r v. PATRICK DAVIDSON, 2021 QCCA 545

R. c. Davidson 2021 QCCA 545 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007104-191 (500-01-151750-178) DATE: April 1, 2021 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. MARIE-JOSÉE HOGUE, J.A. STEPHEN W. HAMILTON, J.A. HER MAJESTY THE QUEEN APPLICANT – Prosecutor v.

PATRICK DAVIDSON RESPONDENT – Accused JUDGMENT [ 1 ] The Crown seeks leave to appeal against the sentence rendered on May 22, 2019, by the Court of Quebec, District of Montreal (the honourable Joëlle Roy), imposing a term of imprisonment of twelve months on the count of breaking and entering in a dwelling- house and committing assault, a term of imprisonment of thirty days on the count of uttering death threats — to be served concurrently with any other sentence — as well as a two-year probation order. [ 2 ] For the reasons of Justice Hamilton, J.A., with which Justices Hilton and Hogue, JJ.A., concur, THE COURT: [ 3 ] GRANTS the motion for leave to appeal the sentence; [ 4 ] ALLOWS the appeal in part; [ 5 ] SETS ASIDE the term of imprisonment of 12 months, SUBSTITUTES a term of imprisonment of 24 months less a day, and STAYS the execution of the remainder of the custodial sentence; [ 6 ] INCREASES the duration of the probation order from two years to three years.

ALLAN R. HILTON, J.A. MARIE-JOSÉE HOGUE, J.A. STEPHEN W. HAMILTON, J.A. Mtre Denis Trottier DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the Applicant Mtre David Leclair DAVID LECLAIR, AVOCAT For the Respondent Date of hearing: September 4, 2020

REASONS OF HAMILTON, J.A. [ 7 ] The Crown seeks leave to appeal against a sentence of twelve months imposed by the Court of Québec (the Honourable Joëlle Roy) in a matter of domestic violence. [1] In my view, the appeal should be allowed in part and a different sentence substituted. CONTEXT [ 8 ] At the time of the incident, the victim and the Respondent had been seeing each other for some time. During the night of March 10 and 11, 2017, the Respondent, intoxicated, called the victim several times as he sought to recover money he had lent to the victim’s son.

The victim told the Respondent that she was tired and preferred to wait until the next day. The Respondent subsequently took a taxi to the victim’s apartment and called her upon arrival. As the victim did not want the Respondent to enter her apartment, she went outside to give him the money. [ 9 ] The Respondent exited the taxi, grabbed the victim’s keychain out of her hand and entered her apartment building despite her telling him not to do so. He then entered the victim’s apartment without her permission, hit her in the face, pushed her into the wall and held her against the couch while twisting her arm.

He threatened to kill her if she called the police. A few minutes later, the victim was able to call the police. [ 10 ] The Respondent was charged with five counts and pleaded guilty to two of them: breaking and entering in a dwelling-house and committing assault ( paragraphs 348(1) (

b) and (

d) Cr.C . ) and uttering death threats ( paragraphs 264.1(1) (

a) and (2) (

a) Cr.C . ). [2] [ 11 ] The victim and the Respondent testified at the sentencing hearing and a pre-sentence report was submitted. The Crown asked that the Respondent be sentenced to thirty months of imprisonment and the Respondent suggested that a term of imprisonment of twelve months with two years of probation would be appropriate. SENTENCING JUDGMENT [ 12 ] In the sentencing judgment, the judge criticized the way in which the victim testified.

While recognizing the victim was still suffering from the repercussions of the event, the judge pointed out that her claim that he broke her jaw was not supported by the medical report and that her headaches might be due to a cause other than the assault. [ 13 ] Regarding the Respondent, the judge underlined his expression of remorse towards the victim and his apology at the hearing. He testified that he was drinking on the night in question and has since taken steps towards rehabilitation.

The judge mentioned that the Respondent followed a six-month closed therapy at Maison l’Envolée and has been sober for two years and that he completed fifteen sessions at the McGill Domestic Violence Clinic. She also indicated that the Respondent had completed a diploma in nursing and that he had become a member of Ordre des infirmières et infirmiers du Québec . [ 14 ] The judge subsequently reviewed aspects of the pre-sentence report and noted that it did not present a very flattering picture of the Respondent and was at odds with the rehabilitation efforts made by him since the event.

She underlined that his risk of recidivism was said to be moderate. [ 15 ] She noted that he had not worked in recent years and was still not working even though he had a diploma. She also noted his heavy criminal record in matters of violence. [ 16 ] In regard of the purpose and principles of sentencing, the judge explained that she must balance the factors set out in sections 718 and following of the Criminal Code and referred to two decisions rendered by our Court, Bernard c. R. [3] and Lacelle Belec c.

R. [4] [ 17 ] She mentioned two aggravating circumstances, namely that the offense was committed against an intimate partner ( subparagraph 718.2 ( a )(ii) Cr.C . ) [5] and that it was committed in the context of a home invasion (

section 348.1 Cr.C . ). [ 18 ] As for the mitigating circumstances, she mentioned the guilty plea, which she linked to the remorse, shame and apology expressed by the Respondent. [ 19 ] The judge then concluded that the Respondent had adopted, on his own and without any Court-imposed conditions, a way of life that would help him avoid any recurrence.

She qualified this as a significant act of rehabilitation on the part of the Respondent, which, while incomplete, would impact the specific deterrence needed. [ 20 ] As for general deterrence, the judge characterized it as being a vague principle, invoking this Court’s decisions in R. c. Harbour [6] and Lacelle Belec c.

R. [7] [ 21 ] She recognized the need for the Respondent to be separated from society given the objective gravity of the offense, his heavy criminal record in matters of violence and the aggravating factors of the case, but added that the incarceration must be proportionate to all of the circumstances surrounding the offense and the Respondent. [ 22 ] Deducting the six months the Respondent spent in closed therapy, she sentenced him to a term of imprisonment of twelve months on the count of breaking and entering and committing an assault, and a term of imprisonment of thirty days on the count of uttering death threats, to be served concurrently to any other sentence, with a two-year probation order.

GROUNDS OF APPEAL

[23] The Crown raises the following grounds of appeal: L’honorable juge de première instance a-t-elle erré en droit en occultant les objectifs de dénonciation, de dissuasion et les antécédentsjudiciaires de l’intimé en conférant une importance indue aux démarches thérapeutiques effectuées et au principe de réhabilitation? L’honorable juge de première instance a-t-elle commis une erreur manifeste et déterminante dans l’appréciation du préjudice subi par lavictime et a occulté celui-ci des facteurs aggravants analysés? L’honorable juge de première instance a-t-elle omis de considérer le fait que l’intimé était sous le coup d’un engagement au moment dela commission de l’infraction à

titre de facteur aggravant? L’honorable juge de première instance a-t-elle commis une erreur manifeste en soustrayant intégralement de la peine globale à prononcerla thérapie fermée effectuée, à

titre de crédit présentenciel? [24] The first three issues all pertain to the determination of a fit sentence. The Crown submits that the sentencing judge failed toproperly consider the objectives of denunciation and deterrence and gave undue weight to the Respondent’s rehabilitation. It alsosubmits that the judge made a palpable and overriding error when assessing the prejudice suffered by the victim and, in consequence,failed to consider it as an aggravating circumstance.

Finally, it submits that the judge failed to consider that the Respondent violated anundertaking while committing the offense, which should also be considered as an aggravating circumstance. [25] The fourth issue goes to the way in which the judge gave the Respondent credit for the closed therapy that he underwent prior tosentencing. ANALYSIS [26] The scope for appellate intervention in sentencing appeals is narrow. Appellate courts must generally defer to the decision of a sentencing judge.[8] In the recent Supreme Court judgment of R. v.

Friesen, Wagner, C.J., and Rowe, J., reiterated that an appellate courtcan only intervene to modify a sentence when: (1) the sentence is demonstrably unfit, or (2) the sentencing judge made an error in principle that had an impact on the sentence.[9] [27] Regarding errors in principle, they wrote: Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating ormitigating factor.

The weighing or balancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by notgiving enough weight to another, the trial judge exercises his or her discretion unreasonably” (R. v. McKnight (1999), (ON CA), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35, cited in Lacasse, at para. 49).

Not every error in principle is material: an appellatecourt can only intervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence (Lacasse, at para. 44).If an error in principle had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if the sentence is demonstrably unfit.[10] [Emphasis added] *** [28] The Crown submits that the judge failed to give due weight to the objectives of denunciation and deterrence, and solely focussedon the rehabilitation of the Respondent. [29]

Section 718 Cr.C. sets out the objectives of sentencing: 718 The fundamental purpose of sentencing is toprotect society and to contribute, along withcrime prevention initiatives, to respect for thelaw and the maintenance of a just, peaceful andsafe society by imposing just sanctions that haveone or more of the following objectives: 718 Le prononcé des peines a pour objectifessentiel de protéger la société et de contribuer,parallèlement à d’autres initiatives de préventiondu crime, au respect de la loi et au maintiend’une société juste, paisible et sûre parl’infliction de sanctions justes visant un ouplusieurs des objectifs suivants : (

a) to denounce unlawful conduct and the harmdone to victims or to the community that iscaused by unlawful conduct;

a) dénoncer le comportement illégal et le tortcausé par celui-ci aux victimes ou à lacollectivité;(

b) to deter the offender and other persons fromcommitting offences;

b) dissuader les délinquants, et quiconque, decommettre des infractions;

(

c) to separate offenders from society, wherenecessary;

c) isoler, au besoin, les délinquants du reste de lasociété; (

d) to assist in rehabilitating offenders;

d) favoriser la réinsertion sociale des délinquants; (

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

e) assurer la réparation des torts causés auxvictimes ou à la collectivité; (

f) to promote a sense of responsibility inoffenders, and acknowledgment of the harm doneto victims or to the community.

f) susciter la conscience de leurs responsabilitéschez les délinquants, notamment par lareconnaissance du tort qu’ils ont causé auxvictimes ou à la collectivité. [30] The reasoning of the judge on the balancing of these sentencing principles and objectives is succinct. She gave great weight tothe objective of rehabilitation and largely dismissed the objectives of denunciation and deterrence: [28] L’accusé a mis en place, par lui-même, sans que des conditions ne lui soient imposées par la Cour, un mode de vie tendant à évitertoute récidive.

Il s’agit d’un acte de réhabilitation significatif, sans être complet, et qui influe nécessairement sur la dissuasion qui lui estpropre. [29] Quant à la dissuasion générale, le Tribunal partage les propos du juge Vauclair de la Cour d’appel, dans l’arrêt R. c. Harbour, àl’effet qu’il s’agit d’un principe flou. [30] Cet argument est repris aux paragraphes 31 et suivants le l’arrêt Lacelle Belec, cité précédemment. [Footnotes omitted] [31] Even though denunciation and general deterrence have indeed been characterized as “des objectifs flous”, my colleague Vauclair,J.A., wrote in R. c.

Harbour that they are generally useful and must be weighed with care: [83] Par ailleurs, je souligne que la dénonciation et la dissuasion générale sont des objectifs flous pouvant mener rapidement à une peinedisproportionnée s’ils ne sont pas pondérés avec soin.

Tout en reconnaissant leur utilité générale, la Cour a souligné à plus d’une reprise le caractère incertain et limité de l’objectif de dissuasion générale […].[11] [Emphasis added] [32] Moreover, the Court has emphasized on several occasions the added weight that must be given to the objectives of denunciation and deterrence in the context of domestic violence.[12] Indeed, sentencing in these matters pursues two main imperatives: to denounce theunacceptable and criminal character of domestic violence and to enhance the confidence of the victims and the public in the administration of justice.[13] [33] The judge did not refer to this jurisprudence.

She mentioned two recent judgments from this Court pertaining to sentencing principles, Bernard c. R.[14] and Lacelle Belec c. R.,[15] but these decisions do not involve domestic violence and, moreover, concernoffenders with very different profiles than the one at hand, both being young persons with no prior convictions.

She made no reference tothe principles and objectives that must prevail in matters of domestic violence or how they must be balanced with the rehabilitation stepsmade by an accused. [34] Moreover, even when an accused shows encouraging signs of rehabilitation, the objective of rehabilitation should not take precedence over the objectives of deterrence and denunciation in matters of domestic violence.[16] As Rousseau-Houle, J.A., wrote: […] si la réhabilitation demeure un facteur important dans la détermination de la peine, elle ne doit pas, surtout dans un contexte deviolence conjugale, prévaloir démesurément sur les facteurs de dissuasion et d'exemplarité de la sentence.

Madame la juge Wilsondans R. c. Lavallée, (CSC), [1990] 1 R.C.S. 852, à la page 872, a rappelé "qu'il est difficile d'exagérer la gravité, voire latragédie, de la violence domestique.

L'attention accrue portée à ce phénomène par les médias au cours des dernières années a fait ressortir aussi bien son caractère généralisé que ses conséquences terribles pour les femmes de toutes les conditions sociales".[17] [35] This is particularly true in the present matter, where the judge found that the Respondent’s rehabilitation remained incomplete.Moreover, her finding as to the Respondent’s adoption of a way of life aimed at avoiding any recidivism is at odds with the pre-sentencereport.

To the contrary, the probation officer explained that the Respondent’s plan to avoid relapses is based on “la pensée magique”, and his balance, “fragile”.[18] The probation officer also expressed concerns that his support network is insufficient.[19] [36] In these circumstances, it was an error in principle for the judge not to give greater weight to the objectives of denunciation anddeterrence. *** [37] The Crown also submits that the judge made errors in her assessment of the aggravating and mitigating factors. [38] She identified as aggravating factors that the offenses constituted both domestic violence (subparagraph 718.2(a)(ii) Cr.C.) and

home invasion (

section 348.1 Cr.C .). [20] She also referred to his heavy criminal record in matters of violence.

She identified as a mitigating factor the Respondent’s guilty plea, his expressions of remorse and his apology to the victim. [ 39 ] Domestic violence and the context of a home invasion are very important aggravating factors and should incite the courts to favour deterrence and the protection of society over the rehabilitation of an accused, particularly where that rehabilitation is incomplete and uncertain. [21] [ 40 ] Moreover, the Crown submits that the judge did not give an accurate description of the injuries suffered by the victim and failed to consider that the Respondent breached an undertaking at the time of the offense. [ 41 ] With regard to the victim’s injuries, the judge recognized that the victim was greatly affected by the incident and was still experiencing its repercussions.

Moreover, she was right to set aside the victim’s testimony regarding her broken jaw as it was not supported by the medical report. However, the judge was wrong when she asserted that “le rapport médical déposé en preuve ne démontre aucune fracture”. [22] The medical report states that she suffered from a “comminuted nasal bone fracture, not significantly displaced”. [23] Moreover, the judge failed to give any weight to the other injuries suffered by the victim.

Indeed, the judge failed to mention the broken nose and minimized the head trauma the victim testified having suffered, [24] even though both were confirmed in the medical report. [25] [ 42 ] The judge also makes no mention of the undertaking not to consume or possess alcohol the Respondent was subject to at the time of the offense, even though it was submitted by the Crown at trial. [26] Committing an offense while in breach of an undertaking constitutes an aggravating factor. [27] While such a breach might not always have an impact on the determination of the sentence, [28] it does in a case like this one where there is a direct link between the breach and the new offenses. [ 43 ] I am therefore of the view that the judge erred in her assessment of the aggravating factors. *** [ 44 ] The Court can only intervene if the errors in principle had an impact on the sentence.

In my view, that condition is met. [ 45 ] The sentencing judge failed to appropriately weigh the sentencing principles and objectives and focussed mainly on the rehabilitation of the Respondent — despite being incomplete — and his guilty plea with the result that she rendered a sentence that is manifestly unfit.

She overlooked the objectives of denunciation and deterrence, which are of paramount importance in matters of domestic violence, especially when committed in the context of a home invasion, but also failed to consider the physical injuries suffered by the victim and the breach of an undertaking by the Respondent during the commission of the offense. These errors all had an impact on the determination of the sentence. Accordingly, I am of the view that the Court must intervene and determine a fit sentence. [29] [ 46 ] A sentence must be proportionate to the gravity of the offense and the offender’s responsibility.

In this case, it must take into account the following elements: • The context of the violence (against an intimate partner and committed during a home invasion); • The prior convictions of the Respondent, which similarly involve violence against persons; • The physical and psychological consequences on the victim; • The breach of an undertaking; • The rehabilitation progress made by the Respondent (which remained incomplete); and • The Respondent’s guilty plea. [ 47 ] The jurisprudence supports the thirty-month term of imprisonment proposed by the Crown.

The judgments in Chénier , Flageol and Lévesque all involve domestic violence and similar aggravating and mitigating circumstances. In R. c. Chénier , [30] the Court imposed a sentence of thirty months of imprisonment, in addition to the nine months of pre-sentencing custody the accused served. In R. c. Flageol , [31] the Court imposed a term of imprisonment of twenty months, in addition to the four and a half months of pre-sentencing custody which counted as double. In Lévesque c.

R. , [32] the Court refused to intervene to modify a two-year term of imprisonment, which was reduced to eighteen months and two weeks to account for the time spent in pre-sentencing custody. I believe that a term of imprisonment of thirty months is in line with the decisions of this Court and takes into account all of the relevant circumstances. *** [ 48 ] There are two further questions. [ 49 ] The first pertains to the credit given by the sentencing judge for the completion by the Respondent of a six-month closed therapy.

The Crown submits that the sentencing judge erred by deducting mathematically six months from the global sentence and should have instead considered the therapy as a pertinent factor in reaching a fair sentence. [ 50 ] On this matter, the sentencing judge referred to Bernard c. R. [33] This decision addresses the issue of how the Court should account for a period of house arrest as a “relevant factor” in the determination of a fit sentence. I consider that the principles identified in

this judgment are applicable to the evaluation of time spent in closed therapy: [36] Although it is sometimes identified as a mitigating factor, it is more of a “relevant factor” in the analysis. More recently, this Court reiterated the fact that [translation] “there is no doubt that, when sentencing, a judge may consider the conditions of release, but this consideration is discretionary”, and it specified that the conditions of release do not constitute a mitigating factor as such, but, rather, should play a

part in the final crafting of a fair and just sentence: R. c. Sanon , 2018 QCCA 892 , para. 8 . […] [38] Although giving consideration to the strict conditions of release falls within the exercise of a sentencing judge’s discretionary power, this power must nevertheless be exercised judicially. Given a judge’s obligation to consider all the relevant circumstances of the offence and the offender that are brought to his attention in a particular case, the judge was required to explain why he set aside this factor, unless the reasons were clearly evident from the record.

It bears reminding that a judge’s obligation to provide reasons when imposing a sentence is also a statutory one: s. 726.2 Cr.C . Failing adequate reasoning, less deference will be due, and the Court may choose to intervene: R. c.

Cardinal , 2012 QCCA 1838 . [ 51 ] A sentencing judge therefore has the discretion to take into account the time spent in closed therapy as a relevant factor in the overall determination of a fair and appropriate sentence. [ 52 ] Although the sentencing judge appears to give an automatic credit for the time spent in closed therapy, the Crown fails to convince me that the credit is unreasonable. The sentencing judge explained that the Respondent completed a closed therapy with success and has remained sober since the commission of the offense, in addition to being on his way towards rehabilitation.

As such, I see no grounds to overturn her decision on this matter. Six months will be deducted from the term of imprisonment of thirty months. The sentence will be set at twenty-four months less a day. [ 53 ] A final question remains. The Respondent served the sentence of imprisonment imposed at trial which came to an end on May 22, 2020. In fact, he was released earlier, after having served one third of his sentence.

The substitution by this Court of a sentence of imprisonment of twenty-four months less a day would in principle result in the Respondent being reincarcerated for a further twelve months after having served the entirety of the sentence of imprisonment imposed at trial. [ 54 ] Courts of appeal across Canada and the Supreme Court have recognized that even though it is not inherently harsh or oppressive to sentence an accused to the term of imprisonment he should have received initially and to require him to serve that fit sentence after having completed an unfit one, it can create an injustice in certain instances. [34] Our Court has discussed this issue notably in R. c.

Bergeron [35] and R. c. Colangelo , [36] and more recently in R. c. Foster [37] , R. c. Sylvain [38] and K.F. c. R . [39] [ 55 ] In R v.

Veysey , which our Court has followed on several occasions, [40] Larlee and Robertson, JJ.A. of the New Brunswick Court of Appeal, suggest four factors to examine when considering whether reincarceration could work an injustice, which are not exhaustive: [41] (1) the seriousness of the offences for which the offender was convicted; (2) the elapsed time since the offender gained his or her freedom and the date the appellate court hears and decides the sentence appeal; (3) whether any delay is attributable to one of the parties; and (4) the impact of reincarceration on the rehabilitation of the offender. [42] [ 56 ] In R. v.

Taylor , Green, C.J.N.L., as he then was, gave insightful explanations on the function of an appellate court when deciding whether to reincarcerate an accused whose initial sentence was found to be manifestly too low: [133] While I of course agree with my colleague Hoegg J.A.’s proposition that “sentencing principles and considerations do not fundamentally change from one court to another” (paragraph 75, supra ), there is nothing inconsistent with saying that the sentencing judge, with the record in front of him , should have sentenced the offender to greater incarceration than he did and at the same time saying that, with what the court now knows , the application of the sentencing principles does not now require the offender actually to serve the remainder of the sentence.

Unlike the sentencing judge, the court of appeal will be deciding whether the offender should actually serve the rest of his sentence with the benefit of hindsight , a perspective that the sentencing judge did not have.

The corrective appellate function of giving guidance as to what the sentencing judge ought to have done can therefore be achieved while at the same time the court can make an appropriate practical disposition, based on current circumstances. [43] [ 57 ] When an appellate court has concluded that reincarceration could work an injustice, it has exercised its powers in different ways: • Dismiss the appeal and allow the sentence imposed by the sentencing judge to stand; [44] • Allow the appeal, impose the fit sentence and: o stay the execution of the remainder of the custodial sentence not served; [45] o give credit for the imprisonment under the original sentence, applying a multiplier greater than one, to reduce the remainder of the custodial sentence; [46] • Allow the appeal and “[v]ary the existing sentence, not for the purpose of imposing a further term of incarceration, but for the

purpose of adding some other dimension to support countervailing sentencing objectives.” [47] [ 58 ] The parties did not raise this issue. They were invited to submit observations after the hearing, which they did. [ 59 ] The question that must be asked is whether the reincarceration of the Respondent would amount to an injustice or, in other words, would his reincarceration serve the interests of justice? [ 60 ] In the present matter, on one hand, the gravity of the offense committed by the Respondent as well as his moral responsibility militate for his reincarceration.

A stay could undermine the sentencing goals of denunciation and deterrence. [48] [ 61 ] Two factors however support the proposition that the reincarceration of the Respondent is not in the interests of justice. First, on the date of our judgment, the Respondent will have been free for 18 months since he was released after having served one third of his initial sentence. Second, the Respondent is still progressing towards his rehabilitation. His counsel informed us at the hearing that the Respondent is now working in the healthcare system, in the context of the current public health emergency.

Further incarceration might present an obstacle to his reintegration into society, especially with respect to his employment, in addition to undermining the progress made by the Respondent. [ 62 ] In R. v. Taylor , the majority found appropriate to vary the initial sentence, by leaving the original term of imprisonment while imposing a longer probation order. [49] I find that this result would be appropriate in the present circumstances. [ 63 ] Accordingly, I would propose that the Court grant the motion for leave to appeal and allow the appeal in part.

I would propose to vary the sentence imposed by the judge in two ways. First, I would substitute a term of imprisonment of 24 months less a day, but I would stay the execution of the remainder of the custodial sentence. I would also increase the length of the probation order from two years to three years. The result is that, instead of reincarcerating the Respondent for 12 months, he will be subject to a probation order for an additional 12 months from the expiration date of the original probation order. STEPHEN W. HAMILTON, J.A.