r v. MICHAEL STOJANOVSKI, 2022 QCCQ 216

R. c. Stojanovski 2022 QCCQ 216 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL CITY OF MONTREAL Criminal and Penal Division No.: 500-01-194300-197 DATE: January 26, 2022 ______________________________________________________________________ BEFORE: THE HONOURABLE JULIE RIENDEAU, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

MICHAEL STOJANOVSKI Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The accused pleads guilty to a charge of assault causing bodily harm [1] with regards to an event that occurs in August 2019, which takes place in the following circumstances. [ 2 ] After the accused notices that the escort he procured services from (which is not the victim) has probably stolen his phone and wallet, he tries to recuperate them by inserting his arm in the car window in which she is a passenger.

Someone puts up the window, thereby wedging his arm, and the car starts moving dragging him along. The accused then breaks the window to free his arm, after which the car stops, the driver gets out, opens the trunk, and goes towards him with a bottle. The accused punches him in the face twice and then kicks him once he is on the ground, also in the face. The driver is the victim. [ 3 ] It is agreed between the parties that only the kick to the victim’s face constitutes the offence to which the accused pleads guilty. [ 4 ] Following the blows, the victim suffers a concussion, bleedings and several bruises.

He also experiences loss of balance, as well as a loss of self-esteem, concentration and memory loss. The Court notes that as of today the loss of balance still happens sometimes. [ 5 ] The accused is a marine mechanic. He sustains that a conditional discharge with community service would be a fair sentence.

It is the appropriate sentence when taking into account the context of the offence and the fact that he may lose his job if a conviction for assault causing bodily harm is added to his criminal record. [ 6 ] The prosecution seeks an imprisonment of 90 days combined with two hundred and forty hours of community work as it is the just sentence taking into account the seriousness of the act and the consequences on the victim. I. QUESTION AT ISSUE [ 7 ] What is the just sentence in the circumstances? II.

ANALYSIS [ 8 ] The determination of a just and appropriate sentence is a balancing exercise between the various criteria listed in sections 718 , 718.1 and 718.2 of the Criminal Code , while the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention measures, to respect the law and the maintenance of a just, peaceful and safe society [2] . [ 9 ] This sentencing purpose is met by the imposition of a just sentence that reflects the objectives of denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation, and the promotion of a sense of responsibility in the offender and acknowledgement of the harm caused to the victim and to the community [3] . [ 10 ] That said, a sentence must always be proportionate to the gravity of the offence and the degree of responsibility of the offender [4] .

This principle is central to the sentencing process [5] as a sentence has to be individualized to an offender. [ 11 ] Aggravating and mitigating circumstances, sentences imposed on others for similar offences, the total impact of the sentence, and all available sanctions other than imprisonment that are reasonable in the circumstances must also be considered.

[ 12 ] As for the objective gravity of the offence, it is identified by looking at the maximum penalty set out by the legislator. Here, assault causing bodily harm is punishable by ten years of imprisonment, which indicates that it is a very serious crime. However, there is no minimum sentence and this crime is opened to a discharge. [ 13 ] In regard to the subjective seriousness of the offence, as well as the accused’s responsibility, it is useful to remind the following. [ 14 ] The accused is convicted for drinking and driving in 2010.

Parties convene that this previous conviction alone does not preclude the accused from receiving a discharge. [ 15 ] Furthermore, the accused testifies. The Court retains what comes next from his testimony. [ 16 ] He is well educated with highly specific skills as a marine mechanic and is well integrated in the workforce, working for Seaspan Marine Corporation for the past five years, where he is well remunerated. [ 17 ] Seaspan works on ships owned by the Canadian Navy and the Canadian Coast Guard and anyone who works on these ships needs a Northern Atlantic Treaty Organization (NATO) clearance.

The accused explains that he may lose his job if he does not get this clearance. Indeed, his file is currently on hold with the company until this pending judicial file is terminated. [ 18 ] While the accused did not have a girlfriend at the time of the event, he is now in a relationship and has been living with his partner for a year and a half. [ 19 ] Following his arrest, the accused is detained for five days, and is since subject to very strict conditions of release, which include a curfew from 10 pm to 7 am and a prohibition to consume alcohol and drugs.

His brother, who also testifies, confirms that the accused has completely stopped drinking. [ 20 ] With regards to the event and the victim, the accused shows insight and is remorseful. In court, he apologizes to the victim for putting him in such a situation and in so much pain. His remorse and apologies appear sincere and heartfelt. [ 21 ] The accused mentions being intoxicated when the event happens and underlines that he is scared.

The Court does not perceive that the accused is trying to relieve himself of responsibility when he provides these explanations, but rather for the Court to understand in what context everything happens. [ 22 ] Finally, related to the sentence to be imposed, the accused offers to make a donation of two to five thousand dollars. [ 23 ] Now, as already stated, the accused’s brother testifies.

Other than to confirm that the accused is a hard worker at Seaspan, lives with his girlfriend and has completely stopped drinking, he maintains that he is the opposite of a violent person, and that he never saw his brother being violent with anyone. [ 24 ] In view of the above, the Court retains the following mitigating circumstances:

a) The guilty plea. A guilty plea is always a mitigating factor. Here, as it is entered at a late stage of the procedures, it could be argued that it has less value. However, the Court retains that it is entered on a much lesser charge following negotiations between the parties after a preliminary hearing. Consequently, the elapsed time to enter the plea has little effect on its value;

b) The very particular circumstances in which the infraction occurs;

c) The expression of sincere and heartfelt remorse for his conduct;

d) The absence of premeditation and the fact that the event constitutes an isolated event;

e) The good character of the accused. [ 25 ] Even if they do not constitute in themselves mitigating circumstances since they have nothing to do with the gravity of the offence and the degree of responsibility of the offender, the Court has to take into account the extremely low risk of reoffending as demonstrated by the evidence, the accused’s detention for five days and the very strict conditions he was released under. [ 26 ] With regards to the aggravating circumstances, the nature and extent of the injuries sustained by the victim are serious, even though the accused cannot be held responsible for all the consequences on the victim since only the kick is concerned by the plea and that there is no evidence as to which blow caused which injuries. [ 27 ] The accused’s prior is considered a neutral factor as many years elapsed from this conviction. [ 28 ] Under the circumstances, what is the appropriate sentence? [ 29 ] In Norris , our Court of Appeal mentions that the sentences for assault causing bodily harm vary significantly depending on the circumstances of the offence, ranging from a discharge to imprisonment [6] . [ 30 ] For professors Parent and Desrosiers, it appears that assault causing bodily harm charged by indictable offence with numerous mitigating factors order sentences that go from conditional discharge to fines or imprisonment, depending on the need for specific and general deterrence, and the need to emphasize rehabilitation [7] . [ 31 ] The cases submitted by the accused illustrate that indeed conditional discharge are rendered in cases of assault causing bodily harm [8] . [ 32 ] On its part, the prosecution draws the attention of the Court on a case that highlights the seriousness of offences involving a

“sucker punch” or a “cheap shot” punch and the necessity to render a sentence that reflects this seriousness [9] . [ 33 ] The Court does not retain that the kick given is of the same nature as a “sucker punch” or a “cheap shot” punch as it is submitted.

Indeed, to do so would be to disregard the circumstances in which the blow occurs. [ 34 ] With regards to the other case submitted by the prosecution, the Court notes that the facts significantly differ from those in the present file [10] . [ 35 ] That said, for the Court, a term of imprisonment is not, in view of all of the above, necessary in order to accomplish general and specific deterrence in regards to the accused.

Such a sentence would have the effect of putting the emphasis solely on the seriousness of the offence, disregarding all the other factors. [ 36 ] Now, could a discharge be considered? [ 37 ] A discharge is possible if an accused demonstrates that such an order is in his best interest and that this order is not contrary to the public interest [11] . [ 38 ] The prosecution states here that it is only a possibility that the accused will lose his job, and consequently that he does not really demonstrates that it is in his best interest. [ 39 ] It is true that the evidence sustains that there is no certainty the accused would lose his job if he got a criminal record for the infraction in this case.

It remains however not contradicted that his file is on hold with his employer until this case is over and that a decision will be made afterwards. [ 40 ] Consequently, the Court finds that the evidence demonstrates the apprehended repercussions of having a prior conviction are real and not just hypothetical [12] . [ 41 ] The notion of “in the best interest” of the accused also presupposes that the accused is a person of good character who generally has no prior convictions and for whom specific deterrence and rehabilitation are not problematic [13] . [ 42 ] In the present case, the Court considers that the accused has demonstrated that such an order is in his best interest. [ 43 ] Now what about the requirement that in order to benefit from a discharge it has to be not contrary to the “public interest”? [ 44 ] As to that notion, this concept refers to the seriousness of the accused’s conduct and its impact on society, the need for general deterrence as well as the importance to maintain the public’s confidence in the administration of justice [14] . [ 45 ] Although the offence in the present file is objectively serious, the Court considers that the objective of general deterrence must not prevail above all other sentencing objectives. [ 46 ] The circumstances in the present file, which are quite particular, call for a sentence that falls within the minimum sentencing range. [ 47 ] In light of the above mitigating circumstances and notwithstanding the objectively serious nature of the offence, the Court considers that a well-informed public would understand the Court’s decision if it were to grant the accused a conditional discharge.

In view of all the circumstances, such a decision would also not diminish the public’s confidence in the administration of justice. [ 48 ] Let us remind that a conditional discharge allows the judge to revoke such an order if an offender is convicted for another infraction or does not respect the conditions of a probation order he is submitted to, and impose any sentence that could have been imposed in place of the former sentence. Considering this mechanism, our Court of appeal retains that a conditional discharge is an effective measure [15] .

FOR ALL THESE REASONS, THE COURT: GRANTS the accused a conditional discharge on the following conditions of a probation order for a period of two years: - Keep the peace and be of good behaviour; - Be present in Court whenever required; - Notify the court or his probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation; - Abstain from communicating, directly and indirectly with Louis Longpré; - Perform 240 hours of community work within a delay of 18 months; - Report to a probation office before January 28, 4 p.m.

RENDERS an order pursuant to section 109(1)a)(2) prohibiting the possession of any firearms, crossbows, restricted weapons, ammunition and explosive substances for a period of 10 years, and also, for life, the possession of any prohibited firearms, restricted firearms, prohibited weapons, prohibited devices and prohibited ammunition. RENDERS an order pursuant to

section 487.051(1) of the Cr.c., authorizing the taking of the number of samples of bodily substances

that is reasonably required for the purpose of forensic DNA analysis. ORDERS the accused to pay the victim surcharge fine pursuant to

section 737 of the Cr.c. __________________________________ JULIE RIENDEAU, J.C.Q. Me Jasmine Leduc Attorney for the prosecution Me Ian Gemme Attorney for the defence Date of hearing: December 13, 2021