2019 QCCQ 8467, 2019 QCCQ 8467

R. c. Viger 2019 QCCQ 8467 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF TERREBONNE TOWN OF SAINT-JÉRÔME Criminal Division No: 700-01-165673-180 DATE: OCTOBER 21 st, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE KATHLYN GAUTHIER, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v.

JEAN-KARL VIGER Accused ______________________________________________________________________ JUDGMENT ON THE SENTENCE ______________________________________________________________________ [ 1 ] The accused pleaded guilty to uttering threats to cause death or bodily harm to his spouse over a period of a year and a half. Essentially, the joint statement of facts is : [ 2 ] Between January 1, 2017, and May 18, 2018, the accused uttered threats in a continuous way against his spouse.

The frequency of these threats increased from once a month at the beginning to twice a month and more at the end. [ 3 ] During the victim’s pregnancy, the accused threatened to take the baby away and kill her. [ 4 ] The frequency of the threats increased after the baby was born. The accused threatened to kill and harm her. He also threatened to send some of his military friends to kill her. He said that he would kill her and try to make it look like a suicide or an accident. He threatened to paralyze her. He also threatened to hit her on places on her body that would not show.

The accused said that he would hit her with a phone book and said that a restraining order is just a piece of paper that will not prevent him from killing her. [ 5 ] The accused regularly threatened to take the baby away from the victim. He was verbally abusive, contemptuous and intimidating. She lived with the constant fear of dying and for the safety of her child throughout this period.

POSITIONS OF THE PARTIES [ 6 ] The Crown prosecutor submits that a sentence of 4-months’ imprisonment is necessary, followed by 3-years’ probation, with credit for pre-trial custody of 12 days. [ 7 ] The defence agrees with the probation and suggests community work, but instead asks that the accused be given a conditional discharge. [ 8 ] The Crown prosecutor challenges that a discharge is in the accused's best interest and argues that it would be contrary to the public interest given the conjugal context.

THE ISSUE [ 9 ] The issue is whether a discharge under section 730(1) of the Criminal Code is in the best interests of the accused and not contrary to the public interest. [ 10 ] The Court must also decide on the accused’s motion of unlawful detention and imposition of minimum sentence under section 503(1) of the Criminal Code and sections 7 , 9 and 24(1) of the Canadian Charter of Rights and Freedoms . [ 11 ] The motion alleges that the accused was detained for more than 24 hours contrary to section 503(1) of the Criminal Code .

EVIDENCE DURING THE SENTENCING SUBMISSIONS The probation officer [ 12 ] Ms. Karine Leduc Simard, who prepared the presentence report, confirmed that the two meetings with the accused in order to prepare the report were conducted in English. During her testimony, the Court observed that the officer's English is adequate.

Therefore, the Court finds that the officer's clinical analysis of the accused's criminality was in no way impaired by a problem of communication between her and the accused. [ 13 ] The fact that the accused challenges the conclusions of the report is another matter and the Court will come back to it. [ 14 ] The probation officer said: Afterwards, in reaction to the offense, the subject acknowledged that this remarks were inappropriate. He says he is ashamed of having used threats as a means to manipulate his former spouse.

It appears that his relationship with her deteriorated once the couple decided to move in together, at wich time she changed, according to him. He says that she was depressed and that she was emotionally and behaviourally unstoppable. It is his understanding that the recurring conflict, the financial pressure, the victim’s threats of suicide and the disruptions caused by the birth of their child contributed to him committing the offending acts. He then said that using threats would put an end to the couple’s arguments.

He also added that the victim’s threats of suicide caused him to relive repressed emotions related to the suicide of a close friend when he was 30 years old. In insight, he believes he was in a toxic relationship, in which he was unable to set boundaries. He believes he wanted to act as a victim’s saviour. With the work he has done in therapy, he says he is now better able to recognize his emotions, needs and limits. Heapparetly sought help from his parents at the time he committed the offending acts, but he says they did not grasp the seriousness of the situation.

In his view, there is no risk that he will reoffend . [ 15 ] The probation officer’s assessment and recommendations are for this purpose: • Mr. Jean-Karl Viger cooperated appropriately during the presentence assessment. He answered all the question he was asked. His remarks seemed manipulative, however, and some doubt remains as to his sincerity. He nevertheless provided the proof requested and gave us access to resource persons from his circle. • From a criminological perspective, several factors appear to have contributed to the subject’s criminality.

First, the presence of stressors, instability and dissatisfaction within the couple seem to have disrupted the subject’s problem solving abilities. These events also contributed to conflicts at work and financial instability. This chain of events appears to have kept the offender in a vicious circle.

Moreover, from the offender’s remarks and the documents consulted, we have noted that he places importance on appearances, which may have made it difficult for him to seek professionnal help at that time. • It should be noted that the documents consulted reveal the presence of indicators strongly resembling conjugal violence. • The type (seriousness) of the threats and a certain element of preparation (hurting the victim in places that would not show) suggest violence that is firmly established rather than situational, as the subject claims. • Today, Mr.

Viger shows some increased awareness of the factors that contributed to him committing the offending acts. However, although he is able to identify some problematic elements, he tends to blame the victim. We also note a certain denial of responsibility, but especially many justifications. The actual understanding of the basis of his behaviour therefore seems biased. The answers the subject provides to questions concerning violence remain vague.

While he has started a therapeutic process and shows an interest in improving his general knowledge, these steps appear rather utilitarian to us and seem extrinsically motivated. • We are of the view that a psychiatric assessment could shed some light on a possible diagnosis. Mr. Viger’s insight regarding the violence he committed still needs to be worked on. We believe that participation in a specialized conjugal violence program is essential. It should be in a group, face-to-face setting, rather than online, so that his issues can be confronted more directly.

We must also add that the offender’s circle does not appear to have been able to act as a protective factor at the time he committed the offending acts. • We cannot rule out all risk of recidivism in regard to similar offences . The recording, dated April 15, 2018 [ 16 ] This recording, which lasts approximately 30 minutes, demonstrates a disconcerting calm on the part of the accused. His monotonal speech is a monologue of threats, malice and denigrating remarks about the victim. The victim [ 17 ] She testified that she met the accused in 2015.

Following a back injury, she was his patient as he is a nathurotherapist. They became a couple at the end of fall 2015. They became engaged in July 2016 and moved in together. The accused was very nice at the beginning of their relationship. [ 18 ] He started controlling her finances and her comings and goings after she fell pregnant in September 2016. Things evolved mid-pregnancy. Their relationship became tense and the threats started. She gave birth in May 2017 and the relationship deteriorated very quickly. He also isolated her from her parents. [ 19 ] She mentioned that she was completely submissive to him.

For example, when she disagreed with his spiritual thoughts and belief that angels were talking to him, he threatened her.

[ 20 ] She was emotional during her pregnancy, so even though she was very scared, she stayed with him. She waited to have proof. She was afraid that nobody would believe her. He was a good manipulator, so she sometimes thought that she was the mean person. [ 21 ] When she left the accused in June 2017, she went to the police station to press charges against him. Then, she went to a battered women’s shelter with her baby for approximately 2 weeks. [ 22 ] She went back to work as a nurse a month after she left him.

She is still afraid of him and still has nightmares. [ 23 ] [...]. [ 24 ] He has not contacted her since his arrest. The accused [ 25 ] He is 37 years old and returned to live with his parents after his release from court. He is a self-employed naturopath and a member of the Quebec Nathurotherapist Association. [ 26 ] Since he was arrested at his office in a small community, he has lost his practice.

He is trying to rebuild his practice in Alexandria, Ontario and in Rigaud, Quebec. [ 27 ] He also said that he has lost everything; [...], his wife and his house. [ 28 ] He said that his conditions of detention were very difficult; some detainees believed that he was a police officer. During his detention, he received death threats. [ 29 ] Regarding his reaction to the offence, his testimony reflects what he told the probation officer. He pointed out that he became mentally unwell when faced with the increasingly heavy responsibilities of this difficult relationship.

He said that he acted horribly and had no reason to have acted like that. [ 30 ] Between June 2018 and April 2019, he participated in nine psychology counselling sessions. He stated that he is continuing those sessions but less frequently now because it is hard financially. He clarified that he wanted to understand and make sure that those events will never happen again. His psychotherapist noted that the accused cooperates well. The current sessions focus on the management of emotions and parenting skills. [ 31 ] He also participated and completed four online educational workshops, starting in June 2018.

In total, he has completed 18 lessons on Anger Management, 12 lessons on Co-parenting and Divorce Education, 12 lessons on Domestic Violence and 12 lessons on Parenting. Each lesson lasted one hour. [ 32 ] He acknowledged that his letters of reference were mainly from the members of his family and they do not know all the allegations against him and that they date back one year. [ 33 ] He denied believing in angels and said that it is the victim who had these beliefs. [ 34 ] The Association’s Code of Ethics provides at

section 11.6: The nathurotherapist will inform the Association if he or she is the subject of an investigation, of a judiciary decision, of a disciplinary decision of a professional order or of any other professional Association. [ 35 ] One of the eligibility criteria of the Association is to have no criminal record and one of the consequences of not being a member of the Association is that he will not be able to provide insurance receipts to his clients. Therefore, it would be extremely difficult to rebuild his clientele.

He registers every year and some verifications are made. [ 36 ] He has not informed his association of his guilty plea. The accused’s father [ 37 ] He testified that 3 weeks before his son was arrested, he told him that he was having trouble in his relationship. He did not realize how serious it was and hoped that there would be time to work on it. [ 38 ] His son has been living with him and his wife (the accused’s mother) since his release. He noticed that his son is now very sad. He had never heard the audio recording and did not know all the details and the frequency of the threats.

He was shocked. [ 39 ] He believes that what his son did is unacceptable and believes that he is trying to help himself to make sure those things will never happen again. THE FACTS REGARDING THE ARREST AND DETENTION [ 40 ] The accused was arrested at his office at 8:33 p.m. on May 18, 2018, in Hawkesbury, Ontario. [ 41 ] He committed indictable offences in the province of Quebec.

[ 42 ] On May 19, 2018, an affidavit was signed by Jocelyn Lessard, a police officer for the town of Hawkesbury. This affidavit was presented to Justice of the Peace Karen Baum of the Ontario Court of Justice. On the same day, the latter signed a remand under section 503(3) of the Cr. C. Therefore, there was a period of up to six days to execute a warrant for his arrest. [ 43 ] On May 23, 2018, an arrest warrant was issued by Presiding Justice of the Peace Gaby Dumas of the Court of Quebec.

The accused was charged with six (6) counts concerning the events for which he was detained in Ontario, all of which are indictable offences. [ 44 ] On May 24, 2018, Justice of the Peace Girault of the Ontario Court of Justice endorsed the warrant for that file.

On the same day, at 11:49 a.m., the Sûreté du Québec executed the warrant against the accused in Ottawa and transported him to the Lachute police station where they arrived at approximately 1:40 p.m. [ 45 ] The accused’s rights were read to him at 1:41 p.m. and he contacted Me Stéphanie Basso between 1:42 p.m. and 1:44 p.m. [ 46 ] His file was on the docket in room RC-02 of the St-Jérôme courthouse on May 24, 2018. Me Marie-Philip Tremblay represented the accused in the courthouse at 14:46 p.m.

Given his absence, the arraignment and the bail hearing were postponed to May 25, 2018, at 9:30 a.m. [ 47 ] The accused was brought to the St-Jérôme courthouse on May 25 at approximately 10:30 a.m., and at 2:56 p.m. he appeared in front of the Honourable Sophie Lavergne of the Court of Quebec. It was the last file remaining on the docket due to Me Basso’s late arrival. [ 48 ] The accused was released on a recognizance of $500 without a deposit. Ten (10) specifics conditions were included in the recognizance.

Most notably, the accused had to make an appointment to undergo a psychological evaluation and provide proof of the steps taken to do so. THE PRINCIPLES OF ARREST AND DETENTION AND ANALYSIS [ 49 ] The accused was initially arrested on May 18, 2018, under section 503(3). He was arrested without a warrant in Ontario for indictable offences committed in Quebec. [ 50 ] Section 503(3) of the Cr.

C reads as follows : Where a person has been arrested without warrant for an indictable offence alleged to have been committed in Canada outside the territorial division where the arrest took place, the person shall, within the time prescribed in paragraph (1)(

a) or (b), be taken before a justice within whose jurisdiction the person was arrested unless, where the offence was alleged to have been committed within the province in which the person was arrested, the person was taken before a justice within whose jurisdiction the offence was alleged to have been committed, and the justice within whose jurisdiction the person was arrested.

a) If the justice is not satisfied that there are reasonable grounds to believe that the person arrested is the person alleged to have committed the offence, shall release that person; or

b) If the justice is satisfied that there are reasonable grounds to believe that the person arrested is the person alleged to have committed the offence, may

i) remand the person to the custody of a peace officer to await execution of a warrant for his or her arrest in accordance with

section 528, but if no warrant is so executed within a period of six days after the time he or she is remanded to such custody, the person in whose custody he or she then is shall release him or her; [ 51 ] The remand signed by Justice of the Peace Baum was filed in evidence, therefore proving that the arrest was done in accordance with section 503(3) Cr. C. and that he appeared before her. [ 52 ] The Ontario provincial police acted rightfully by taking the accused before a justice of the province of Ontario in accordance with section 503(3) Cr. C.

The evidence demonstrates that this procedure was done within the first 24 hours of his arrest, respecting section 503(1) Cr. C. [ 53 ] Pursuant to section 503(3)(

a) Cr. C., the justice has discretion to determine if there are reasonable grounds to believe that the person under arrest committed the alleged offence. Justice of the Peace Baum rightfully determined that that was the case. [ 54 ] The conclusion of Justice of the Peace Baum allowed her to remand the accused for a period of six days following her decision in accordance with section 503(3)(

b) Cr. C. Therefore, the Sûreté du Québec had until May 25 to execute the warrant in accordance with

section 528 Cr. C. [ 55 ] The remand was not challenged by the accused and is therefore presumed lawful. [ 56 ] Indeed, no evidence has been produced allowing the Court to doubt the veracity of the document. The defence submits that the accused was not brought before the justice either by phone or in person. The testimony of the accused is not, however, to that effect. [ 57 ] He said that he did not remember being brought before a justice while he was detained in Ontario, either by phone or in person. He did not say that he was not brought before a justice.

[ 58 ] It is worth noting that the accused also testified that he did not remember speaking to a lawyer while he was detained in Lachute, whereas the accepted evidence is that he spoke by phone with Me Basso. The Court did not grant any reliability to this part of the accused’s testimony. [ 59 ] The defence invites the Court to conclude that the justice in Ontario signed the remand in the absence of the accused and without any foundation.

The legal document filed under exhibit S-3 is counter to that evidence and, despite the verifications of the defence, no evidence contradicted this document. [ 60 ] It is useful to recall that the document reproduces the text of section 503 (3) Cr. C, including: “the person was taken before a justice” and right next to this phrase, the justice affixed her signature by authorizing the referral.

The Court must take as proven that if the justice signed the referral, it was in accordance with the text and thus the accused was before her. [ 61 ] The evidence demonstrates that a warrant was endorsed on May 24 in accordance with

section 528 Cr. C. The execution of the warrant for the accused was done on the same day by the Sûreté du Québec and therefore allowed in Ontario. The Sûreté du Québec respected in entirety the requirements of section 503(3) Cr. C. [ 62 ] The accused was arraigned at the St-Jérôme courthouse on the afternoon of May25. [ 63 ] The prosecution has discretion to consent to bail for any accused. One of the negotiated conditions was to undergo psychological treatments. This condition cannot is not included under section 503(2.1) Cr. C. [ 64 ] For those reasons, the Court dismisses the accused’s motion.

THE GENERAL PRINCIPLES OF SENTENCING [ 65 ] The general principles of sentencing are found in sections 718 and following of the Criminal Code . [ 66 ] The Code provides 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. Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, shall be deemed to be aggravating circumstances; [ 67 ] In a context of domestic violence, the objectives of denunciation and deterrence are particularly pressing.

The rehabilitation factor, however, remains relevant. [ 68 ] The fact that a person takes the necessary measures to control his violence must be taken into account as a mitigating circumstance. [ 69 ] The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

The Court must individualize the sentence and not punish the crime but the offender who committed it. [ 70 ] Finally, in addition to listing the aggravating and mitigating circumstances to be taken into account, Parliament provides for similar sentences for similar offences in similar circumstances and the obligation to consider other alternatives before considering deprivation of liberty.

THE CONDITIONAL DISCHARGE [ 71 ] A conditional or absolute discharge is available under section 730(1) of the Criminal Code and requires that the offence for which the accused pleaded guilty or was convicted does not provide for a minimum punishment or an offence punishable by

imprisonment for fourteen years or for life.

Here, these basic conditions are met. [72] In addition, under the provisions of section 730(1) of the Criminal Code, the court must consider that it is in the best interestsof the accused, and not contrary to the public interest, before granting the discharge. [73] In this public interest analysis, the court must consider the objectives of general denunciation and deterrence, the seriousnessof the offence, its impact on the community, the attitude of the public towards the offence and the maintenance of public confidence inthe justice system. [74] Vauclair J.A. in Harbour, 2017 QCCA 204 recalled that: [translation] [89] Conditional discharge includes the same mechanism by which the judge may revoke the discharge and sentence the offender for theoriginal offence in addition to any other sentence: s. 730(4) Cr.

C. [75] Vauclair J.A. referred to a suspension of sentence under section 731(1) (

a) which includes a mechanism by which thesuspension may be revoked at the request of the Crown if the offender commits a new offence. He concluded that this is an effectivemeasure. [translation] [90] I agree with the words of ubin J.A. in R. v. Meneses (1976), (ON CA), 25 C.C.C. (2d) 115 (C.A.O.): [12] It is always to be borne in mind that a person who is granted a conditional discharge does not go scot-free after committing theoffence. 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 aremet, she will have earned her discharge.

If the terms are not met she may be brought back and sentenced for the offence, and aconviction will be recorded against her. [91] The discharge provided for in s. 730 Cr. C. does not exclude any crime except those punishable by a minimum sentence or fourteenyears or more of imprisonment and is not, in the end, an exceptional measure • [92] The measure is even possible when the crime can be described as a "scourge". I readily adopt the words of Rothman J.A. in R.c.

Moreau, that is, even in the presence of a crime with a high degree of prevalence in the community, general deterrence is only onefactor and each case must be examined on its own merits:… [94] A discharge order is less of an answer when the crimes and the circumstances of their commission are serious:... [95] That said, on appeal, a discharge has been granted or affirmed even in situations that normally call for the objective of generaldeterrence and denunciation, such as sexual assault of a minor: Corbeil-Richard c.

R., 2009 QCCA 1201 (granted); R. c.Nadeau, 2013 QCCA 769 (confirmed); assaults causing injury: R. v. Burke (1996), (NL CA), 108 C.C.C.(3d) 360 (granted); R. v. Sorenson, (C.A.S.) (granted); or even influence peddling by a senator and drug trafficking:R. c. Cogger, (C.A.Q.) (granted); drug trafficking: R. c. Berish, 2011 QCCA 2288 (confirmed). • [96] Not surprisingly, these cases are very rare in the reported case law. This nonetheless demonstrates that the objective ofgeneral deterrence in the face of more serious crimes is not an obstacle to a discharge.

The circumstances surrounding their commissionare inseparable.

It is up to the judge to exercise his discretion, to evaluate everything, and to impose the sentence that he considers justand proportional... [97] While it is necessary to be sensitive to the reaction of a reasonable and well-informed person when assessing the public interest,…this sensitivity cannot lead the judge to refuse a sentence if it is appropriate… [98] A reasonable and knowledgeable person agrees with the principles outlined above and that the response to a conviction is variable. [76] In Laurendeau, 2007 QCCA 1593 the Court of Appeal states that: [translation] [18] When faced with a crime of domestic violence, while a conditional discharge is not excluded in principle, it will be indicated only incertain cases ... [19] The sentence imposed in domestic violence cases responds to two imperatives.

That of denouncing the unacceptable and criminalnature of domestic violence and that of increasing the confidence of victims and the public in the administration of justice. [77] In 2015, the Quebec Court of Appeal noted in Guerrero Silva 2015 QCCA 1334: [translation] [61]…that the seriousness of the phenomenon of spousal violence, an aggravating factor in any criminal offence, must receive aconsistent response from the courts. [72] …sentencing … includes a significant societal dimension. … Particularly with regard to cases of spousal violence, the objective ofdenunciation is appropriate namely to increase the confidence of the public in the justice system’s response to this crime. [78] In Lemonnier, 2014 QCCA 1492, the Court of Appeal reiterated the importance to be attached to the objectives of exemplarity

and denunciation in determining the appropriate sentence in marital matters: • [26] … Our society has no tolerance for violence, domination, manipulation or terror that one spouse decides to impose on the other.

Legislative provisions to raise awareness among judicial officers and the public attest to a concerted effort by the justice system to eradicate spousal or family violence. [27] The courts, …, have a duty, through the principles of sentencing that they apply, to denounce spousal violence and to generally and specifically deter all those who might be tempted to rely on this form of abusive control. [ 79 ] An overview of sentencing jurisprudence in a conjugal context demonstrates how varied the range is and how each case is different.

ANALYSIS [ 80 ] The offences for which the accused pleaded guilty were prosecuted by way of indictment and are therefore punishable by imprisonment for five years. [ 81 ] The Court considers the following mitigating factors: • The accused acknowledged the facts by pleading guilty to the offences; • The guilty plea shows some regret and remorse. The accused’s testimony showed that he was sincere when he said that for about a year, he has been getting help to have tools to make sure that he will never do this again.

The Court does not share the probation officer’s opinion about his remarks being manipulative; • The Court also does not share the probation officer’s opinion that he tends to blame the victim. The Court perceives instead that he is trying to understand and explain his actions. The Court is of the opinion that he accepts full responsibility. He said repeatedly that he was not doing well mentally; • The fact that the accused is an asset to society, in the sense that he has a job and seems to be providing for the financial needs of his child.

The Court will not hold against the accused the fact that he did not inform his association of his guilty plea. He is of the view, as his counsel argued, that he will wait for the final decision of the Court before facing the problems; • The accused recognizes his anger management problem and has begun therapy to become aware of, to equip himself and to avoid recidivism. The Court recognizes the efforts made by the accused, although he must be prosecuted in order to face his problem or so that it can at least be discussed with the competent person.

The Court disagrees with the probation officer's opinion that the accused’s therapeutic approach is utilitarian and based on an extrinsic motivation.

The Court’s opinion is that the accused really wants to take the means to avoid re-offending; • The accused has no criminal record and has complied with the terms of his agreement, particularly the prohibition against contacting the victim. [ 82 ] On the other hand, the Court considers the following as aggravating factors: • The offender abused his spouse or common-law partner; • The gravity and seriousness of the threats, the frequency and lengthy period of time; • The evidence that the offence had a significant impact on the victim.

The Court has heard that she is still afraid and had to deal with an unacceptable way of living. The Court adds that, from this perspective, the sentencing process must be fair and not driven by revenge. [ 83 ] In a situation like the crime committed in this context by this accused, the Court considers that the objectives of denunciation and deterrence must prevail. As previously said, however, the Court should not punish the crime but rather the offender who commited it. The hope of rehabilitation is real here. The Court has to assist in rehabilitating the accused.

It is realistic to believe that the accused can be well integrated into his community. [ 84 ] The evidence demonstrates an acceptable awareness by the accused of his actions. The Court believes that specific deterrence is gained and that is reassuring for the protection of the victim and the public in general.

The judicial process, particularly its conditions of detention, including the fact that he himself was the victim of threats, appears to have had a significant impact on the accused. [ 85 ] In this sense, the Court’s opinion is that the risk of re-offending is low. [ 86 ] The Court must also consider the sentence in its entirety, in particular, the period of 12 days of pre-trial detention that has already been served by the accused. [ 87 ] Taking into account this 12 days of pre-trial detention, the Court considers that a reasonable and well-informed person would find that it is an appropriate sentence, not contrary to the public interest, and would not lose confidence in our justice system. [ 88 ] Given this, the Court will order the performance of community service in order to pursue the objectives of repairing the harm done to the community and promoting his sense of responsibility. [ 89 ] All things considered, including the rules of overall and proportionality, the Court believes that a sentence of 12 days of

imprisonment, already served, with the performance of community service is just, appropriate and meets the objectives of denunciation and deterrence to which the Court gives priority, and which also considers the importance of the accused’s reintegration into society. [ 90 ] A condition banning communication with the victim as part of a long probation will respect the criteria of the public interest, including those of the victim.

Recall that the accused has demonstrated his ability to respect this condition for more than a year. [ 91 ] The Court is of the opinion that it is in the accused’s best interest to be discharged. The presence of a criminal record may be detrimental for his work. A conviction would have particularly negative consequences for him during his rehabilitation. Evidence has been adduced that there is a real possibility of harm by not being a member of his association.

Patients who need receipts for their insurance will most likely not use his services. [ 92 ] The Court believes that this sentence balances the interests of society and those of the accused. [ 93 ] The Court does not believe that is necessary in these circumstances to impose an additional sentence such as the one suggested by the Crown and the Court recalls that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.

FOR THESE REASONS, THE COURT: [ 94 ] ORDERS a conditional discharge; [ 95 ] ORDERS probation for a period of 3 years under the following conditions.

The accused must: − Keep the peace and be of good behaviour; − Appear before the Court when required to do so by the Court; − Notify any change of address or name and promptly notify any change of employment or occupation; − Report to a probation officer within two working days after the making of the probation order and thereafter, when required by the probation officer and in the manner directed by the probation officer for the first 2 years of the probation order; − Follow all of the probation officer’s instructions; specifically with respect to therapy for domestic violence and anger management; − Perform 200 hours of community service within a delay of 12 months and comply with the terms of performance indicated by the probation officer or any other caseworker designated by the probation officer; − Abstain from communicating, directly or indirectly, with A.

G. and her family [...]; − Not be within a 200-metre radius of A. G. home or workplace; − Not be in A. G. physical presence. __________________________________ KATHLYN GAUTHIER J.C.Q Me Sédrik Valiquette Director for criminal and penal prosecutions For the prosecutor Me Marie-Eve Duplessis Marie-Eve Duplessis Avocate For the accused Date of hearing: August 27, 2019