R. v. Ndhlovu, 2023 QCCA 1269

McKillop c. R. 2023 QCCA 1269 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007909-227 (550-01-105293-189) DATE: October 3, 2023 CORAM: THE HONOURABLE GUY GAGNON, J.A. GENEVIÈVE COTNAM, J.A. FRÉDÉRIC BACHAND, J.A. HAMISH McKILLOP APPELLANT – Accused v.

HIS MAJESTY THE KING RESPONDENT – Prosecutor JUDGMENT WARNING : The trial court made an order under s. 486.4 Cr.C . directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way. [ 1 ] On October 16, 2019, the Appellant was found guilty of one count of sexual assault and one count of assault on his common law partner. [1] [ 2 ] He was sentenced [2] to 21 months in custody on the first count and 6 months to be served concurrently on the second count.

Among other ancillary orders, the sentencing judge ordered that the Appellant comply with the Sex Offender Information Registration Act [3] (“ SOIRA ”) for a period of 20 years. [ 3 ] In his brief, the Appellant challenged the validity of the SOIRA order in light of the recent decision of the Supreme Court of Canada in R. v.

Ndhlovu . [4] However, he later informed the Court that he had subsequently filed a motion seeking a constitutional remedy before the Superior Court and therefore abandoned this ground of appeal. [ 4 ] The Appellant argues that the judge committed an error while considering certain aggravating factors and disregarding some mitigating factors. He also submits that the sentence is excessive given recent amendments to the Criminal Code regarding the possibility of imposing conditional sentences in cases involving a sexual assault. A.

The sentencing judge should not have considered certain aggravating factors and failed to take some mitigating circumstances into account [ 5 ] The Appellant contends that the sentencing judge committed an error of law by relying on cases dealing with sexual assaults involving full intercourse.

He claims that this aggravating factor, namely the degree of physical interference and violation of the victim’s bodily integrity, was not proven beyond a reasonable doubt. [ 6 ] In prior rulings rendered in this case as well as in the judgment on conviction, the sentencing judge referred to the fact that the Appellant had penetrated the victim without her consent while she was either sleeping or in a semi-conscious state because she was under the influence of medication. [5] [ 7 ] In its judgment dismissing the appeal of the conviction, the Court noted that: [5] The Crown acknowledged some errors of fact and also conceded that the decision was sometimes unclear.

For example, it is true that the complainant never testified that the appellant had persisted to the point where he had, in fact, had sexual intercourse with her while she was under the influence of medication. It is also true that the judge wrote “the next morning she would realize more what happened”, when the evidence is silent in this respect . [6] [Emphasis added] [ 8 ] However, the judge did not repeat the same error in the sentencing decision.

He simply stated – consistent with the evidence – that the Appellant had initiated foreplay without the complainant’s consent and that, after refusing numerous times, she would “give in by [sheer] exhaustion. He would then penetrate her and ejaculate in her”. [7] This distinction is important since the transcript of the

sentencing hearing demonstrates that the Appellant raised this issue and that the judge insisted these matters be clarified. [ 9 ] Furthermore, the Court also concluded: [7] The Court agrees with the respondent that the errors invoked do not affect the core of the judge’s reasoning.

More specifically, the appellant has not shown that the nuances not commented on by the judge would in any event be determinative, individually or collectively, of the reliability or credibility of the complainant’s testimony. […] [21] All in all, the evidence supports the judge’s conclusion that the appellant could not have been unaware that the complainant had repeatedly expressed her disinterest in receiving sexual touches of any kind.

The evidence, including the appellant’s repetitive conduct without taking reasonable steps to ascertain that the complainant was consenting, lends support to the judge’s finding that the actus reus and mens rea of sexual assault had been proved. [8] [ 10 ] Therefore, in light of the circumstances of this case, the judge was justified in relying, for sentencing purposes, on case law involving sexual assault with “physical interference and intercourse on a spouse”. [9] His finding regarding the seriousness of the acts committed by the Appellant was also well founded given the number of incidents, their duration, and the fact that there was physical and psychological violence involved.

Furthermore, the evidence demonstrates that the Appellant continued his behaviour after receiving warnings from the complainant and undergoing counselling. Even after his arrest, he showed no sign of remorse. [ 11 ] In sum, the has Appellant failed to point out an error committed by the sentencing judge regarding the assessment of the aggravating circumstances. [ 12 ] As for the mitigating factors, the Appellant did not testify at the sentencing hearing and refused to participate in the preparation of a sentencing report.

He argues that the sentencing judge disregarded the fact that the complainant displayed affection in the emails she sent to him while travelling in France in 2017 and that they were still planning their wedding in August 2017. He also adds that the judge should have considered the fact that the complainant only appeared to be negatively impacted by the events in the aftermath of the separation.

These arguments, which are clearly based on myths and stereotypes as to the way a victim of sexual assault is expected to react, cannot be considered as mitigating circumstances. [ 13 ] Additionally, the other mitigating circumstances identified by the Appellant were, as a matter of fact, taken into account by the sentencing judge: [9] In the case at hand, the defendant Mr. Mckillop has no criminal record. He is 35 years of age and works as a computer technician for Global Affairs Canada. He has the support of family and friends. The good character letters filed are impressive.

All agree that this behavior is out of character for him. He is described as a respectful person. He suffers from attention deficit disorder and has been treated for this since his young age. The parties continued to live together for several months afterwards and the defendant underwent counselling at the request of his spouse during their relationship.

Ultimately, the defendant’s behavior persisted and the [complainant] terminated their relationship. […] [53] The defendant refused to participate in the preparation of a pre-sentence report which may have given me additional insight into his prospects for rehabilitation. He is a middle-aged man and has a long life ahead of him.

I would therefore not deny him the opportunity to rehabilitate himself by incarcerating him for an unduly long time. [10] [ 14 ] The appellant, therefore, has failed to demonstrate that the judge exercised his discretion unreasonably, or that the intervention of this Court is otherwise warranted. B. The sentence is excessive and the Appellant is entitled to an absolute discharge under the circumstances [ 15 ] During the sentencing process, the Appellant suggested that a conditional discharge would be an appropriate sentence.

The sentencing judge denied this request. [11] The Appellant then submitted that a conditional sentence of imprisonment would be a fit sentence and filed an application seeking a declaration of invalidity of subparagraph 742.1( f )(iii) of the Criminal Code , which provision excluded any possibility of imposing such a sentence in sexual assault cases. [ 16 ] After analysing the aggravating and mitigating circumstances, the judge concluded that he would impose a sentence of incarceration of less than two years.

This meant that the Appellant would have been eligible for a conditional sentence but for the impugned provision. Nevertheless, after addressing the constitutional issue, the judge dismissed the Appellant’s application. [ 17 ] Following the repeal of subparagraph 742.1( f )(iii) Cr.C . in November 2022, [12] the Appellant now suggests that “a sentence of 21 months of jail for a sexual assault involving light touching in the context of attempting foreplay would be so excessive as to reveal an error in principle”.

He contends that, because of this change in the law, he should be granted an absolute discharge. [ 18 ] At the hearing, the Appellant further submitted that, considering the time he has already spent out on bail, an absolute discharge would be an appropriate sentence in light of the mitigating factors considered by the sentencing judge. [ 19 ] In a recent decision, the Court outlined the approach to be taken in appeals from sentencing judgments that were rendered before the repeal of subparagraph 742.1( f )(iii) Cr.C . : [90] Pour les raisons que j’exprimais d’entrée de jeu, il est maintenant temps pour la Cour d’exercer son propre pouvoir discrétionnaire, tout en retenant les conclusions factuelles du juge de première [instance] puisque rien ne justifie leur rejet .

Il faudra également tenir compte de leur qualification par le juge. Autrement dit, il faut décider si l’emprisonnement avec sursis permettrait

d’infliger une peine juste, proportionnelle aux circonstances du crime et à la personnalité de l’appelant, sans oublier sa culpabilité morale. Dans le cadre de cet exercice, la Cour doit tenir compte des objectifs retenus par le juge, de même que de la pondération qu’il a opérée . Il faut reconnaître que l’exercice auquel doit se prêter la Cour est relativement limité puisque les principes de détermination de la peine demeurent les mêmes.

Seule la possibilité de l’emprisonnement avec sursis est l’objet de ce nouvel examen . [91] Par conséquent, en procédant à son propre exercice de pondération, la Cour doit elle aussi déterminer le poids spécifique qui doit être attribué aux critères pertinents, mais toujours en tenant compte des conclusions du juge . Pondérer signifie discriminer les critères et les facteurs applicables dans la recherche d’une peine adéquatement individualisée et non pas, bien entendu, leur accorder par défaut une valeur égale.

Il est donc possible que la Cour accorde un poids prédominant aux objectifs de dénonciation et de dissuasion, comme l’a fait le juge de première instance. [92] En somme, j’entends proposer à la Cour une peine qui tiendra compte des conclusions du juge, vu qu’aucune erreur n’est démontrée . [13] [Emphasis added] [ 20 ] For the reasons mentioned previously, the 21-month sentence imposed by the sentencing judge is not excessive. Moreover, the Appellant has failed to explain why an absolute discharge would be more appropriate under the circumstances.

The judge insisted on the importance of a custodial sentence and the relevance of specific deterrence in the case at hand: [48] It is clear after review from these cases that sentences for sexual assault involving physical interference and intercourse on a spouse, ex-spouse or lover command the imposition of a custodial sentence. The medium sentences for single incidents involving intercourse without additional violence, imposed on individuals that have the same profile as the defendant range from 18 months to 2 years of imprisonment.

However, the acts committed by the defendant fall at the much more serious end of the spectrum of seriousness, given the number of incidents, their duration and the physical and psychological violence involved. [49] In the case at hand, the need for specific and general deterrence is paramount otherwise the public may think that nothing is at stake for sexually assaulting one’s spouse. Courts must send a clear message that sexual activities with an intimate partner, man or woman, without his or her consent is a crime that may result in serious consequences. [50] The defendant must be deterred.

He maintained his behavior mindless the warnings he received from the complainant and even after he had undergone counselling. Nonetheless he continued to harass her and was upset when she would prevent him from having sexual satisfaction. Taken as a whole, this issue and others led the defendant to become more violent, harassing her and ultimately choking her upon the bed board. [51] Furthermore, once under arrest he continued to minimize his actions and ascertain his right as her fiancé to engage in sexual activity. He showed no signs of remorse or introspection.

On the contrary he blamed the victim, who he describes as an extreme feminist. Extreme feminism is for him the source of all his problems. [14] [ 21 ] In light of the sentencing judge’s findings of fact and the importance of deterrence in such matters, the Appellant has failed to demonstrate that an absolute discharge and even a conditional sentence would have been a fit sentence. FOR THESE REASONS, THE COURT: [ 22 ] DISMISSES the appeal; [ 23 ] ORDERS the Appellant to report to the Hull Detention Centre within a period of 72 hours from the present judgment. GUY GAGNON, J.A. GENEVIÈVE COTNAM, J.A.

FRÉDÉRIC BACHAND, J.A. Mtre Diane Magas For the Appellant Mtre Francis Villeneuve-Ménard DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the Respondent Date of hearing: September 15, 2023