2022 QCCQ 61, 2022 QCCQ 61

R. c. Vasquez Martinez 2022 QCCQ 61 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF LAVAL CITY OF LAVAL « Criminal division » N°: 540-01-087562-180 DATE : January 11, 2022 ______________________________________________________________________ BEFORE JUSTICE MARC-ANDRÉ DAGENAIS, C.Q. ______________________________________________________________________ THE QUEEN Prosecution v. JONATAN MANUEL VASQUEZ MARTINEZ Accused ______________________________________________________________________ Judgment on sentencing [1] ______________________________________________________________________ I.

INTRODUCTION [ 1 ] The offender Jonatan Enrique Vasquez Martinez plead guilty to the following offences : - Between November 1, 2018, and December 15, 2018, to have uttered threats; - Of having, during the same period, committed a number of assaults and - Of having, on December 15, 2018, committed an assault causing bodily harm. [ 2 ] In all instances, the victim was the offender’s girlfriend at the time. It is now the Court’s duty to determine the appropriate sentence to be imposed on the offender.

Gravity of the crimes [ 3 ] At the time of the offences, the offender and the victim formed a union Their relationship was relatively new, going back only a few months. That relationship can be described as toxic, involving many recurring arguments. Those arguments sometimes turned violent. The offender uttered threats and at various times chocked and hit the victim. Both parties agreed not to specify, at the time of the guilty pleas, the number of assaults or the exact content of the threats covered by the first two counts. [ 4 ] On December 15th, both parties were the offender’s house. A fight broke out.

That fight turned out to be the last one following the police involvement. The offender hit the victim with his fist on her forehead, causing a bump that was visible for multiple days, hence the guilty plea on the count of assault causing bodily harm. [ 5 ] At sentencing, the Crown put into evidence pictures of the victim [2] showing that said bump, but also multiple abrasions and bruises on her arms, legs buttocks and face. Impact of the crimes on the victim [ 6 ] At the hearing where the offender entered his guilty pleas, the victim asked to address the Court.

In a testimony that was at times esoteric, she described the impact of the crimes on her. [ 7 ] She testifies that she’s not afraid of the accused, in the same way that she’s not afraid of anyone “on the planet or in the Universe”. She says that she had multiple flashbacks of the events, especially the last one. She mentions that she suffered a double fracture of her frontal bone from the assault, but that information seems quite far-fetched and not based on any medical documentation.

Moreover, she states that she’s not interested in having new relations with men, feeling she has been abused in many spheres of her life. [ 8 ] She mentions she does not often think about the crimes. She can’t say how long the bruises were apparent. She mentions she did not have any financial impacts.

Profile of the offender [ 9 ] The offender is a man who is now 27 years old but who was 23 at the time of the offences. He was born in a small village in Honduras and came to Canada as a refugee in 2012, when he was 17 years old. He became a permanent resident of Canada in 2017. [ 10 ] He lost his biological mother when he was 8 months old and was raised by his grandmother and his aunt, who adopted him and who now lives with him in Canada. He was diagnosed with social anxiety and ADHD, for which he still takes some medication. He is on a waiting list to be re-evaluated by a psychiatrist.

He left Honduras following the kidnapping of his adoptive mother by a criminal group, for which a ransom was paid. She testifies before the Court that the offender has always lived with her and still does. He financially contributes to the household. [ 11 ] In Canada, he did his francization classes, then went to college. He stopped his collegial studies for financial reasons and worked for two years. [ 12 ] The offender has been a biochemistry student at Concordia University since the winter semester of 2017. His ambition is to work in the pharmaceutical industry.

A brief analysis of his student record [3] shows an uneven university path, marked with bad grades, unfinished courses and unattended semesters, but with new classes being attended during the fall 2020 and winter 2021 semesters. That path seems to reflect the personal difficulties that the offender testified to for 2017 and 2018 and that concluded in his previous record of driving under the influence in March 2017 and the crimes covered by this file. [ 13 ] He became involved with drugs and cannabis after coming to Canada, but before meeting the victim.

His adoptive mother describes a major change in the behavior of the offender once he started consuming. He stopped drinking completely in May 2020, after going to AA’s for nearly two years. His mother says he is now happy and joking again, and that the therapies he followed brought him back to how he was before then. [ 14 ] The pre-sentencing report mentions, in addition to what was testified to by the offender and his mother, that his anxiety became more important in 2016, after he was victim of an assault.

For the author of the report, the problems of the accused can be traced back to the problems he faced living in Honduras, his anxiety problems and his consumption of alcohol and cannabis. For the probation officer, his risk of reoffending would be low if he remains sober and continues the then-began therapy at McGill, a therapy he completed following the completion of that report. [ 15 ] The pre-sentencing report mentions that the offender attended AA meetings which is reflected by a log sheet where each session he went to is listed..

Between December 2018 and March 2020, he attended around 50 meetings. [ 16 ] A report from the McGill Relational counselling clinic and anger management center [4] , dated December 8, 2021, mentions that the offender completed a 15-session program at that center, starting in May 2021. The author reports that he showed “a tremendous level of growth and reflection and made great progress in developing new perspectives on both himself and his life.” He was also reliable and committed to each session, appreciated by other participants and an active group leader.

The author says that he was impressed by his willingness to be vulnerable as well as his thoughtfulness. He also participated, two years earlier, in the awareness session from the CHOC organization. [ 17 ] The offender testifies that his positive involvement in the McGill clinic made him a good case to be used in a CBC report on the clinic and its impacts. That radio report, during which the offender is featured, is played for the Court. During his interview, the offender reiterates that he is not proud of what he did and wants to prove he would not do it again.

He describes the functioning of the sessions and mentions that he enjoys participating in them. In testimony, he mentions he participated in the interview to be a good influence on others. [ 18 ] During his testimony, the offender relates how his relationship with the victim quickly evolved in a toxic relationship, based on consumption, and interfering with his studies. He says the victim was not happy with him becoming distant, then says he made the mistake of continuing in the relationship instead of cutting it off. In his mind, it is that mistake that lead him to become violent with the victim.

He testifies that he mishandled his relationship, digging his own hole. At that point in time, he says he was under the influence most of the time. He read to the Court an apology letter he wrote for the victim. [ 19 ] He also testified that the judicial process was stressful for him but made him more aware of his irresponsible actions, both in general and specifically towards the victim.

Positions on sentencing [ 20 ] At the start of pleadings, the Crown mentions that it takes into account the positive profile of the offender and the many efforts he put into his rehabilitation efforts to propose, instead of 4 to 5 months detention order, a 90-day jail term accompanied by a 3-year probation order including a 2-year follow-up. [ 21 ] The offender pleads to the Court that his case, because of his profile, attenuating circumstances and immigration concerns, is one of exception calling for a measure outside the usual sentencing brackets applicable for similar crimes.

He suggests a conditional discharge, adding 240 hours of community service to the proposed three-year probation. Governing sentencing principles [ 22 ]

Section 718 of the Criminal code mentions that 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. [23]

Section 718.1 stipulates that a sentence must be proportionate to the gravity of the offence and the degree of responsibility ofthe offender. [24] Those fundamental principles have been analyzed thoroughly in case law to explain how they must be applied in specificcircumstances. [25] Primarily, in matters involving domestic violence, the superior courts have, for a long time, mentioned that the principles ofdenunciation and deterrence must take the forefront.

In Davidson, the Appeals Court of Quebec says : “Moreover, the Court has emphasized on several occasions the added weight that must be given to the objectives of denunciation anddeterrence in the context of domestic violence.

Indeed, sentencing in these matters pursues two main imperatives: to denounce theunacceptable and criminal character of domestic violence and to enhance the confidence of the victims and the public in theadministration of justice.”[5] [26] In that case, the Court adds : “Moreover, even when an accused shows encouraging signs of rehabilitation, the objective of rehabilitation should not take precedenceover the objectives of deterrence and denunciation in matters of domestic violence.

As Rousseau-Houle, J.A., wrote: […] si la réhabilitation demeure un facteur important dans la détermination de la peine, elle ne doit pas, surtout dans un contexte deviolence conjugale, prévaloir démesurément sur les facteurs de dissuasion et d'exemplarité de la sentence. Madame la juge Wilson dansR. c. Lavallée, (CSC), [1990] 1 R.C.S. 852, à la page 872, a rappelé "qu'il est difficile d'exagérer la gravité, voire latragédie, de la violence domestique.

L'attention accrue portée à ce phénomène par les médias au cours des dernières années a faitressortir aussi bien son caractère généralisé que ses conséquences terribles pour les femmes de toutes les conditions sociales".[6] [27] In Pham[7], in 2013, the Supreme Court determined that the judge tasked with imposing a sentence to an offender can take intoaccount the indirect impacts of the proposed sentence on the immigration status of the offender, so long as the sentence remainsproportional to the gravity of the infraction and the responsibility of the offender.

However, those immigration considerations cannottrump all other sentencing principles or become the main concern of the judge’s exercise, either in favor or against a territory ban. Thejudge can also find that any reduction of sentence based on those concerns would render the sentence inappropriate and discard thatconcern entirely. [28] In Reyes[8], justice Cournoyer of the Superior Court – as he was then – indicated that the specific immigration consequencesfor an offender do not require specific evidence since they are the result of the simple application of the law.

In the case under study,despite that fact, the offender provided the Court the legal opinion of a legal aid counsel specialized in immigration questions[9].

Fromits reading of the law and that opinion letter, the Court retains the following legal conclusions: - The previous record of the offender has no bearing on his immigration status in Canada; - Any sentence over 6 months of detention on a particular offence would result in him being inadmissible in Canada; - If the offender was to receive anything but a discharge on the count of assault causing bodily harm, he would be declaredinadmissible under the serious criminality clause; - If that was the case, unless one of the sentences was of 6 months or more of detention, he would maintain his right to appeal hisdeportation; - However, the offender being a refugee would result in the deportation order and revocation of his permanent residency not beingimmediately applied unless the minister would issue an order in that sense.

The loss of his admissibility in Canada would, however,hinder his chances of gaining back his permanent residency for a period of many years, and his eventual citizenship, and his employmentpossibilities, having to work under a work permit. - The delays to obtain such permits are quite long, putting any study or work opportunities in jeopardy; - He would have to pay university tuition for international students; - He would finally have to ask for a travelling permit to go outside of the country.

Aggravating circumstances [29] Under that column, the Court finds the following items are proven beyond a reasonable doubt : - The objective gravity of the offences, one having a maximum sentence of 10 years of detention - The prior record of the accused involving one count of impaired driving.

- The fact that the offender abused an intimate partner, as codified in

section 718.2 a (ii) of the Criminal Code . - The fact that the acts of domestic violence were done while intoxicated, an aggravating factor mentioned in Regimballe [10] and more recently in Af Strom [11] and Ivlev [12] . [ 30 ] However, in the circumstances of this case, where the offender and the victim were not living together and had been together only a few months, the Court fails to see how the offender abused a position of trust or authority on the victim as mentioned in

section 718.2 (a)(iii). Mitigating circumstances [ 31 ] Under that section, the Court takes into account the following elements : - The guilty pleas ; - The completion of therapies for both alcohol consumption but also domestic violence ; - The involvement of the offender in trying to help others caught in the domestic violence spiral, either during his therapy at McGill but also by participating in the CBC report ; - The expression of remorse and regret that the Court qualifies as sincere.

The Principles applied [ 32 ] In opening, the Court finds it important to state that domestic violence is a scourge on society that should always be condemned. While that societal problem is certainly not new, in the last decade, the tolerance for it has diminished and the rising penalties imposed on accused declared guilty of related crimes by the legislator and the courts have reflected that shift in the public’s perception. [ 33 ] The impacts on victims of domestic violence crimes are often important and quite apparent.

For others, those crimes are insidious, having long-term effects on their ability to be in a relationship and lead a normal and happy life. [ 34 ] It is true that the accused did not plead guilty early in the process, that a preliminary inquiry was held, and that the victim had to testify during that hearing.

He therefore cannot benefit entirely of all the positive consequences usually attributed to a guilty plea, specifically the fact that the Court’s time was made available for other matters or that the victim did not have to come to Court to testify. [ 35 ] Current counsel for the offender mentions that his position as per the preliminary inquiry, the time needed to plead guilty and, more generally, his position in the file, was in large part due to the revolving attribution of his file to legal aid lawyers, and their different view of the file, diminishing the offender’s own role in the matter.

The Court is ready to accept part of that argument in that it is aware, as a permanent judge for the district of Laval, there have been many lawyer substitutions in the last two years at the Legal Aid’s office, based on job postings, parental leaves and other concerns, and that, without a say from them, the Legal Aid clients saw their file transferred from one lawyer to the next. [ 36 ] However, an offender is not entirely at the mercy of his lawyers and is always responsible, in part, with the legal strategies used to move his file forward.

In this case specifically, counsel for the offender pleaded that his wish was always to plead guilty. No explanation is given why it took him several years to bring that wish to completion, having plead guilty on the morning of the trial was to be held. [ 37 ] During pleadings, the Crown mentions that the assaults happened almost daily.

The evidence before the Court, meaning the facts agreed to by the accused at the time of the pleas, does not reflect such a characterization of the gravity of the crimes, and the plaintiff mentioned during her testimony on the consequences of the crimes that she was assaulted “more than three times”. If the Crown wanted to bring to Court to consider a repetitive pattern of violence on that scale, it should have elected either to enter it in the joint statement of facts or prove it beyond a reasonable doubt during the sentencing hearing.

The same is true of the threats uttered and covered by the first count. [ 38 ] As the evidence before me now stands, the Court is not ready to follow the Crown’s proposition that the gravity of the crimes necessarily involves a detention order. Its characterization of the impact of the crimes on the victim also does not reflect what she said to the Court. Indeed, while the victim requested jail time for her aggressor, she did not mention that she was traumatized or even seemed to be during her testimony.

On the contrary, probably strong from her beliefs, she seemed to have very few long-term consequences from the assaults, mentioning only a distrust in men and some flashbacks. [ 39 ] The Crown also objects to a discharge based on the fact that the events for which the offender plead guilty were not punctual but continuous in time.

Keeping into account the previous remarks concerning the facts agreed upon when the pleas were entered, the Court finds the argument of the offender on that subject compelling, meaning that the alcohol problem he suffered was also continuous and that his therapies addressed all the issues that caused the current crimes but also his prior conviction. [ 40 ] The Crown chose not to support its position with precedents other than the decision of this Court in Paulino Mercedes [13] , in which justice Cimon refused to grant a discharge to an offender declared guilty of three domestic violence events.

That case can be distinguished on the facts, the offender not pleading guilty, not expressing remorse or regrets, and committing one of the assaults in front of the couple’s child and in the family’s home. [ 41 ] To support his position, the offender provides the court with a series of decisions in which a discharge was granted in domestic violence cases. Those decisions are of very little help since they are in most cases dated, that they mostly involve unique events of lesser gravity, or they do not involve immigration concerns.

The Court retains from the decisions submitted that, even in cases of domestic violence, the granting of a discharge is still an option. That conclusion was, however, never in dispute and can be considered trite law.

[ 42 ] In Harbour [14] , the Court of appeal mentioned that we must remember that a conditional discharge leaves the offender under the supervision of the court. It mentioned, citing the Court of Appeals of Ontario in Meneses [15] : “ It is always to be borne in mind that a person who is granted a conditional discharge does not go scot-free after committing the offence. In this case the accused is subject to the terms of the probation order, and in the event that the terms of the probation order are met, she will have earned her discharge.

If the terms are not met she may be brought back and sentenced for the offence, and a conviction will be recorded against her.” [ 43 ] Those principles were again mentioned a few weeks ago by the Quebec’s Court of Appeal in Sadak [16] in the following terms : « [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’une discrétion 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 obstacle de 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 juge Rothman dans l’arrêt R. c.

Moreau, c’est-à-dire que même en présence d’un crime à forte prévalence dans la communauté, la dissuasion générale n’est qu’un facteur et chaque cas doit être évalué à son mérite. [93] Autrement, les tribunaux créeraient des exclusions là où le législateur n’en prévoit pas tout en créant un danger réel que la peine devienne une réponse au crime uniquement plutôt qu’une peine juste et proportionnelle au crime et au délinquant. [29] Le critère de l’intérêt public commande par ailleurs une prise en compte de la gravité de l’infraction à la lumière des circonstances de l’affaire et, ultimement, un questionnement portant sur la confiance du public dans le système judiciaire si l’accusé devait être absous. » [ 44 ] As is often mentioned, community work is often described as an alternative measure to a detention order.

Justice Healy, when he was sitting in this Court, mentioned in Cherchar : « [Les travaux communautaires] représentent une alternative à l'emprisonnement dans le sens qu'une prestation constructive par le délinquant répond adéquatement aux objectifs de dénonciation et de dissuasion sans son isolement. Les travaux communautaires visent à sensibiliser d'une façon constructive la responsabilité du délinquant. Dans ce sens cette option est entièrement compatible avec l'injonction du Parlement de ne pas ordonner l'emprisonnement à moins que ça soit nécessaire.

Les conditions imposées dans le cadre d'une ordonnance de probation doivent être raisonnables dans les circonstances en l'espèce et elles doivent viser à la fois la protection de la société et la réinsertion sociale du délinquant. Des travaux communautaires répondent à cette exigence. » [17] [ 45 ] In the case under study, the Court has in front of it a rarely seen and quite clear demonstration of a completed rehabilitation.

The profile of the offender is, in the mind of the Court, quite different to the one described in Davidson by the Court of appeal, where the rehabilitation was found to be incomplete and based on, for lack of a better English expression, “la pensée magique”. [ 46 ] In his expression of remorse and regrets, that can be qualified as sincere and hearth-felt, never does the offender try to blame his victim for his own actions. He also involved himself in two therapeutic measures to confront his problems of alcohol consumption and violence, looking to help others in the process.

That demonstration is not only founded on the testimony of the offender, but also on documents showing his participation in the therapies, the opinion of a person in charge at the McGill clinic, the CBC interview exhibited in court, the fact that the offender did not reoffend during the three years this case has been going on and especially the testimony of his adoptive mother, who describes in all sincerity the ways in which the offender came back to his normal self after those therapies. [ 47 ] Based on the previously mentioned principles, a long probation order including the execution of community work at the maximum limit imposed by the Criminal code meets all the objectives still in play at this time, including the denunciation of the offender’s crimes, while still promoting his rehabilitation, and the protection of the victim.

The objectives of dissuasion are clearly already achieved in the case of the offender. [ 48 ] The Court takes into account the usual calculation that 40 hours of community service can be considered equivalent to a month of detention. [ 49 ] Considering that conclusion, the jump from a suspended sentence, which would otherwise be the applicable sentence, to a conditional discharge for the purposes of taking into account the immigration considerations mentioned earlier, does not render that measure artificial and inappropriate.

There is no question that, based on the foreseeable immigration consequences, it is in the offender’s best interest to be granted a discharge. That leaves the question of the public interest. Based on the facts of this specific case and the previous conclusions of the Court concerning the demonstrated rehabilitation of the offender, the only way to conclude that it would be against the public interest for him to be granted a discharge would be to conclude that, in any circumstances, a conjugal violence case would necessarily exclude such a measure.

As mentioned previously, such a conclusion would be contrary to principles applicable in similar matters. [ 50 ] In closing, and as mentioned previously, the offender must remember that the discharge granted today is conditional to him following the conditions that must be seen as a Damocles sword hanging over his head for the next three years. If he was to break a condition or fail to comply with them, he would be brought back before me so that I could, following section 730(4) of the Criminal Code , impose the sentence that would otherwise could have been imposed today.

For those reasons, the Court conditionally discharges the offender, the condition being a probation order for a period of three years, with a two-year follow-up, with the following conditions : - Keep the peace and be of good behavior;

- Appear before the Court when required to do so; - 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; - Abstain from communicating, directly or indirectly, with Marie-Valerie Bacon; - Not be in the physical presence of Marie-Valerie Bacon; - Not harass, bother, molest, or spy on Marie-Valerie Bacon; - Not refer directly or indirectly to Marie-Valerie Bacon on any social media; - Not be in a 100-meter radius of the home, the workplace, and the place of study of Marie-Valerie Bacon; - Report to a probation officer within two working days after the coming into force of the probation order and thereafter when required by the probation officer and in the manner directed by the probation officer for two years; - Expressly refrain from possessing, carrying, or acquiring weapons following the condition set forth by the probation form; - Refrain from using any alcohol or other intoxicating substances or having in his possession; - Refrain from using drugs or other intoxicating substances or having in his possession except in accordance with a validly obtained medical prescription; - Follow the probation officer’s instructions or any different intervening person indicated by this one concerning any therapy for a substance abuse problem or a violence problem; - Perform 240 hours of community service within 15 months and comply with the terms of performance indicated by the probation officer or any caseworker designated by the probation officer; - Sign this probation order without delay. [ 51 ] Without a surcharge considering the dates of the offences and the Supreme Court’s decision in Boudreault . __________________________________ Marc-André Dagenais, J.C.Q.

Me Jessica Bergeron Crown attorney Me Stéphanie Abi-Najem Attorney of the Defendant Date of hearing : March 19, 2021