r v. KEVIN WILLIAM CHAUVIN, 2022 QCCQ 9736

R. c. Chauvin 2022 QCCQ 9736 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL "Criminal and Penal Division" No: 500-01-208296-209 DATE: December 12, 2022 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE MANLIO DEL NEGRO, J.C.Q. ______________________________________________________________________ HIS MAJESTY THE KING Prosecutor v. KEVIN WILLIAM CHAUVIN Accused ______________________________________________________________________ JUDGMENT ON SENTENCE ______________________________________________________________________ [ 1 ] Mr.

Kevin William Chauvin (hereinafter referred to as K.W.C.) pleaded guilty to the offence of assault causing bodily harm contrary to

section 267 (

a) of the Criminal Code . [ 2 ] The offence stems from an incident which occurred on July 8, 2020, involving a vehicle driven by the offender and a cyclist in a context commonly known as “road rage”. I. OVERVIEW [ 3 ] The victim was on his bicycle waiting at an intersection for the traffic light to turn green. He was positioned on the lane reserved for motorists. [ 4 ] That said, when the traffic light changed to green, he was not able to proceed as the traffic ahead of him wasn’t flowing.

This situation caused the motorist (the offender) waiting behind to honk at him for him to move ahead. [ 5 ] Seemingly, the honking irritated the cyclist, he reacted by closing his fist and flashed his middle finger at the offender. [ 6 ] Afterwards, both the cyclist and the offender proceeded on their route. Obviously, both parties were upset about what had just happened – it appears that the offender was driving erratically along the road while exchanging unpleasantries with the cyclist. [ 7 ] Moving forward, further down the road, the offender stops at an intersection.

Suddenly, out of nowhere, the same cyclist passes him on the passenger side of his vehicle and hits the mirror of his vehicle causing it to collapse. [ 8 ] The cyclist’s behaviour triggered a reaction as the offender’s response was to pursue the cyclist who had just punched his vehicle. In no time he catches up to him and spontaneously he reacts impulsively by nudging him with his vehicle. Unfortunately, the nudging caused the cyclist to lose control of his bicycle and fall to the ground. [ 9 ] The offender continued his route for a short distance before realizing that he had caused an accident.

It didn’t take long for him to return to the area where the cyclist had fallen. [ 10 ] As a result of the fall, the cyclist sustained injuries which can be described as abrasions to his hands and arms. The victim’s elbow was also broken, but this injury did not require surgery or the placement of a cast.

The Court was made aware of the consequences this incident had on the victim as the prosecution filed a Victim Impact Statement. [1] [ 11 ] The victim’s bicycle and a leather satchel also sustained some material damage. [ 12 ] By all accounts, it was agreed by the parties that the offender be ordered to make restitution in the amount of $800 to the victim for financial compensation. [ 13 ] Following K.W.C.’s plea, I ordered a pre-sentence report (“PSR”) for the offender. II. Pre-sentence report

[ 14 ] In a nutshell, the PSR can be described as extremely favourable to the offender. The probation officer (“PO”) described the offender as a young family man (34 years old), who is gainfully employed, and the father of four children. [ 15 ] During his interaction with the offender, the PO noticed that he was both cooperative and respectful. [ 16 ] According to the PO, the offender showed genuine empathy for the victim and expressed considerable remorse for his actions. [ 17 ] In the PO’s view, K.W.C. does not show any signs of a criminal character or symptoms of antisocial behaviour.

In addition, the offender does not have a criminal record. [ 18 ] In reference to the events leading to the commission of the offence, it is the PO’s view that the context in which the offence was committed is circumstantial in nature.

According to the PO, the offender reacted spontaneously and inappropriately in expressing his anger and frustration in a contextual situation when he felt that he was being humiliated and disrespected after the victim hit and damaged the mirror on his vehicle. [ 19 ] The PO noted the offender’s capacity of introspection as he is fully aware of the reprehensible nature of his conduct and the ensuing consequences his actions had for the victim. [ 20 ] The offender’s social network is solid, and he benefits from the support of his family and friends.

He does not have any issues that would require him to undertake any therapy for any issues. [ 21 ] In

summary, the Court deems the entirety of the PSR to be very positive to the situation of the offender. III.

The position of the parties [ 22 ] The prosecution argues that the appropriate sentence should be a custodial sentence of 90 days of incarceration to be served intermittently with a probationary term of 18 months with the specific condition that the offender perform 240 hours of community service and make restitution in the amount of $800 to the victim. [ 23 ] During the sentencing hearing, the prosecution conceded that it was in the offender’s best interest to receive a conditional sentence but argued that a conditional sentence would be contrary to the public interest criteria component contemplated by

section 730 of the Criminal Code . [ 24 ] Counsel for the offender argues that considering the offender’s profile, a conditional discharge with a probationary term of 24 months, including the specific condition that he perform 240 hours of community service with an order of restitution in the amount of $800 to the victim would be the appropriate sentence considering the circumstances of his client’s case. [ 25 ] Accordingly, the issue before the Court is for the Court to determine the appropriate sentence which should be levied on the offender for this offence. IV. analysis

a) Sentencing principles [ 26 ] It is cliché to say that crafting an appropriate sentence ʺis far from being an exact science or an inflexible predetermined procedure. The trial judge enjoys considerable discretion because of the individualized nature of the process. To arrive at an appropriate sentence considering the complexity of the factors related to the nature of the offence and the personal characteristics of the offender, the judge must weigh the normative principles set out by Parliament”. [2] [ 27 ] As Gendreau J. described in R . c.

S.T. , [3] sentencing is a difficult and delicate task: Sentencing is arguably one of the most difficult and delicate tasks of the judiciary. Indeed, finding and applying the fairest and most equitable standard for the accused while manifesting the appropriate social disapproval and ensuring the protection of society is a complex balancing exercise since it tends to ensure a balance between values which, without opposing each other, have different objectives. [ 28 ]

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

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

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

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

d) to assist in rehabilitating offenders; (

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

(

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 29 ] Moreover, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender ( s. 718.1 of the Criminal Code ). The proportionality principle requires that the punishment imposed be “just and appropriate, and nothing more”. [4] [ 30 ] A sentence may be increased or reduced to account for any relevant or mitigating circumstances ( s. 718.2 of the Criminal Code ). [ 31 ]

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

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

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 32 ] Sections 718.2(

d) and (

e) combined with

section 718(f) (promotion of responsibility in offenders, and acknowledgment of the harm done to victims and the community) embody the concept of restorative justice. [ 33 ] In a relatively recent law book on sentencing, Sentencing: principles and practice , the authors express themselves as follows concerning the principle of restraint: Sections 718.2(

d) and (

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

Section 718.2 (

d) and (

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

However, even creativity must be tempered with restraint. […] [5] [ references omitted] [ 34 ] In the realm of the offence of assault causing bodily harm under

section 267 (

b) of the Criminal Code , the review of the cases under this offence yields little in the way of enlightenment as to the general rationales used by the courts in their sentencing dispositions.

Each case appears to turn on its own unique set of circumstances. [6] [ 35 ] That said, in La Peine : Traité de droit criminel , the authors opine that for offences of assault causing bodily harm prosecuted by way of indictment, the sentences generally levied by the courts vary from the imposition of a fine, to the imposition of a term of imprisonment, varying from a few months of incarceration to a term of 24 months. [7] [ 36 ] The general principles emerging from the case law seem to favour the principles of denunciation and deterrence in cases of assault involving a component of “road rage”.

On the other hand, this does not mean that the other principles of sentencing don’t have their place. It is paramount that the sentence be individualized to the offender and to the circumstances of the case.

b) The testimony of the offender during the sentencing hearing [ 37 ] At the sentencing hearing, the offender chose to address the Court. During his testimony, I was able to observe his demeanor and to listen to his story. In sum, I was most favourably impressed with this young man’s level of maturity, and the composure and dignity he showed while testifying.

The introspection regarding his inappropriate behaviour leading to the incident reassures me that his actions in the circumstances of this case should be viewed as an isolated, spur-of-the-moment reaction which lacks any component of premeditation. [ 38 ] Moreover, the offender accepted his responsibility and did not deflect any blame on the victim for what occurred. [ 39 ] This case underscores the challenges encountered by motorists and cyclists alike when sharing the road in a busy, congested city and – to make matters even more precarious – in the middle of a worldwide pandemic, where it appeared that almost everyone seemed to be at their wits’ end. [ 40 ] The offender did not raise the issue of the victim’s behaviour preceding the incident – the raising of the finger and the damage caused to the mirror of his vehicle – as he entirely accepted responsibility for his actions. [ 41 ] Although the prosecution was invited to comment about the issue of the victim’s conduct in relation to the reaction of the offender, the prosecution declined to make any submissions on this issue.

That said, it is the Court’s view that the victim’s behaviour should be considered to some extent as the causa causans for the occurrence of this incident and consequently, to a certain extent, the issue of the offender’s moral culpability should be mitigated from a sentencing perspective. [ 42 ] While the issue of an excessive response to the provocation may be raised, I accept the offender’s version that he lightly “nudged” the cyclist immediately preceding impact.

I have no convincing reason to believe that it was his intention to cause any serious harm to him. [ 43 ] When questioned about his feelings regarding the incident, the offender expresses himself as follows: “I feel like I did a great injustice to Mr. Vaublanc (sic) and that my actions were inexcusable . There’s no way that I can explain it, there’s

no rational thought that I have to the situation. I mostly regret punching (sic) my family, both financially and emotionally. My wife has gone through because of it. It stresses her out. And I’m… just sympathetic, I have no idea why that came over me that day. And, like I said, there’s no way I can apologize or do anything to… I just… it was an injustice done to Mr. Vaublanc (sic), and I take responsibility for my actions .” [8] [emphasis added] [ 44 ] These comments emphasize the offender’s feelings of remorse and his willingness to accept entire responsibility for his actions.

Furthermore, he does not attempt to minimize or rationalize his behaviour which is consistent with his expression of remorse he conveyed to the probation officer and to the Court. [ 45 ] The offender’s level of education is modest (secondary IV high school) as he preferred pursuing vocational training. [ 46 ] Currently, he lives with his common-law partner whom he has known since he was 16 years old. He is the father of 4 children, 3 girls and a boy who are aged from 6 to 12 years old.

He is the primary wage earner for his family as his life partner was only recently employed on a part-time basis at the Tim Hortons since last year. He maintains a close relationship with his parents, visiting them several times on a week. In terms of his work, he has been regularly employed over the years. [ 47 ] When this incident occurred in 2020, he was employed as a driver for SOS Dryer for five years.

However, following his conviction for a highway safety code offence stemming from the incident of this case (s. 168 H.S.C.- failing to stop at the scene of an accident), his employment was terminated. [ 48 ] At the time of his dismissal, he testified that his annual gross earnings varied from $17,000 to $27,000. Following his dismissal, he was unemployed for around five months following which he was able to secure another job at J-C Construction in the field of property restoration. More specifically, this company is mainly involved as a subcontractor for Winmar Restorations for 90% of its projects.

Currently, in his new position, his earnings have improved considerably as he now earns more than $22 per hour with foreseeable wage increases in the future. He estimates that his annual salary will be in the $38,000 to $42,000 range – a considerable increase from his previous salary at SOS Dryer. [ 49 ] His duties at the company evolve around property restoration where he is called upon to work in people’s homes in their absence.

The letter of employment concerning the proof of his current job is clear: “[…] J-C construction is hired by Winmar Restorations on 90% of our projects and entrust as well that the team they are hiring all parties have a clean background. […] we require every employee of ours to have no criminal records on file as this is a practice, we preach to our customers to ensure their safety and the safety of their home .” [9] [emphasis added] [ 50 ] The consequences of a criminal conviction for the offender are clearly expressed by the vice-president of the company employing him and read as follows: “We have been made aware of the charges against Mr.

Chauvin. He has explained to us everything that has happened and that he has plead guilty to armed assault with a vehicle. Although Mr. Chauvin has been a model employee since he has been with our company, unfortunately, we will have no choice but to terminate him immediately if his file shows any offence of a criminal record .” [10] [emphasis added] [ 51 ] Clearly, this is compelling evidence that a criminal conviction would have deleterious effects on the offender’s employment. [ 52 ] As stated before, the PSR is extremely favourable for the offender.

The following noteworthy factors discussed in the PSR merit consideration: [11] • the offender regrets his actions and shows real empathy for the victim; • he believes that the fact that the victim hit his mirror may have triggered his anger and thereby precipitated the offence; • he does not justify his criminal behaviour in any way, on the contrary, he assumes entire responsibility for his violent outburst and knows that such behaviour is totally unjustified; • he has good introspective capacities; • he shows no sign of criminal or antisocial personality; • the offence is circumstantial in nature, his profile reveals that he is not likely to resort to violence to resolve conflicts; • his temperament is calm – he is usually able to evaluate the potential consequences of his actions; • he has a good understanding of the reprehensible nature of his conduct and the consequences it had for the victim; • his encounter with the justice system will have lasting dissuasive effects on his future behaviour; • the risk of his reoffending has been deemed to be “very low”. [ 53 ] That said, to levy a fair and reasonable sentence, the Court will take into consideration several factors.

V.

THE AGGRAVATING AND MITIGATING FACTORS 1) The mitigating factors • first time offender of good character; • his guilty plea; • lack of premeditation in committing this offence – offence committed spontaneously; • gainfully employed, family man, father of four young children; • risk of reoffending assessed as being “very low”; • the offender is deemed as lacking violent propensities and is otherwise a person of good character; • expression of sincere empathy for the victim – genuinely remorseful for his actions and assumes his responsibilities entirely; • willing to make restitution for material damages caused to the victim; 2) The aggravating factors • inherent violence of the criminal conduct committed with his vehicle against a cyclist in the context of a “road rage” incident; • the nature of the injuries sustained by the victim is somewhat serious (broken elbow but not carrying any serious, long-term repercussions for the victim); • objective gravity of the offence.

VI. CASE LAW [ 54 ] Both parties submitted case law for the Court’s consideration. The following cases were submitted by Crown counsel to support her position on sentencing: • R. c. El Atmani , 2015 QCCQ 3723 (j. Robert Marchi) − Guilty plea of common assault and mischief under $5,000. − The accused is a taxi driver, he hit the bicycle wheel and then dragged the victim for 30 to 40 meters. − Victim sustained a sprain and scratches. − Suspended sentencing, 240 hours of community service. • Conde c. R. , 2016 QCCS 1293 (j.

Alexandre Boucher) − The offender’s appeal of the judge’s refusal to grant him a discharge was refused. The Superior Court confirmed the sentence of a fine with a probation. − The assault consisted of a punch to the face causing some injuries and pain to the victim’s eye – in a road rage context. [ 55 ] In this case, Justice Boucher expresses himself as follows: [18] Dans la présente affaire, le juge de la peine a statué que l’appelant a établi que l’absolution serait dans son intérêt véritable. La contestation en appel porte donc sur le critère de l’intérêt public.

Ce critère est essentiellement relié aux objectifs de dénonciation et de dissuasion générale, à la gravité et à l’incidence de l’infraction dans la communauté et à la nécessité de maintenir la confiance du public à l’égard du système judiciaire (R. c. Denis, 2015 QCCA 300 ; R. c. Corbeil-Richard, 2009 QCCA 1201 ; Martin Vauclair, Béliveau- Vauclair: Traité général de preuve et de procédure pénales, 22e éd.

Montréal: Thémis-Yvon Blais, 2015, par. 2649-2650). [19] En matière d’infractions de violence dans un contexte de « rage au volant », il y a lieu de faire primer les objectifs de dénonciation et de dissuasion (R. c. Chakib Idebdou, 2013 QCCS 4213 ; R. c. Manel, 2012 QCCS 2273 ; R. c. Mazzara, 2009 QCCS 836 ; R. c. Robert, 2007 QCCS 2273 ; R. c.

Stone, 2001 BCCA 728 ). [ 56 ] However, the Court also mentions that the offence of assault committed in the context of a road rage does not necessarily preclude the levying of a discharge in appropriate circumstances. [12] [ 57 ] Defence counsel submitted the following precedents. As usual, some were more instructive than others: • R. c. Vesperini , 2015 QCCM 139 (j. Louise Baribeau) − Charge of assault causing bodily harm.

− The defendant alleged that the victim had taken an available parking space when he was about to park there. − The accused struck the victim on his head, nose, and mouth. Some reconstructive surgery was required and an implant with acrown had to be fitted as well as a porcelain veneer to reconstruct the aesthetics of the fractured tooth. − Conditional discharge. • Leclerc c. R., 2007 QCCA 1347 (j. Benoît Morin) − Dangerous driving (ss. 249(1)

a) and 249(2)

a) C.C.). − The accused was convicted of dangerous driving. Dissatisfied with having been cut off by the complainant, he performed twodangerous maneuvers by shifting into the lane occupied by the complainant. On the second occasion, he encroached about one and a halffeet into the complainant’s lane forcing her to brake abruptly and causing her to lose control of her vehicle that ended after severalrollovers. − Leave to appeal the sentence of a conditional discharge by the accused was refused. • R. c. Éthier, 2015 QCCM 278 (j.

Robert Beauséjour) − Guilty plea to two counts: assault with a weapon (vehicle) and uttering threats. − A sporting event in the municipality required the temporary closure of some streets by volunteers. − The defendant wanted to travel to his father’s home urgently as he was worried that his father was not answering his calls. To getto his father’s home, he breached the security perimeter monitored by the volunteers by driving into it.

Although the facts are not clearfrom the judgment, it appears that the volunteers were not struck by the vehicle but were threatened by the accused. − Conditional discharge. • Perreault c. R., (j.

Gilles Hébert) − The accused uses a baseball bat to strike the victim during a traffic incident. − Sentenced to a six-month suspended sentence, the accused appealed the sentence. − The appeal was allowed, and the Superior Court judge substituted a conditional discharge with a probation of six months. − The Court concluded that the trial judge gave undue weight to the deterrent and punitive aspect of the sentence. [58] In addition to the above cases, I have also identified the following cases where discharges were refused in the context of roadrange incidents: • Medlej c.

R., 2022 QCCA 891 − Charge of assault causing bodily harm. − While the two protagonists are stopped at a red light, the accused exits his vehicle and walks towards the victim and punches himin the face about ten times. − The victim's face was swollen, and several teeth were displaced. − The Court of Appeal upheld the nine-month prison sentence. [59] The Court of Appeal decided that the incident occurred in the context of road rage was an aggravating factor: [20] Parmi les facteurs aggravants, il faut tenir compte du contexte de rage au volant.

Dans un jugement récent, le juge DennisGaliatsatos, j.c.q., écrit : « [l]e contexte de rage au volant dans lequel, selon une jurisprudence constante de la Cour supérieure, lestribunaux mettent souvent l’accent sur les objectifs de la réprobation et de la dissuasion générale ». [21] Il appert que le jeune âge est souvent considéré comme un facteur atténuant et qu’il faut parfois éviter d’infliger une peine quidevra être purgée au pénitencier lorsque l’accusé est un jeune homme non criminalisé ».

Toutefois, comme l’indique la Cour suprêmedans l’arrêt Lacasse, l’importance de ce facteur peut être diminuée par celle des objectifs de dénonciation et de dissuasion. En l’espèce,le requérant avait 23 ans au moment des événements, mais dans le cas de l’infraction pour laquelle il a été déclaré coupable, soit les voiesde fait avec lésions corporelles dans un contexte de rage au volant, la jurisprudence met l’accent sur les objectifs de dénonciation et dedissuasion. [references omitted] • Dorisca c. R., 2017 QCCS 5843 (refuses absolution) (j.

Mario Longpré) − The appellant and her spouse had been looking for a parking space for nearly an hour when they saw a space become availableand noticed that a woman was standing in the coveted parking space. − The accused exits the vehicle in which she is a passenger and quickly walks towards the woman reserving the parking space and in

an excess of anger assaults her. − The Court deems that a discharge can be ordered despite the aggravating factor of road rage. − However, the Superior Court dismissed the appeal of the sentence and confirms the 60-day conditional sentence of imprisonment. [60] The Court expressed itself as follows: [37] En matière de « rage au volant », les tribunaux ont souvent fait primer les objectifs de dénonciation et de dissuasion. Toutefois,on ne peut simplement apposer l’étiquette de « rage au volant », et le principe de la proportionnalité doit toujours être appliqué auxcirconstances d’une affaire donnée.

Une absolution peut être accordée même dans des cas de dossiers impliquant la « rage au volant » siles circonstances le justifient. [emphasis added; references omitted] [61] In the following judgments discharges were granted: • Couteight c. R., 2020 QCCS 2893 (j. Daniel Royer) − Common assault (sec. 266 C.C.). − The accused almost ran over pedestrians who were crossing the road. He was upset about the fact that they were jaywalking andthat they insulted him and kicked his car. He got out of his car and pushed the pedestrian with both hands.

The accused was aggressiveand angry. − The Superior Court granted the accused’s appeal on sentence. An absolute discharge was substituted to the conditional discharge. [62] The Court adds the following caveat: [44] Le principe fondamental de détermination de la peine selon lequel la peine est proportionnelle à la gravité de l’infraction et audegré de responsabilité du délinquant commande en l’espèce l’octroi d’une absolution inconditionnelle malgré le contexte aggravant derage au volant. [emphasis added; references omitted] • Labrecque c. R., 2013 QCCS 4416 (j.

Michèle Lacroix) − Guilty plea to one count of assault (sec. 266(

b) C.C.). − The accused is prevented from exiting a parking space he was occupying because the vehicle ahead of him was parked too closelyto his. − He honked at the vehicle for it to move so he could exit his space. The vehicle leaves but the driver lifts his middle finger at theaccused. − The accused followed the vehicle until the victim arrives at her place of work. A verbal argument ensues which is followed bysome physical force being used which was described as grabbing the victim’s arm tightly and shoving her car. − Conditional discharge upheld by the Superior Court. VII.

section 730 C.C. [63] From a legal perspective, I instruct myself as follows to analyze the defence’s plea that a conditional discharge be granted to theoffender. [64] The sentencing option of a discharge contemplated by

section 730 of the Criminal Code does not exclude any offence except forthose offences involving a minimal sentence or offences punishable by a term of imprisonment for more than 14 years.[13] The QuebecCourt of Appeal has decided that a discharge is not an exceptional sentence.[14] [65] In Harbour, Judge Vauclair expresses himself as follows regarding the Court of Appeal’s position that a discharge is anavailable sentencing option, even in cases where the principles of denunciation and deterrence are important sentencing objectives.[15] [95] That said, on appeal, an absolution sentence was granted or confirmed even in situations which normally involve the objective ofgeneral deterrence and denunciation, such as sexual assault on a minor child: Corbeil -Richard c.

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

Thecircumstances surrounding their commission are inextricably linked. It is up to the judge to exercise his discretion, to assess everything,

and to impose the sentence he considers just and proportionate: R. v. Berish, 2011 QCCA 2288, para. 34. [97] While it is necessary, when assessing the public interest, to be sensitive to the reaction of a reasonable and well-informedperson: R. c. Hudon, 2012 QCCA 1731, par. 9, this sensitivity cannot lead the judge to refuse a sentence if it is adequate: R.c. Fallofield (1974), (BC CA), 13 CCC (2d) 450, 455 (CACB); and by analogy, R. v. Berish, 2011 QCCA 2288,para. 34. [66] Generally speaking, a discharge is unique because despite the finding of guilt, no conviction is entered.

This factor is of crucialimportance for the offender, as a criminal conviction will have greater collateral consequences on his employment and on his/her abilityto travel. [67] Obviously, a discharge is in the best interest of the offender. However, a discharge is not an outcome that is handed outautomatically or, as it is often said in colloquial terms, “on a silver platter”. Rather it is the responsibility of the offender to advance howa conviction would impact his employment, professional or licensed status, travel for family or work purposes, immigration oremigration, university admission, etc. VIII.

THE PUBLIC INTEREST CRITERIA CONTEMPLATED BY

SECTION 730 [68] Recently the Quebec Court of Appeal described the notion of “public interest” as follows:[16] L’intérêt public est une notion vaste et générale qui, dans le contexte de l’article 730(1) C.cr., prend en compte divers facteurs, dontl’objectif de dissuasion générale, la gravité de l’infraction, son incidence sur la communauté et la confiance du public dans le systèmejudiciaire. [69] In Ouellet c.

R.,[17] the Court of Appeal decided that when analyzing the question of public interest, the Court must take intoconsideration the principles of general deterrence, the seriousness of the offence, its incidence in the community, the public’s perception,and its confidence in the administration of justice. [70] Furthermore, during the analysis of the public interest criteria, the judge must also be sensitive to the reaction of an informedmember of the public.

Nevertheless, the issue of sensitivity should not be an obstacle for the sentencing judge to render the sentencewhich is otherwise appropriate in the circumstances.[18] IX. is A conditional discharge contrary to public interest? [71] Although the Court recognizes that the principles of denunciation and deterrence are important objectives in sentencinginvolving cases of road rage, this does not mean that in appropriate cases, the other principles of sentencing don’t have their place. [72] The Court must consider the unique factors of the case and not assume that a specific sentencing range will apply to every caseas the sentence must be tailored to the circumstances of the offender. [73] Recently, the Court of Appeal in Sadak c.

R.[19] examined the criteria of the “best interest of the offender” and of “publicinterest” in a case involving multiple assaults. In relation to these principles, the Court of Appeal expresses itself as follows: [28] La mise en balance de l’intérêt véritable de l’accusé et de l’intérêt public est un exercice délicat. Le juge d’instance jouit d’unediscrétion importante. À cet égard, l’absolution n’est pas une sentence d’exception; elle peut être ordonnée même pour un crime grave,dès lors que les conditions inhérentes à son ouverture sont réunies.

Ainsi, la gravité objective de l’infraction ne constitue pas un obstaclede principe au prononcé d’une absolution. C’est ce que rappelle notre Cour, sous la plume du juge Vauclair, dans Harbour c. R. : [92] [L’absolution] est même possible lorsque le crime peut être qualifié de « fléau ». Je reprends volontiers les propos du jugeRothman dans l’arrêt R. c. Moreau, c’est-à-dire que même en présence d’un crime à forte prévalence dans la communauté, la dissuasiongénérale n’est qu’un facteur et chaque cas doit être évalué à son mérite : R. c. Moreau, ; contra R. c.

Foianesi,2011 MBCS 33. [93] Autrement, les tribunaux créeraient des exclusions là où le législateur n’en prévoit pas tout en créant un danger réel que la peinedevienne une réponse au crime uniquement plutôt qu’une peine juste et proportionnelle au crime et au délinquant. [Renvoi omis; soulignements ajoutés] [29] Le critère de l’intérêt public commande par ailleurs une prise en compte de la gravité de l’infraction à la lumière descirconstances de l’affaire et, ultimement, un questionnement portant sur la confiance du public dans le système judiciaire si l’accusédevait être absous. [74] In this case, the offender was charged with stabbing four victims with a knife following an altercation in a bar.

As a result of theincident, one of the victims was hospitalized for 72 hours for the injuries he sustained from the assault. [75] Consequently, in light of the foregoing case, when assessing the “public interest” criteria in

section 730 of the Criminal Code inrelation to the impact of the offence for the case at bar in the community, the need for general deterrence, the public’s attitude towards itand of the importance of maintaining public confidence in the justice system – it is my view that considering the decision in Sadak, thepublic confidence in the administration of justice would not be undermined should a discharge be granted in this case. In other words, awell-informed member of the public would not be shocked or lose confidence in the administration of justice should he be made awarethat a discharge was granted for the offender.

[ 76 ] Once again, the circumstances of the offender are favourable and solid proof of his good character was made. The backdrop leading to the commission of the offence does not provide any legal justification or excuse for his behaviour, but the Court considers the context in which the incident occurred that, in my view, serves to diminish the moral blameworthiness of the offender.

The burst of anger demonstrated by the offender was entirely inconsistent with his character and his reaction should be considered as a spontaneous, punctual incident following a brief interaction with the victim. [ 77 ] The probation officer did not deem this incident as reflecting his overall positive profile and that he is not a person with a violent disposition. [ 78 ] I repeat that he has expressed sincere remorse for his actions and showed genuine empathy for the victim.

The risk that he repeats this behaviour in the future has been deemed to be “very low”. [ 79 ] Let me be clear; I am not minimizing the seriousness of the offence nor the severe impact this offence had on the victim. That said, the analysis is focused on balancing these factors against the positive rehabilitative prospects of this relatively young family man who is facing the system of justice for the first time. [ 80 ] The Supreme Court in the case of R. v.

M. (C.A.) [20] reiterates the often-quoted principle of sentencing which I fully endorse: “The determination of a just and appropriate sentence is a delicate and inherently individualized process and that the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless academic abstraction.” [ 81 ] I reiterate that convincing proof was made that a conviction would inevitably lead to the termination of the offender’s current employment.

As such, the adverse impact that a conviction would have on his situation is another relevant consideration in assessing whether the granting of a discharge would go contrary to public interest. [ 82 ] In the case of Harbour c. R. [21] , the Court of Appeal decided that even in cases where the principles of denunciation and deterrence are applicable a court should not ignore the other relevant principles of sentencing. [ 83 ] In view of all the foregoing factors, it is my view that a conditional discharge including the obligation for the offender to provide reparation for harm done to the victim (s. 718.1(

e) C.C.) accompanied with the condition that he perform 150 hours of community service would be a fit and appropriate sentence in the circumstances. Although, both parties suggested 240 hours of community service, with deference, I deem the number of hours suggested to be excessive as the offender is employed on a full-time basis and has considerable family obligations. In my humble view, the addition of a substantial amount of community service hours to his

schedule may have detrimental effects on the offender’s mental and physical well-being. [ 84 ] This sentence is a sentence which is proportional to the gravity of the offence and the degree of responsibility of the offender. The effects of a conviction on his record would have a disproportionate effect on the offender contrary to the principles established by

section 718.1 of the Criminal Code . [ 85 ] Furthermore, the community service component incorporates a punitive and deterrent element to the sentence. [22] FOR ALL OF THESE REASONS, THE COURT : LEVIES the following sentence, A CONDITIONAL DISCHARGE DIRECTS that the offender comply with the following conditions of a probation order for a period of 24 months: 1) Keep the peace and be of good behaviour; 2) Notify the probation officer of any change of address or name, and notify the probation officer of any change of employment or occupation; 3) Abstain from communicating directly or indirectly with the victim ANTOINE VIENOT de VAUBLANC; 4) Abstain from being within a radius of 50 metres of the victim’s domicile/residence, place of employment or where he is attending school; 5) Report to the probation officer within 48 hours and thereafter, whenever required by the probation officer and in the manner directed by him for the purposes of performing his community service; 6) Perform 150 hours of community service within a delay of 24 months from the beginning of the probation order. 7) Make restitution in the amount of $800 to the victim within a delay of 8 months via the office of the court clerk; ORDERS that the offender provide a sample of a bodily substance that is required for the purpose of forensic D.N.A. analysis by virtue of s. 487.051 C.C.; ORDERS , pursuant to s. 109(1)

b) C.C. that the offender hereby be prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance: − For life, for the weapons listed at s. 109(2)

b) C.C.;

− For a period of 10 years for the weapons listed at s. 109(2)

a) C.C. CONSIDERING the limited financial means of the offender, I hereby order by virtue of s. 737(2.1) C.C. that he be dispensed from paying the victim fine surcharge. _____________________________ MANLIO DEL NEGRO, J.C.Q. M e Sylvie Barrette For the Prosecutor M e Bernard Levy-Soussan For the Offender Dates of hearing: February 14, 2022, June 8, 2022, September 16, 2022, October 24, 2022, and October 25, 2022.