r v. LUCAS OLIVEIRA RODRIGUES, 2022 QCCQ 2028

R. c. Oliveira Rodrigues 2022 QCCQ 2028 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL TOWN OF MONTRÉAL Criminal and Penal Division No: 500-01-186050-198 DATE: February 2, 2022 ______________________________________________________________________ PRESIDING: THE HONOURABLE ÉRICK VANCHESTEIN, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v. LUCAS OLIVEIRA RODRIGUES Accused ______________________________________________________________________ JUDGMENT ON SENTENCE ______________________________________________________________________ This judgment is subject to a restricting order in conformity with

section 486.4 of Criminal code forbidding the publication or broadcast of any information that could identify the victim. [ 1 ] The accused pleaded guilty to a count of sexual assault causing bodily harm and a count of forcible confinement. The event occurred on June 9, 2017. [ 2 ] The Court has to decide the appropriate sentence in this specific case. [ 3 ] The Crown seeks a period of imprisonment of 48 months whereas the Defense submits that a period of imprisonment of 30 months is a fit sentence for the accused’s situation.

In addition, the Defense asks that the Court give a credit not only for the pretrial custody time, but also an additional credit considering the harsh conditions of detention in relation with the Covid-19 pandemic. [ 4 ] Then the questions the Court has to answer are the following: 1. What is the appropriate sentence in this matter? 2. What credit the Court should grant for the presentence custody served during the Covid-19 lockdown and also, for the assault on the accused by the correctional agent of the detention center.

RELEVANT FACTS [ 5 ] The parties agree on the statement of facts and the accused acknowledges the facts mentioned in the statement. It is worth reproducing it entirely: 1. At the time of the offence the accused and the victim had known each other for about four (4) years. They were friends. 2. On June 9, 2017, the accused texted the victim and invited her to his place to spend some time together. 3. They met at the Mount-Royal metro station and walked together to his place at 4067 St-Urbain Street. 4. When they arrived, they first went to the kitchen, and the accused locked the front door. 5.

The two went into the basement, where the victim sat on the couch and the accused sat on a chair nearby. 6. He eventually got off the chair and sat on the couch next to her. 7. He laid his head on her shoulder, then tried to kiss her on the neck and then the lips. The victim refused and pushed him away. 8. The accused then put his hand in the victim’s pants, and put his fingers on her vulva. 9. The victim got up to get free, and the accused grabbed her pants in the process, pulling them off. 10.

He pushed her onto a nearby mattress lying on the floor behind the sofa, and a struggle ensued between the accused and the victim, while the accused continued the sexual assault.

11. She tried to run away and grab anything she could to protect herself. She grabbed a nearby lampshade and swung it at him, hitting him with it. She then took a nearby shoelace and tried to wrap it around the accused’s neck. 12. The victim was eventually able to get up and run upstairs. The accused ran after her. She got to the main floor at the top of the stairs when the accused caught up to her. She grabbed onto the doorframe to keep him from pulling her. 13. She freed herself and ran to a window opening onto St-Urbain Street.

She opened it, where right outside, two SPVM officers were conducting a Highway Safety Code intervention. 14. The accused pulled her away from the window, pulling her back with his arm around her neck and torso. 15. The victim again freed herself and returned to the window, where she screamed at the officers. They came to the front door. The victim did not have the keys, so the officers kicked the door in. 16. As the police arrived, the accused fled through a basement door. 17. Officers took charge of the victim, who was crying and shaken. They could not find the accused who had just left the scene. 18.

The victim was taken to the hospital, where the following injuries were observed: i. Scratches on her neck; ii. A broken nail on her index finger; iii. Bruises on her right and left bicep, left elbow, left cheek, nose, and right hip. 19. The accused cannot say for certain that he caused these injuries, but recognizes that they could have occurred as a result of these events. 20. Officers obtained a telewarrant for 4067 St-Urbain. 21. When processing the scene, officers took pictures and found the lamp and shoelace, as described. 22. During the crime scene analysis, the accused returned home. 23.

He admitted to police that he had taken the battery out of the victim’s cell phone and hidden it in the basement, for fear of being arrested. He also admitted to locking the door and hiding the keys. 24. Officers recovered the phone from the basement. 25. The accused ultimately stated to the police that the victim would tell them he tried to kiss her, tried multiple times, and that she pushed him off multiple times. [ 6 ] Strangely, instead of being arrested and charged on that day, the accused was released with no conditions.

He was charged almost two years after the facts by an endorsing warrant issued on March 15, 2019. This explains why this case proceeds many years after the facts. CONSEQUENCES ON THE VICTIM [ 7 ] The victim had just turned 18 years old at the time. It is well-known that this type of aggression will be engraved in the victim’s mind for life. Although the physical consequences were limited because she was able to escape her aggressor, the psychological impacts are still present.

Days after the aggression, she was traumatized, depressed, had trouble eating and she lost weight. [ 8 ] During the summer of 2017, she tried to cope with this event. After recovering from the injury, she tried to enjoy the summer and dealt herself with this event the best she could. At the outcome, she became more anxious and felt more insecure outside. Even now, when she thinks of the aggression, it traumatizes her. [ 9 ] The Court considers that the consequences on the victim are serious.

PROFILE OF THE ACCUSED [ 10 ] At the time of the infraction, the accused was 20 years old, he is now 25. [ 11 ] The accused testified at the sentence hearing. Also, he submitted himself to a presentence report and a Sexological Expertise in Sexual Delinquency. The accused fully collaborated with the professionals who proceeded to write these reports which gives the Court an opportunity to have a good portrait of him. [ 12 ] According to the presentence report, [1] the accused is the youngest of three boys.

He comes from a family that promotes prosocial values, he is the only member with a criminal record. [ 13 ] When his parents broke up when he was 12 years old, he felt a great sense of abandonment and rejection as his father left the home suddenly at the dawn of the holiday season. From then on, he was revolted, an emotion that resulted in a strong attitude of opposition. The repercussions were tangible in all aspects of his life: family, school, interpersonal relationships. [ 14 ] Around the age of 15, 16, he befriended bad social influences. He began smoking cannabis, skipping school and rebelling, both

at home and at school. He admits that he tended to disobey and break rules. He had great difficulty respecting authority. He was expelled from two schools following fights. [ 15 ] Also, the accused was diagnosed around the age of 18 with a problem of hyperactivity and a concentration difficulty (ADHD). [ 16 ] He left school at the age of 17 after secondary three. He joined the job market and he seemed to have well integrated the value of the work. [ 17 ] Before his arrest in the present file, he had been working for about two months at a Volkswagen car dealership where he was cleaning cars.

This enterprise is still willing to reintegrate him in his functions when that will be possible after his release from jail. [2] [ 18 ] The accused firstly experimented with cannabis at the age of 16 with his brother. He quickly adopted regular consumption. From the age of 18, he smoked daily in the amount of two ounces per month. In early adulthood, he discovered hard drugs (cocaine, GHB, methamphetamines, Xanax MDMA, etc.). The use of these substances allowed him to escape his reality when confronted with difficult emotional loads, such as depressive affects or feelings of rejection.

Also, according to him, when he is in a state of intoxication, he is aggressive and impulsive. [ 19 ] For the present case, the accused admitted that he was under the influence of MDMA and cocaine when he met the victim. [ 20 ] A year after this event, he completed an eight-month residential drug addiction program at Toxico-gite under a Court order. [ 21 ] Regarding the sexual assault, the accused gives the following explanations to the sexologist: “I was under the influence of pot, hash and coke. I was not in the right mindset. I wasn’t thinking straight. I was selfish. I wanted to have sexual contact with her.

I was attracted to her. I had feelings for her.” “I don’t know why I forced myself on her. I didn’t think of her. I was more into what I wanted.” [3] [ 22 ] The sexologist interprets his explanation about the infraction as follows: He says he was planning on having sex with this woman. He mentions that given his state of intoxication, he ignored the victim’s refusals and forced himself onto her, to satisfy his sexual drive. Faced with her refusals, his ego was weakened, which brought out negative emotions (anger, contempt).

From there, he showed no compassion or consideration for the young woman, and he gave himself the right to use physical force to impose himself onto her and to touch her without her consent. As she tried to get out of his grip, he chased her, giving her a choke-hold to bring her back to the mattress/sofa. [4] [ 23 ] In court, the accused expressed sincere apologies to the victim. He said that he is really not happy with what he did and he is upset that he did something like that to a woman.

Again, he expressed serious excuses to the victim. [ 24 ] For his future, he wants to go back to work and also, to prevent coming back in court, he is willing to involve himself in any therapy which could help him to understand who he is and why he commits such gestures. He is conscious he needs professional help.

The will expressed by the accused to seek help is also the opinion of both of the professionals who met him, because they estimate that the risk of reoffending is high in the case of the accused. [ 25 ] The sexologist, after assessing a specific test on the risk of recidivism, concludes that the score level of the accused brings him to a “level of risk well-above average of being charged or convicted of another sexual offense”. [5] This is why the sexologist recommends a follow-up for a drug addiction problem and that the accused must integrate and successfully complete a specialized program in sexual delinquency.

A conclusion agreed by the writer of the presentence report who additionally suggests that a psychiatric assessment and therapy would also be relevant in order to guide the accused to the appropriate services considering his internal conflicts which induce some suicidal thoughts. [ 26 ] The accused is in detention since his last conviction on August 5, 2020, but for the determination of the presentence custody credit, the parties agreed that the accused was detained in this file since November 12, 2020. [ 27 ] He testified on the conditions of his pretrial custody during the pandemic period when he was subject to many lockdowns in cell for 24 hours. [ 28 ] As the accused said, he did not have it easy at Bordeaux.

In September 2020, as a result of a fight with another inmate, he had a fracture of the jaw which gave him pain for three to four months. During that period, he was only on soft food. This medical situation gave him also other physical problems. [ 29 ] Also, he had a problem with some guards because he was complaining that they would always lock them up. One day he insulted one of them. In reaction, according to the accused, he was assaulted by one guard who hit him against the door a couple of times.

As he refused to get down on his knees, the guard forced him to do so, grabbing him by the neck and he then started crying. He pressed charges to the SQ, but he never received any visit of an inspector or never gave any written statement of this event. [ 30 ] The accused filed exhibit SD-4 which is a calendar of the time spent in and out of his cell. On a normal day, he would spend eight hours outside his cell, but during some periods, he was locked down 24/7, especially when he got Covid-19. At that time, they wouldn’t even bring him to take a shower.

At other periods, he would spend only two hours outside his cell and even on some days, it was one hour. Also, because of the pandemic, fewer services or therapies were offered at the correctional center of Bordeaux. [ 31 ] He went to the gym only a couple of times because it was only available for the people who were serving a sentence, not preventive time. Also, he didn’t have access to the library or could not attend classes. He spent more time in his cell than he was supposed to and therefore, he spent less time in the yard. This is why the accused is asking for an additional pretrial custody credit on his

total sentence. ANALYSIS 1. The appropriate sentence for the infractions Principle on sentence [ 32 ]

Section 718 of the Criminal Code holds that the fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives mentioned in the section. [ 33 ] In the present case, the Court considers that the sentence should target the objectives of denunciation and of specific and general deterrence.

Also, to ensure the society of a long-term protection, the Court should consider the objective of rehabilitation of the accused. [ 34 ] All those objectives have to be balanced with the fundamental principle of proportionality [6] which is, like Justice LeBel mentioned in Ipeelee [7] , “the sine qua non of a just sanction”. [8] Further on in Ipeelee , Justice LeBel emphasizes that the measurement of a just sanction is a “highly individualized process” [9] , meaning that “the fundamental duty of a sentencing judge” is to “engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them”. [10] [ 35 ] This concept is now known as the individualized proportionality. [ 36 ] To achieve this task the Court has to balance all the aggravating and mitigating circumstances in this specific case.

Aggravating circumstances [ 37 ] The Court considers the following elements as aggravating: − the serious consequences on the victim; − the abuse of trust of the victim who was a friend who came freely to meet the accused at his home; − a prior conviction of the same nature as a youth offender when he was placed on probation for one year for an infraction of sexual interference (art. 151 Cr.

C.); − the risk of recidivism if there is no treatment; − the Court also has to consider as a fact related to the risk of recidivism that between the date of the infraction in June 2017 and his arrest, the accused was again found guilty of an infraction of the same nature. On August 5, 2020, he was convicted of procuring and sexual assault.

This cannot be considered as a prior conviction for this file, but shows that the evaluation of the risk of recidivism by the professionals is quite accurate. [ 38 ] For the mitigating factors, the Court considers the following: − the young age of the accused, he was 20 years old at the moment of the infraction ; − he has no prior conviction as an adult offender; − the accused’s collaboration with the police the day of the event when he came back after he had fled the scene; − the guilty plea which is a serious and valuable plea considering the fact that the accused recognized all the relevant facts and always manifested his intention to plead guilty in this file to avoid a trial and for the victim to testify; − the accused expressed significant remorse and took responsibility for his actions; − he recognized that he has some psychiatric and sexological issues that he wants to seriously work on by attending all necessary therapies; − the fact that on the day of the infraction, he was under the influence of hard drugs; − also the Court considers as a mitigating factor the delay between the day of the infraction in 2017 when the police released the accused and the moment when he was charged and arrested in March 2019.

While he committed other infractions during that time, he never tried to contact the victim or to do anything to avoid the charge laid against him. This specific delay which is not the accused’s responsibility has to be considered for the sentence; − also, during that time, he attended a closed therapy for a period of eight months at Toxico-gite showing that he is able to take care of his own problems. Even though he had a relapse, he testified that since he is detained, he did not consume intoxicating substances. [ 39 ] Our Court of Appeal in R. v.

L.(J.-J.) [11] listed the main factors that a court must consider to establish the level of responsibility of sex offenders. In the present case, after reviewing those factors, the Court concluded as follows: − the infraction is a sexual assault with the use of violence trying to hold on to the victim, which lasted for a period of ten minutes and no weapon was used like we see in many cases. It happened once and there was no penetration at all;

− there was an abuse of confidence considering the fact that they were friends, but the accused never tried to meet the victim afterthe event even though he was not submitted to a specific prohibition; − the day of the event, the accused was in a bad state of mind, he had psychiatric and psychological problems and he wasintoxicated; − the prior conviction happened when he was a youth offender and involved a different situation because he had sexual contact withsomeone who was under the age at the time and when he was still a minor; − the post-offense conduct of the accused, even though he fled the scene when the police entered his house, he came back after acertain time and gave himself up.

He offered collaboration with the search in the house and admitted the aggression. [40] The other factors listed in R. v. L.(J.-J.) are already considered in the aggravating and mitigating circumstances.

The range of sentences [41] According to Justice Sansfaçon in Cloutier[12], the present situation’s range is part of the second category and requires a periodof imprisonment between two and six years with a high level of concentration around three or four years.[13] [42] It is now well known that the range of sentences developed by the jurisprudence should be considered as a guide and not as abounding law. [43] Recently, the Supreme Court of Canada in R. v. Parranto[14] wrote the following about the use a court can do with the range ofsentences: [17] Sentencing ranges generally represent a

summary of the case law that reflects the minimum and maximum sentencesimposed by trial judges in the past (Lacasse, at para. 57; Friesen, at para. 36). They “provide structure and guidance and can preventdisparity”, while leaving judges space to “weigh mitigating and aggravating factors and arrive at proportional sentences” (R. v. Smith,2019 SKCA 100, 382 C.C.C. (3d) 455, at para. 126). The range, therefore, “reflects individual cases, but does not govern them” (C. C.Ruby, Sentencing (10th ed. 2020), at § 23.7, citing R. v.

Brennan and Jensen (1975), (NS CA), 11 N.S.R. (2d) 84(C.A.)).[15] [44] Accordingly, after reviewing the jurisprudence produced by both parties, the Court finds that the cases where a period ofimprisonment of three or four years was given involve more violence than in the present case, the use of weapons and in many situations,penetration of the victim. So, for a case like the present one, the range stands between two and three years of imprisonment.

The sentence for the present case [45] What should be the appropriate sentence for a young man who was 20 years old at the moment of the offense, who was underthe influence of hard drugs and expresses serious remorse and wishes to work hard on his problems and solve them for the future? [46] Considering the fact that at the moment of the infraction the accused had no prior conviction as an adult; that this sentence is afirst serious term of jail for the accused; that a term of penitentiary for young men is a considerable punishment; the Court finds that aperiod of imprisonment of 30 months or 900 days is a fit sentence for the situation of the accused in this matter. 2.

Presentence custody [47] The accused is detained in this specific file since November 12, 2020. At the date of the sentence, February 2, 2022, he alreadyhad spent 448 days in jail.

Applying section 719(3.1) of the Criminal Code, the credit at one and one-half day for each day he spent incustody brings the deduction of the presentence custody to 672 days. [48] The accused asks for an additional credit of one-half day in regard to the specific harsh conditions of detention due to theCovid-19 and also, an extra three months in regard to the assault by the guard. [49] Regarding this last point, the Court will include this specific event in the global situation of his difficult conditions of detention.The Court considers not being in the same situation as in Nasogaluak to give a specific credit for this fact. [50] For the Court, the accused made serious evidence regarding the lack of programs and normal activities at the detention centerthat brought him to spend many days in total lockdown and to spend less time outside the cell than what is normally granted. [51] Exhibit SD-4 shows that for certain months, like when he was affected by Covid-19 and also for the months of July and August2021 when there were many full lockdowns, 24/24, the accused made a convincing evidence of his harsh conditions of detention. [52] On that subject, the Court agrees with the position of the Honorable Robert Marchi in R. v.

Bah[16]: [39] To begin with, the Court takes judicial notice of the global phenomenon that is the current pandemic caused by COVID, and ofthe fact that the virus is controlled notably through social distancing. Given the very nature of prison facilities, this represents a difficultchallenge for the authorities and as a result entails a higher risk of infection for detainees.

This more elevated risk of infection in prisoninevitably translates into an elevated risk for the population in general. [40] Regarding the conditions of custody in preventive detention facilities under normal circumstances, in the recent judgment of R.v. Videz-Rauda, Guy Cournoyer, J. reproduced excerpts from the Supreme Court judgments in Summers and Myers. The following quoteis drawn from Summers: “conditions in remand centres tend to be particularly harsh; they are often overcrowded and dangerous, and donot provide rehabilitative programs”.

[…] [46] Everyone, including the accused in his testimony, understands that this type of lockdown is preventive and that it has been ordered by the authorities for valid reasons, to limit the risk of spreading the virus and therefore to protect the health and life of accused persons, staff, and, consequently, the community in general. [47] That being said, despite the good intentions of the authorities (the Court has no doubt about the necessity of the measures adopted), the net effect of lockdown has rendered the conditions of custody, already described by the Supreme Court [14] as “particularly harsh”, even more difficult. [48] The Court is moreover in agreement with what was written by the judge in R. v.

Innis: where … the evidence establishes that the offender was confined to a cell for extended periods of time on multiple days and denied access to fresh air for a total of over one year of his incarceration, hardship may be inferred. [17] [ 53 ] Therefore, the Court will add an additional credit of 4 months or 120 days for the difficulties linked with the pandemic.

This brings the total credit to 792 days. [ 54 ] Considering that the Court condemns the accused to a period of imprisonment of 30 months or 900 days, there will remain 108 days or 3 months and 18 days to be served. [ 55 ] The Court will also impose a three-year-probation order.

FOR THESE REASONS , the Court : IMPOSES a sentence of 900 days of imprisonment on counts 1 and 2 to be served concurrently; GRANTS a credit for the presentence custody of 792 days leaving a remainder of 108 days or 3 months 18 days to be served; IMPOSES to the accused a three-year probation order subject to the mandatory conditions and the specific following conditions: − report to a probation officer within five working days after his release from prison and thereafter, whenever required by the probation officer and in the manner directed by him or her and for the duration of the probation; − undergo any treatment or therapy recommended by his agent with regard to intoxicating substances and sexual delinquency; − abstain from communicating directly or indirectly with the victim in this file or going to any place where she might live, work or study; − abstain from communicating or attempting to communicate with persons whom to his knowledge have criminal records or pending cases, except members of his immediate family; − take the necessary steps to find legitimate, gainful employment and keep his employment; − abstain from consuming drugs or other substances, the simple possession of which is prohibited by law or having any in his possession, except in accordance with a validly obtained medical prescription; ORDERS , pursuant to

section 109 of the Criminal Code that the accused is hereby prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of 10 years; ORDERS , pursuant to

section 487.051 Cr. C., that the accused provide samples of bodily substances that are reasonably required for the purpose of forensic DNA analysis; ORDERS , pursuant to

section 490.012, that the accused comply with the Sex Offender Information Registration Act for life; PROHIBITS the accused from communicating, directly or indirectly, with the victim during the custodial period of the sentence; WITHOUT victim surcharge because the Court is satisfied that it would cause undue hardship to the accused.

__________________________________ ÉRICK VANCHESTEIN, J.C.Q. M e Camille Boucher For the prosecutor M e Benjamin Wilner For the accused Date of hearing: January 10, 2022