r v. NISSIM, 2023 QCCQ 7215

R. c. Vaknin 2023 QCCQ 7215 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Criminal and Penal Division No: 500-01-181355-188 DATE: October 13, 2023 ______________________________________________________________________ BY THE HONOURABLE FLAVIA K. LONGO, J.C.Q. ______________________________________________________________________ HIS MAJESTY THE KING Prosecutor v. NISSIM VAKNIN Accused ______________________________________________________________________ JUDGMENT ON SENTENCE ______________________________________________________________________ NOTE – THE COURT HAS MADE AN ORDER PURSUANT TO

ARTICLE 486.4 OF THE CRIMINAL CODE DIRECTING THAT ANY INFORMATION THAT COULD IDENTIFY THE VICTIM SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST OR TRANSMITTED IN ANY WAY. [ 1 ] The accused was found guilty of sexual assault ( Criminal Code ,

section 271 a)) further to an event that took place on August 3, 2017. [ 2 ] The facts were related in detail in the judgment of the Court dated July 8, 2021. [1] [ 3 ] In sum, the accused was driving a white minivan in the middle of the night and spotted the intoxicated victim who was walking home after an evening out with friends. He offered to drive her home and she accepted, thinking that he was an Uber driver. [ 4 ] Instead of driving her home, he kept her in his vehicle for approximately 40 minutes.

She was afraid, in survival mode and texted her boyfriend several times to let him know that she was being taken to Montreal’s South Shore in a fake Uber. The accused gave her a total of 300$ on different occasions during the ride and told her that he wanted to spend time with her because she is beautiful. He touched her face, her neck, her arms and fondled her breasts with his hand. [ 5 ] He drove to a wooded area on Ile Sainte-Hélène, parked his car and asked her to show him her vagina. She moved her shorts and underwear, and he inserted his fingers in her vagina.

While his fingers were in her vagina, he moved them back and forth. He asked her to touch his penis, but she did not. He put his body on top of hers and he touched, kissed, and licked the victim who froze until she was able to ask him to leave. He drove back to Montreal and dropped her off in the St-Henri district. [ 6 ] The Prosecution asks the Court to impose a 36-month prison term. The defence suggests a 90-day intermittent sentence of imprisonment to be served on weekends accompanied by 240 hours of community service.

The accused does not necessarily agree with the imposition of a conditional sentence of imprisonment since it would be complicated for him to conciliate this type of sentence with Shabbat celebrations. Regardless, if the Court imposes it, the accused will follow the decision. THE VICTIM [ 7 ] The prosecutor read out the victim’s statement. [2] In the document, she explained that she was 27 years old when the event happened and that it was a period in her life when she was growing into adulthood.

At that point in time, she prioritized her career, and the development of her self-confidence and social circle. [ 8 ] She observed the accused’s denial and surprise throughout the proceedings, and it is her belief that he is blind to all the harm that his actions have caused. She lists the consequences that ensued the incident as follows: • “you stole my sexual life”. • “you stole my social life”.

• “you stole my self-confidence”. • “you stole an innumerable amount of nights from me during which I was haunted by flashbacks”. • “you stole several hours from me that I had to spend in therapy”. • “you stole the confidence that I had in taxi drivers, bus drivers and Uber drivers”. • “you stole the happiness that stemmed from the romantic relationship that I was involved in at the time”. • “you stole my intimacy”. • “you stole my smile and my good humour for too long.” [ 9 ] The accused scared her that night. He scared her to the point of being dizzy. Still today, her heart stops when she sees a white minivan.

No matter how the accused’s life has shifted since the events, these changes are due to his shameful and disgraceful actions. [ 10 ] Despite all the delays in the process, she chose to continue until the end, not only for herself, but to finally ensure that there is one less of them. One less of them who thinks that it is alright, that he will not get caught, and who thinks that it is not that much of a big deal. One less of them who chooses to ignore the concept of consent and who apologizes when it is too late. [ 11 ] Regardless of how this story will end, according to the victim, it will never be over for her.

The consequences bestowed upon the accused are nothing in comparison to the images of that night that will be forever etched in her mind. THE ACCUSED [ 12 ] The accused is 65 years old. He testified at the sentencing hearing and expressed that he is a divorced cabinet maker with four children and 18 grandchildren. His children are his best friends, and he resides in an apartment below his daughter’s home to be close to her and to help with the grandchildren. While the proceedings were pending, he had travelled to Israel and met Ms. Lilian Pinto.

He married her in December 2022, and she is aware of the pending case against him. He has no more friends since his arrest and his main hobby is dancing. [ 13 ] When the incident involving the victim took place, he was working as a self-employed consultant for the multinational corporation that had purchased his business. After his arrest, he could no longer travel to the United States for work and could no longer be employed by that corporation. As a result, he suffered a financial loss in the vicinity of 150 000$.

Since then, he has been working as an installer and he earns an income that is inferior to 40 000$ per year. [ 14 ] The sentencing hearing was suspended due to a situation that transpired between the accused and his attorney. As a result, his lawyer at the time withdrew from the file and the hearing resumed almost nine months later with a new attorney. [ 15 ] The accused describes himself as a good man who never hurt anyone and whose reputation and self-esteem were ruined because of this matter. He is heart-broken regarding the victim’s statement, and he feels her pain.

He acknowledges that what she feels is true and genuine, but it was not his intention to put her in that situation. He empathizes with the victim and recognizes having caused her pain, but he maintains his innocence and the fact that he touched her with her permission. When the incident took place, he did not notice her fear. [ 16 ] When the accused was represented by his previous attorney who asked him if he would agree to undergo court-imposed therapy, he responded affirmatively.

When his new lawyer questioned him regarding the reason why he never followed any therapy, he stated that it is because he did not believe that he needed it. [ 17 ] He believes that he has paid a heavy price to society for his wrongdoing, he has been suffering for 6 years and is now impoverished. He asks the victim for forgiveness and extends his sincerest apologies despite not knowing that his behaviour hurt her. He would like to apologize in person and tell her that he prays for her. He hopes that she will get stronger in all the spheres of her life.

He is willing to work hard and pay for any therapy that might help her. He hopes that one day, she will forgive him because he never meant to hurt her. [ 18 ] He is certain that he is not perceived to be a real criminal but more like a good man who misjudged the situation. His reputation is very important to him, and he intends to pursue any effort to be acquitted. OTHER EVIDENCE [ 19 ] The accused’s wife, Lilian Pinto, testified on his behalf. She is aware of the pending case. Since the accused was honest with her, she chose to engage in a relationship with him.

She does not believe that he would do such things. [3] She describes him as a gentleman who is very kind and considerate. He likes to help people in general as well as members of the Jewish community. They volunteer together in homes for the elderly, and he is very loyal to his children and grandchildren. He is her life partner and has good values and morals. [ 20 ] In the presentence report [4] , the accused describes himself as a Good Samaritan with no prior sexual intentions. However, he recognizes that his sexual arousal is the motivation for his behaviour on the night of the events.

His psychological state at the time of the drafting of the report differs from what it was at the time of the offence and has improved because he now has a certain ability to adapt and to be open regarding his negative emotions. [ 21 ] However, he lacks introspection, self-criticism, and empathy towards the victim. The accused’s actions were isolated in time and in his case, he used sexuality for compensation purposes. Some elements that contribute to the risk of reoffending are his deficiency in self-control characterized by impulsivity and the presence of negative emotions.

Furthermore, his problem-solving skills are lacking.

[ 22 ] Some positive factors are that he committed his first offence late in his life, he has good social integration and prosocial values. Furthermore, he can commit to a long-term relationship.

He does not value illegal behaviour and does not exhibit any sexually deviant or criminal tendencies. [ 23 ] The risk of repeat offence is low but factors such as his embryonic awareness of the offence suggest that he could benefit from a therapy addressing the understanding of consent and emotions management. [ 24 ] The sexological assessment [5] reveals that the accused did not believe that the victim was affected by the situation which suggests a lack of empathy.

He admittedly regrets his behaviour but is more concerned with his own consequences as opposed to the potential consequences to the victim. [ 25 ] The accused’s criminal behaviour could have been triggered by the end of his marriage which led to his emotional and sexual needs not being met. As a result, he experienced a desire to experiment, and the victim was perceived as an object to satisfy his sexual desire. [ 26 ] He was assessed using the Static-99R scale which is used to evaluate an offender’s level of sexual recidivism.

His score on this scale was -1 and placed him in the Level II Nominal Category which translates into a below-average risk level of being charged or convicted of another sexual offence. [6] He was also assessed using the Stable-2007 scale that is designed to assess changes in the risk level over the medium term and the need for intervention and treatment. His score on the Stable-2007 scale was 3 which corresponds to a low density of criminogenic needs. When the Stable-2007 is combined with the Static-99R scale, it helps predict the recidivism rate of sex offenders.

The combination of both assessments placed the accused at a level II standardized risk [7] . The accused does not exhibit any characteristics of sexual deviancy. Since he denies the sexual assault, the need for specialized therapy is not appropriate.

THE SENTENCING PRINCIPLES [ 27 ] The fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [8] The purposes of sentencing include denouncing unlawful conduct, deterring offenders and others from committing offences, providing reparations for harm done to victims or to the community, promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims or to the community, and assisting in rehabilitating offenders. [9] [ 28 ] The principle of parity is such that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

The principle of restraint requires that all sentences other than imprisonment should be considered, and offenders should not be deprived of liberty if less restrictive sanctions may be appropriate.

Sentences must reflect any relevant aggravating or mitigating circumstances relating to the offence or the offender. [10] [ 29 ] The jurisprudence makes clear that sentencing for sexual crimes must place particular emphasis on denunciation and deterrence. [11] That being said, other sentencing objectives are still to be considered. [12] If sanctions other than imprisonment are available, the accused should not be deprived of liberty. [13] [ 30 ] Although no two cases are identical, the Québec Court of Appeal has cited with approval [14] the sentencing ranges for sexual crimes set out in the case of Cloutier . [15] They are described by authors Parent and Desrosiers [16] as follows: • Shorter sentences (sentences of less than two years): These sentences are for sexual acts that are not very serious or that occur on rare occasions or during a short period of time, committed against a single victim. • Mid-range sentences (sentences of two years to six years, with a concentration of three-to-four-year sentences): Cases falling within this category include offenders with no criminal record, abuse of trust, power, and authority, but no direct violence (other than that inherent to the nature of the offence). • Longer sentences (sentences of over six years): These sentences are generally imposed because of special circumstances of violence beyond the sexual acts and/or the presence of a criminal history, and in connection with offences involving high objective gravity. [ 31 ] The Québec Court of Appeal has also confirmed in Côté [17] , Oum [18] and Houle [19] that the sentencing range for infractions with fact patterns similar to the one pertaining to the accused varies between 12 and 20 months of incarceration.

While the sentencing ranges are useful guides, they are not binding, and the Court must always respect its duty to impose a proportionate sentence. [20] [ 32 ] The Prosecution submitted the following decisions in support of its position. The fact patterns in all these matters include full vaginal and/or anal intercourse: − R. c. Excellent, 2018 QCCQ 894 : The accused was found guilty of sexual assault and kidnapping. The accused saw the complainant as he was leaving a bar. They had never met before that night. He sat next to her, and she kissed him.

They left the bar together and she walked in a zigzag motion with the accused’s support. She was so intoxicated that he had to take her into his arms to get down the stairs to the exit. He put the victim into his vehicle and drove to his home in Laval. The victim was asleep and reacted very little. He brought her to his bedroom, undressed her, put on a condom, and had intercourse with her for two to three minutes. She pushed him away when she had to urinate in his bed. The victim had no recollection of what happened and the last thing she remembered was being at the bar.

The accused was 32 years old, had no criminal record and a low risk or repeat offence. The crime was not premeditated, and the accused was in full possession of his faculties. He was sentenced to 30 months in prison. − R. c. Rémy, 2014 QCCQ 12032 : The accused was found guilty of sexual assault and kidnapping. The accused and the victim did not know each other. The accused approached the victim as she walked on the street and made her enter his vehicle. Sexual intercourse ensued and the victim remembered next to nothing due to her advanced state of intoxication. When she

was found in the middle of the night in the streets of Montreal in a pitiful state. She was crying and distraught. Sperm was found in her vagina and anus. The accused was 41 years old and had a lengthy criminal record, but it was his first sexual assault conviction. It stemmed from the presentence report that the event was a crime of opportunity. The accused regretted his actions. The victim was 20 years old and suffered serious consequences due to the offence. He was sentenced to 42 months in prison. − R. c. Bourdon, 2011 QCCQ 800 . The accused was found guilty of sexual assault.

He was 31 years old and had no criminal record. Although the facts were not explicitly detailed in the judgment, the expert assessments described the accused as being a narcissist and the risk of repeat offence was high. He showed no remorse or empathy towards the victim and his actions were premeditated. To reduce the risk of repeat offence to a medium range, treatment was necessary, but the accused had no desire to change his behaviour. He was sentenced to 30 months in prison. [ 33 ] The defence submitted the following decisions: − R. c. Gravel, 2023 QCCQ 297 . The accused was found guilty of sexual assault.

The accused and the victim had already been involved in an intimate relationship. They spent an evening together and had sexual intercourse during which the accused inserted his penis into the victim’s anus without seeking her consent. She protested but the accused continued for approximately 10 seconds. The sexual assault caused long-lasting consequences for the victim. As for the accused, he was 35 years old when the offence was committed and had no criminal record.

The presentence and sexological assessments indicated that, although he denied sexually assaulting the victim, he was introspective, and showed empathy towards her. Furthermore, the risk of recidivism was low, and he had been in therapy for three years in relation to the incident. The Court concluded that the rehabilitation of the accused was well underway. He was sentenced to a 20-month conditional sentence of imprisonment. − R. c. Brosseau, 2023 QCCQ 296 . The accused was found guilty of sexual assault. The parties met through friends and both consumed alcohol.

The victim believed that she would be driven home but she found herself at the accused’s residence. She felt unsettled, but the accused comforted her. He came on to her and they kissed on the couch. The kissing led to the intimate touching of the victim’s thighs, buttocks, and breasts. The victim wished to go home but the accused asked her to lie down on his bed and told her that he would drive her home later. She accepted. She saw the accused come behind her and heard him lower his pants and try to find a condom in a nightstand. She froze with fear and cried.

The accused moved her underwear and penetrated her with his penis. She felt pain during the act and the penetration did not last very long. The accused was 47 years old and had criminal priors related to driving while under the influence. He lost the job that he had for 14 years further to the conviction and was in a relationship with a woman that he met after the commission of the offence. The risk of repeat offence was present but could be reduced with a specific follow-up regarding his intimate relationships. The impact on the victim was real and present.

He was sentenced to a 21- month conditional sentence of imprisonment.

APPLICATION [ 34 ] The objective gravity of sexual assault is high since it is punishable by a maximum term of imprisonment for 10 years. [ 35 ] The Court considers the following aggravating factors: • The victim was a random stranger that he picked up on the street in the middle of the night. • The victim was intoxicated and vulnerable. [21] • The victim was sexually assaulted in the accused’s car and taken to a remote area where he penetrated her vagina with his finger(s). • The significant impact of the sexual assault on the victim. [22] [ 36 ] As for the mitigating factors, the Court takes the following into account: • The accused has no criminal record. • The accused is functional in society.

He volunteers and takes care of his grandchildren. He has the support of his daughters and his wife. • The accused maintains his innocence and claims that he touched the victim with her permission but acknowledged her pain as genuine at the sentencing hearing. He asks the victim for forgiveness and apologizes to her but affirms that his intention was not to hurt her.

Although his comments at the sentencing hearing do not constitute remorse in the traditional sense, they demonstrate an ability to view the situation from a point of view other than his own and a potential for introspection. [ 37 ] After taking into consideration the aggravating and mitigating factors as well as the fact pattern, the accused’s personal circumstances, the harm done to the victim, and the caselaw submitted by the parties, the Court concludes that a sentence in the shorter range set out in Cloutier (less than two years) is a proportionate sentence that reflects the gravity of the offence and the responsibility of the offender.

[ 38 ] The accused’s elevated moral responsibility and the high objective gravity of the offence are such that denunciation and deterrence are pressing. [ 39 ] The risk of repeat offence is low, the accused committed the offence late in life (60 years old), and certain aspects of rehabilitation are present.

The Court deems that the imposition of a conditional sentence of imprisonment would not endanger the security of the public. [ 40 ] The Court seriously considered the possibility of imposing a prison sentence to be served in the community since it can have a deterring and dissuasive effect notwithstanding the presence of several aggravating factors. [23] However, the importance of the aggravating factors in this matter largely outweighs the mitigating factors to the extent that a prison sentence to be served in the community would be inappropriate given that it would not be a reflection of the gravity of the offence and the accused’s level of responsibility.

Therefore, it would not be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code . [24] [ 41 ] As stated recently in Lemieux , all forms of sexual violence with or without penetration are extremely serious. The importance of the prejudice suffered by the victim must not be minimized by placing too much emphasis on the physical nature of the acts posed by the accused in comparison to their consequences since there is no real hierarchy in such matters. [25] FOR THESE REASONS, THE COURT: CONDEMNS the accused to an 18-month sentence of imprisonment.

IMPOSES a 2-year probation period upon the accused that will be in force once the period of incarceration has expired with the following conditions: • Keep the peace and be of good behaviour. • 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 the victim (CDG). • Abstain from being in the physical presence of the victim. • Abstain from being within a radius of 200 meters of the victim’s domicile, place of work or place of study.

AUTHORISES the taking from the accused of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis, pursuant to

section 487.051 of the Criminal Code . ORDERS that the accused comply with the Sex Offender Information Registration Act for a period of 20 years pursuant to

section 490.012 (1) and 490.013 (2) (

b) of the Criminal Code . PROHIBITS the accused from being in possession of: • any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, and explosive substance for a period of 10 years. • Any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. IMPOSES a non-communication order, pursuant to

section 743.21(1) of the Criminal Code , prohibiting the accused from communicating, directly or indirectly, with the victim during the custodial period of the sentence.

__________________________________ FLAVIA K. LONGO, J.C.Q. Me Olivier Charbonneau For the DPCP Me Mathieu Bourgon For the accused Dates of hearing: July 7, 2022 March 31, 2023 May 12, 2023