2018 QCCA 516, 2018 QCCA 516

Caron Barrette v. R 2018 QCCA 516 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-003371-171 (120-01-005833-136) DATE: April 3, 2018 ______________________________________________________________________ CORAM: THE HONOURABLE JULIE DUTIL J.A. JEAN BOUCHARD J.A. CLAUDE C. GAGNON J.A. ______________________________________________________________________ MICHEL CARON BARRETTE APPELLANT - Accused v. HER MAJESTY THE QUEEN RESPONDENT - Prosecutrix and THE ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTY - Impleaded Party ______________________________________________________________________ JUDGMENT ______________________________________________________________________

[UNOFFICIAL TRANSLATION BY CENTRE DE TRADUCTION ET DE TERMINOLOGIE JURIDIQUES] [ 1 ] The appellant, who pleaded guilty to two counts of sexual touching of X ( s. 151 of the Criminal Code ), a person under the age of 16 years, is appealing the 14-month global sentence imposed on him on May 23, 2017, by the Court of Quebec, Criminal and Penal Division, District of Rimouski (the Honourable Jules Berthelot ). [1] THE FACTS [ 2 ] The factual background that serves as the backdrop to this case is summarized as follows by Sonia Bérubé J. of the Court of Quebec who, prior to Berthelot J., also pronounced sentence upon the appellant: [2] [TRANSLATION] [2] In December, 2011, when he was 23 years old, the accused began a romantic relationship with the victim, who was then 14 years old.

At the very outset of this romantic relationship, the victim informed the accused that she had told her mother about it, stating that he was 19 years old. He objected and told her that it was necessary to inform her mother that he was actually 23 years old. That is what the accused did the first time he met the victim’s mother. At the time, the mother expressed no objection. [3] After some time, the victim’s family invited the accused to live with them because he was regularly helping the victim’s stepfather construct a building on the sugar bush.

The accused and the victim cohabited, living out their romantic relationship as a conjugal relationship with full sexual intercourse. [4] They continued in this way until their first separation on August 1, 2012. Thereafter, on December 15, 2012, they resumed their romantic relationship, which continued until the complaint that gave rise to this matter, on June 15, 2013. The victim was then 15 years old.

During this second period, they cohabited in a domestic relationship in an apartment rented by the accused, again having full sexual intercourse. [5] The accused described the victim as a mature, responsible adolescent. At the time of their relationship, she was attending school and working in a convenience store near the family home. He was working as a deliveryman for BMR and helping the victim’s stepfather with the sugar bush.

The evidence shows no sequelae suffered by the victim, no use of violence, no subterfuge to hide their respective ages. [6] He testified that he did not know that their relationship was illegal despite the parents’ consent. The problems began when the victim’s half-sister filed a complaint against him for abduction. The complaint was dismissed but enabled the Sûreté du Québec and the Direction de la protection de la jeunesse to be apprised of the situation. An order was then made under the Youth Protection Act , for a period of 30 days, prohibiting the accused from communicating with the victim.

This put a definite end to their relationship. They had no further contact. [ 3 ] On October 17, 2013, the appellant was charged with four counts, which read as follows: [TRANSLATION] 1. Between December 1, 2011, and August 1, 2012, in Amqui and St-Vianney, District of Rimouski, did, for a sexual purpose, touch a part of the body of X (1997-[...]), a person under the age of sixteen (16) years, thereby committing an indictable offence under s. 151 of the Criminal Code . 2.

Between December 15, 2012, and June 15, 2013, in Amqui and St-Vianney, District of Rimouski, did, for a sexual purpose, touch a part of the body of X (1997-[...]), a person under the age of sixteen (16) years, thereby committing an indictable offence under s. 151 of the Criminal Code . 3. Between December 1, 2011, and August 1, 2012, in Amqui and St-Vianney, District of Rimouski, did sexually assault X (1997- [...]), thereby committing an indictable offence under s. 271(1) (

a) of the Criminal Code . 4. Between December 15, 2012, and June 15, 2013, in Amqui and St-Vianney, District of Rimouski, did sexually assault X (1997- [...]), thereby committing an indictable offence under s. 271(1) (

a) of the Criminal Code . [ 4 ] On October 8, 2014, the appellant pleaded guilty to all four counts. [3] [ 5 ] On March 25, 2015, a presentence report was prepared. According to the report, the appellant’s offence was circumstantial and there was no evidence that he had a particular attraction to adolescents. The probation officer also noted that the judicial process had had the desired deterrent effect on him. The appellant now understood that it is illegal to have sexual intercourse with a person under the age of 16 years, even with the person’s consent.

The officer also pointed out that the risk of re-offending was low. [ 6 ] On March 27, 2015, the appellant sent to the respondent and the impleaded party a notice of intent to challenge the constitutionality of the minimum sentences provided for in ss. 151 and 271 of the Criminal Code , particularly in light of s. 12 of the Canadian Charter of Rights and Freedoms , [4] which guarantees everyone the right not to be subjected to any cruel and unusual treatment or punishment. [ 7 ] At the time of the submissions on sentence before Bérubé J. on June 29, 2015, the appellant was living in Quebec City with a new spouse who is approximately the same age as the appellant.

They have a 12-month-old daughter. The appellant is the income provider, as his spouse is on medical leave due to health problems. He works as the right-hand man of an entrepreneur who owns several

companies in the automotive sector. JUDGMENT OF BÉRUBÉ J. [ 8 ] On October 1, 2015, Bérubé J. rendered judgment. [5] She rejected the constitutional arguments raised by the appellant and sentenced him to 45 days of imprisonment on the first count and one year on the second count, to be served consecutively, [6] followed by 24 months of probation. [7] [ 9 ] To understand how the judge arrived at these sentences, it is important to note that s. 151 of the Criminal Code has been amended several times in recent years. [8] [ 10 ] First, on November 1, 2005, Parliament introduced a minimum sentence of 45 days if the offence is prosecuted as an indictable offence and 14 days if it is prosecuted by

summary conviction. [9] In 2012, the minimum sentence was again increased: Parliament now sets a minimum sentence of one year if the offence is prosecuted as an indictable offence and 90 days if the offender is prosecuted by

summary conviction. [10] This amendment came into force by order on August 9, 2012. [11] Also, the objective gravity of the crime was increased on July 17, 2015, with the maximum sentence increasing from 10 to 14 years of imprisonment in the case of an indictable offence. [12] [ 11 ] The Court points out that the charges in this case cover two distinct periods: from December 1, 2011, to August 1, 2012, during which time the minimum sentence was 45 days, and from December 15, 2012, to June 15, 2013, during which time the minimum sentence was one year. [ 12 ] On close examination, Bérubé J. therefore imposed on the appellant the two applicable minimum sentences according to the offending period, although she considered that a sentence of eight months of imprisonment would have been just and appropriate had it not been for the minimum one-year sentence.

Here is what she says in this regard: [TRANSLATION] [66] Even without the minimum sentence of 12 months applicable to the second count, the accused is subject to a minimum sentence of 45 days in custody, which previously applied and still applies to the first count, because of the period in question. [67] Had it not been for the minimum sentence of 12 months, the Court would have considered a global sentence of eight months in custody combined with two years of probation to be just and appropriate.

However, the 12-month sentence applies to the second count. [68] Given the minimum sentence of 45 days applicable on the first count, the Court has taken into account the principle of global sentencing to balance the effect of the two consecutive minimum sentences. For that reason, the sentence on the first count is reduced to 45 days and the minimum 12-month sentence applies to the second count. [13] [ 13 ] Secondly, the judge reviewed the constitutionality of the sentence provided for in s. 151 of the Criminal Code in light of the two - stage test established by the Supreme Court in R. v.

Nur . [14] Pointing out that, according to the test applicable at the first stage, the sentence must not be grossly disproportionate following an analysis of the accused’s specific situation, the judge found that the minimum 12-month sentence of imprisonment was not cruel and unusual in comparison with the 8-month sentence that she would have imposed. [15] [ 14 ] Moving to the second stage of the test established by the Supreme Court, namely the analysis of reasonably foreseeable hypotheticals, in order to ensure that the mandatory minimum sentence does not impose a grossly disproportionate sentence when applied to other persons, [16] Bérubé J. sustained the objection raised by the Attorney General of Quebec, who argued that the notice under s. 95 of the former Code of Civil Procedure (s. 76 of the new Code of Civil Procedure ) was incomplete and vague. [17] The problem, however, is that the judge, rather than ruling on the objection from the bench, reserved her decision, with the result that it was only at the time of sentencing that the appellant learned that the objection had been sustained and that his constitutional argument had been dismissed without him having had the opportunity to plead it fully. [ 15 ] In

summary, Bérubé J. held that the minimum sentence provided for in s. 151 of the Criminal Code does not violate s. 12 of the Charter . [18] She sentenced the appellant to a 45-day prison sentence on the first count and to a one-year prison sentence on the second count, to be served consecutively.

THE JUDGMENT OF THE COURT OF APPEAL [ 16 ] The appellant appealed to this Court, which set aside Bérubé J.’s judgment and referred the matter back to the Court of Quebec for a full redetermination of the constitutional argument. [19] According to the Court, when a notice of intent is not sufficiently detailed, [TRANSLATION] “the appropriate remedy is not to declare the party estopped from arguing his or her case, but rather to allow the party to amend his or her submissions”. [20] In short, the Court is of the view that the trial judge should have allowed the appellant to amend his notice of intent rather than reserve judgment on the objection and place him before a fait accompli at his sentencing. [21] [17] This brings us to Berthelot J.’s judgment, which is the subject of this appeal.

THE JUDGMENT OF BERTHELOT J. [18] The judge began by setting out the three reasonably foreseeable hypotheticals submitted by the appellant in support of his

constitutional argument: [TRANSLATION] - A romantic relationship similar to the one that existed between the appellant and X, a relationship that lasted for a shorter period of time, i.e. a few days, involving only touching in the form of kissing; - An isolated event, i.e.

an act of a sexual nature, such as caressing a thigh or buttock over clothing, with no underlying abuse of a position of authority and with no sequelae suffered by the victim; - A romantic relationship and dating between an offender and a child who is unable to consent to sexual relations or interference, a victim who was 15½ years of age at the beginning of the relationship, a relationship continuing beyond the age of majority. [19] Next, he considered the concept of consent.

According to s. 150.1 of the Criminal Code , the victim’s consent is irrelevant and is not a valid defence if the victim is under the age of 16 years. The same logic applies with respect to the consent of the victim’s parents. [20] The judge then went on to review the legislative changes relating to sexual crimes against children, particularly those introducing mandatory minimum sentences that reflect the need to give special consideration to the principles of denunciation and deterrence.

He then analyzed the three reasonably foreseeable hypotheticals submitted by the appellant in order to determine whether the minimum sentence provided for in s. 151 (

a) of the Criminal Code is grossly disproportionate when applied to other persons. [21] With respect to the first two hypotheticals, the judge focused on the applicable minimum sentence when the prosecution decides to proceed by way of indictable offence. His review of the case law led him to rule that the one-year minimum sentence was grossly disproportionate with respect to the first two hypotheticals and that it violated s. 12 of the Charter and could not be saved by

section 1 . [22] With respect to the third hypothetical, the judge considered that the one-year minimum sentence was grossly disproportionate and that it infringed the Charter . [23] Considering the constitutional issue settled, the judge then considered the appropriate sentence to be imposed on the appellant. He noted that the case law showed an increasing severity in sentences for sexual offences committed against minors, under the principles of deterrence and denunciation. [24] The judge then reviewed the case law, in order to compare sentences that have been imposed in similar circumstances.

He pointed out the range used by this Court in St-Pierre v. R . [22] , in which sentences ranged from nine months to three years. [25] In the judge’s view, there was no point in emphasizing deterrence aimed specifically at the appellant, considering that there was a low risk of re-offending and that he was an asset to society.

However, the length of the offending period prompted him to consider general deterrence and the denunciation of the appellant’s acts. [26] He also pointed out that adolescents are vulnerable persons at a crucial stage of their development, and that adults have a duty to refrain from taking advantage of this fragility.

In the case before us, the accused’s conduct was illegal and no defence, not even ignorance of the law, can absolve him of such conduct. [27] With respect to aggravating circumstances, the judge considered basically the same circumstances as did Bérubé J.: [TRANSLATION] − Abuse of a person under the age of sixteen years ( s. 718.2 (a)(ii.1) of the Criminal Code ); − The victim’s age (14-15 years); − The nature and number of instances of full sexual intercourse and the duration of the relationship (two periods between 2011 and 2013); − The fact that the appellant knew the victim’s age from the outset of their relationship; − Possession and use of cannabis since his release. [28] With respect to the last aggravating circumstance, the judge noted that the appellant has been using drugs since adolescence, although he stopped in 2014.

However, the evidence shows that he used cannabis after this Court released him from custody. In the eyes of the judge, this jeopardized his reintegration into society. [29] With respect to mitigating circumstances, the judge noted the following: [TRANSLATION] − The young age of the appellant at the start of the offences; − The plea of guilty; − The positive presentence and sexological reports ; − The low risk of re-offending; − The fact that no violence was used against the victim;

− The fact that he is an asset to society; − The fact that the victim suffered no psychological sequelae. [30] The judge also pointed out that the appellant, after losing his previous employment as a result of the time spent in custody beforebeing released during the appeal, found new employment as a roofer. Furthermore, there is no evidence of sexual deviance, and theappellant has shown himself open to psychotherapy. He has no criminal record.

Moreover, the judge pointed out that his delinquencywas circumstantial and that the judicial system was a deterrent for him. [31] That being said, the judge was of the opinion that the appellant was solely responsible for his actions since he made no effort toend the relationship and to verify its lawfulness.

He considered that the sentence should reflect the objective and subjective gravity of theoffence, without necessarily ignoring the factors of rehabilitation and reintegration into society, which are of lesser importance in light ofthe appellant’s use of cannabis since his release. [32] In the judge’s view, the circumstances of this case warranted the imposition of consecutive sentences, since there were twoseparate episodes.

On count 1, for which the minimum sentence is 45 days, he imposed a one-year prison sentence, while on count 2,after finding that the one-year minimum sentence was unconstitutional, he imposed a 60-day prison sentence. The total sentence wastherefore 14 months. [33] Considering the 16 days that the appellant spent in interim detention, the judge stated that the sentence remaining to be servedwas 13 months and 14 days.[23] He also made a 24-month probation order, subject to several conditions, including the requirement thatthe appellant comply with the Sex Offender Information Registration Act[24] for life.

THE STANDARD OF INTERVENTION IN MATTERS OFSENTENCING [34] The legal foundation of the sentencing process is set out in ss. 718 to 718.2 of the Criminal Code. These sections confer a broaddiscretion on the sentencing judge, thus allowing him or her “to craft a sentence that is tailored to the nature of the offence and thecircumstances of the offender”[25], so that the sentence imposed is individualized and reflects the circumstances of the offence. This iswhat emerges from the Supreme Court’s comments in R. v.

L.M.: [17] Far from being an exact science or an inflexible predetermined procedure, sentencing is primarily a matter for the trial judge’scompetence 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 arriveat an appropriate sentence in light of the complexity of the factors related to the nature of the offence and the personal characteristics ofthe offender, the judge must weigh the normative principles set out by Parliament in the Criminal Code [...][26] [Emphasis added] [35] The judge must set the determined sentence within “the scale of appropriate sentences for similar offences”, having regard to the“relative importance of any mitigating or aggravating factors”.[27] While this comparative exercise is useful, it has some limitationsbecause of the principle of sentence individualization “that requires the judge to weigh the objectives of sentencing in a manner that bestreflects the circumstances of the case”.[28] [36] The choice of sentencing range is within the discretion of the trial judge and cannot in itself constitute a reviewable error.

Anappellate court may therefore not intervene for the sole purpose of putting the sentence in a different category.[29] The ranges areguidelines; they are not [TRANSLATION] “a straitjacket that fetters the exercise of a judge’s discretion”.[30] [37] With respect to errors in principle or errors in the assessment of mitigating and aggravating factors, the intervention of this Courtwill only be justified if such errors have an actual impact on the sentence: [39] This Court has reiterated on many occasions that appellate courts may not intervene lightly, as trial judges have a broad discretion toimpose the sentence they consider appropriate within the limits established by law: s. 718.3(1) of the Criminal Code; see also R. v.Shropshire, (SCC), [1995] 4 S.C.R. 227, at para. 46; R. v.

L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 14; R. v.L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132, at para. 25; R. v.

Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 43-46. […] [44] In my view, an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating ormitigating factor will justify appellate intervention only where it appears from the trial judge’s decision that such an error had an impacton the sentence.[31] [Emphasis added] [38] Accordingly, the Court of Appeal is asked to show considerable deference to sentences imposed by the trial court.[32] This iswhat the Supreme Court points out in Lacasse: Ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, anappellate court may not vary the sentence unless it is demonstrably unfit.[33] [Emphasis added]

[39] The appellant therefore has the burden of proving that the trial judge imposed a sentence that is demonstrably unfit [34] or made significant errors of law or significant errors in principle that had a significant impact on the sentence. [35] In reviewing the sentence, the Court must thus avoid substituting its opinion for that of the trial judge simply because it would have imposed a different sentence or because it would have weighed the relevant factors differently . [36] OFFENCES RELATING TO CRIMES OF A SEXUAL NATURE AGAINST CHILDREN [40] With respect to sexual crimes committed against children, primary consideration must be given to the objectives of denunciation and deterrence, as set out in s. 718.01 of the Criminal Code : [TRANSLATION] There are crimes that reflect the values protected by a human community at a given time in its history and that, as societies evolve, ultimately become outdated.

The situation is different with respect to sexual offences committed against young children. Even before repressive criminal laws sanctioned these offences, the protection of children was one of the essential and enduring values of most organized societies. Shattering a child’s personality at a stage where he or she is just beginning to evolve as a person and has only a very fragile defensive structure will result - in the long term - in suffering, distress and loss of self-esteem.

If there is one thing that a healthy society must never cease to abhor, it is precisely that which concerns the sexual abuse of young children. [37] [41] In R. v. Bergeron, Bich J.A., writing for the Court, stated that these comments can also apply to offences of a sexual nature committed against adolescents: [TRANSLATION] [36] These comments can largely be applied to adolescents who, although they are no longer toddlers, are nevertheless also vulnerable persons at a crucial stage of their personal development.

Their vulnerability often comes from the fact that they appear to consent, desire, and even surrender to abuse perpetrated against them, which makes them ideal victims who do not resist the hold that is exerted over them. There are countless adolescents, for example, who become infatuated with a teacher, a coach or other mentor figure, and it is precisely this attraction, which increases their fragility, that adults cannot and do not have the right to take advantage of.

Section 718.01 of the Criminal Code therefore requires that primary consideration be given to the objectives of denunciation and deterrence in their case, as in the case of small children . [38] [Emphasis added] [42] However, Bich J.A. was careful to point out that, in certain instances, other objectives may outweigh the objectives of denunciation and deterrence, depending on the circumstances of the case: [TRANSLATION] [37] The primary consideration that is required does not, however, make the objective of denunciation and deterrence an absolutely determinative factor, nor does it relieve the judge from considering all of the objectives, principles and criteria inherent to the sentencing process.

There will therefore be instances where, due consideration having been given to the objective, other factors will have to prevail. [39] [Emphasis added] [43] This is so because the principle of proportionality set out in s. 718.1 of the Criminal Code , which is central to the sentencing process, requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. [40] [44] Speaking of the moral blameworthiness of the offender, it is important to quote authors Hugues Parent and Julie Desrosiers because, as we shall now see, the judge’s analysis is severely flawed in this regard: [TRANSLATION] [...] To speak of responsibility is to speak, above all, of the psychological link between the individual and the offence charged.

Viewed in its close relationship to “blameworthiness”, it is clear that the fault element will affect the nature and length of the sentence to be imposed . After all, isn’t the murderer who kills his victim in cold blood more blameworthy than the person who causes a person’s death following a fight outside a bar? Since it underlies the charge made against the accused, the fault element will inform us on the offender’s degree of blameworthiness .

Although it is important, the analysis of the offender’s degree of responsibility does not stop with the search for his or her “culpable state of mind” for, behind the offence committed, behind its physical and psychological manifestation, lies the true personal character of the offender. From an analysis based on an individual’s criminal blameworthiness, we then move to an analysis focused on his or her moral or general blameworthiness . A whole set of legal and extra-legal factors and considerations now enter into the judicial process.

Behind the consideration of the particular circumstances of the offence and the factors personal to the accused, it is the criminal’s entire personality that unfolds and opens itself to legal analysis. This consideration of the offender’s criminal and moral blameworthiness is reflected in the individualization of the sentence and in the specificity of the sanctions imposed by the courts . Indeed, as Lamer C.J. wrote in R. v. Proulx , sentencing is “an individualized process, in which the trial judge has considerable discretion in fashioning a fit sentence”. [… ] [41] [Emphasis added]

THE APPELLANT’S MORAL BLAMEWORTHINESS [45] The judge noted that the victim, because of her age, could not consent to any form whatsoever of sexual contact with the appellant. As for the parents’ consent, the judge wrote, [TRANSLATION] “no one can be complicit in a crime”. He is quite right if the debate focuses only on the appellant’s blameworthiness. [46] A question, however, remains.

What weight should be given, in sentencing, to the fact that the victim voluntarily participated in the acts alleged to have been committed, in the context of a romantic relationship approved both by the victim’s parents and the appellant’s parents and in which there was neither psychological nor physical abuse, and where it is not a case of abuse of a position of trust or authority? [47] The Court of Quebec answered the question several times in different contexts. [42] Bisson J.’s comments in R. v.

Allaire [43] are representative of the general view: [TRANSLATION] [125] These comments support the view that even if the victim consented to what was done to him or her, such consent is of no value and cannot be considered as a mitigating factor in this case.

To do otherwise would, in the Court’s view, have the effect of trivializing this offence when it is committed against an adolescent who appears to consent to the acts, especially when we know that such consent has no legal value. [44] [48] The other appellate courts across the country have similarly ruled on the weight to be given to the fact that the victim, who is not legally old enough to consent, did in fact consent to the acts that the accused is alleged to have committed. [49] The Newfoundland Court of Appeal is ambivalent on the issue. In R. v.

Allen , Gushue J.A. stated: [10] The nature of the consent given by a person under the age of 14 years may be a factor to be weighed by the trial judge in mitigation of sentence. That of course depends on the circumstances. A very young child may submit to sexual assault by a parent or other person in a position of parental authority because he or she does not appreciate the nature of the act. An older child may acquiesce because he or she feels there is no choice but to do so. Obviously in such circumstances the consent of the child will not weigh in the offender’s favour or sentencing.

Where, however, the complainant is close to the statutory age of consent and, for example, is knowledgeable in sexual matters and/or initiates the sexual activity, the situation may be different.

The consent may well be a mitigating factor . [45] [Emphasis added] [50] A few years later, Marshall J.A., for the Newfoundland Court of Appeal, took the opposite position: [41] […] The primary ground advanced for reduction of the sentence was the consensual aspect of the three incidents. […] [42] As to his main ground, with respect, in my view, in an offence where the element of non-consent has been removed as a component of the crime, consent should have no direct bearing upon the sentence.

To do so would also make the young person’s conduct subject to examination and this would be contrary to the intent of the Code provisions creating the offence. [46] [51] More recently, the Newfoundland Court of Appeal has revisited these two decisions and offered a nuanced approach.

While it states that this is not a mitigating factor, it however points out that factual consent may, in some cases, be considered: [48] While I am not prepared to say that factual consent can never be a consideration in the sentencing of an offender for the sexual assault of a minor, it is not a mitigating factor, as the trial judge stated in this case, nor can it be used to justify lowering a sentence below the normal range . While I prefer and adopt the reasoning in Hann , I note that H.P.’s eventual factual consent would also not be considered a mitigating factor on an Allen analysis.

Accordingly, the trial judge erred in imposing a two-year sentence for the sexual assault of H.P. [47] [Emphasis added] [52] In R. v. Winters (M.A.) the Nova Scotia Court of Appeal affirmed the trial judgment in which the judge had made the following comments: Another mitigating factor is the lack of use of force. The victim, of course, could not consent in the legal sense, but he was not a compelled participant in the usual sense of that phrase.

He was, of course, because of his age, subject to the direction of the offender in whose trust he had been placed. [48] [53] The Court of Appeal for Saskatchewan, on the other hand, states that factual consent is not, in itself, a mitigating factor: [12] There is certainly a difference between an assault against a child that involves force, violence, intimidation, or trickery and an assault against a child where the child actually consents to the activity or simply does not resist it.

That being said, the whole purpose of the legislation is to protect children, who are not sufficiently mature to appreciate all of the consequences of sexual activities. We agree that a child’s willing participation is not, per se , a mitigating factor in the imposition of a sentence for sexual assault upon that child .

It means nothing more than an absence of aggravating factors such as the use of force, violence, intimidation or trickery. [49] [Emphasis added] [54] The Court of Appeal for Ontario, for its part, is of the view that consent is not a mitigating factor and that, in certain circumstances such as a breach of trust, it may even become an aggravating factor:

[19] This conduct is also frightening because as a 26 year-old man, the respondent induced a vulnerable child into an ongoing sexual relationship by leading her to believe that they were boyfriend and girlfriend. This is exploitation of the worst order. Young women entering their teenage years face a myriad of confusing feelings regarding their bodies, their emotions, and their sexuality. It is difficult enough to deal with these issues with a judgmental and often cruel peer group. To exploit a young teenager as this man did reveals a level of amorality that is of great concern.

The fact that the conduct was consensual on the part of C, who believed she was in a love relationship with a boyfriend, is far from being a mitigating factor as suggested by the defence and instead is an aggravating factor as part of the gross breach of trust involved in this offence . [50] [Emphasis added] [55] Finally, the Court of Appeal of Alberta has recently confirmed the

interpretation that factual consent may, depending on the circumstances, be taken into account: [130] For these reasons, we have concluded that a relationship of genuine affection, even if found to exist, may – but not must – be a mitigating factor in sentencing. No human relationship is as simple as that. Most relationships are multi-dimensional and other aspects of the relationship may act as powerful countervailing forces in the opposite direction.

If a sentencing judge is faced with the claim that a relationship of genuine affection was involved and it ought to mitigate sentence, the judge will necessarily need to consider the questions raised above. [131] All this said, we agree with our colleague Bielby JA that, in certain circumstances, the sentencing judge may well conclude that there is an established relationship of genuine affection that developed naturally between the parties and within which the relevant circumstances arose that warrants mitigation of sentence.

In that event, the sentencing judge may, depending on all the circumstances, determine that the nature of the relationship is such that it should be a weighty factor in mitigation of sentence. A relationship of genuine affection does not eliminate the harm and exploitation inherent in the offence. But it may reduce them. As repeatedly stated, a starting point is just that, a starting point, not an ending point. Sentencing remains within the good judgment, transparently explained, of the sentencing judge.

The result must always be a proportionate sentence. [51] [56] Following this review of the case law, the Court is of the view that there is a consensus that the factual consent of a young victim is not, in itself, a mitigating factor. It should, nevertheless, be considered in assessing the offender’s moral blameworthiness, to ensure that “the punishment […] fit the crime”, [52] thus echoing the fundamental principle of proportionality set out in s. 718.1 of the Criminal Code .

This fact cannot be completely disregarded in the analysis. [57] Speaking of the appellant’s moral blameworthiness, the Court now considers it appropriate to focus on his testimony and the explanations he provided to Berthelot J., which reveal his state of mind both during the actions which he is alleged to have committed and afterwards: [TRANSLATION] A. [...] If someone had just said to me: “Michel, you know, if you go out with that girl, it’s going to get you two (2) years in jail or it’s going to give you shit”, I would have left.

Me, her family told me that I would never have a problem, her mother had told me that she agreed, my parents agreed, we simply loved each other. But I was a young ... how shall I put it? Uneducated, maybe? I had no idea that a five (5) year age difference would get me where I am today. But I was twenty-one (21), twenty-two (22), twenty-three (23) years old, I was no crazier than I am today, I was a nervy guy. I’m sorry to say it like that, but that’s what I was.

Today, I’m a twenty-eight-year-old father, I have control of my life much more than I did before, I don’t take drugs, I don’t go out to bars, I’m at home every evening, I do the best I can to be with my wife, my daughter [...]. Q. [...] Mr. Caron? How do you see the situation today, now that you’re twenty-eight (28) years old, how the case has evolved over the past two (2) years? A. A nightmare. I can’t... I have no other words for it, it’s the worst nightmare of my entire life.

I’ve made mistakes in my life, but to be where we are now, it’s been dragging on for almost three (3) years, I spent seventeen (17) days in jail. Okay, seventeen (17) days in jail, that’s not the worst part, the worst is getting up every morning with that stress, with that fear of being incarcerated, of being far from my daughter, my wife, with a label on my forehead that brands me as a pedophile or rapist or something like that, when I know that I’m not, that I’m a family man with a wonderful little girl, that I would never even think of touching my daughter.

It’s been like the worst nightmare of my life having these charges made against me. What’s more, also the awful trial that we went through, the last time with the other judge and everything that happened, it upset me, it shook me, it was hard on my everyday life, every second is a struggle. In the evening, I get home, I’m afraid to open the mailbox, to find a letter from the Court, to find a letter from my lawyer or that the phone has rung. That’s how it’s been for the past three (3) years, it’s intense.

I see my girlfriend who agonizes over it, who’s stressing out because if I go back to jail, well, she won’t be able to pay the bills and support our daughter, to carry on with everything that she’s been able to accomplish. It’s the worst nightmare of one’s life, I don’t wish it on anyone, especially when the situation that brought me here was... not to want to hurt someone, but to love her. X, we agree that I loved her, that I was there for her, I never hurt her and I was always there. When she needed help, I was there. When she had to go to school and [her parents] couldn’t take her, I was there.

You know, we were a couple, and now that it’s brought me to all this for being in love with someone, I’m upset, I’m shaken, that’s for sure. But, even so, I also understand the charges made against me, I can absolutely assure you that I understand them and I want to be clear about that, but it has upset me, this whole situation has completely destroyed me. […] Q. Do you have anything else to say to the Court, Mr. Caron? A.

That no matter what happens, I’m going to try to remain as clear as possible, and that I’m shattered, I’ve been completely shattered since it happened, but I’m going to remain standing and I’m going to keep fighting for my daughter and my wife, I’m going to try to remain the man that I deserve to be and have the life that I deserve to have, but it has affected me tremendously. Thank you, Your Honour, for hearing me out, and thank you all.

Q. Is your spouse here today? A. Yes, my spouse is present. And what I really think like... anyway, what I feel and what I can see in her, she’s going to be there until she dies because she’s been there incredibly for me, she’s the person who fought the hardest for me. When I spent my seventeen (17) days in jail, I... never in my life did my father or my mother do so much for me. Every morning she was there, every evening she was there, every second that she was needed, she was there. She’s the one who did it all, she’s a treasure, she’s... hmm.

The mother of my daughter and the treasure of my life, I’m sure she’ll be there, that’s for sure. As for me, I’ll certainly be there for her and I hope I can remain at home for them as much as possible. [58] At first glance, the judge seems to have taken into account the appellant’s unique situation. Here is what he wrote: [TRANSLATION] For him, he’s going through a real nightmare. He says he’s ready to undergo therapy. There is a low risk of re-offending. His delinquency is circumstantial. He has no criminal record. The judicial system is a deterrent for him.

According to the sexological assessment, the accused has no sexual deviance. The accused says he is willing to undergo psychotherapy. [53] [59] On the other hand, since the appellant admitted smoking cannabis after this Court released him following Bérubé J.’s judgment, the judge considered this to be a factor affecting his reintegration into society. [54] [60] The judge was wrong to consider the appellant’s judicial admission during the submissions on sentence in order to find that there was an aggravating factor. Again, it is important to quote the appellant: [TRANSLATION] Q.

Last year, you testified before Judge Bérubé that you had, as the report indicates, that you maintained, last June, your abstinence from drug use. A. Yes. Q. What’s the situation today? A. I continue to abstain even... I don’t go out to bars and all that stuff. I did have a cannabis relapse lately, yes, but nothing else. So, yes, I’m continuing to abstain. Q. What do you mean by a relapse? A. I used cannabis with one of my friends not long ago because I wasn’t feeling well and... there’s no reason, I don’t want to justify it with a “because” or “because this, because that”, I did it, that’s all. Q.

How may times did this happen? A. It happened five, six (5-6) maybe, there, since my release from prison. [61] Clearly, this is not a case where the offender’s dangerousness is aggravated by his cannabis use or by his inability to control that use. Public safety is also not jeopardized and the appellant’s risk of re-offending is deemed low. [62] There is no evidence that cannabis use undermines the appellant’s potential for reintegration into society . In fact, his use of cannabis was not a factor in the commission of the crime and is not at all connected to the offences of a sexual nature.

Thus, it could only marginally or minimally affect “the weight given to the favourable presentence report and could therefore have affected the final sentencing decision”. [55] [63] With respect, the judge inappropriately conflated the appellant’s potential for rehabilitation with his use of cannabis, especially since he only used it occasionally and the use was related to the stress he is experiencing.

The fact that this aggravating factor was considered in this case constitutes a reviewable error. [64] Although the judge conducted a balancing exercise between sentencing objectives and principles, the erroneous consideration of the aggravating factor related to the appellant’s use of cannabis clearly had an impact on the quantum of the sentence.

By wrongly claiming that cannabis use negatively affects the appellant’s potential for rehabilitation, the judge placed less weight on this objective, thereby disregarding several other mitigating factors, such as the positive presentence and sexological reports, the low risk of re- offending and the fact that he is an asset to society.

In short, he ends up disregarding the appellant’s otherwise commendable efforts at rehabilitation and reintegration into society. [65] On close analysis, it therefore seems that the judge sought above all to punish the crime rather than the appellant, to the detriment of the fundamental principle of individualization of sentences. The result is a sentence that is demonstrably unfit and patently unreasonable. [66] Does this necessarily mean that it is so grossly disproportionate and excessive as to outrage standards of decency? [56] This brings us to consider the appellant’s constitutional argument.

SECTION 12 OF THE CANADIAN CHARTER [67]

Section 12 of the Charter protects against cruel and unusual punishment.

12. Chacun a droit à la protection contretous traitements ou peines cruels etinusités. 12. Everyone has the right not to besubjected to any cruel and unusualtreatment or punishment. [68] In order to determine whether a sentence infringes this provision, a two-step analysis including a particularized component and ageneral component is required: [77] In

summary, when a mandatory minimum sentencing provision is challenged, two questions arise. The first is whether the provisionresults in a grossly disproportionate sentence on the individual before the court.

If the answer is no, the second question is whether theprovision’s reasonably foreseeable applications will impose grossly disproportionate sentences on others. […][57] [69] The Supreme Court informs us that a “law will violate s. 12 if it imposes a grossly disproportionate sentence on the individualbefore the court, or if the law’s reasonably foreseeable applications will impose grossly disproportionate sentences on others”.[58] [70] The first step is to determine what is a just and appropriate sentence for the accused, without regard to the minimum sentence.

Inorder to do so, McLachlin C.J. stated that the principles of sentencing must be applied: [40] In determining an appropriate sentence for purposes of the comparison demanded by this analysis, regard must be had to thesentencing objectives in s. 718 of the Criminal Code, […]. [41] The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listedin s. 718.2(a)(

i) to (iv); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offencescommitted in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentenceshould not be unduly long or harsh (s. 718.2(c)); and the principle that courts should exercise restraint in imposing imprisonment (ss.718.2(

d) and (e)). [42] In reconciling these different goals, the fundamental principle of sentencing under s. 718.1 of the Criminal Code is that “[a]sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.[59] [71] Once a just and appropriate sentence has been determined, the next question is whether the mandatory minimum sentence isgrossly disproportionate in comparison with a sentence that is just.[60] The Supreme Court defines the qualifier “grosslydisproportionate” as follows: [24] This Court has established a high bar for finding that a sentence represents a cruel and unusual punishment.

To be “grosslydisproportionate” a sentence must be more than merely excessive. It must be “so excessive as to outrage standards of decency” and“abhorrent or intolerable” to society: Smith, at p. 1072, citing Miller v. The Queen, (SCC), [1977] 2 S.C.R. 680, atp. 688; Morrisey, at para. 26; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 14.

The wider the range of conduct andcircumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whomthe sentence would be grossly disproportionate.[61] [Emphasis added] [72] If, at the end of this exercise, the Court considers that the sentence is grossly disproportionate with respect to the accused, theanalysis should normally end there.[62] [73] If that is not the case, reasonably foreseeable applications should be examined.[63] In Nur, McLachlin C.J. reconsidered thisconcept and stated that a reasonable hypothetical must be based on “a situation that may reasonably be expected to arise”, and not onsituations that are marginally imaginable or that have little resemblance to the case before the court nor on fanciful or speculativesituations.[64] The question is therefore whether it is reasonably foreseeable that the minimum sentence could be grosslydisproportionate for certain persons. [74] In the context of this analysis, it is relevant to refer to the case law, which illustrates the range of real-life conduct captured bythe offence.[65] The hypothetical offender’s characteristics are also relevant to the debate.[66] However, the Supreme Court warns usnot to confer on the offender personal features that would construct the most sympathetic case imaginable.[67] [75] If, after having examined the reasonably foreseeable situations, the judge concludes that they will impose grosslydisproportionate sentences on other persons, this means that the minimum sentence violates s. 12 of the Charter. [76] In any case, it will be possible to justify this infringement under the test provided in s. 1 of the Charter, although this promises tobe a difficult exercise.[68] [77] In light of the above, the Court will now apply these principles to the case before us.

PARTICULARIZED ANALYSIS OF THE APPELLANT’SSITUATION [78] First of all, it must be pointed out that the trial judge completely failed to rule on the first part of the

section 12 test, in spite of thefact that this is mandatory when deciding the constitutional question. Although Bérubé J. ruled on the first stage of the test (she wouldhave sentenced the appellant to 8 months), Berthelot J. was also required to conduct his own analysis of what constituted a just andappropriate sentence.

[79] However, as we have seen, the judge immediately jumped to the second stage of the test by examining the three reasonably foreseeable hypotheticals submitted by the appellant. He then concluded that the one-year mandatory minimum sentence was unconstitutional and sentenced the appellant to a 60-day prison sentence on the second count, thereby suggesting that the appellant’s moral blameworthiness was at the lower end of the scale of seriousness and that he was thus distancing himself from Bérubé J.

Ironically and without any explanation, however, he sentenced him to a 12-month prison sentence on the first count, even though the mandatory minimum sentence applicable during the offending period for that count was 45 days. [69] With respect, the judge’s reasoning is difficult to understand. The analysis must be done again. * * * [80] The Court agrees that the objective gravity of the offence of sexual interference is significant.

Parliament has intervened three times to increase the minimum and maximum sentences provided for in this section. [70] Moreover, the case law constantly reminds us that primary consideration is given to the objectives of denunciation and deterrence in the case of sexual crimes against children. [71] [81] That being said, the sentence must also take into account the particular circumstances in which the offence was committed. In the case before us, the appellant’s conduct is at the lower end of the scale of seriousness of conduct that is likely to lead to a conviction for sexual interference.

Although the contacts included full sexual intercourse, they occurred in the context of a romantic relationship between the accused and the victim, who suffered no sequelae from her affair with the appellant. Despite the fact that the victim could not legally consent to the contacts, there is no denying that they do not carry the same degree of seriousness as if the victim had expressed her disagreement. [82] Moreover, the appellant’s personal characteristics are very positive (positive presentence and sexological reports, low risk of re- offending, no criminal record and no sexual deviance).

The judge also found that he was an asset to society, that he was open to preventive therapy and that the judicial system had been a deterrent to him. [83] Taking into account sentencing objectives and the appellant’s almost non-existent moral blameworthiness, the Court finds that a global sentence of 90 days of imprisonment (45 days on each count, to be served consecutively) served intermittently would be a just and appropriate sentence in the circumstances. [72] The one-year minimum sentence therefore seems grossly disproportionate for the appellant.

The Court is indeed satisfied that a public that is well-informed of the circumstances of this case would be outraged to see that the appellant must spend 14 months behind bars for having had a romantic relationship that was approved and encouraged by the parents of both parties. [84] In this case, the only element that would call for a harsher sentence is general deterrence. However, deterrence cannot be used to justify a grossly disproportionate sentence: [45] General deterrence — using sentencing to send a message to discourage others from offending — is relevant.

But it cannot, without more, sanitize a sentence against gross disproportionality: “General deterrence can support a sentence which is more severe while still within the range of punishments that are not cruel and unusual” ( R. v. Morrisey , 2000 SCC 39 , [2000] 2 S.C.R. 90 , at para. 45 , per Gonthier J.).

Put simply, a person cannot be made to suffer a grossly disproportionate punishment simply to send a message to discourage others from offending . [73] [Emphasis added] [85] It is also important to bear in mind that the mandatory and additional orders imposed on the appellant serve to achieve Parliament’s objective of denunciation and deterrence in s. 718.01 of the Criminal Code .

It must be remembered that the trial judge rendered a 24-month supervised probation order and an order requiring the appellant to comply with the Sex Offender Information Registration Act [74] for life under s. 490.013(2.1) of the Criminal Code.

These orders reflect the severity of the sentence and serve to ensure public safety through rigorous supervision of the appellant’s behaviour for the next two years. [86] With respect to the probation order, authors Parent and Desrosiers write that it [TRANSLATION] “allows for greater control over the accused [and] provides the courts with significant flexibility to promote the rehabilitation of the offender while serving the objectives of denunciation and deterrence”. [75] [87] In

summary, the trial judge imposed on the appellant a sentence that was so excessive or grossly disproportionate that it goes against what is acceptable in the circumstances. It amounts to a prima facie violation of s. 12 of the Charter . [88] At this stage of the analysis and in light of the conclusion reached by the Court, it should therefore not be necessary to proceed to the second stage of the test developed by the Supreme Court, namely a review of the minimum sentence provided for in s. 151 of the Criminal Code in light of the three hypotheticals that the appellant considers as likely foreseeable.

That being said, the Court nevertheless thinks it useful to continue the analysis, for two reasons. [89] First, it is important to quote s. 151 of the Criminal Code :

151. Toute personne qui, à des fins d’ordre sexuel, touche directement ou indirectement, avec une

partie de son corps ou avec un objet, une

partie du corps d’un enfant âgé de moins de seize ans est coupable :

a) soit d’un acte criminel passible d’un emprisonnement maximal de quatorze ans, la peine minimale étant de un an;

b) soit d’une infraction punissable sur déclaration de culpabilité par procédure

sommaire et passible d’un emprisonnement maximal de deux ans moins un jour, la peine minimale étant de quatre-vingt-dix jours. 151. Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years (

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or (

b) is guilty of an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days. [90] It is clear from the wording of this provision that the resulting offence can be committed in many ways and under many different circumstances by a wide range of persons, making it constitutionally vulnerable. [76] The resulting uncertainty and unpredictability for people therefore weigh in favour of the Court ruling on the hypotheticals raised by the appellant. [91] Secondly, the Court, on appeal from the judgment of Bérubé J., referred the matter back to the Court of Quebec for a full determination of the appellant’s constitutional argument, in particular with respect to the so-called reasonably foreseeable hypotheticals that he puts forward.

The Court thus finds it difficult to see how it could in turn refuse to rule on those hypotheticals on the ground that such determination is not necessary to resolve the matter whereas the trial judge ruled on the hypotheticals, even though the Court agrees with his conclusion. [92] We shall therefore examine the situation.

REASONABLE HYPOTHETICALS [93] For ease of reference, the Court sets out again the hypotheticals that were submitted by the appellant and that Berthelot J. found to be in violation of s. 12 of the Charter : [TRANSLATION] - A romantic relationship similar to the one that existed between the appellant and X, a relationship that lasted for a shorter period of time, i.e. a few days, involving only touching in the form of kissing; - An isolated event, i.e.

an act of a sexual nature, such as caressing a thigh or buttock over clothing, with no underlying abuse of a position of authority and with no sequelae suffered by the victim; - A romantic relationship and dating between an offender and a child who is unable to consent to sexual relations or interference, a victim who was 15½ years of age at the beginning of the relationship, a relationship continuing beyond the age of majority. [94] A review of the case law shows that these hypotheticals are far from fanciful, that both the offence of sexual interference and the offence of sexual assault [77] cast a wide net that can catch [TRANSLATION] “relatively harmless” behaviour. [95] For example, in R. v.

Burton , [78] a 49-year-old man with no criminal record touched a woman’s thigh, under her skirt, while sitting next to her on a bus. He was found guilty of sexual assault. [96] In R. v. Tanner , [79] a man was found guilty of sexual assault for having touched the breast of a gas station cashier over her clothing. [97] In R. v. Hilan , [80] a man touched a woman and lifted her skirt while sitting next to her on a bus. He was found guilty of sexual assault. [98] In R. v.

Jomphe , Richard Côté J.C.Q. described the wide range of conduct that is captured by s. 151 of the Criminal Code : [TRANSLATION] [60] In short, the mandatory minimum sentence provisions in s. 151 capture a wide range of conduct. At one end of the spectrum, one can find consensual touching of little seriousness done by a young adult upon an adolescent girl and, at the other end, a mature adult in a position of authority having full sexual intercourse with a vulnerable child.

While in most of the situations covered by the provision the mandatory minimum sentence could not be characterized as excessive, it becomes grossly disproportionate and intolerable in situations where the conduct in question is at the lower end of the scale of seriousness . [81] [99] Thus, judicial experience shows cases where conduct at the lower end of the scale of seriousness has led to convictions for

sexual assault. Had the victims in these situations been under 16 years of age, the accused could have been prosecuted for sexual interference. As a result, the one-year mandatory minimum sentence would have been applicable. [100] In the case before us, the second hypothetical raised by the appellant clearly constitutes, in the light of the case law, a case where the mandatory minimum sentence could apply. The cases cited above show that such conduct can lead to a conviction for sexual assault or for sexual interference.

However, the one-year mandatory minimum sentence is grossly disproportionate in such cases. [101] As for the other two hypotheticals submitted by the appellant, they are also reflected in the case law. [102] In R. v. D.G.P ., [82] a young man of 22 years had a romantic relationship with a 15-year-old girl. The relationship began a few months after the legal age of consent was raised from 14 to 16 years of age. The accused, unaware of this legislative change, mistakenly believed that the adolescent girl could legally consent. The accused’s personal characteristics were very positive.

But for the mandatory minimum sentence, the judge would have granted him an absolute discharge. [103] In short, the hypotheticals submitted by the appellant are based on situations that can reasonably be expected to arise. The case law is full of similar cases.

Hence, the one-year mandatory minimum sentence is grossly disproportionate with respect to the reasonable applications put forward by the appellant and, as a result, it infringes s. 12 of the Charter . [104] Accordingly, the Court is of the view that the judge did not err in finding that the one-year minimum sentence is unconstitutional with respect to the three hypotheticals reasonably submitted by the appellant.

SECTION 1 OF THE CHARTER [105] Writing in Nur , on behalf of the majority, McLachlin C.J. noted that “[i]t will be difficult to show that a mandatory minimum sentence that has been found to be grossly disproportionate under s. 12 is proportionate as between the deleterious and salutary effects of the law under s. 1”. [83] [106] Based on this guidance, counsel for the Attorney General did not insist on this point before us. [107] Undoubtedly, Parliament’s objective of deterring and denouncing crimes of a sexual nature committed against minors is a pressing and substantial objective within the meaning of s. 1.

There is also no denying that there is a rational connection between this objective and the mandatory minimum sentence. [108] However, there is nothing on the record that suggests that the minimum sentence is the least invasive means of achieving this objective. On the contrary, by enacting an offence whose very broad wording is likely to apply to a wide range of conduct, one can even claim otherwise. Accordingly, the trial judge did not err in finding that the 12-month mandatory minimum prison sentence violates s. 12 of the Charter and is not justified under s. 1 .

CONCLUSION [109] At the time of his sentencing, Berthelot J. deducted the 16 days of detention that the appellant had served following Bérubé J.’s judgment. [84] [110] The appellant then served a further 31 days of imprisonment after Berthelot J.’s judgment, before being released again by the Court of Appeal.

To date, the appellant has therefore been in custody for 47 days, a period that must be deducted from the global sentence of 90 days that this Court substitutes for the 14-month sentence imposed by the judge. [111] As for the appellant’s claim that Berthelot J. erred in imposing consecutive sentences on the charges, this Court is not in a position to intervene on this point because of the deference owed to the trial judge on this issue. [85] The judge could reasonably conclude that the offences were committed during two separate episodes resulting from the break-up between the appellant and the victim.

Although the events pertain to a single romantic relationship, the two offending periods were interrupted by a separation during which the appellant had ample time to reconsider the situation. Yet he chose to resume living with the victim.

FOR THESE REASONS, THE COURT: [112] ALLOWS the appeal; [113] SETS ASIDE the sentence imposed on May 23, 2017; [114] SUBSTITUTES an intermittent sentence of 90 days (45 days on each of the two counts, to be served consecutively on weekends from Saturday at 9:00 a.m. to Sunday at 5:00 p.m.) for the 14-month sentence imposed by the trial judge, the other orders remaining in effect; [115] DECLARES that the sentence remaining to be served as of this decision, taking into account the 47 days already served by the appellant, is 43 days; [116] DECLARES that the one-year mandatory minimum sentence of imprisonment provided for in s. 151 (

a) of the Criminal Code is of no force or effect with respect to the appellant, that it is unconstitutional as infringing s. 12 of the Canadian Charter of Rights and Freedoms and is not saved by operation of s. 1 of the Charter . ________________________________

JULIE DUTIL J.A. ________________________________ JEAN BOUCHARD J.A. ________________________________ CLAUDE C. GAGNON J.A. Maryse Beaulieu For the Appellant Pascale Gaudette Criminal and Penal Prosecutor For the Respondent Jean-François Paré Lavoie, Rousseau For the Impleaded Party Date of Hearing: January 26, 2018 [1] R. v. Caron Barrette , C.Q. Rimouski, No. 120-01-005833-136 , May 23, 2017 , Berthelot J.C.Q.