r v. SOBHI KAIROUZ, 2011 QCCQ 1829

Unofficial English Translation — Not Verified by SOQUIJ JG1553 R. c.

Kairouz 2011 QCCQ 1829 COURT OF QUÉBEC CANADAPROVINCE OF QUÉBECDISTRICT OF HULLLOCALITY OFGATINEAUCriminal and Penal Division No. 550-01-041115-090 DATE: March 4, 2011______________________________________________________________________ PRESENT: THE HONOURABLEJEAN-FRANÇOIS GOSSELIN J.C.Q.______________________________________________________________________ THE QUEENProsecutorv.SOBHI KAIROUZAccused ______________________________________________________________________ SENTENCE______________________________________________________________________ [1] Is the institution of marriage so devalued in our society today that a person convicted of bigamy should be allowed to escapethe stigma of a criminal record? [2] That is the main position, which does not seem to have been accepted yet by Canadian courts, that Mr.

Kairouz is nowseeking to have recognized through his application for absolute discharge and for exemption from paying the victim surcharge. Background [3] Sobhi Kairouz was tried on a charge of bigamy. He remarried in Lebanon in 2007 without first having his 2003 marriage inGatineau annulled or dissolved.

But the woman he married in 2003 was herself entering into a bigamous marriage, because her firstmarriage, solemnized in Lebanon in 1971, had not first been annulled or dissolved either. [4] His defences of extra-penal error in law and error of fact not having been accepted, he was convicted of the charge againsthim: R. v. Kairouz, 2010 QCCQ 2649 . [5] An appropriate sentence must now be imposed for that crime.

Representations by the Crown [6] To start with, the Crown filed eight judgments—none of which was rendered in Québec, however—relative to whichsentences were imposed on convicted bigamists over a period of some 70 years from 1931 to 2001. The sentences vary from a fine of$1000, to three years in a penitentiary, to a three-month conditional sentence of imprisonment, depending on the era and thecircumstances. [7] First, in R. v.

Welch, 1931 Carswell NS 56, a panel of five judges of the Supreme Court of Nova Scotia upheld theimposition of a three-year prison term on a man who had falsely declared his first spouse to have died four years previously; hesubsequently remarried—a woman in a town next to the one where his first marriage had been solemnized and where his lawful spousewas still living.

[ 8 ] Then, in R. v. Morgan , 1942 Carswell NS 8 , another panel of five judges of the Supreme Court of Nova Scotia upheld a sentence of two years in a penitentiary imposed on an individual who believed erroneously that he had obtained the annulment of his first marriage after paying fees of $60 to a lawyer for a "divorce" and signing the appropriate documents at the lawyer's office. [ 9 ] Similarly, in Regina v. Clarke , [1959] M.J.

No. 5 , a panel of five judges of the Manitoba Court of Appeal was seized of the case of an individual who had been sentenced to one year in prison after his remarriage to a "respectable young woman" in Manitoba. He subsequently had a child with her and she was pregnant again when the sentence was handed down. He had previously abandoned his first spouse and two children on leaving Halifax. Although the Chief Justice would have upheld the sentence and another Justice would have reduced it to a three-month prison term, the majority ultimately decided to substitute a six-month prison term for the original sentence.

Interestingly in that case, the Crown Prosecutor and the probation officer had initially proposed a suspended sentence and placing the accused on probation. In remarks that hark back to the values of another time, the Court had refused to entertain that option, as shown in paragraph 16 below: It would appear from these remarks that the Crown Prosecutor agrees with the probation officer that a suspended sentence would have been justified in this particular case. I cannot agree with this viewpoint.

I am of the opinion that the learned Magistrate is correct in his viewpoint that the offence of bigamy must be regarded as a grave one for, in his words, "it strikes right at the roots of Society, because the basis of our society is the sanctity of marriage and the home, . . . it cannot be treated lightly". [ 10 ] In addition, in R. v. Young , [1965] O.J. No. 498 , the Court of Appeal for Ontario refused to extend the appeal period in the case of an individual convicted of bigamy for having gone through a third form of marriage whereas neither the first nor the second marriage had been annulled or dissolved.

He pleaded, unsuccessfully, that he had not committed the crime of bigamy by marrying a third time, because the second marriage was null since the first one had not been annulled or dissolved beforehand. Thus, the two-and-a-half- year prison term initially imposed was indirectly upheld. [ 11 ] Similarly, in R. v. Aslam , 1987 Carswell Ont 3691 , the District Court of Ontario had to sentence someone who had been convicted of five charges, including bigamy.

He said he thought that the previous marriage, solemnized in the United States, was automatically null when he remarried—a woman who was gainfully employed and who had substantial assets—to facilitate his entry into Canada. The other charges were two counts of assaulting the child he had had with the second spouse, and counts of assault and extortion regarding the latter. On the basis of the total sentence of five years in prison for the other four charges, the judge decided to stay the sentence on the bigamy charge.

However, he said that he would have handed down a six-month prison term had that charge been the only one. The overall five-year sentence was subsequently reduced to three and a half years by the Court of Appeal for Ontario, in R. v. Aslam , [1988] O.J. No. 2335 , but the Court did not vary the decision in first instance concerning the bigamy charge. [ 12 ] Furthermore, in R. v. Moustafa , [1991] O.J. No. 835 , the Ontario Court of Justice (Provincial Division) had to sentence an individual who married on September 27, 1990, then remarried less than five months later, on February 15, 1991.

The Crown's submission was that the first marriage had been one of convenience to enable the accused to remain in Canada. The first spouse had nonetheless become pregnant and the child was not yet born when the second form of marriage took place. Having been detained as a preventive measure for 31 days, the accused was sentenced to the time done and given three years' probation. The judge nevertheless felt it appropriate to make the following comments on page 2: I have been referred to the judgment of Borins, J., in The Queen vs Stanley Walter Friar delivered on April 27, 1983, which is unreported.

In that judgment, Borins, J. deals with the offence of bigamy and its history and discusses the gravity of the offence and changing social values relating to the offence. He was of the view that general deterrence was not a factor so far as his case was concerned, citing that the commission of the offence of bigamy is so rare that it does not seem as if there are a lot of people out there who need deterring. I think that is a factor that a court at this time can take into consideration.

If lenient sentences were to result in a large number of bigamous marriages taking place in the community, then a court probably would take that into account and then come to the conclusion that denunciation for purposes of general deterrence was necessary. [ 13 ] Then, in R. v. Sauvé , [1997] A.J. No. 525 , the Provincial Court of Alberta had to sentence an individual who, after marrying in Québec, left his spouse to go live in the Northwest Territories, where he remarried. After pleading guilty to a charge of bigamy, Sauvé and the Crown agreed to propose to the judge that a fine of $1000 be imposed.

In ratifying that joint proposal and adding one year's probation, the judge explained his point of view as follows, on pages 3 and 4: In my view, contrary to Judge Gadsby's comments, Canadian society has changed since 1959 in relation to attitudes toward the sanctity of marriages. Whether or not the change has been beneficial or not for our future as a nation, I leave to social scientists and historians. Judge Borins in Regina v. Stanley Walter Friar (supra) commented on changing social vales.

He states in his decision: "In determining what is the appropriate penalty for this offence and this offender in the 1980s, I must take into account the changing view of society. I agree, as well, with Mr. Walker's submissions that the offence is currently so rare that it is unnecessary for the courts to impose a sentence such as would deter others from becoming bigamists. All that I need to do, in my view, is to reflect the views of society who view the offence with repugnance." It seems obvious to even a casual observer that in the 1990s, the married state is a less prominent feature of unions.

More and more unmarried couples, often producing children, are a feature of our society. Our courts have recognized property rights and rights to support arising from unions which have come about without the benefit of clergy or civil sanction. [ 14 ] Lastly, in R. v. Moore , [2001] O.J. No. 4513 , the Ontario Court of Justice had to sentence a 70-year-old man who had been married for a long time to the same woman, with whom he had had a son. He had recently secretly remarried—an immigrant newly arrived in the country. Even when confronted by his lawful spouse, the accused continued to deny that he had remarried.

In sentencing the man to a three-month conditional sentence of imprisonment, the judge made the following comments, on pages 3 to 5:

And it's the deception factor that would cause us to characterize bigamy as an emotional crime in modern times and that this was essentially the Crown Ms. Denomme's submission, that bigamy is an emotional crime. And the emotional crime is this: in modern times if one does not believe in marriage it's very easy not to get married and simply to live together. If you don't agree with marriage, you have other options and you can make your own arrangement with a partner or several partners. Infidelity is also an arrangement, that has existed for centuries, sometimes involving deception to a lesser degree than bigamy.

Once the decision to marry is taken and both partners participate in a religious or civil marriage ceremony, my view of it is that this creates and formalizes an expectation that the traditional view on the subject will be observed and respected. And if you do marry, it's implicit that you accept that value system. It's a trust. When that trust is violated, that's betrayal. And the betrayed parties look to the community that sanctioned their marriage bond for the protection of their expectations. And the community looks to the courts for that sanction. . . .

Taking all of the foregoing into account, it is my view of sentencing in bigamy cases, that in spite of changing values in society, and in spite of the rarity of the offence, that the vast majority of Canadians still wish to get married and still get married. The vast majority of Canadians want to have children and want to enjoy family life. Without family, not only would our social structure disintegrate, so would much of our economy that relies on procreation and the family for its sustenance.

While there is somewhat more skepticism compared to other parts of the [ sic ] Canada about traditional marriage in the urban environment of Toronto, which includes the geographical area serviced by this courthouse, marriage and the family are still managing to thrive, and most Torontonians are married, and most married Torontonians have families. And all of these people look to the courts to protect and preserve the cornerstone of our way of life. . . . I think that Ms.

Denomme's submissions on behalf of the Crown are quite correct in that our society does view the criminal offence of bigamy with moral repugnance because it does strike at the heart of our way of life. Family life is where we learn our values, including respect for the law, which is part of the purpose of sentencing found in s. 718 of the Criminal Code .

So any sentencing decision does have to protect the home and the family that is the foundation of our way of life and of respect for the law. [ 15 ] Noting the clear trend of more lenient sentences over the decades for offenders convicted of bigamy, and conceding that the remarks in the last judgment cited may not meet with unanimous approval, the Crown submitted that a fine, the amount of which would be at the Court's discretion, but perhaps combined with one year's probation without supervision, would likely be an adequate sentence in the circumstances. [ 16 ] Emphazing the total lack of relevant evidence that a criminal record would have consequences for Mr.

Kairouz disproportionate to the crime committed, the Crown also objects to a conditional or an absolute discharge, which, in its view, would be tantamount, in practice, to decriminalizing bigamy. Representations by the offender [ 17 ] For his part, Mr. Kairouz emphasized, first and foremost, the special aspects of the case. He perceives the commission of the crime as being more [TRANSLATION] "technical" in nature, because, when he married for the first time in 1993, he married a woman whose first marriage, solemnized in Lebanon in 1971, had never been dissolved.

He therefore feels that [TRANSLATION] "in his mind and in his heart", his first marriage in 1993 was null and that it is the mere "technical" failure to have it annulled or dissolved before his remarriage in 2007 that is responsible for his conviction, a conviction that he attributes to [TRANSLATION] "negligence" on his part. [ 18 ] Alleging, therefore, that the facts in the case are unique and that his first spouse could just as easily have been charged with bigamy, he argued that his case is different from those cited by the Crown. [ 19 ] That said, although a Canadian citizen, Mr.

Kairouz settled in Lebanon (his country of origin), where he spends at least six to seven months a year. He described himself as a seminarian with the Maronite Catholic Church. He wants to become a priest in that institution, which apparently allows priests to marry. Having already completed one and a half years of a four-year training program in Beirut, he expects he will have to go first to Washington, in the United States, or to Brazil for his Church, then anywhere else in the world. He claims that, because he speaks English, he is likely to be sent for training or on a mission to an English-speaking country.

In such a scenario, he would return to Canada only rarely, essentially to visit his children and friends, and also to make headway in his divorce case, which is still pending before the Superior Court. [ 20 ] Although he did not have any difficulty travelling to the United States while his bigamy case was pending, and although he has never tried to find out whether a bigamy conviction would likely cause him prejudice in that regard, he nonetheless has concerns about that. [ 21 ] Paradoxically, this man who aspires to become a priest submitted that the offence of bigamy is [TRANSLATION] "outdated", the moral and social guilt associated with the crime having completely disappeared over time.

But, in the same breath, he said that [TRANSLATION] "when you sell morality and go door-to-door with a criminal record, it affects your credibility and tarnishes your reputation as a priest". [ 22 ] In the end, what Mr. Kairouz wants is to avoid having a criminal record in order to safeguard his reputation; which is why, in his eyes, a fine would constitute a disproportionate sentence in the circumstances.

[ 23 ] To avoid that stigma, Mr. Kairouz is ultimately applying for an absolute discharge, which could be preceded by a charitable donation should the Court find that appropriate. Analysis [ 24 ] At the outset, four clarifications are necessary. [ 25 ] The first emphasizes what bigamy is. Bigamy in the present case—as in the cases cited above, for that matter—has nothing to do with bigamy or polygamy as authorized or tolerated in certain legal systems: situations of bigamy or polygamy that are not punished under the law and may even be governed by local law.

Spouses and children born of these unions can be granted, as applicable, a more or less official form of recognition and/or protection with regard to patrimony and/or support. [ 26 ] Bigamy, as in the present case, is instead of the clandestine type: the situation of bigamy one finds oneself in when one wants to start anew by breaking free of a previous marriage, but without facing the consequences of its annulment or dissolution, by avoiding, for instance, the obligation to pay support or a compensatory allowance, or the obligation to partition the family patrimony. [ 27 ] It is this hidden, misleading bigamy that is at the crux of the present debate. [ 28 ] This first comment segues into the second . [ 29 ] The civil and penal rules governing marriage form in fact a coherent whole.

If, in reality, everyone remains free to commit to a marital relationship circumscribed by law, it nonetheless remains that, when spouses freely and mutually agree to make that commitment, they may do so only in accordance with the parameters established by the legislator. The Canadian Parliament and the Québec National Assembly decided that marriage and civil union were necessarily and exclusively monogamous in nature. All the protection mechanisms between lawfully wedded spouses were thus configured accordingly.

That is why, when bigamous unions are entered into outside the law, penal law takes over from civil law: once a bigamous marriage has been annulled and the financial and relational consequences of the annulment have been settled, the conduct that led to bigamy must be punished, if only as a preventive, rather than a punitive, measure. [ 30 ] That said, to the extent that bigamy is criminalized by the federal lawmaker, the convicted person must be punished, like anyone else who commits a crime.

Where applicable, an appropriate sentence must be determined and, as always, in accordance with the purposes and principles of sentencing codified in sections 718 et seq. of the Criminal Code . [ 31 ] That leads to the third clarification. Since, as was just pointed out, the analysis codified in sections 713 et seq. takes precedence, what the Court thinks about bigamy, marriage and the family from a moral and sociological standpoint is, in the end, irrelevant.

It therefore intends to take into account only legal considerations for sentencing purposes. [ 32 ] That said, before getting to the sentencing process itself, it should nevertheless be borne in mind that, in every bigamy case, there is a first spouse who, having gotten married, can justifiably expect the law to come to his or her assistance. I will come back to that dynamic in the discussion on the discharge criteria codified in

section 730 Cr.C . [ 33 ] The fourth clarification is made necessary by Mr. Kairouz's argument that the commission of the crime is purely [TRANSLATION] "technical", since he sincerely believed that his marriage in 1993 with the complainant was legally invalid and non- existent when he "remarried" in 2007 in Lebanon: at the time, he felt he was single and free to marry whomever he wished. That argument was at the heart of his defence at the trial, and was not accepted by the Court. Thus, for sentencing purposes, that matter has been settled and will not be revisited.

Accordingly, it is a crime the mens rea of which has been proven beyond a reasonable doubt and which must now be punished. [ 34 ] These clarifications having been made, Mr. Kairouz's application for discharge will now be considered, in light of

section 730 of the Criminal Code : Where an accused, . . . is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years [or more], the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest , instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in [an] order . . . . [Emphasis added.] [ 35 ] There is no minimum punishment for the offence of bigamy and, since, it is punishable by imprisonment for less than 14 years, an absolute or conditional discharge must immediately be recognized as a possible sentencing option.

That being so, what must be now determined is whether it is appropriate in the circumstances. [ 36 ] To adequately answer that question, two parameters must be analyzed. The first concerns the public interest, the second, the best interests of the accused. Only if the best interests of the accused so require, and the public interest is protected, will an absolute or conditional discharge be granted. [ 37 ] But, before taking up that issue directly, the Court believes a quick overview of the principles and purposes in sentencing matters , as codified in sections 718 et seq. of the Criminal Code , is relevant.

It seems less random to gauge what the public interest demands when one has in mind what an appropriate sentence would be in the circumstances, absent an application for discharge. [ 38 ] The fundamental principle in sentencing matters is that of proportionality : a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender ( s. 718.1 Cr.C .). [ 39 ] First, objective gravity is average in this case, because the crime of bigamy renders the offender liable to imprisonment for a term not exceeding five years ( s. 291(1) Cr.C .).

[ 40 ] Second, subjective gravity is not very high. Since it is a concept that emphasizes the way in which the crime was committed in the present case, it must be recognized that the case dynamics are highly unusual. A woman got married in Lebanon in 1971. Then, without having the marriage annulled or otherwise dissolved, and believing there had been an [TRANSLATION] "automatic divorce" because she and her first husband had not lived together for seven consecutive years, she got married again in 1993, to Mr. Kairouz.

But, in 2007, he found himself in the same position as his first spouse when he remarried in Lebanon without having his first marriage, in 1993, annulled or otherwise dissolved beforehand. And so the bigamous spouse in 1993 became the "victim" of bigamy in 2007: by filing a complaint against her husband, she was in fact blaming him for conducting himself in 2007 in precisely the same way she had conducted herself in 1993. While this backdrop does not excuse the crime committed by Mr.

Kairouz, it nevertheless colours the case in terms of determining a sentence proportionate to the subjective gravity of the offence. [ 41 ] Lastly, the degree of responsibility of the offender in committing the offence must be considered high. Mr. Kairouz was in fact the instigator and promoter of the plan to remarry, the subject of his desire to contract a second marriage having first been Ms. Lefebvre, then Ms. Emad, with whom he ultimately went through a form of marriage in Lebanon while Ms.

Lefebvre was still awaiting news from him in Gatineau: the judgment on verdict will be referred to in order to gauge the extent of all the twists and turns in this perfectly incredible story. Mr.

Kairouz had been warned more than once by the attorney representing him in his matrimonial case against the complainant that he would place himself in a situation of bigamy if he married before his first marriage had been annulled or dissolved. [ 42 ] It flows from the foregoing that, under the principle of sentence proportionality, the sentence to be determined should not be particularly stiff or overly lenient. [ 43 ] The second principle of sentencing that the legislator demands be considered—that of individualization of sentences —must now be looked at.

The sentence imposed must be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender ( s. 718.2 (

a) Cr.C .). [ 44 ] It will be agreed, at the outset, that none of the circumstances considered aggravating by the legislator itself in paragraphs (

i) to (

v) of the aforementioned

section applies here. Although it may be emotionally hurtful for the lawful spouse, the crime of bigamy committed in the context of a couple that stopped living together many years ago is not likely to constitute "abuse of the offender's spouse", within the meaning of paragraph ( vi ), or "abuse of a position of trust", within the meaning of paragraph ( iii ).

The aggravating or mitigating circumstances that must be taken into account are therefore limited to those revealed in the evidence. [ 45 ] That said, it would be tedious here to go back over all the relevant circumstances, which were thoroughly examined in the judgment on verdict. Consequently, the Court refers the parties to that judgment and will give only a brief

summary of the circumstances. [ 46 ] The following are considered to be the principal aggravating circumstances: - the premeditation, the planning and the fact that Mr. Kairouz's remarriage in Lebanon was preceded by two attempts, one in Canada and the other in Lebanon; - the fact that Mr. Kairouz's attorney warned him of the risk of contracting a bigamous marriage; - the fact that Mr.

Kairouz mobilized two different [TRANSLATION] "future spouses" in his plan to go through a form of marriage with a person other than his spouse; - the fact that, in his testimony at the trial, he was not up front about his actual intentions at the time of the offence, in particular about his relationship with Ms.

Lefebvre; - the fact that, in his sentencing testimony, he was not up front about his plans for the future, in particular regarding his whim of becoming a Maronite Catholic priest and his exaggeration of the consequences of a criminal record were his new duties to take him to the United States. [ 47 ] The principal mitigating circumstances are as follows: - the fact that his first marriage, to the complainant, is itself problematic since the complainant was still married when she married him in 1993; - the fact that the complaint was filed by the first spouse in a context in which the Superior Court was seized of proceedings aimed primarily at the dissolution of the first marriage and, subsidarily, the partition of the family patrimony; - the fact that the offender has no criminal history or any case pending; - the fact that the offender appears to continue to function normally in society, seemingly dividing his time between his theological studies in Lebanon and a few stays in Canada to visit his children and see to his legal affairs. [ 48 ] That said, no pre-sentence report has been prepared in this case.

As a result, the Court has at its disposal very few elements enabling it to better read Mr. Kairouz's personality, gain new insight into the dynamic underlying the commission of the crime, or gauge his propensity for manipulation. Thus, the only factors that may be taken into account here are those that came out during the trial or in the highly

summary evidence adduced for sentencing, which was full of surprising and uncorroborated assertions. [ 49 ] All of that to conclude that the principle of individualization of sentences does not argue in favour of imposing a particularly stiff or overly lenient sentence either, although that assessment needs to be honed because of the limited quantity of reliable and verifiable data available. [ 50 ] Now, the third principle of sentencing that the legislator demands be taken into account will be discussed: that according to

which a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances ( s. 718.2 (

b) Cr.C .). [ 51 ] I will not return here to the jurisprudential analysis conducted as part of the

section on the Crown's representations in this judgment, except to recall that the two most recent sentences imposed for bigamy were a fine of $1000 in 1997, in Sauvé , and a three- month conditional sentence of imprisonment in 2001, in Moore. [ 52 ] Thus, the sentence proposed by the Crown in the present case, namely, a substantial fine, the amount of which would be at the Court's discretion, is among the possible sentencing options, as established by the most recent jurisprudence.

Hence, the principle of similar sentences for similar offences is not an obstacle to imposing a fine. [ 53 ] The fourth sentencing principle enshrined by the legislator in the Criminal Code , that of moderation in sentencing , does not apply in the present case. With its various facets all aimed at exploring alternatives to depriving an offender of liberty where appropriate in the circumstances, and at reducing, to the extent possible, the period of incarceration when incarceration is necessary ( s. 718.2 ( c ), (

d) and (

e) Cr.C.), this principle is of the utmost relevance when an offender risks being handed a prison term. That is not the case here. [ 54 ] Considering the applicable sentencing principles, it may now be concluded that, disregarding Mr. Kairouz's application for discharge, a $1000 fine would likely constitute a fair and appropriate sentence in the circumstances, as it would adequately take into account each of the three principles discussed above. [ 55 ] Furthermore, such a sentence would also be in keeping with the purposes of sentencing set forth in

section 718 of the Criminal Code , in that it would: - denounce rather than downplay Mr. Kairouz's unlawful conduct; - deter anyone from disregarding the prohibition against contracting a bigamous marriage; - deter Mr. Kairouz from committing other offences, thus pointing to the wisdom of his attorney's warnings about the consequences of contracting a bigamous marriage; - nonetheless foster Mr. Kairouz's reintegration into the community by not imposing overly heavy consequences on him; - ensure that the wrongs done by Mr. Kairouz to the victim and the community are remedied; - raise Mr.

Kairouz's awareness of his responsibilities and foster his recognition of the wrongs he did to the victim and the community through his crime. [ 56 ] The crux of the matter—whether the sentence, which is adequate in normal circumstances, becomes disproportionate given the facts in this case—must now be examined. For, it bears repeating, a sentence of discharge is an alternative to conviction when the latter would be enough to make the sentence seem disproportionate to the acts of the person to be punished.

Behind this safety valve provided for by the legislator in criminal law is the general idea that an offender's punishment must not be excessive relative to the alleged conduct. [ 57 ] It bears repeating that the sentence or punishment evoked here is among the sentencing options for offenders: fine, surcharge, probation, conditional sentence or jail term, criminal record.

In short, to assess the proportionate or disproportionate nature of the sentence, it must be considered in its entirety, taking into account all of its components. [ 58 ] As pointed out earlier, discharge may be substituted for conviction only if the Court " considers it to be in the best interests of the accused and not contrary to the public interest " ( s. 730(1) Cr.C .). [ 59 ] At the outset, it must be emphasized that the Court of Appeal of Québec recently rendered a landmark judgment in a discharge case. In R. v.

Corbeil-Richard , 2009 QCCA 1201 , the Court clarified the parameters applicable to such applications, citing, in particular, the

summary by Béliveau and Vauclair JJ. in paragraphs 2175 to 2177 of their Traité général de preuve et de procédure pénales (Thémis, Montréal, 15th edition, 2008) with approval. So, it is on the basis of these parameters, that the Court will dispose of the application of which it is now seized. [ 60 ] That said, the question of what is meant by the public interest must first be dealt with. [ 61 ] In Corbeil-Richard , the Court first emphasized that the phrase " not contrary to the public interest" does not mean "in the public interest".

As a result, a discharge can be granted without its being in the public interest (para. 36). [ 62 ] The Court also confirmed in the aforementioned judgment that, in discharge matters, the public interest is evaluated first and foremost in terms of the gravity of the conduct giving rise to the crime and its impact on the community, the need for general deterrence and the importance of maintaining the public's trust in the administration of justice. It added that, in that respect, the fact that the accused tried to mislead the Court in his testimony argued against a discharge.

In addition, it emphasized that the fact that it was not in the public interest for the accused to lose his job and not be able to provide for himself and his family also had to be taken into account. [ 63 ] In the present case, the gravity of the conduct giving rise to the crime , although average, is not benign: the "remarriage" was contracted knowingly and deliberately, even though the offender had been warned that he would most likely be committing a crime. [ 64 ] Furthermore, the incidence of the crime of bigamy is not insignificant and must not be downplayed in Canadian society as we know it today, since, as was stressed previously, all legal regimes for the protection of marriage and patrimony between spouses were elaborated for the traditional couple, composed of two and only two persons. [ 65 ] In addition, although not pressing because of the limited number of bigamous marriages documented in the country, the need

for general deterrence is no less present in the context of the open immigration practised by Canada, and in that of the proliferation of religions and beliefs of all kinds.

In a state such as ours today where the rule of law prevails, it is indeed important for the point of reference in this regard to be and remain that which was established by the federal Parliament, unless the highest courts in the land decide otherwise as part of a constitutional challenge. [ 66 ] For, although the Court is not unaware that at least one legal proceeding seeking a declaration of unconstitutionality regarding civil and/or criminal provisions prohibiting bigamy and polygamy has been instituted in the land, it nonetheless remains that, in the current state of the law, bigamy is still a crime and must be treated as such. [ 67 ] Moreover, the criterion of the importance of maintaining the public's trust in the administration of justice must be considered from the same perspective.

As long as the crime of bigamy exists, it must, from the standpoint of principles, be punished under the law and by the courts. Accordingly, the Court cannot decriminalize in practice by way of the back door that which the federal Parliament does not intend to decriminalize by way of the front door.

In that regard, the public's trust in the administration of justice demands that the courts give effect to the legislator's wishes, except when a Charter-protected right or freedom is violated. [ 68 ] However, it is important to immediately point out that this does not mean that a discharge cannot be granted when punishing the crime of bigamy.

All it means is that, when an application for discharge raises social and sociological issues as fundamental as the very definition of marriage, consideration of the public interest criterion cannot be restricted to the case at bar: much importance must be given to the societal issue represented by a conviction or the absence of a conviction with regard to people who deliberately choose to organize their family life not outside the law, but, rather, in a manner prohibited by law. [ 69 ] This tells us, therefore, that Mr.

Kairouz's application for discharge is completely different from those usually presented to the courts. For example, whether theft or assault is involved, granting or refusing a discharge does not in any way change the social consensus that theft or gratuitous violence must be criminalized. [ 70 ] But it is a whole other register here.

In suggesting that the institution of marriage is so devalued that the law should, for all intents and purposes, pay no heed to how individuals position themselves in relation to it and the courts should therefore be more open to the idea of not convicting accused persons found guilty of bigamy, it is in fact the social consensus surrounding bigamy that he is calling into question. [ 71 ] In fact, if an analogy can be drawn here, it would instead be the myriad applications for discharge of which the courts were seized when the federal Parliament was considering decriminalizing the offence of simple possession of a small quantity of marijuana.

Anticipating legislative amendments, several judges had relaxed their assessment of the public interest criterion in order to grant more conditional and absolute discharges. All it took was for the legislator's intentions to become outdated for the former test to be restored: it is in fact frequent for the courts to reaffirm in this regard that public trust in the administration of justice demands that, as long as an offence exists, committing it should in principle entail consequences and, consequently, that the criteria in

section 730 Cr.C . must be strictly adhered to in disposing of applications for discharge. [ 72 ] That said, another component of the public interest criterion and its sub-criterion, the need to maintain the public's trust in the administration of justice, will now be addressed: the fact that the accused tried to mislead the Court during his testimony. The Court of Appeal confirmed in Corbeil-Richard that that factor argues against granting a discharge. [ 73 ] In the present case, it is a euphemism to say that Mr. Kairouz lacked transparency both at the trial and during the sentencing process.

For example, at the trial, he categorically denied the nature of his relationship with Ms. Lefebvre, saying she was his business's former accountant and merely a friend, whom he had never considered marrying. The Crown had to have Ms.

Lefebvre testify in rebuttal for the truth to come out: she had been his mistress for almost ten years, had accompanied him to his lawyer's office concerning his marital case and to the Maronite religious authorities in Ottawa and Montréal in conjunction with their joint plan to remarry, and had also patiently waited for him to telephone her from Lebanon with a view to the remarriage, which, according to him, was to take place in the coming weeks. As pointed out in the judgment on verdict, Mr.

Kairouz not only kept her in the dark about his true intentions, but he instead secretly went through a form of marriage with Ms. Emad. Similarly, in his testimony during the sentencing process, Mr.

Kairouz made several unlikely and unverifiable statements, such as the fact that, despite the charge he is now facing and the fact that he has been married twice rather than once, he was a full-time student at the seminary in Lebanon, where he lives, however, only six or seven months a year, and that, although his studies will continue for another three years, he will be deployed to Washington next year, then, once he has been ordained a Maronite Catholic priest, to Brazil or anywhere else in the world. [ 74 ] In addition, when the verdict was to be rendered (and he was hoping for an acquittal), Mr.

Kairouz came before the Court dressed in a long monk's cowl, which he was not wearing on the day he was sentenced (when he knew he would not be handed a prison term, given the Crown's representations). This prompts the Court to conclude it cannot rule out that, as with Ms. Lefebvre previously, Mr. Kairouz tried to manipulate it. [ 75 ] Lastly, as for the requirement that the Court also take into account that it is not in the public interest for the accused to lose his job and no longer be able to provide for himself and his family , it has no impact here on the appropriateness of granting a discharge or not.

Indeed, it is impossible to tell from the evidence whether Mr. Kairouz is currently employed, what his livelihood is or if he assumes financial responsibilities for others or for himself. [ 76 ] Given the preceding observations as a whole, the Court concludes that, in the present case, the public interest would be ill- served by a sentence downplaying Mr. Kairouz's "remarriage". In reality, the public interest resolutely argues instead for real consequences for Mr.

Kairouz's act of social defiance. [ 77 ] Now for the second part of the equation: a discharge may be granted only when it is in the best interests of the accused and not contrary to the public interest. [ 78 ] In Corbeil-Richard , cited above, the Court of Appeal also confirmed that the accused's best interests criterion supposes the accused to be a person of good character who, as a rule, does not have a criminal record and who does not pose any problems with regard

to specific deterrence and rehabilitation . While the Court does not have sufficient evidence to be able to say that Mr.

Kairouz is a person of good reputation, it nevertheless acknowledges that he does not have a criminal record, that the trying of this case in court should constitute an adequate measure of specific deterrence (although it is the second bigamous marriage in which he finds himself involved, the first one having been contracted in 1993 whereas his spouse was still married to a Lebanese citizen she had married in 1971), and that his rehabilitation does not appear to be problematic (despite the unconvincing nature of his sacerdotal plans). [ 79 ] That said, a component of the accused's best interests criterion— the gravity of the possible consequences for the accused if he is convicted instead of discharged—constitutes in this case a major obstacle to granting a discharge.

To the extent that the first thought is for the consequences of a criminal record on his ability to travel, which is what Mr. Kairouz argued because he travels often and expects to be deployed to the United States one day, the evidence must be said to be far from solid, as well as speculative and purely impressionistic. [ 80 ] First, he admitted that he has never had any problems anywhere because of this pending case. Then, without looking into the matter, he was afraid that a criminal record for bigamy would hurt him or prevent him from entering the United States should he wish to go there.

Moreover, he acknowledged that, although he says his Church will be sending him to Washington next year, he could just as well be deployed anywhere in the world where English is the main language. Lastly, he is no longer domiciled in Canada, but in Lebanon, where he lives at least six to seven months a year and where his new "spouse" lives. [ 81 ] In such a context, it is really difficult to convince oneself that a criminal record in Canada for bigamy would be likely to entail disproportionate consequences for Mr.

Kairouz, whose new life is essentially on another continent, in the Middle East no less, in a part of the world where certain countries are less opposed to and/or more tolerant of bigamy and polygamy, and where the stigma associated with a conviction for bigamy is therefore more likely to dissipate. [ 82 ] So Mr. Kairouz's problem in all likelihood lies elsewhere, a problem his attorney summarized by stating that it is very hard to go door-to-door [TRANSLATION] "to sell morality" when one has a criminal record for something that calls precisely one's own morality into question.

That argument calls for two comments to be made. [ 83 ] First, it must again be noted that no independent evidence—no letter from ecclesiastic authorities, no document of affiliation or confirmation, no proof of status— confirms Mr. Kairouz's sacerdotal plans mentioned in his testimony. Accordingly, to take it for granted that those are really his plans would be

an act of faith, one which the Court is not particularly disposed to make. [ 84 ] Second, it is not up to the Court to take a stance on morality. Thus, even supposing that Mr. Kairouz is genuinely and sincerely engaged in a sacerdotal path, which has yet to be corroborated, it would be up to the ecclesiastic authorities of his religion to decide whether such a criminal record would be likely to constitute a lawful impediment to his ordination. There are two possibilities: either the religious authorities know of Mr.

Kairouz's troubles with the law, in which case it would be undesirable to interfere in how they manage the situation, or they are not aware of his legal problems, in which case it would be undesirable for the Court to participate in covering them up, which is what it would be doing were it to grant a discharge, which leaves fewer traces than a conviction. Conclusion [ 85 ] That said, and to summarize, without interpreting

section 730 Cr.C . restrictively or demanding that it be applicable only on an exceptional basis, it nevertheless remains that, as a rule, a discharge will be granted all the more readily if the circumstances of the offence are not particularly grave and the consequences of a conviction are serious, the true test thus consisting in ensuring that society's interests are balanced with those of the accused, as Corbeil-Richard also teaches.

But, the more the circumstances of the offence are serious, even though the consequences of a conviction are benign, the more the imbalance between society's interests and those of the accused will be accentuated.

And the less they will be able to coexist: a discharge will then seem less and less appropriate. [ 86 ] Ultimately, that is the dynamic observed in this case: if the accused can deal with a conviction, the consequences of which are still enigmatic and speculative in terms of the evidence adduced at the hearing, it is different for society, which gives no sign of being ready to downplay bigamy or polygamy. [ 87 ] In light of all the above considerations, the Court cannot conclude that the fine of $1000 previously identified as the appropriate sentence in normal circumstances, and the resulting criminal record, would constitute, in this case, a disproportionate punishment considering the acts committed. [ 88 ] Since it has not been shown that the best interests of the accused demand a discharge that is not contrary to the public interest, it is the fine that will ultimately be imposed.

It will be accompanied by a victim surcharge of 15%, pursuant to section 737(2) (

a) Cr.C . Both amounts must be paid within six months. [ 89 ] Lastly, considering the special circumstances of this case, and given that Mr. Kairouz's reintegration into the community is not an issue, in the opinion of the attorneys in the case, and that he no longer resides in Canada, the Court finds that is not appropriate to put him on probation. [ 90 ] THEREFORE, THE COURT : - IMPOSES a fine of $1000 on the accused; - IMPOSES a victim surcharge of $150; - GRANTS the accused six months in which to pay the amounts.

__________________________________ Jean-François Gosselin J.C.Q. Mtre. Pierre Desrosiers Criminal and Penal Prosecutor Mtre. Jacques Gagnon Counsel for the accused Written reasons filed in the Court record on March 14, 2011