized as being a serious crime; a crime which has been described as fundamentally “an act of violence” by the case law.

In the case of McGraw [45] the Supreme Court covers the topic of sexual assault in general terms as follows: Let us consider a threat to rape in general terms, without reference to the specific language of the letters. Violence is inherent in the act of rape. The element of sexuality aggravates the physical interference caused by an assault. Sexual assault results in a greater impact on the victim than a non-sexual assault. This has been reflected in the penalty provisions for sexual assault which are significantly higher than for non-sexual assault offences.

In addition, this is emphasized by the fact that the definition of a “serious personal injury offence” in s. 752 of the Code includes the commission of sexual assault or an attempt to commit that offence. Thus Parliament has recognized the gravity of sexual assault. It seems to me that to argue that a woman who has been forced to have sexual intercourse has not necessarily suffered grave and serious violence is to ignore the perspective of women. For women rape under any circumstance must constitute a profound interference with their physical integrity.

As well, by force or threat of force, it denies women the right to exercise freedom of choice as to their partner for sexual relations and the timing of those relations. These are choices of great importance that may have a substantial effect upon the life and health of every woman. Parliament's intention in replacing the rape laws with the sexual assault offences was to convey the message that rape is not just a sexual act but is basically

an act of violence. See K. Mahoney, “ R. v. McCraw : Rape Fantasies v. Fear of Sexual Assault” (1989), 21 Ottawa L. Rev. 207, at pp. 215-16.

It is difficult if not impossible to distinguish the sexual component of the act of rape from the context of violence in which it occurs. Rape throughout the ages has been synonymous with

an act of forcibly imposing the will of the more powerful assailant upon the weaker victim. Necessarily implied in the act of rape is the imposition of the assailant's will on the victim through the use of force. Whether the victim is so overcome by fear that she submits or whether she struggles violently is of no consequence in determining whether the rape has actually been committed. In both situations the victim has been forced to undergo the ultimate violation of personal privacy by unwanted sexual intercourse.

The assailant has imposed his will on the victim by means of actual violence or the threat of violence. Violence and the threat of serious bodily harm are indeed the hallmarks of rape. While the bruises and physical results of the violent act will often disappear over time, the devastating psychological effects may last a lifetime. It seems to me that grave psychological harm could certainly result from

an act of rape. The psychological trauma suffered by rape victims has been well documented. It involves symptoms of depression, sleeplessness, a sense of defilement, the loss of sexual desire, fear and distrust of others, strong feelings of guilt, shame and loss of self-esteem. It is a crime committed against women which has a dramatic, traumatic impact. See D. J. Giacopassi and K. R. Wilkinson, “Rape and the Devalued Victim” (1985), 9 Law and Human Behavior 367; R. v. Billam (1986), 8 Cr. App. R. (S.) 48 (C.A.), at pp. 49-50; P.

Marshall, “Sexual Assault, The Charter and Sentencing Reform” (1988), 63 C.R. (3d) 216, at p. 221 ; A. W. Burgess, “Rape Trauma Syndrome” (1983), 1:3 Behavioral Sciences and the Law 97; C. H. Herd, “Criminal Law: Kansas Recognizes Rape Trauma Syndrome” (1985), 24 Washburn L.J. 653. To ignore the fact that rape frequently results in serious psychological harm to the victim would be a retrograde step, contrary to any concept of sensitivity in the application of the law. In my view there can be no conclusion other than that rape can cause serious bodily harm.

It follows that the threat to rape may well, depending on the context and circumstances, constitute a threat to commit serious bodily harm contrary to the provisions of s. 264.1 (1) (

a) of the Code . Indeed it would be ludicrous and contrary to the purpose of s. 264.1 to interpret the

section as criminalizing the threat to damage a piece of property or a pet while permitting a threat to rape a woman on the grounds that it did not constitute a threat to commit serious bodily harm. [ 133 ] The victim trusted him as they had established a certain emotional connection over the months preceding the incident. She was young and vulnerable, and the offender took advantage of her vulnerability to satisfy his urges. He used his obvious advantage in size and strength to overcome a young lady barely half his size.

In the recent case, Goldfinch [46] the Supreme Court describes the devastating consequences sexual assault has on its victims at para. 37: [37] The mischief Parliament sought to address in enacting s. 276 remains with us today. Sexual assault is still among the most highly gendered and underreported crimes (J. Desrosiers and G. Beausoleil-Allard, L’agression sexuelle en droit canadien (2nd ed. 2017], at pp. 41-42). Even hard-fought battles to stop sexual assault in the workplace remain ongoing (compare, e.g. K.

Lippel, “Conceptualising Violence at Work Through A Gender Lens: Regulation and Strategies for Prevention and Redress” [2018], 1 U of OHRH J 142, and C. Backhouse, “Sexual Harassment: A Feminist Phrase that Transformed the Workplace” [2012], 24 C.J.W.L. 275). As time passes, our understanding of the profound impact sexual violence can have on a victim’s physical and mental health only deepens. Parliament enacted s. 276 to address concrete social prejudices that affect trial fairness as well as the concrete harms caused to the victims of sexual assault.

Throughout their lives, survivors may experience a constellation of physical and psychological symptoms including: high rates of depression; anxiety, sleep, panic and eating disorders; substance dependence; self-harm and suicidal behaviour. [4] A recent Department of Justice study estimated the costs of sexual assault at approximately $4.8 billion in 2009, an astonishing $4.6 billion of which related to survivors’ medical costs, lost productivity (due in large part to mental health disability), and costs from pain and suffering. [5] The harm caused by sexual assault, and society’s biased reactions to that harm, are not relics of a bygone Victorian era. [ 134 ] Let me point out that The WORLD HEALTH ORGANIZATION has raised an alarm about the violence carried out against women in society by stating that: “violence against women-particularly intimate partner violence and sexual violence is a major health problem and a violation of women’s human rights” [47] . [ 135 ] It follows that the act of non-consensual intercourse is not trivial and should be considered as a major sexual assault for sentencing purposes. [ 136 ] In acting as he did, the offender showed extremely poor judgment, just like he has in his choice of employment for a company whose core business is focused in the porn industry. [ 137 ] It goes without saying that in weighing all of the foregoing factors, a term of incarceration is warranted in the circumstances.

[ 138 ] The issue to be resolved is whether or not the offender should be allowed to serve his sentence in the community. [ 139 ] Let me begin by stating that the offence committed by the offender can only be described as heinous, morally reprehensible, cowardly, opportunistic and selfish in the circumstances. That the offender allowed himself to exceed the boundaries set by the victim should be described as appalling behaviour in the circumstances. [ 140 ] The consequences for the victim, as described above, were disastrous. It is obvious that she did not deserve what happened to her.

Just like any other girl/woman or man has the unfettered right to make informed choices regarding sexual activity they choose to consent to, she had that right too. This is a paramount consideration in any relationship. [ 141 ] That day, ʺ NOʺ meant ʺ NOʺ. It was crystal clear that the victim choose not to pursue any sexual intercourse with the offender.

Her message that day was clearly conveyed to the offender despite any ambiguities that the offender may have perceived during the previous exchanges with her. [ 142 ] To conclude that the pre-sentence and sexual evaluation reports regarding the offender are underwhelming would be an understatement. It is obvious that a serious introspection of the offender’s personal situation needs to be urgently addressed.

Not to mention that his risk of reoffending has not been entirely eliminated. [ 143 ] That said, I will consider the offender’s guilty plea to be a mitigating factor and as an expression of his remorse and acceptance of responsibility. The guilty plea saved time and expense of a lengthy trial but, more importantly, it saved the vulnerable victim from testifying and being victimized once again during this process. [ 144 ] I also consider that, given the challenges he faced with his ADHD and dyslexia, pursuing university studies was undoubtedly challenging for him.

The fact that he persevered to complete his studies goes to his credit, I’m sure that it was not easy for him. [ 145 ] Following his education, the offender managed to find full-time employment, albeit in an industry with an obvious dark side to it.

Although his choice of employment is questionable, to his credit, he does nonetheless maintain permanent employment. [ 146 ] In the current pandemic circumstances, and considering that in the future, with a conviction of sexual assault on his record, it will in all likelihood be very difficult for the offender to find employment, the fact that he is gainfully employed at the moment is somewhat positive for him, despite his poor judgment in his choice of employment. [ 147 ] I also consider that the offender is a youthful first time offender who has made some progress towards rehabilitation.

His text messages following the event revealed some insight and acknowledgment of the seriousness of his actions, and compassion for the victim. [ 148 ] From this perspective, the general consensus gathered from the case law recognizes youthfulness as a mitigating factor, because young offenders may have a lower moral culpability due to immaturity in their reasoning, irresponsibility in their decision- making, and greater prospects of rehabilitation. [48] [ 149 ] For the Nova Scotia Court of Appeal ʺ this is common senseʺ, because it is far easier to turn a young person with employment or career interests toward positive life choices than it is a person who is ensconced in a ʺ life of crimeʺ. [49] [ 150 ] Several appellate courts have held that when sentencing youthful offender’s ʺthe paramount considerations are rehabilitation and specific deterrence; a sentencing judge should not place undue weight on general deterrenceʺ. [50]

[ 151 ] Like the youthful offender, when sentencing a first time offender the primary objectives are individual - specific deterrence and rehabilitation. [51] [ 152 ] In the authoritative textbook Sentencing [52] , the authors express themselves as follows concerning sentencing first offenders: A.

First offenders 8.13 The proper sentencing of first offenders requires that the sentencing judge exhaust all other possibilities before concluding that imprisonment is required: In our view, before imposing a custodial sentence upon a first offender the sentencing Court should explore the other dispositions which are open to him and only impose a custodial sentence where the circumstances are such, or the offence is of such gravity that no other sentence is appropriate. This is consistent with

section 718.2 (

d) and (

e) of the Criminal Code , which provides that ʺ an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstancesʺ, and that ʺ all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders …ʺ. ▪ Is a conditional sentence appropriate for the case at bar? [ 153 ] While the authority relied upon by the prosecution indicated that a custodial sentence was appropriate for such a case, it must be noted that each case

[…]