r v. ANDREW, 2023 QCCQ 5904

R. c. Marson 2023 QCCQ 5904 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Criminal and Penal Division No: 500-01-216705-217 DATE: September 12, 2023 ______________________________________________________________________ BY THE HONOURABLE FLAVIA K. LONGO, J.C.Q. ______________________________________________________________________ HIS MAJESTY THE KING Prosecutor v. ANDREW MARSON 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article 486.4 of the Criminal Code directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 incident that took place on September 11, 2016. [ 2 ] The facts were related in detail in the judgment of the Court dated October 25, 2022 [1] . In sum, the accused and the victim met for the first time at her dorm room on the day of the sexual assault. They had previously communicated through Facebook and text messaging. They spent some time chatting and then started to kiss. The accused placed the victim onto her bed where the consensual kissing continued.

At some point, he removed her clothing and she froze as he penetrated her vaginally with his penis for about five minutes while his hand was on her mouth to keep her quiet. The sexual assault came to a halt when the victim managed to push him away and told him that they were done at which time he left her room. [ 3 ] The Prosecution asks the Court to impose a 24-month term of imprisonment accompanied by a two-year probation with conditions. The defence suggests a conditional sentence of imprisonment for a period of 18 months. THE VICTIM [ 4 ] The victim (M.

L.) testified at the sentencing hearing and read out her statement [2] outlining the consequences that the sexual assault had and continues to have on her to this day. She was 19 years old at the time of the events. [ 5 ] She described that during the year following the incident, she fell into a state of self-isolation and self-destruction. She underwent a gynecological exam to ensure that she had not contracted any sexually transmitted ailments since no condom was used during the event. She felt guilty about what happened and would cut herself regularly on her arms and thighs to release her emotional pain.

She self-medicated daily to the point where her parents did not recognize her. [ 6 ] She was depressed and lost several friends. She was unable to study properly, and her memory is not as sharp as it used to be. She lost focus in school and her grades plummeted.

As a result, the university put her on probation for the first year of her undergraduate degree and she had to attend school for an extra semester, at great financial expense, to make up for the classes that she had failed. [ 7 ] She lived in fear that something would happen to her, and she developed an eating disorder by using food to deal with her emotions. She lost confidence in herself which caused her difficulties in her romantic relationships. She has become anxious and hypervigilant. She needs to be medicated to sleep and suffers from PTSD. Furthermore, she has been struggling with suicidal thoughts

for at least three years and has abused cannabis and alcohol. She has consulted several therapists since the incident at her own expense. THE ACCUSED [ 8 ] The accused did not testify at the sentencing hearing, but the Court learned that he is 33 years old and has no criminal record. He grew up in Montreal, Toronto, and Calgary. In a written statement [3] that was tendered into the court record by the accused’s mother, Mrs.

Anne-Marie Feoli-Marson, she stated that when the accused was accepted to Concordia University where he obtained a Bachelor of Arts [4] in 2018, he moved back to Montreal since he had a very close relationship with his grandparents and wanted to be near them. When his grandfather passed away, he assisted his grandmother until she passed away in 2020. The accused devoted much of his time to her before her passing and it was difficult for him to maintain a job. [ 9 ] As for Mrs.

Feoli-Marson, she lives in western Canada, far from her son and suffers from several health issues, one of them being stage 2 breast cancer which is the reason why she was not present at the sentencing hearing. Her son is her pride and joy and has been her emotional support throughout her illness. OTHER EVIDENCE [ 10 ] Through the presentence report [5] , the Court learned that the accused is an only child with a strong attachment to his parents who conveyed conservative values.

Despite this, he seems to have difficulty asserting himself professionally and overinvests in leisure activities to the detriment of his occupation. At the time of the sentencing hearing, he was looking for full-time employment and has been taking online courses in the field of website creation and network engineering. [ 11 ] Although the accused does not recognize any deviant behaviour, he agrees to follow any therapy that is suggested by the Court.

The risk of sexual reoffending is deemed to be below average. [ 12 ] The accused underwent a sexological evaluation [6] which states that he is currently self-employed as a software developer and has been preparing for interviews with large companies in the IT industry. He lives alone in a rented apartment and trains five times per week. He is also involved in competitions as a wrestling referee.

He rarely consumes alcohol and does not consume drugs or medication. [ 13 ] The accused was assessed by the sexologist who used two scales to evaluate his level of risk for sexual recidivism: the Static- 99R scale and the Stable 2007 Scale. The expert’s report [7] states the following regarding the accused’s scores: Mr. Marson’s Static-99R score was calculated based on official criminal history records provided by Marius Magdes of the Services correctionnels Québécois . Mr.

Marson had three static risk factors for recidivism: namely his age (+1), no cohabitation (at least two years) with a partner (+1), and at least one unrelated victim (+1), for a total of 3. The total Static-99R score of 3 places him in the nominal Level III category, which is an average level of risk for being charged with, or convicted of, another sexual offence. Mr. Marson’s score ranks him at the 65.7 th percentile, defined as a mean value (57.1% of offenders score lower, 17.2% score the same, and 25.7% score higher).

In other words, out of 100 sex offenders, 57 would have a lower score, 17 would have the same score, and 26 would have a higher score. Using a 95% confidence interval, Mr. Marson’s actual score is likely to be between the 57.0 th and 74.3 rd percentile ranks. The Stable-2007 scale is designed to assess changes in medium-term risk levels and intervention and treatment needs. In addition, when combined with a tool such as the Static-99R, it helps to predict recidivism rates for sex offenders.

This risk assessment tool, developed by Hanson and Harris (2000, 2007), is based on a study conducted in Canada, Alaska, and Iowa on a sample of 991 sex offenders. The Stable-2007 has 13 items including significant social influences, emotional identification with children, hostility towards women, social rejection, impulsivity, poor cognitive problem-solving skills, sexual urges and preoccupations, deviant sexual interests, and cooperation with supervision. Mr. Marson scored a 2 on the Stable-2007, which corresponds to a low level in terms of criminogenic need density.

We identified one main factor (score 2) for Mr. Marson, his ability to have a stable relationship. We did not note any difficulty of lesser importance (score 1) for Mr. Marson. The Static-99R and Stable-2007 scores were then combined to determine the standardized level of risk for sexual recidivism. Since Mr. Marson had an average level of risk (Level III) on the Static-99R and a low level of criminogenic need density on the Stable-2007, the combination of these two assessments placed him at a standardized Level II risk . Among the normative sample, men who had a risk profile like Mr.

Marson’s had a sexual recidivism rate of 0.8% in year one, 3.4% in year three, and 5.3% in the five years following release. [ 14 ] The expert concluded that his risk of repeat offence of a sexual nature is below average [8] and there is no indication of any sexual deviance. [9] THE SENTENCING PRINCIPLES [ 15 ] The fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offense and the degree of responsibility of the offender. [10] 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. [11] [ 16 ] 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 offense or the offender. [12]

[ 17 ] The jurisprudence makes clear that sentencing for sexual crimes must place particular emphasis on denunciation and deterrence. [13] That being said, other sentencing objectives are still to be considered. [14] [ 18 ] Although no two cases are identical, the Québec Court of Appeal has cited with approval [15] the sentencing ranges for sexual crimes set out in the case of Cloutier . [16] They are described by authors Parent and Desrosiers [17] 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 offenses involving high objective gravity. [ 19 ] The Québec Court of Appeal has also confirmed in Côté [18] , Oum [19] and Houle [20] 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. [21] [ 20 ] During final arguments, the defence tendered a booklet containing 12 decisions but stated that the most relevant one to the case at hand is the recent decision of Gravel [22] where the court granted a 20-month conditional sentence of imprisonment. In that case, 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. [ 21 ] The sexual assault caused long-lasting consequences for the victim. As for the accused, he was 35 years old when the offense 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.

APPLICATION [ 22 ] The objective gravity of sexual assault is high since it is punishable by a maximum term of imprisonment for 10 years. [ 23 ] The Court considers the following aggravating factors: • The significant, lasting, and varied consequences of the offence on the victim, as outlined above. • The unprotected (without a condom) vaginal sexual intercourse. • The location where the assault took place was her dorm room where she was entitled to feel safe and protected. • The accused put his hand on the victim’s mouth during the incident to keep her quiet. [ 24 ] The Prosecution requested that the victim’s vulnerability be retained as an aggravating factor since she was hungover at the time of the events.

The Court will not adhere to this request since there is no evidence that she was intoxicated when the assault took place. [ 25 ] As for the mitigating factors, the Court takes the following into account: • The accused has no criminal record. • The accused is employed and has strong family support. [ 26 ] The accused was 26 years old at the time of the offence. The defence asked the Court to treat the fact that he was a young adult when the event transpired as a mitigating factor.

The accused had two sexual partners before he turned 18 [23] and three significant relationships between the ages of 21 and 26. [24] The Court deems that his age is a neutral factor since he already had relationship experience with several women before the commission of the offence. Therefore, his actions are not tantamount to a youthful error. [25] [ 27 ] In the present matter, the facts command a sentence in the shorter range as described in Cloutier . [26] The objective and subjective gravity of the offence are such that they necessitate a term of imprisonment below two years.

Therefore, the preconditions for the imposition of a conditional sentence of imprisonment are present. [ 28 ]

Section 742.1 of the Criminal Code states that when a term of imprisonment of less than two years is imposed, the Court can order that the sentence be served in the community. To do so, the Court must be convinced that the conditional sentence of imprisonment does not endanger the security of the public and that this measure complies with the objectives and principles set forth in sections 718 to 718.2 of the Criminal Code . [ 29 ] The accused has no criminal record, is a productive member of society, and was brought up in a family environment where prosocial values were advocated.

Taking these factors into account, the Court is convinced that imposing a conditional sentence of imprisonment would not endanger the security of the public. This precondition has been met. [ 30 ] The presentence report and sexological report are generally positive. However, they place the accused in a “below average” risk of repeat offence category as opposed to a “low risk” category. The Court cannot conclude that the risk of repeat offence is not present or

that it is minimal. Furthermore, the accused chose not to testify at the sentencing hearing as is his right. Thus, the sole indicators of rehabilitation are the absence of prior convictions and his employment. [27] [ 31 ] In Gravel [28] , the accused was introspective and showed empathy towards the victim. The risk of repeat offence was low, he had been in therapy for several years and his rehabilitation was ongoing. This is not the case in the matter at hand.

Although there is some semblance of rehabilitation, the Court cannot conclude that it is well underway. [ 32 ] The accused’s moral culpability is high since he was told by the victim from the very beginning that she would agree to nothing more than kissing. Despite knowing this, he made no effort to obtain her consent and proceeded to have vaginal intercourse with her. [ 33 ] The weighing of the aggravating and mitigating factors leads the Court to conclude that denunciation and deterrence are the paramount sentencing objectives.

Although the accused’s social reinsertion is taken into consideration, the sentence imposed must denounce his illegal behaviour and the prejudice caused to the victim’s physical and sexual integrity since the act committed was highly intrusive. [ 34 ] Notwithstanding that a conditional sentence of imprisonment may have a deterring effect and satisfy corrective objectives, it does not appease the pressing need for denunciation and deterrence since the circumstances of this specific case warrant incarceration.

Despite the Court’s duty to consider less restrictive sanctions other than a custodial term [29] , the imposition of a conditional sentence of imprisonment would not be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code . [30] FOR THESE REASONS, THE COURT: CONDEMNS the accused to a custodial sentence of 15 months.

IMPOSES a two-year probation period upon the accused that will be in force once the custodial sentence 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 (M.

L.). • 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.

__________________________________ FLAVIA K. LONGO, J.C.Q. Me Geneviève Rondeau-Marchand For the DPCP Me Joël Girard For the accused Date of hearing: March 31, 2023