2021 QCCQ 14054, 2021 QCCQ 14054

R. c. Kurt 2021 QCCQ 14054 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL «Criminal Division » No: 500-01-199058-196 DATE: January 25, 2022 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE MANLIO DEL NEGRO, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecution V. EDWARDS KURT Accused ______________________________________________________________________ REASONS FOR SENTENCE [1] ______________________________________________________________________ A non-publication and non-broadcast order in this proceeding has been issued under

section 486.4 (1) of the Criminal Code of Canada . Is it therefore prohibited to publish, broadcast or transmit, by whatever means, any information that could identify the victim. I.

OVERVIEW [ 1 ] On November 13, 2020, the offender pled guilty to a charge of breaking and entering and committing a robbery in the home of his former intimate partner. [ 2 ] Following the offender’s plea, I asked that a probation officer prepare a pre-sentence report (PSR) for him. [ 3 ] The victim is his former intimate partner with whom he had parted ways a few weeks before the incident giving rise to the charges. [ 4 ] The facts, in a nutshell, can be described as follows: the offender mistakenly believed that the victim owed him the sum of seventy-five dollars ($75) following their break-up.

Intent on recovering his due, he decided that he would go pay her a visit at her home. Upon his arrival, he noticed that she was standing at her doorstep and before she could react, he immediately pushed her into her apartment. Once inside, he began chasing her around the house, eventually tackling her to the ground.

She struggled as much as she could but he managed to grab her face so she would look at him while he demanded the money she supposedly owed him. [ 5 ] In order to put these events in context, it is important to note that the victim had made an Interac transfer for the amount in question but it appears that the offender had mistakenly believed he had not received it. [ 6 ] This said, the victim eventually freed herself from his grip while screaming for help: she ran out of her apartment, obviously fearing for her safety as he chased her up the stairwell.

It didn’t take long for him to get a hold of her and, once again, physical force was employed. The victim screamed frantically, fighting back to defend herself.

Fortunately, she managed to wrestle herself away from his grip and ran as fast as she could in order to seek refuge in a neighbours’ apartment where she was able to alert the police about what had just happened. [ 7 ] During the altercation, the offender was able to take possession of the keys to her apartment. [ 8 ] Following the incident, the victim sustained some bruising to her knees, experienced pain in her thumb and some of her fingernails were broken off during the altercation. Generally speaking, the repercussions of the crime were more emotional than physical.

Obviously, the offenders’ behaviour caused the victim considerable anxiety and concern for her safety. He also humiliated and diminished her while totally disregarding the well-known concept that one’s home should be considered inviolable. II. POSITION OF THE PARTIES [ 9 ] The prosecution’s position on sentencing stressed the factors of denunciation and deterrence. Denunciation relates to the object of expressing society’s condemnation of the offender’s conduct. [2] [ 10 ] Deterrence refers to the imposition of a sanction for the purpose of discouraging the offender and others from engaging in

criminal conduct.

When deterrence is aimed at the offender before the Court, it is called “specific deterrence” whereas “general deterrence” when directed at others. [ 11 ] The prosecutor emphasized that the Court considers the statutorily aggravating factors prescribed by sections 348.1 and 718.2 (ii) of the Criminal Code . [ 12 ] According to the prosecutor, the criminal conduct of the offender did not occur as a spontaneous reaction but rather from a premeditated plan conceived by the offender in order to recover a debt owing to him. [ 13 ] The offender’s previous convictions reveal that he has been convicted for a crime involving violence dating back to 2001 when the offender was 21 years of age.

However, since his last conviction in 2004 for offences of possessing a restricted firearm, several counts of possession of controlled substances for the purpose of trafficking and the careless storage of a firearm for which he was sentenced to a term exceeding 3 years, the offender has not reoffended. [ 14 ] The prosecution argued that the consequences of the crime for the victim were traumatic as highlighted by her Victim Impact Statement (VIS). [ 15 ] In view of the above-mentioned factors, the prosecutor argued that a very clear message should be sent by the Court that violence towards women will be severely sanctioned for any offender committing similar offences.

Consequently, the prosecutor suggested that a term of incarceration in the range of 15 to 18 months should be levied but added that a term of 20 to 24 months would more appropriately reflect the gravity of the offence and the high degree of moral responsibility of the offender. [ 16 ] In addition to the term of incarceration, the prosecutor seeks the applicable mandatory orders prescribed by law with a probationary term of 2 years. [ 17 ] The defence’s position can be summarized as follows: [ 18 ] Concisely stated, defence counsel argued that the offender is a positive asset to society as he is gainfully employed; that he benefits from the support of his family and that the risk of re-offending has been deemed to be low by the probation officer.

He also argued that the pre-sentence report (PSR) prepared for his client is generally favourable and that the probation officer was satisfied with the offenders’ cooperation throughout the entire process of her evaluation. [ 19 ] The probation officer described the offender’s conduct as follows: “ La présente arrestation nous semble être un évènement circonstanciel en lien avec sa situation financière et une mauvaise capacité de résolution de problème”. [3] [ 20 ] As discussed above, s he deems the risks associated with reoffending are low. [ 21 ] She noted that the offender’s current situation is stable and that he tends to avoid conflictual situations.

She also mentioned that the crimes committed by the offender were, what she described, as an “isolated incident”: La responsabilisation et la bonne volonté du justiciable permettent de croire à un évènement isolé. La situation du justiciable est présentement stable et il a plutôt tendance à éviter des situations conflictuelles.

Pour les résultats à plus long terme, Monsieur pourrait s’arrimer à des ressources de sa communauté pouvant l’aider à mieux gérer le stress et sa situation financière. [4] [ 22 ] In describing his client’s conduct, defence counsel argued that his client had “made a mistake”, that the incident should not be considered as a pattern of abuse committed by the offender, as he had not abused his intimate partner during the course of their relationship.

That said, counsel also argued that the amount involved, namely seventy-five dollars ($75), should be considered as a pittance and therefore mitigating, from a sentencing perspective. [ 23 ] According to his counsel, the offender complied with all his bail conditions since his release from custody and, in particular, has not contacted the victim in accordance with the conditions of his bail. [ 24 ] Furthermore, the offender made positive efforts towards finding new employment following the loss of his job due to the Covid- 19 pandemic.

In fact, the offender was able to find more satisfying employment which enables him to earn attractive wages. [ 25 ] In relation to the sentence, which the Court should levy on the offender, counsels’ submission is one of an intermittent sentence with a probation order imposing 240 hours of community service, which would be a just and appropriate sentence for the offender in the circumstances. III. THE VICTIM IMPACT STATEMENT [ 26 ] By virtue of

section 722 of the Criminal Code , the victim provided a statement to the Court describing the repercussions the crime have had on her emotional and physical well-being. The Victim Impact Statement (VIS) was filed as Exhibit S-1.

It should be noted that this statement was not provided in Form 34.2 and that section 722 (9) of the Criminal Code permits a “ sentencing Court to consider any other evidence concerning any victim of the offence ” when determining sentence, whether or not a form 34.2 VIS has been provided. [ 27 ] It should be noted that the definition of ʺvictimʺ is not confined to any particular offence.

From any victim’s perspective, it should be mentioned that the Canadian Victims Bill of Rights provides that “every victim has the right to present a VIS to the appropriate authorities in the criminal justice system and to have it considered.” ( S.C. 2015, c. 13, s. 2 , 15). [ 28 ] The VIS testified about the repercussions this crime has had on her. More specifically, the victim expressed the fear, the shock and the sadness she felt during and after the assault. She described having been traumatized following the incident, and that the mental

images of the offender have terrified her to the point of needing the assistance of another person to escort her from her apartment. [ 29 ] She reported feeling that her career has been jeopardized as a result of having to deal with the impact this crime has had on her.

She finds it difficult to concentrate and that enthusiasm for her work has diminished due to her lack of motivation to carry on with her duties as she did before. [ 30 ] Following the assault, she was forced to spend several weeks away from her home because she was afraid that the offender would return to hurt her in her home as he had managed to steal the keys to her apartment during the assault. [ 31 ] The physical injuries she sustained were not significant.

However, from an emotional perspective, the victim reported symptoms compatible with Post-Traumatic Stress Disorder (PTSD), which have affected her sleep as she has experienced recurrent nightmares following the incident.

She also worries about the offender wanting to harm her reputation by spreading rumours about her at the motorcycle club they belonged to while they were in a relationship. [ 32 ] On a positive note, the victim reports that she has begun her healing process despite being haunted by what happened to her. [ 33 ] That said, the Court is mindful of the principle that vengeance has no role in sentencing. IV. THE ISSUE [ 34 ] What is the appropriate sentence, the Court should levy on the offender for this offence? V. ANALYSIS [ 35 ] Let it be clear, the crime of break and enter with robbery is not a trifling offence.

To the contrary, the objective gravity of this offence has been established by Parliament as any offender is liable to imprisonment to life in jail , sections 344

(1) b) and 348 (1)

a) of the Criminal Code . [ 36 ] Moreover, as previously mentioned, the Court will have to consider the statutorily aggravating factors prescribed by sections 348.1 and 718.2 (ii) of the Criminal Code in tailoring a proper sentence to levy on the offender. Furthermore, although not mentioned by either counsel during the sentencing hearing,

Section 718.201 in force since September 19, 2019 (S.C. 2019, c. 25, s. 293.1) addresses the gendered aspect of violence against an intimate partner and provides further direction to sentencing courts to consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims. VI. SENTENCING PRINCIPLES [ 37 ] It is a cliché to say that crafting an appropriate sentence is “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 in light of 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. [5] [ 38 ] As Gendreau J. explained in R. c. S.T . [6] , 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. [ 39 ]

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. [ 40 ] 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.” [7]

[ 41 ] A sentence may be increased or reduced to account for any relevant or mitigating circumstances ( s. 718.2 (

a) of the Criminal Code ). [ 42 ]

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. [ 43 ]

Section 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. [ 44 ] In the realm of domestic assault, the common law and the Criminal Code sentencing principles consider the abuse of an intimate partner or spouse as an aggravating factor on sentencing. [ 45 ] Several cases since the Supreme Court decision of R. v. Lavallee [8] have discussed the manner in which a Court should address cases of violence against former common-law partners or spouses. [9] Other cases will be discussed later in this decision.

VII. THE TESTIMONY OF THE OFFENDER [ 46 ] The offender testified during the sentencing hearing held on February 22, 2021. In

summary, he testified that the whole incident was “a big mistake that he wished he could have said sorry to the victim for what happened. ” [ 47 ] Although the offender expressed some measure of remorse for his actions, his words sounded hollow. The lack of spontaneity of his testimony led to the impression that it was scripted. No letter of apology was offered to the victim. It was also clear that the offender did not appear to acknowledge the magnitude of his crimes nor the significant impact they had on the victim.

This said, it is a well- known principle that the lack of remorse is a neutral factor on sentencing and the Court will consequently not treat it as an aggravating circumstance. [10] VIII. CASE LAW [ 48 ] Defence counsel submitted authorities stemming from British Columbia related to cases considered, for sentencing purposes, to what is colloquially referred to as “home invasions ”. [ 49 ] In R. v.

Dragani [11] , the British Columbia Court of Appeal confirmed a 90-day intermittent sentence of two offenders who had broken into the home of a victim to collect a debt and/or retrieve some property. [ 50 ] In this case, both offenders were young men with no criminal convictions. The sentencing judge considered that although the range of sentences imposed for similar offenses was usually between 2 and 9 years of incarceration, he rightly stated that the proposed range of sentences was just a guideline and not a hard and fast rule to abide by.

In this case, he decided that exceptional circumstances warranted a sentence that was outside the usual range for such an offense. [ 51 ] While the sentencing judge acknowledged that the primary sentencing principles were denunciation and deterrence, he came to the conclusion that there were other ways to meet those objectives than by the imposition of a significant sentence. [12] [ 52 ] The judge took into account several mitigating factors as the absence of a criminal record; the compliance with all bail conditions; other positive steps they had taken towards rehabilitation and that the offenders were not part of a criminal subculture. [ 53 ] In the case of R . v.

Hockley [13] , the offenders were sentenced to a 90-day intermittent sentence following their conviction for a home invasion offence for having broken into a residence and assaulted one of the occupants in an attempt to recover a business debt owed by the victim to another individual. [ 54 ] In his reasons, the sentencing judge concluded that the offenders were gainfully employed and that a substantial jail sentence was not required as such a sentence is likely to disrupt their normal productivity in their community. [14] [ 55 ] The sentencing judge concluded that an intermittent sentence was sufficient to underscore the gravity of entering an occupied dwelling to commit a criminal offence. [15] [ 56 ] Finally, the last case submitted by defence counsel, R . v.

Luttman and Oakland [16] , where the Court levied a suspended sentence on two young offenders for a case involving break and enter and assault. I must say that this case was of little help as it contained few details regarding the facts and legal reasoning behind the decision. [ 57 ] To be clear, the above-mentioned cases submitted by defence counsel bear little similarities to the case at bar as these cases did not deal with criminal conduct in the context of an offender’s intimate partner. With deference, these cases provided little assistance in tailoring a proper sentence for this case.

[ 58 ] During her submissions, Crown counsel submitted the case of R. c. Malo [17] for consideration. This case is relevant as it bears several factual similarities with the case at bar. In Malo , the offender broke into his former intimate partners’ home to threaten her with a knife, he was subdued by his son and, the victim was not injured. The offender had several criminal convictions on his record, a few involving simple assault. Ultimately, he was sentenced to a 30 months term of imprisonment. [ 59 ] In the case of R. v.

L.M . [18] , Justice LeBel articulates as follows regarding the difficult task judges face in crafting a just and appropriate sentence that is tailored to the nature of the offence and the circumstances of the offender: Far from being an exact science or an inflexible predetermined procedure, sentencing is primarily a matter for the trial judge’s competence and expertise. The trial judge enjoys considerable discretion because of the individualized nature of the process (s. 718.1 Cr. C.; R. v. Johnson, [2003] 2 S.C.R. 357 , 2003 SCC 46 , at para. 22 ; R. v. Proulx, [2000] 1 S.C.R. 61 , 2000 SCC 5 , at para. 82 ).

To arrive at an appropriate sentence in light of 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 prin​ciples set out by Parliament in the Criminal Code : - the objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgment of and reparations for the harm they have done (s. 718 Cr. C.); - the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1 Cr.

C.); and - the principles that a sentence should be increased or reduced to account for aggravat​ing or mitigating circumstances that a sentence should be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identified and that available sanctions other than imprisonment should be considered (s. 718.2 Cr.

C.). [ 60 ] As mentioned above, the prosecution argued that considering the aggravating factors present in this case, a minimally acceptable term of incarceration would be in the 15-18 months range, but that considering the aggravating factors, a sentence in the 18-24 month s range would be more in harmony with the sentence levied in the case of Malo . [ 61 ] In the case of R. v.

MacDonald [19] , the British Columbia Court of Appeal expresses itself as follows regarding the principles of denunciation and deterrence with respect to crimes of violence committed in the sanctity of one’s home: It is common ground that in circumstances involving crimes of violence, the principles of denunciation and deterrence will carry significant weight in sentencing, particularly where the offender violates the sanctity of an individual’s home. As noted by Madam. Justice Saunders in R. v. Meigs, 2007 BCCA 394 at para. 25 : In a crowded world the sanctuary of the home is even more important.

In other words, it is a grave offence to enter another person’s home without permission, and graver to enter the home and violate the occupant. The courts must and do impose stern sanctions for such crimes. [ 62 ] In the case R. v. Denkers [20] , the Ontario Court of Appeal decided that any victim is entitled to live their life normally and safely following a break from their former lovers: The determination of what is fit sentence in this case must be made in the context of the circumstances outlined above. This victim, and others like her, are entitled to break off romantic relationships.

When they do so, they are entitled to live their lives normally and safely. They are entitled to live their lives free of harassment by and fear of their former lovers. The law must do what it can to protect persons in those circumstances. In this case its order that the appellant not have contact with the victim failed to provide that protection. It follows that the principles of general and specific deterrence must be the overriding considerations in the determination of a fit sentence in this case.

The principles demand a very heavy sentence to act as a general deterrent to other persons who cannot abide their rejection by a person from whom their love… [ 63 ] In R. v.

Flageol [21] the Quebec Court of Appeal opined that in view of presence of the statutorily aggravating factors mentioned in sections 718.2a) (ii) and 348.1 of the Criminal Code , the sentencing judge should prioritize the principles of deterrence and denunciation over the offenders’ rehabilitation. [ 64 ] Let me be clear: the prosecution’s position on sentencing is far from being unreasonable under the circumstances especially in view of the case of Malo where the offender was sentenced to a term of 30 months of incarceration for offences similar to the factual pattern of the case at bar. [ 65 ] In other recent cases emerging from the Court of Quebec involving break and enter with violence in an intimate partner context, significant sentences were levied against offenders for having broken into the homes of their intimate or former intimate partner homes and for having used violence against them. [ 66 ] In the case of R. c.

Lalande [22] the offender was sentenced to term of incarceration of 9 years for having broken and entered the home of his former girlfriend and stabbing her several times following an argument. Although the aggravating factors in this case are more significant compared to the case at bar, the Court decided that the principles of deterrence and denunciation are overriding objectives in cases involving breaking into the homes of victims which is applicable to this case. [ 67 ] In R. c.

Jean-Sébastien Cormier [23] the offender was sentenced to a term of imprisonment of 72 months for having sent two individuals to manhandle his former intimate partner following their break-up. Although other aggravating factors were present, the

offender did not have a criminal record, pled guilty, felt remorse and the violence used against the victim was similar to the case at bar. [ 68 ] Following these recent judgments from the Court of Quebec, the Quebec Court of Appeal recently released a pertinent judgment bearing some factual similarities to the case at bar. In the case of R. c.

Davidson [24] , the Court increased the sentence of one year to two years for an offender who barged into his former intimate partners’ home without her permission to assault and threaten to kill her. [ 69 ] I have no hesitation in endorsing the following principles elaborated by the Court of Appeal in the decision of Davidson which I am bound to follow: In this case, Judge Hamilton makes the following comments: Even though denunciation and general deterrence have indeed been characterized as “des objectifs flous,” my colleague Vauclair, J.A., wrote in R. c.

Harbour that they are generally useful and must be weighed with care [25] : [83] Par ailleurs, je souligne que la dénonciation et la dissuasion générale sont des objectifs flous pouvant mener rapidement à une peine disproportionnée s’ils ne sont pas pondérés avec soin .

Tout en reconnaissant leur utilité générale , la Cour a souligné à plus d’une reprise le caractère incertain et limité de l’objectif de dissuasion générale […]. [Emphasis added] Moreover, the Court has emphasized on several occasions the added weight that must be given to the objectives of denunciation and deterrence in t he context of domestic violence .

Indeed, sentencing in these matters pursues two main imperatives: to denounce the unacceptable and criminal character of domestic violence and to enhance the confidence of the victims and the public in the administration of justice . [26] [References have been omitted but emphasis added] [ 70 ] However, I am mindful of Judge Lamers’s comments in R . v.

M. (C.A) [27] , “…Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender on a similar crime will frequently be a fruitless exercise of academic abstraction .. .”. [ 71 ] In the case at bar, the offender and the victim were no longer in a relationship when the incident occurred as they had already parted ways a few weeks before. This said, in the case of Cook [28] , the Quebec Court of Appeal decided that the aggravating circumstances, provided by

section 718.2 (a) (ii) of the Criminal Code , are equally applicable to former common-law partners as is the case for the offender and the victim. Furthermore, intimate partner is defined at paragraph 2 of the Criminal Code and includes a person’s “current or former spouse, common-law partner and dating partner”. [ 72 ] It is trite to say that violent behaviour by men towards women in relationships must be condemned and discouraged.

In these circumstances, the criminal conduct of the offender can be described as follows: an abhorrent, cowardly, senseless act of brutal violence perpetrated against a vulnerable young lady in the sanctity of her own home; an egregious lack of judgment; a dull-witted decision devoid of any common sense, perpetrated solely for recovering a sum of seventy-five dollars. [ 73 ] The behaviour of the offender is disturbing to say the least; that a grown man of 40 years of age behave in such a way is unacceptable. Also, that his actions were motivated by the recovery of a supposed $75 debt is profoundly disturbing.

In the circumstances, I deem that the objectives of denunciation and deterrence should be given meaningful weight in relation to the other factors, which the Court will ponder in tailoring an appropriate sentence for the offender. [ 74 ] It follows that the actions of the offender are not trivial and should be considered as carrying an objectively overriding component of gravity. [ 75 ] In acting as he did, the offender showed extremely poor judgment and his degree of criminal responsibility should be considered as being high.

He was fully aware of his actions and in choosing to act as he did, he chose the option of settling this perceived grievance with the use of violence rather than through a civilized discussion. [ 76 ] He voluntarily chose to breach the victims’ intimacy by barging into her home, terrorizing and manhandling her while she was there alone. Although the Court did not see the victim in person, the Court was able to observe that the offender is a grown man of substantial size and strength.

The offender’s counsel mentioned that his client was “built like a football player” (sic), the Court agrees with counsels’ observation. There is no doubt in the Court’s mind that the offender had the upper hand on the victim in terms of size and strength. [ 77 ] The consequences for the victim were substantial as she described in her VIS.

She had the right to feel and be safe in her own home as mentioned in the often-quoted expression: ’’A woman/man’s home is his castle “. [ 78 ] It goes without saying that the weighing all of the foregoing factors, a term of incarceration is inescapable and justly warranted under the circumstances. [ 79 ] This said, in R. v.

M. (C.A.) [29] the Supreme Court noted: “society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass ” [ 80 ] In balancing the relevant sentencing factors, it is appropriate for me to take into account the prevalence of intimate partner violence taking place in the judicial district of Montreal. [30] Moreover, I will also take judicial notice of the magnitude, the frequency

and deleterious impact of intimate partner violence are having not only in the judicial district of Montreal but throughout the province of Quebec. [31] [ 81 ] The caveat to this general principle was articulated as follows in Lacasse : [32] [90 ] Although the fact that a type of crime occurs frequently in a particular region is not in itself an aggravating factor, there may be circumstances in which a judge might nonetheless consider such a fact in balancing the various sentencing objectives, including the need to denounce the unlawful conduct in question in that place and at the same time to deter anyone else from doing the same thing.

It goes without saying, however, that the consideration of this factor must not lead to a sentence that is demonstrably unfit. [Emphasis added] [ 82 ] In rendering sentence, I consider the offender’s plea, albeit tendered on the morning of his trial, to be a mitigating factor. [ 83 ] The guilty plea saved the time and expense of a trial but, more importantly, it saved the victim from testifying about what happened to her and being victimized once again during this process. [ 84 ] I also consider that the offender is gainfully employed, occupying a position that he enjoys and that he is providing financial support for his teenage daughter.

Also, I consider the significant gap on the offender’s criminal record of approximately 15 years which the Court will consider for sentencing purposes. [ 85 ] Recently, in the case of Nadeau [33] , the Quebec Court of Appeal decided that when the objectives of denunciation and deterrence are important sentencing objectives, the sentence must nonetheless respect the other sentencing objectives of proportionality and the degree of responsibility of the offender.

I have also taken into consideration the relatively favourable PSR, which is reassuring in view of the probation officers’ opinion that the risk of recidivism is unlikely for this offender. [ 86 ] While it is true that prisons have not really succeeded in reforming inmates as evidenced by the high rate of recidivism, in this case, and for the foregoing reasons, the Court must prioritize the principles of denunciation and deterrence in sentencing. [ 87 ] In R. c.

Davidson [34] the Court of Appeal reiterated that “…, even when an accused shows encouraging signs of rehabilitation, the objective of rehabilitation should not take precedence over the objectives of deterrence and denunciation in matters of domestic violence”. [ 88 ] The objective gravity of the offence and the aggravating circumstances in which the offence was committed must imperatively be denounced in order to send a message to like-minded offenders that such behaviour will not be tolerated and, that furthermore, such behaviour would entail serious consequences for the perpetrators. [ 89 ] The objective of denunciation requires that a sentence should reflect societal values.

In R. v. M. (C.A.) , the late chief judge Antonio Lamer makes the following comment: " the objective of denunciation mandates that a sentence should also communicate society’s condemnation of that particular offender’s conduct.

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law”. [35] [ 90 ] Also, the offender’s behaviour requires a component of specific deterrence in order for him to think twice before he decides to engage in such behaviour in the future. [ 91 ] Finally, this sentence will also provide the offender with the necessary time to reflect on his actions and the resulting consequences his behaviour provoked.

Hopefully, this time will provide him with an opportunity to undertake the necessary changes to his behaviour and will serve towards his rehabilitation. [ 92 ] Finally, I hope that the sentence will provide some sort of reparation to the victim, particularly for the harm, both emotional and physical she suffered at the hands of the offender and also to promote a sense of responsibility in the offender. I also hope that the sentence will assist him in acknowledging the harm he has caused the victim. [ 93 ] In imposing sentence, I must keep in mind the principle of restraint set out by

section 718.2 (

d) and (

e) of the Criminal Code . I will add that were it not for this principle, the mitigating factors I have considered and the position taken by the prosecution in terms of the term of incarceration suggested, I would undoubtedly have imposed a more severe sentence. [ 94 ] In conclusion, considering the intermingling of all of the foregoing factors, I have come to the conclusion that a proper and fair sentence for the offender is that he be sentenced to a period of incarceration of 18 months with a term of probation of 30 months.

FOR THESE REASONS, THE COURT: SENTENCES the offender to serve a term of imprisonment of 18 months to be served concurrently for each count. DIRECTS the offender to comply with the following conditions of a probation order for a period of 30 months following his release from custody: 1. Keep the peace and be of good behaviour; 2. Appear before the Court when required to do so, inform 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 having in his possession any weapons or imitations of weapons;

4. Abstain from communicating with the victim D.K. either directly or indirectly 5. Abstain from being in a radius of 50 metres of her domicile/residence, place of employment or wherever she is attending school. ORDERS that the offender provide a sample of a bodily substance that is required for the purpose of forensic DNA analysis by virtue of

section 487.051 (

i) of the Criminal Code ; ORDERS that the offender be prohibited from possessing any prohibited firearm, crossbow, prohibited weapons, restricted weapons, prohibited devices, ammunition, prohibited ammunition, and explosive substance ( section 109(1) (

d) Cr.C ); - For life, for the weapons listed in section 109(2) (

b) Cr.C ; - For a period of 10 years starting from the offender’s release from custody, for the weapons listed in section 109(2) (

a) Cr.C . ORDERS that the offender not communicate, directly or indirectly, with the victim during the custodial period of the sentence (

section 743.21 Cr.C .); ORDERS that the offender pay the victim surcharge provided by section 737 (2) (b) (ii) of the Criminal Code . __________________________________ , MANLIO DEL NEGRO, J.C.Q. M e Christine Desjarlais For the Prosecution M e Louis Peter Morena For the Offender Date of hearing: February 22 nd ,2021 [23] R. c. Jean-Sébastien Cormier , 2021 QCCQ 2527 .