2023 QCCQ 8586, 2023 QCCQ 8586

R. c. M.L. 2023 QCCQ 8586 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU CITY OF GATINEAU Criminal and Penal Division No: 550-01-121764-213 DATE: October 6 th , 2023 ______________________________________________________________________ PRESIDED BY THE HONOURABLE RICHARD MEREDITH, J.C.Q. ______________________________________________________________________ HIS MAJESTY THE KING Prosecution v. M. L. Accused ______________________________________________________________________ PUBLICATION BAN PURSUANT TO

SECTION 486.4 OF THE CRIMINAL CODE SENTENCE ______________________________________________________________________ 1. INTRODUCTION [ 1 ] The accused pleaded guilty to one count of sexual interference against X, contrary to

section 151 of the Criminal Code . The victim was 10 years of age at the time of the offence. [ 2 ] The accused is the victim’s great uncle. In January 2021 the accused was residing at the victim’s home, along with her parents and her siblings. He occupied a room in the basement. [ 3 ] The victim and her family considered him as an uncle to the children. [ 4 ] The victim would often hang out with the accused. [ 5 ] On January 10 th , 2021, after spending some time with the accused, the victim fell asleep in the accused’s bed in the basement. [ 6 ] The accused went to bed at around 4:00 AM.

He then played video games for a short time in the bedroom. He fell asleep at around 5:00 AM. [ 7 ] At approximately 6:00 A.M, the victim was awakened by the accused who was fondling her genitals with his hand inside her pyjamas. She also felt his penis on her buttocks as he lay beside her. [ 8 ] The sexual touching, as described, continued for about 2 to 3 minutes.

The victim did not say anything. [ 9 ] Afterwards she went upstairs and took a shower. [ 10 ] She disclosed what had happened to a close friend, who suggested that she tell her mother. [ 11 ] The victim waited a few weeks before telling her mother about happened because she felt ashamed. [ 12 ] On February 19 th , 2021, she did tell her mother. The entire family was then informed of what happened, including the victim’s grandfather, who is the accused brother. The grandfather confronted the accused. The accused immediately admitted that the victim’s allegations were true.

[ 13 ] The accused was shortly thereafter hospitalized as he had suicidal thoughts. [ 14 ] He was eventually arrested and interviewed by police and confessed that he indeed had touched his niece, saying it was just for a couple of seconds. He also expressed his dismay in the face of his actions, saying he had vowed to protect her from people doing these kinds of things and yet he had not respected that vow. 2. POSITION OF THE PARTIES [ 15 ] Crown counsel argued that the circumstances of this offence requires that the Court place the emphasis on deterrence and denunciation in determining the appropriate sentence.

Considering the circumstances and the various aggravating factors, the Crown deems that a custodial sentence of 2 years less one day is warranted. In addition, the Crown suggests a probation order for 2 years as well as an order pursuant to

section 161 of the Criminal Code for a duration of 5 years and the additional mandatory ancillary orders required by law. [ 16 ] Considering the accused absence of previous convictions and the overall positive conclusions of the presentence evaluation, defense counsel suggested that a conditional sentence is warranted in the present circumstances in addition to a probation order. 3. ANALYSIS 3.1 Sentencing objectives and principles [ 17 ] To determine the appropriate sentence, the Court must consider the sentencing objectives and principles set out at sections 718 and al. of the Criminal Code . [ 18 ] As stated in

section 718, the fundamental purpose of sentencing is 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; (

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 and to the community. [ 19 ] In particular, when the victim of a crime of abuse is a person under the age of 18,

section 718.01 of the Criminal Code states that the Court must give primary consideration to the objectives of deterrence and denunciation. [ 20 ] While primary consideration must be given to the objectives of deterrence and denunciation, the Court must render a render a just sentence that seeks to balance the relevant sentencing principles and objectives. Ultimately the sentence must be proportionate the seriousness of the offence and the degree of responsibility of the accused. [ 21 ] The Court must also consider the principles of parity and totality in determining the appropriate sentence. Pursuant to

section 718.2

d) the Court must consider whether less restrictive sanctions, other than a custodial sentence, may be appropriate in the circumstances. [ 22 ] Furthermore, considering the present circumstances involve the sexual abuse of a child, the Court must consider the concerns expressed by the Supreme Court of Canada in R. v. Friesen [1] : Children are the future of our country and our communities. They are also some of the most vulnerable members of our society. They deserve to enjoy a childhood free of sexual violence.

Offenders who commit sexual violence against children deny thousands of Canadian children such a childhood every year.

This case is about how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children. [ 23 ] In Friesen , the Supreme Court incites the courts to impose heavier sentences against offenders who commit sexual offences against children, indicating that crimes of this nature against children are violent crimes that exploit their vulnerability and causes them important negative consequences as well as to their families and communities.

The Court added that sentences for such crimes must reflect the reprehensible nature of sexual violence against children. [2] [ 24 ] The Supreme Court goes on to highlight certain guidelines that should be followed in determining the appropriate sentence in such cases: 107] We are determined to ensure that sentences for sexual offences against children correspond to Parliament’s legislative initiatives and the contemporary understanding of the profound harm that sexual violence against children causes. To do so, we wish to provide guidance to courts on three specific points:

(1) Upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence;

(2) Sexual offences against children should generally be punished more severely than sexual offences against adults; and;

(3) Sexual interference with a child should not be treated as less serious than sexual assault of a child [3] . [ 25 ] With these guidelines and sentencing principles in mind, the Court must also be mindful that no matter how serious the crime, it is sentencing an individual and not just the crime he or she committed.

[ 26 ] The sentence must be particularized to the individual and the Court must ensure that it is proportionate to the degree of the responsibility of the accused and the seriousness of the offence, while considering the sentencing principles and objectives. [ 27 ] The Court must also consider the principle, as stated at

section 718.2, that a sentence should be increased or reduced to account for any relevant mitigating or aggravating factors related to the offence or the offender. 3.2 Mitigating circumstances [ 28 ] In this case there are certain relevant mitigating circumstances that the Court must consider. [ 29 ] First, the accused did plead guilty.

By doing so the young victim did not have to testify and hence relive the circumstances of the traumatic experience of the offence committed by the accused. [ 30 ] By pleading guilty the accused admitted the offence in accordance with the facts as had been set out by the victim during the police investigation.

This acknowledgement constitutes a first step in admitting the crime, which is generally considered an indication of rehabilitation. [ 31 ] Upon arrest he admitted that he had in fact touched the victim for a sexual purpose, manifesting immediate remorse for his actions and concern for the victim. [ 32 ] The Court should however nuance the extent of the accused admission to police.

While he did admit that the victim’s claims were true, he did say that he touched her for 2 or 3 seconds, whereas the victim described that the sexual touching lasted 2 or 3 minutes. [ 33 ] An additional factor to be considered is the fact the accused is not a criminalized individual. He has no criminal record. [ 34 ] Furthermore, since he was hospitalized shortly after the victim revealed to her mother what had happened, the accused has remained sober.

Defence highlighted this aspect because at the time of the offence the accused was apparently high on drugs and alcohol. [ 35 ] The accused has a lifelong history of drug abuse and it is suggested his state of intoxication was a contributing factor in the commission of the offence. [ 36 ] Finally, the presentence evaluation prepared in this case highlights a few factors that the Court must consider. The accused collaborated with police and during the presentence evaluation process and expressed remorse at all stages. [ 37 ] The presentence report also mentions that the accused acknowledges his responsibility.

It highlights that he now has a greater awareness of the precariousness of his mental health and proposes to take concrete action to maintain a better and more balanced physical and mental health. [ 38 ] The presentence report also highlights that the accused does not appear to show signs of paraphilia as it relates to his discourse regarding sexuality. 3.3 Aggravating circumstances [ 39 ] The Court must also consider the significant aggravating circumstances. [ 40 ] The victim in this case was 10 years of age at the time of the offence.

Section 718.2 (

a) ii. 1) of the Criminal Code provides that it is an aggravating circumstance when committing an offence, the accused abused a person under the age of 18. [ 41 ] The accused is also the victim’s great uncle. The nature of their relationship was such that it is clear he was in a relationship of trust vis à vis the victim.

Section 718.2a) iii) provides that such circumstances constitute an aggravating factor. [ 42 ]

Section 718.2a) iii.1 also specifies that evidence that the crime had a significant impact on the victim, considering their age and other personal circumstances, must also be considered an aggravating factor. [ 43 ] In this regard, the age of the victim and the significant trust she had in the accused and the fact he took advantage of her in circumstances when she was vulnerable, as she was sleeping, are among the factors that demonstrate that this crime had a significant impact on the victim. [ 44 ] Added to this this is the significant anxiety and shame she felt in the days and weeks that followed the offence.

She was ashamed and did not know what to do, so much so that she did not want to tell her mother initially. It took weeks before she finally was able to reveal to a friend what had happened, which then led her to open up to her family and then to police. [ 45 ] The Court considers that these immediate apparent impacts on her are very significant. The Court also considers that, although the victim did not wish to engage in the judicial process by providing a victim impact statement, this by no means suggests there are no additional impacts on her life and personal development.

All it means it means is that the scope of the implications for her in the future are just unknown at the present time. [ 46 ] Submissions by Crown counsel suggested that the victim was living in relatively difficult circumstances. Particularly, it was brought to Court’s attention, during the evening leading up to the offence, everyone among the adults present at the home were intoxicated or high on drugs. [ 47 ] This setting suggests an environment increasing the victim’s vulnerability. The fact the accused took advantage of this child is significantly aggravating.

3.4 Circumstances of the accused [ 48 ] The accuses is 42 years of age. He has no criminal record. The presentence report sheds some light regarding the difficult circumstances he had to live through as a child and throughout his adolescence. In addition to the physical challenges he had to overcome, he was subjected to bullying and intimidation and the loss of his parents in early adulthood. [ 49 ] He was exposed to drugs shortly after joining the job market.

Most of his adult life has been punctuated by cycles of frequent consumption of hard drugs. [ 50 ] The accused ceased all drug consumption shortly after he committed the present offence. [ 51 ] The accused testified at sentencing. He expressed significant remorse and confirmed he has maintained his sobriety and indicated that he is trying to get on the right path. [ 52 ] The difficult life circumstances of the accused do not leave the Court indifferent.

While the Court may empathize with the accused, his testimony and the presentence evaluation does raise concerns. [ 53 ] In the presentence report it is mentioned that since the offense he has put in place protection approaches such as living healthier practices from a mental and physical perspective.

One example is his claim of ongoing sobriety in addition to maintaining positive contacts with his entourage and involvement in leisure activities aimed ultimately at helping him heal from certain injuries of the past. [ 54 ] This statement in the presentence report clashes with the accused testimony during the sentencing hearing.

Contrary to whatever he expressed to the writer of the presentence report, his testimony revealed essentially that he had done nothing or very little in line with those earlier expressed intentions. [ 55 ] In short, his evidence suggests he has essentially isolated himself and taken no initiative to seek long term support for his drug consumption problem to favor prospects of long-term sobriety. [ 56 ] He has done nothing as well to seek psychological or medical support to investigate the abuse he committed and possible reasons he committed this crime. [ 57 ] While the Court has no doubt that the accused is sincere in the remorse he expressed, it nevertheless became quite glaring that he spends much of his time loathing in self pity and has not been proactive in seeking real help to favor long term sobriety and to address any possible underlying psychological issues to lessen the prospect of committing such an offence in the future. [ 58 ] The presentence report suggests the risk of recidivism are reduced.

It is difficult to know concretely what that means but based on the evidence before the Court it certainly does not mean those risks are low or nil. 3.5 The appropriate sentence [ 59 ] Sentences imposed for sexual interference vary significantly, in great part due to the diversity of circumstances that the courts are required to consider in determining the appropriate sentence. [ 60 ] In R. c.

St-Pierre , Justice Danielle Côté, commented that generally sentences between 12 and 24 months imprisonment are imposed for offences of this nature where there is a combination of aggravating and mitigating circumstances, but where there is a predominance of aggravating factors related to the commission of the offence and the offender’s responsibility. [4] [ 61 ] In the present case, while there are mitigating circumstances, the Court must give paramount consideration to the aggravating circumstances in light of all the circumstances. [ 62 ] The Supreme Court of Canada has insisted that heavier sentences must be imposed for such offences, emphasizing that these types of crimes constitute the exploitation of vulnerable children which causes immense harm to children, their families and to communities. [5] [ 63 ] Defense submits that a conditional sentence is warranted considering the circumstances of the accused and the overall positive conclusions of the presentence report and the fact the accused pleaded guilty and has no criminal record. [ 64 ]

Section 742.1 of the Criminal Code provides: 742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under

section 742.3, if: (

a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2; (

b) the offence is not an offence punishable by a minimum term of imprisonment; (

c) the offence is not an offence under any of the following provisions: o (

i) section 239, for which a sentence is imposed under paragraph 239(1)(b) (attempt to commit murder), o (ii)

section 269.1 (torture), or

o (iii)

section 318 (advocating genocide); and (

d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more. [ 65 ] To impose a conditional sentence the Court would have to be satisfied that such a measure would not endanger the safety of the community and be consistent with the principles and objectives of sentencing set out at sections 718 to 718.2 . [ 66 ] The Court remains concerned about prospects of reoffending.

The accused has not taken any initiative to seek treatment or therapy or any help to address concretely a long-term drug problem nor address possible personal issues that may have contributed to him committing this offence. He appears to have decided to deal with it on his own.

This is hardly reassuring. [ 67 ] These same considerations lead the Court to conclude unequivocally, in addition to the seriousness of the crime committed on a young child towards whom he was in a position of trust, that imposing a conditional sentence would be inconsistent with the principles and objectives of sentencing set out at sections 718 to 718.2 . [ 68 ] Considering the totality of the circumstances, the sentencing principles and objectives, the mitigating and aggravating factors present, it is unequivocal that deterrence and denunciation must receive paramount consideration.

The objective of rehabilitation has its importance and may be effectively addressed through the imposition of a probation order with supervision. Ultimately, the effectiveness of a probation order will very much depend on the accused engagement at that stage of his sentence. [ 69 ] The Crown recommends a custodial sentence of two years less one day in addition to a probation order.

Several precedents filed in court addressed cases where sentences ranging between 18 months and 2 years imprisonment were imposed. [6] The circumstances in those cases have some similarities with the case at bar and there are some similarities between some of the offenders and the circumstances of the accused. [ 70 ] Without setting out herein the totality of these authorities submitted by the Crown, the Court sets out a few examples of sentences imposed in circumstances involving offences of sexual interference or sexual assault. [ 71 ] The R. v. R. A. , Ontario Superior Court Justice R. F.

Goldstein impose a global sentence of two years imprisonment against the offender. The offences involved 3 instances of sexual interference against his stepdaughter who was 11 years of age at the time. He obviously was in a position of trust. Two of the incidents involved that offender kissing the victim when he was alone with her. The third involved the accused taking the initiative, again when he was alone with her, of hugging her and kissing her using his tongue, going onto digitally penetrating the victim. [7] [ 72 ] In R. v. Green , the offender was a high school teacher.

He was found guilty of two counts of sexual interference. The victim was one if his students who was 14 years of age. The incidents involved two acts of sexual touching in school. The offender also told the victim not to tell anyone about what happened. Ontario Superior Court Justice S. Gomery sentenced him to 18 months in custody in addition to imposing a probation order. [8] [ 73 ] In R. v. Meisterhans , Justice J. Turner of the Manitoba Court of Queen’s Bench dismissed the sentence appeal following the trial judges’ sentence of 18 months custody and 2 years probation on one count of sexual interference.

The victim was a young boy who was 6 or 7 years of age at the time. [ 74 ] The victim’s aunt, with whom he was very close had died and he was having a very hard time. The victim’s parents asked Child and Family Service for a worker to spend time with the victim to provide him support. The offender was the designated CFS worker. [ 75 ] The sexual touching involved the offender putting his had in the victim’s pants, then grabbing and squeezing the victim’s penis. [ 76 ] A second incident occurred at the offender’s residence when the victim was in his care.

The offender took his penis out his pants and rubbed it against the victim’s back. [9] [ 77 ] In Lemieux c. R. , the Quebec Court of Appeal confirmed the trial judges’ conviction and sentence on a count of sexual assault. The incident involved the offender taking advantage of the victim who was intoxicated and unwell at the time of the assault. As she was laying down the offender fondled her breasts, her stomach and he vaginal area on top of her clothing, as she attempted to push him away with her arms.

He also attempted to insert his penis in her mouth and again she pushed him away. [ 78 ] The sentence imposed by the trial judge, after his finding of guilt, was 12 months custody in addition to two years probation. [10] [ 79 ] For the most part, there are qualitative and quantitative distinctions between the circumstances of the offences, in terms of the nature and frequency of the acts involved, and the offenders in those cases versus the accused in the present case. [ 80 ] The Court deems that those distinctions are such that, while a significant custodial sentence is warranted, a sentence proportionate to the seriousness of the offence and moral blameworthiness of the accused does not warrant the imposition of a custodial sentence of 2 years less one day in the present case. 4.

CONCLUSION [ 81 ] Having considered the sentencing principles and objectives, including the principle of proportionality, the seriousness of the offence, the mitigating and aggravating circumstances, the Court considers that paramount emphasis must be focused on deterrence and denunciation. Accordingly, the Court deems that a sentence of 12 months imprisonment followed by a probation order for 2 years with supervision is warranted in the circumstances.

FOR THESE REASONS, THE COURT : IMPOSES a jail sentence of 12 months. PROHIBITS the accused, pursuant to

section 743.21 of the Criminal Code , from communicating directly or indirectly with the victim X (2011-[...]) during the custodial period of his sentence. IMPOSES a probation order for a duration of 2 years with supervision.

During that period the accused will be required to comply with the following conditions: 1) Keep the peace and be of good behaviour; 2) Appear before the court when required to do so by the court; 3) Notify the court or the 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; 4) Abstain from communicating directly or indirectly with X (2011-[...]); 5) Not be in the physical presence of X; 6) Not attend any place where X resides; 7) Report to a probation officer withing two working days after the coming into force of this order and thereafter when required by the probation and in the manner directed by the probation officer; 8) Follow the probation officer’s instructions or those of any person designated by the probation officer regarding any therapy that may be deemed required to an address a substance abuse problem and sexual abuse behavior; 9) Not seek, obtain or continue any employment, whether remunerated or not, or become a volunteer in any capacity, that involves being in a position of trust or authority towards person under the age of 16; 10) Not be in the presence of persons under the age of 16 except in the company of a responsible adult.

ORDERS the offender to provide samples of his DNA, further to

section 487.051(1) of the Criminal Code (form 5.03); ORDERS the offender to comply with the Sex Offender Information Registration Act , pursuant to

section 490.012 of the Criminal Code for a period of 20 years. PROHIBITS the offender, pursuant to section 109(1) ( a.1 ) (2) from possessing: (

a) Any firearm, other than a prohibited firearm or restricted firearm, any cross, restricted weapon, ammunition and explosive substance for a period of 20 years; (

b) Any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. PROHIBITS the offender, pursuant to

section 161a) ( a.1 ) and (

b) of the Criminal Code : (

a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre; (a.1) being within two kilometres of any dwelling-house where the victim ordinarily resides or of any other place specified in the order; (

b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years. __________________________________ Richard Meredith, J.C.Q. Me Marie-Ève Laflamme For the Crown Me Jacques Belley For the accused

Date of hearing: February 14, 2023