R v. ISAAC, 2017 QCCQ 13035

R. c. Rell 2017 QCCQ 13035 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal Division No: 500-01-134441-168 DATE: November 10, 2017 ______________________________________________________________________ BY THE HONOURABLE MÉLANIE HÉBERT, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN PROSECUTOR v.

ISAAC GUK RELL ACCUSED ______________________________________________________________________ JUDGMENT [1] ______________________________________________________________________ an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, is in force in proceedings in respect of THIS FILE. THE CONTEXT [ 1 ] Mr. Rell pleaded guilty to one count of assault, taken by

summary conviction. [ 2 ] The facts surrounding the assault can be summarised as follows: • The victim, a 12 year old girl, was travelling by plane, alone, between Halifax and Montreal; • During the flight, Mr. Rell, engaged in a conversation with the victim. When she asked him how old he was, he said: “old enough to be your sugar daddy”. He told her that he was “very attracted to her and asked her if that made her feel uncomfortable.” She said yes; • Mr. Rell continued making inappropriate remarks to the victim. He put his hand on her thigh and she removed it.

He told her “this is when we should kiss”; • The victim not only felt uncomfortable, she was also scared. At the end of the flight, she asked someone for help; • Mr. Rell was arrested by the police upon his arrival in Montreal. He was detained for two days until he was released with conditions. [ 3 ] The victim, who is now 13 years old, suffered serious consequences as a result of this assault. She “got depressed” as she stated. She stopped caring about anything. She stopped talking to people. She stopped trusting people. She stayed in her room alone. She lost motivation to live. She wanted to end her suffering.

She hated herself and felt guilty about what happened. She lost her motivation at school and failed all of her classes. She stopped her gymnastics. [ 4 ] The victim is still living with the consequences of this assault more than a year after it occurred. She is taking pills for her anxiety and depression. She is now in what she refers to as a “special ed” class at school. She has constant fear and looks over her shoulder to see if someone will hurt her. She easily gets scared or nervous. [ 5 ] At the time of the events, Mr. Rell was enrolled at McGill University in mining engineering.

He flew to Halifax with his friends for the spring break. He refused to smoke pot during the week but his friends convinced him to do so on the day that they were flying back to Montreal. Mr. Rell does not recall what happened on the plane and states that his lack of memory derives from the joint that he smoked. [ 6 ] Mr. Rell expressed regrets for his actions stating that they were out of character. He explained that after the events, he suffered

from depression. He stopped attending classes and seeing his friends. His GPA dropped. [ 7 ] Mr. Rell has been evaluated by Dr. Marc Ravant who provided a psychosexual report to the Court. According to this report, Mr. Rell has no antisocial or psychopathic character traits. His discourse and value system is more prosocial than antisocial. There is no evidence of pedophilia or hebephelia or any other sexual deviant interest. Mr. Rell has no problems that are commonly found among high-risk child sex offenders. The risk that the reoffend in committing another sexual crime against a minor is low.

He presents low treatment needs but he would benefit from continuing his current therapy. [ 8 ] Mr. Rell is doing better. He is finishing his engineering degree at McGill University. He plans to work for two years in the mining or the petroleum industry. He would like to work in Australia. He will use the money that he makes in those two years to sponsor his family so that they can come to Canada. Mr. Rell is a permanent resident of Canada and would like to get his citizenship in order to facilitate this process. [ 9 ] Mr.

Rell also stated that he would like to register for a master’s degree after having worked for a few years. He is looking at two school. One in Alberta and one in Colorado. [ 10 ] Mr. Rell has stated not having taken drugs since the events. He has however consumed alcohol in a social context even though he has signed a peace bond prohibited him from doing so. Finally, he stated that he feels that he does not need therapy. [ 11 ] The defense is asking the Court for a conditional discharge with a probation of one year, including 50 hours of community work.

According to the defense, without a conditional discharge, Mr. Rell’s chances of working in his field, pursuing a master’s degree and bringing his family to Canada would be seriously hampered. [ 12 ] The Crown is asking the Court to impose a suspended sentence with a three year probation, including 240 hours of community work, stating that dissuasion and deterrence are important objectives in cases where the victim is a child. In short, a conditional discharge is too lenient of a sentence in this specific case. QUESTION AT ISSUE [ 13 ] Is a conditional discharge the appropriate sentence in this matter?

ANALYSIS [ 14 ] When imposing a sentence, consideration must be given to the sentencing objectives set out by

Section 718 of the Criminal code , which includes, amongst others, denunciation, deterrence, rehabilitation, reparation and the promotion of a sense of responsibility in offenders. [ 15 ] When the offense involves the abuse of a person under the age of eighteen years old,

section 718.02 of the Criminal Code provides that primary considerations must be given to the objectives of denunciation and deterrence. [ 16 ] As the Court of Appeal of Newfoundland stated [2] , criminal abuse of a person under 18 years old is particularly serious because young persons are less able than mature adults to withstand assaults to their persons because of their physical, mental and emotional immaturity. They are also more likely to be more vulnerable to emotional scarring, as they are still “finding themselves” in these formative years. [ 17 ] This is obviously what occurred in the matter at hand.

As a result of the assault, the victim is left with serious emotional scars that she has to deal with while she is growing up. [ 18 ] However,

Section 718.02 of the Criminal Code does not mean that denunciation and deterrence must systematically outweigh other objectives [3] . [ 19 ] The sentence must always be proportionate to the gravity of the offence and the degree of responsibility of the offender. A fit sentence takes into account the aggravating and mitigating circumstances related to the offence and the offender. [ 20 ] The Court is bound by the fact the Crown accepted a guilty plea on an assault taken by

summary conviction. In other words, the sentence to be imposed upon Mr. Rell must reflect that crime as opposed to, for example, a sexual assault or sexual interference with a minor, which are crimes with a higher objective gravity. [ 21 ] In the matter at hand, the aggravating factors are as follows: • The victim was 12 years old; • Mr. Rell took advantage of the fact that she was alone, on a plane, sitting beside him; • The assault occurred in a context where Mr. Rell was making inappropriate remarks to the victim over a lengthy period of time, that is the duration of the flight; • The victim was scarred; • The victim suffered serious consequences which are still affecting her today;

• While Mr. Rell expressed remorse, he has not yet completely acknowledged responsibility for what happened. He blames the drugs. He states that he does not feel the need for further therapy. He drinks socially even though he is under conditions not to do so. [ 22 ] The mitigating factors are as follows: • Mr.

Rell has no prior convictions; • He is an engineering student at McGill University with good job prospects; • He has no antisocial or psychopathic character traits; • He has prosocial values; • The risk that he commits a sexual crime against a minor is low; • He pleaded guilty; • He is in the process of acknowledging responsibility and further therapy will more likely help in this regard. [ 23 ] The Court can pronounce a conditional discharge if the following two conditions are met: (1) it is satisfied that it is in the best interest of Mr.

Rell and (2) it is not contrary to the public interest. [ 24 ] The first condition presupposes the following: • that the accused is a person of good character, without previous conviction; • that it is not necessary to enter a conviction against the accused in order to deter him from future offences or to rehabilitate him; and, • that the entry of conviction against the accused may have significant adverse repercussions [4] . [ 25 ] Mr. Rell is a person with prosocial values, without prior convictions.

Even though he has not completely acknowledged responsibility for his actions, he has begun that process and the Court is convinced that continuing his therapy sessions will help him in this regard. A conviction would have a significant adverse repercussion on his employment prospects in the engineering field. Thus, the Court concludes that a discharge is in his best interest. [ 26 ] The Court must now decide if a conditional discharge would be contrary to the public interest given all of the circumstances of this case. Considering that Mr. Rell plead guilty to an assault taken by

summary conviction and given his specific situation, the Court finds that the objective of rehabilitation should prevail in this case. [ 27 ] Thus, the Court will pronounced a conditional discharge accompanied by a three year probation, including the following conditions, amongst others : • a follow up with a probation agent for 18 months; • an obligation to continue the therapy with Dr.

Ravant as long as needed and to follow his recommendations; • an obligation to perform 120 hours of community work within an 18 month delay; • a prohibition from being within a radius of 200 meters of the victim’s home, school or place of work; • a prohibition from communicating with the victim; • a prohibition from having any contact, including communicating by any means, with a person under the age of 16 years unless he does so under the supervision of a person whom the Court considers appropriate; • refrain from using drugs. [ 28 ] That being said, it is important for me to note that the fact that I have decided to pronounce a conditional discharge in this matter is not intended to minimize Mr.

Rell’s behaviour or the impact that his behaviour had on the victim. I recognised the victim’s suffering. No child should ever have to go through what she suffered. __________________________________ MÉLANIE HÉBERT, J.C.Q.

Me Stécie Jérôme DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES Attorney for the Prosecutor Me Simon Leduc Lebeuf SIMON LEDUC LEBEUF, LAWYER Attorney for the Accused Date of hearing : October 26, 2017 [3] R. c. D.B ., 2013 QCCA 2199 .