2021 QCCQ 12367, 2021 QCCQ 12367

R. c. Al Deek 2021 QCCQ 12367 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF LAVAL CITY OF LAVAL Criminal Division No.: 540-01-095494-202 DATE: JULY 16, 2021 ______________________________________________________________________ PRESIDING: THE HONOURABLE KATHLYN GAUTHIER J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v.

ABDUL KARIM AL DEEK Accused ______________________________________________________________________ JUDGMENT ON SENTENCE ______________________________________________________________________ INTRODUCTION [ 1 ] The accused pleaded guilty to having harassed Ms. Berri over a period of 6 months. [ 2 ] He is 49 years old. He has no criminal record.

Granting him a discharge would be in his best interest. [ 3 ] His counsel is of the view that he can be conditionally discharged on two years’ probation and the obligation to participate in emotional management therapy. [ 4 ] The Crown prosecutor objects, arguing that it would be contrary to the public interest given the intimate partner context. Instead, she suggests that the obligation to participate in therapy be part of a suspended sentence and that the obligation to perform community service be added. [ 5 ] The Court must determine the just and appropriate sentence.

ESSENTIALY, THE JOINT STATEMENT OF FACTS IS: [ 6 ] The victim and the accused met in March 2019. Their relationship started on a professional basis. The accused wanted to purchase insurance for his restaurant, and the victim sold such insurance. [ 7 ] Their relationship was reinforced because of the fact that the victim had a conflict with her manager.

The accused proposed to help her with this situation, and they started to keep contact. [ 8 ] The accused started to make advances to the victim by text messages and by phone, but she was not comfortable with the idea of building that kind of relationship with him. [ 9 ] The offence took place between September 1, 2019, and March 6, 2020. [ 10 ] He became more insistent about the possibility of starting a relationship with her. They went to dinner to discuss the conflict with her manager, and he started to make advances at the victim again.

He asked her to marry him, and he looked at her in a way that made her fear for her safety. [ 11 ] After that day, she blocked the accused from her contacts and on social media. [ 12 ] However, the accused continued to communicate with the victim multiple times. He also parked his car in front of her domicile, was seen at places where she was with her friends, and sat at tables next to her. [ 13 ] Once, she woke up in her domicile, and the accused was sitting on her couch. The accused was in possession of the key to her domicile at that time, but the victim was not aware of that.

[ 14 ] In December 2019, the accused showed up three times while the victim was with her friends. [ 15 ] In early February 2020, the accused contacted the victim and asked her to come back, or it would cause her misfortune. She never responded, and she blocked him again. [ 16 ] The victim pressed charges with the police on February 28. On February 29, the accused contacted her by phone, and he told her that if she did not agree to be in a relationship with him, she would have some problems.

After the call, she saw the accused in his car near her domicile. [ 17 ] On March 6, 2020, the accused was arrested and signed a promise to appear with the condition that he not communicate with the victim. He has complied with that condition since then. [ 18 ] On March 5, 2021, the accused pleaded guilty. Further to his testimony at the sentencing hearing, the Court ordered that a presentence report be prepared. THE ACCUSED’S PROFILE [ 19 ] The accused has been in a relationship with a woman for almost one year.

Their relationship appears healthy. [ 20 ] He has been separated for 4 years from the mother of his two children, after 24 years of marriage. They remain on good terms. He provides financial support to her and his two children, even though they are now adults. [ 21 ] He has a university degree in civil engineering from Syria. He immigrated to Quebec with his wife and their first child when he was about 23 years old. His parents joined him a few months after his arrival. [ 22 ] His integration appears to have gone well. He managed to quickly enter the job market in the textile and delivery industries.

He became a Canadian citizen at the age of 28. [ 23 ] When he was about 29 years old, he obtained a real estate broker’s licence. He has been working full-time in that capacity since then and has been quite successful so far. [ 24 ] At the same time as he was starting out in real estate, his wife opened a home daycare in which he participated by providing support and acting as a replacement. The project appears to have worked for 8 years.

When he was 45 years old, he acquired a restaurant, which he operated for 2 years. [ 25 ] At age 29, he had to come to terms with the sudden death of his father, and then with his mother’s death from cancer when he was 44. At age 37, he filed for bankruptcy further to fluctuations in the real estate market. [ 26 ] During his testimony in Court and in an apology letter to the victim that he filed, the accused explained that he was in love with her and that his emotions got the better of him. He says that he was egotistical and stupid. He is ashamed.

He expresses remorse, which appears sincere, and recognizes the harm he caused the victim. He adds that she did not deserve such treatment or to have to fear for her safety, and that in fact, no one does. He has imagined the possibility that his daughter could experience such a situation and finds it unacceptable. [ 27 ] He said that he did not need specialized help following his arrest because of the support provided by his new spouse. However, she does not seem to have been aware of all the facts admitted. [ 28 ] It appears from his testimony that he still questions some of the victim’s conduct.

He said, “I am surprised with too many things”. He referred to many meals they shared in restaurants, the numerous visits to his apartment, in particular so that he could make her breakfast. He stated that she said, “you do this so we can reach a relationship”. He also helped her financially, in particular by paying her rent and buying her clothes. In view of all that, he thought that the platonic relationship he had with the victim would evolve. [ 29 ] He says, however, that he must have misunderstood the victim and regrets his actions.

He is aware that she had the right to refuse a romantic relationship with him. He realizes that she may have feared for her safety given his persistency towards her. He assured the Court that he has moved on in his life and will continue to abstain from communicating with her. PRESENTENCE REPORT [ 30 ] It is useful to quote certain excerpts from the presentence report: [ translation ] After the offence, the offender acknowledged the inappropriateness of his acts and admitted his full responsibility.

He sees the incident as an isolated past event that is unlikely to happen again, as it took place in a specific context. He is remorseful and expressed regret that seemed sincere to us, also showing empathy, in particular with respect to the harm caused to the victim. We note that when he committed the offence, he acted in a premeditated manner by harassing the victim over a period of six months. He managed his emotions poorly by failing to accept that the victim did not want to have a romantic relationship with him.

At this time, the offender seems to have reflected on his actions and admits that he had difficulty managing his negative aspects back then. He has thus been able to demonstrate his capacity to reflect on the offence he committed and the seriousness of his behaviour and

to feel empathy for the victim. In our view, he is motivated and shows the willingness necessary to reintegrate into society,demonstrating that he is able to stay on the right path. Maintaining these abilities over the long term will have a determinative impact onhis risk of re-offending. We believe that involvement with the justice system is a strong deterrent for the subject. In view of the foregoing, the risk of re-offending appears low. IMPACT OF THE CRIME ON THE VICTIM [31] The victim remains affected by the events. She has become socially isolated and wary of new relationships.

She is still afraid ofthe accused. She lives alone and worries when she is at home. THE APPLICABLE SENTENCING PRINCIPLES ANDANALYSIS [32] The fundamental sentencing principle, codified in

section 718.1 of the Criminal Code (Cr. C), is that the sentence must beproportionate to the gravity of the offence and the degree of responsibility of the offender.

To that end, the Court must assess all theaggravating and mitigating circumstances related to the commission of the offence and the offender’s situation, while respecting theprinciples and objectives set out in the Criminal Code. [33] Regarding the role of the sentencing judge, it is worth repeating the remarks of the Supreme Court of Canada in R. v.Nasogaluak, 2010 SCC 6: [43] The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion tocraft a sentence that is tailored to the nature of the offence and the circumstances of the offender.

The determination of a “fit” sentenceis, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in amanner that best reflects the circumstances of the case (R. v. Lyons, (SCC), [1987] 2 S.C.R. 309; M. (C.A.); R. v.Hamilton (2004), (ON CA), 72 O.R. (3d) 1 (C.A.)). No one sentencing objective trumps the others and it falls to thesentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case.

The relativeimportance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similaroffences. The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factorsensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law. [44] The wide discretion granted to sentencing judges has limits.

It is fettered in part by the case law that has set down, in somecircumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions inaccordance with the principle of parity enshrined in the Code. But it must be remembered that, while courts should pay heed to theseranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordancewith the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is notnecessarily unfit.

Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community inwhich the offence occurred. [34] The objectives set out in the Criminal Code that are to be respected are as follows (section 718 Cr.

C.): • to denounce unlawful conduct and the harm done to victims or to the community; • to deter the offender and other persons from committing such offences; • to separate offenders from society, where necessary; • to assist in rehabilitating the offender; • to provide reparations for harm done to victims or to the community; and • to promote a sense of responsibility in the offender, and acknowledgment of the harm done to victims or to the community. [35] Counsel for the accused submits that there is only one aggravating circumstance referred to in the Criminal Code that isrelevant in this case, that is, the abuse of a position of trust in view of the business relationship between the victim and the accused.

It isalso useful to note that the victim trusted the accused when she accepted his help in managing the conflict at her work. [36] The Court disagrees with this position and agrees with the prosecutor’s position, that is, that a second aggravating circumstanceset out in the Criminal Code is applicable in this case, that is, that the offender abused his intimate partner (s. 718.2(ii) Cr. C.). [37] Accordingly, the Court must pay particular attention to the objectives of denunciation and deterrence (Chenel c. R, 2019 QCCA774, R. c.

Guerrero Silva, 2015 QCCA 1334 at paras. 61–72). [38] The definition of intimate partner is set out in

section 2 of the Cr. C.: intimate partner with respect to a person, includes their current or former spouse, common-law partner and dating partner; (partenaireintime) [39] The accused’s testimony reveals that he thought he was in a romantic relationship with the victim, although it was platonic.

[40] In the circumstances, the Court must consider the accused’s state of mind and conclude that there was a certain intimate and/orromantic relationship. [41] The Court must also consider the greater vulnerability of female victims (s. 718.201 Cr. C.). DISCHARGE [42] The discharge set out in

section 730 Cr. C. does not exclude any crime except those for which a minimum punishment isprescribed and those punishable by imprisonment for fourteen years or more, and it is not considered an exceptional measure (Harbour c.R., 2017 QCCA 204 at para. 91). [43] The measure is even possible when the crime can be described as a [translation] “scourge”. Even in the presence of the crimethat is quite prevalent in the community, general deterrence is but one factor, and each case must be assessed on its own merits (Harbourc.

R., 2017 QCCA 204 at para. 92). [44] Otherwise, the courts would create exclusions where Parliament has not provided any and create a real danger that the sentencebecomes a mere response to the crime rather than a sentence that is fit and proportionate to the crime and the offender (Harbour c. R.,2017 QCCA 204 at para. 93). [45] It is important to note that the Court of Appeal has also confirmed that a discharge is rarely possible in conjugal violence cases,although it is not excluded in principle (Traité de droit criminel, Tome III, La Peine, 3rd ed. at para. 205; R. c.

Laurendeau, 2007 QCCA1593 at para. 18). [46] In R. c.

Laurendeau, 2007 QCCA 1593, the Court of Appeal wrote the following at paragraph 19: [translation] The sentence imposed in conjugal violence cases must meet two requirements: that of denouncing the unacceptable and criminal natureof conjugal violence, and that of increasing the confidence of victims and the public in the administration of justice. [47] That being said, on appeal, the Court has granted or confirmed discharges even in situations that would normally evoke theobjectives of general deterrence and denunciation, such as sexual assaults against minor children (Corbeil-Richard c.

R., 2009 QCCA1201 (granted); R. c. Nadeau, 2013 QCCA 769 (confirmed); assaults causing bodily harm: R. c. Burke, (NL CA),Harbour c. R., 2017 QCCA 204 at para. 95). [48] To be granted a discharge, three conditions must be met: ▪ 1. The accused must be guilty of an offence that is not punishable by a minimum sentence or a sentence of 14 years or more ofimprisonment; ▪ 2. The discharge must be in the best interests of the accused; ▪ 3. The discharge must not be contrary to the public interest. [49] It is admitted that the accused meets the first two conditions.

Only the condition of not being contrary to the public interest is indispute. [50] The public interest is a broad and general concept, which, in the context of section 730(1) Cr. C., takes into account variousfactors, including the objective of general deterrence, the gravity of the offence, its impact on the community, and public confidence inthe justice system (Gignac Joncas c. R., 2019 QCCA 1635 at para. 14, Corbeil-Richard c. R., 2009 QCCA 1201 at para. 38). [51] Assessing the public interest requires an examination of the fundamental principle of proportionality.

OBJECTIVE SERIOUSNESS [52] The charge of criminal harassment prosecuted by way of

summary conviction, as is the case here, is punishable by a term ofimprisonment of not more than two years less a day (section 787(1) Cr. C.). [53] In a recent criminal harassment case (R. c. Vinet, 2021 QCCQ 3474), Galiatsatos, J. stated: [translation] [95] It is very difficult to precisely identify a range of applicable sentences for this type of offence, because it can be committed invarious ways. As Armstrong, J. noted in R. v. Kohl, “criminal harassment can be committed in so many different ways that it defies therange setting exercise” (R. v.

Kohl, 2009 ONCA 100 at para. 42, leave to appeal refused, [2009] S.C.C.A. No. 130). [96] In R. c. Côté, the Court of Appeal noted that the purpose of s. 264(1) Cr. C. is to ensure the safety of persons and peace of mind,and especially to prevent or try to prevent the most serious crimes that are committed when harassing behaviour degenerates. While notall harassers are violent, they are all unpredictable. It is the irrational aspect of their obsession that causes their victims’ fear (Côté c. R.,2013 QCCA 1437 at paras. 20–23). [97] In R. c.

El Hami, the Court of Appeal recognized that the case law has established a wide range of sentences, which vary in

particular on the basis of the seriousness of the harassment, its duration, and the persistence of the behaviour despite warnings to stop.The frequency of communication, and the degree of fear and anxiety caused for the victim are also relevant factors in sentencing (ElHami c. R., 2015 QCCA 1865 at para. 16). [99] In all cases, a focus on the objectives of denunciation and deterrence (both general and specific) is required. The courts mustexpress in the clearest of terms that this type of intimidation is not to be tolerated (R. v.

Nolan, 2019 ONCA 969 at para. 65). [100] According to author Clayton Ruby, who provides several examples in support of his conclusions, discharges are rarely grantedfor this type of offence, and conditional sentences are generally controversial and reserved for cases involving particular circumstances.On average, a typical sentence for the offence of criminal harassment is a period of incarceration of up to six months, even for anaccused with no previous convictions (R. v.

Chappell, 2019 BCSC 644 at para. 136). [54] It should be recalled that the objective of general deterrence in the presence of crimes that are inherently more serious is not anobstacle barring discharge. The circumstances in which they were committed are inseparable. It is up to the judge to exercise his or herdiscretion, assess the situation as a whole, and impose the sentence that he or she deems fit and proportionate (Harbour c. R., 2017QCCA 204 at para. 96).

SUBJECTIVE SERIOUSNESS [55] This is a serious offence involving the following aggravating factors: • Offence committed against his romantic partner; • Abuse of a position of trust in relation to the victim; • Several considerably serious distinct events over a long period, including following the victim in public places on a fewoccasions and entering her home on one occasion; • Expression by the victim on two occasions that she wanted no further contact; • Psychological consequences on the victim; [56] The accused bears full responsibility for committing the offence, but it must be tempered in view of the following mitigatingfactors: • His guilty plea; • The absence of a criminal record; • His sincere remorse in regard to the acts committed and the harm caused to the victim, although the accused also expresses regretwith respect to his personal consequences; • The accused acknowledges the reprehensible nature of his acts; • The favourable presentence report, which suggests situational criminality and refers to a low risk of re-offending; • The arrest and the legal process had a significant deterrent effect on him; • He is an asset to society and has been for virtually the entire time since his arrival in the country despite the difficultiesencountered; [57] The other considerations that are relevant to the individualization of the sentence are: • The accused undertakes to participate in emotional management therapy; • His social network, composed mainly of his immediate family, appears positive and supporting.

He appears to also have thesupport of a female friend, who collaborated on the presentence report and who also knows the victim; • His compliance with the undertaking given to a peace officer for close to 16 months. [58] After having analyzed all the evidence and having seen and heard the accused, the Court is of the view that specific deterrencehas been achieved and that his reintegration into society is well underway. The accused has shown that he has the desire and the abilityto reintegrate into society. [59] In R. v.

Zawahra, 2016 QCCA 871, the Court of Appeal stated the following at para. 18: [translation] Our legal system accepts this proposition. In R. c. Ruel, the Court noted that [translation] “even in the case of a serious offence andconsistent case law imposing harsh sentences, rehabilitation remains meaningful for individuals who show the ability to regain controlover their lives”. This proposition is supported by the words of LeBel, J. in R. c. Lafrance, (QC CA): [translation]

The individualization of sentences remains a fundamental principle in the Canadian sentencing system. There is no doubt that it attracts much criticism, sometimes on the subject of disparities in sentencing. Such criticism is often expressed by those with virtually no knowledge of the particularities of each case.

The principle retains such importance that the imposition of abstract, standardized sentences that fail to take individual factors into account may constitute errors of law . [ 60 ] Thus, despite the aggravating factors and the need to pay particular attention to the criteria of general deterrence and denunciation, the Court cannot depart from the principle of individualization of the sentence and must consider the accused’s reintegration into society, which is serious. [ 61 ] When assessing the public interest, it is necessary to refer to a reasonable and well-informed person who accepts that the response to a conviction will vary ( Harbour c.

R. , 2017 QCCA 204 at paras. 97 , 98). [ 62 ] That person understands that society has everything to gain from encouraging a person to regain control over his or her life if that person has the sincere desire and ability to do so and has taken responsibility for his or her offences. [ 63 ] Society has every interest in investing in the rehabilitation of the accused, who has had no prior trouble with the law, on whom the legal process has had a significant deterrent effect, who presents a low risk of re-offending, and who defers to the Court to determine whether he must do further work on his weaknesses that led to him committing the offence. [ 64 ] The reasonable and well-informed person wants the rehabilitated person to remain an asset to the collective well-being and to his or her family. [ 65 ] The accused’s questions concerning the victim’s conduct over the period during which the offence was committed and his belief that his new romantic relationship has had the necessary therapeutic effect show that his rehabilitation is not complete. [ 66 ] Of course, his new spouse may have helped him move on.

However, in his desire to regain control over his life, the accused must equip himself with specialized help in the event that he is confronted with similar situations in the future. [ 67 ] In regard to incomplete rehabilitation, the Court of Appeal provides the following teachings in R. c . Zawahra , 2016 QCCA 871 at para. 24 : [ translation ] The respondent’s rehabilitation is not complete. Moreover, it need not be, or we would be denying the idea that a criminal can hope to rehabilitate himself or herself.

That is why the trial judge is asked to assess the offender’s chances of rehabilitation. [ 68 ] To conclude, let us recall that the reasonable and well-informed person also knows that a conditional discharge includes a mechanism by which the judge may revoke the discharge and impose a sentence on the offender for the original offence in addition to any other sentence if the offender commits a new offence, including the failure to comply with a probation order: (s. 730(4) Cr. C .). It is an effective measure ( Harbour c.

R. , 2017 QCCA 204 at paras. 88–89 ). [ 69 ] A discharge with probation and conditions such as therapeutic follow-up and the performance of community service will ensure the protection of the victim and of society and will facilitate the continuation of the accused’s reintegration into society. This sentence will also emphasize the gravity of the offence of criminal harassment against one’s intimate partner through the abuse of a position of trust.

The message that intimidation will never be tolerated will be conveyed. [ 70 ] By adding these conditions, the objectives of general deterrence and denunciation will be achieved, although they are also emphasized by the charge and the plea ( Harbour c. R. , 2017 QCCA 204 at para. 100 ). [ 71 ] Last, the Court finds that the reasonable and well-informed person can maintain confidence in the justice system if the accused is discharged. IN CONCLUSION [ 72 ] After weighing all the objectives and principles, the Court finds that the accused meets the public interest criterion.

Granting him a conditional discharge is therefore a just and appropriate sentence that is proportionate to the gravity of the offence committed and that takes the accused’s particular characteristics into account. FOR ALL THESE REASONS, THE COURT: GRANTS A CONDITIONAL DISCHARGE WITH TWO YEARS’ PROBATION SUBJECT TO THE FOLLOWING CONDITIONS: - Keep the peace and be of good behaviour; - Appear before the Court when required to do so; - Inform the Court of any change of address or name and promptly report any change in employment or occupation; - Perform 150 hours of community service within 15 months;

- Report to a probation officer within two days of this order to discuss the terms of the performance of community service, and subsequently, as often as required for a period of one year; - Take the necessary steps to register for emotional management therapy within two days of this order, complete that therapy, and report on it to the probation officer; - PROHIBITS the accused from communicating in any manner whatsoever with Nawar Berri; - PROHIBITS the accused from being in the physical presence of Nawar Berri; - PROHIBITS the accused from being at the domicile or workplace of Nawar Berri ; EXEMPTS the accused from the payment of costs and the surcharge to give full effect to the discharge; MAKES an order under

section 109 Cr. C . prohibiting the accused from having in his possession any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance: - with respect to any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition, the prohibition will be for life pursuant to s. art. 109(2) (

b) Cr. C. ; - with respect to any other firearm, crossbow, restricted weapon, ammunition and explosive substance, the prohibition will be for a period of 10 years, pursuant to s. 109(2) (

a) Cr. C. __________________________________ KATHLYN GAUTHIER J.C.Q. Mtre Maude Tessier Director of Criminal and Penal Prosecutions Crown prosecutor Mtre Anthony El Haddad El Haddad Avocats Counsel for the accused Date of hearing: March 5 and June 3, 2021