2015 QCCQ 3326, 2015 QCCQ 3326

R. c. R.W. 2015 QCCQ 3326 JC1649 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF TERREBONNE LOCALITY OF SAINT-JÉRÔME « Criminal division » N° : 700-01-100452-112 DATE : February 18, 2015 UNDER THE PRESIDENCE OF : HONOURABLE PAUL CHEVALIER, J.C.Q. THE QUEEN, c. R. W. SENTENCE [ 1 ] Mr R.

W. was, on August 28, 2014, declared guilty of sexual interference with a person under the age of 14 years and of invitation a person under the age of 14 years to sexual touching. [ 2 ] While the complainant, accused’s stepdaughter, was between the age of 5 and 10, she would be visited in her bedroom by her stepfather when it was time to go to bed, supposedly to calm her down in what he called “the five minutes”, but he would end the “five minutes” by licking her vagina. [ 3 ] On a few occasions during that period, he asked her to go to his room and lick his penis. [ 4 ] This happened between 1993 and 1998 until the victim complained to her mother and the accused, although denying having done so, stopped. [ 5 ] The Crown is asking the Court to impose on the accused a sentence of imprisonment ranging form 19 months to two years less a day. [ 6 ] Defense counsel, acknowledging that the quantum is reasonable, considers that the sentence should be served in the community since such sentence was available when the crime was committed. [ 7 ] This acknowledgment exempts the Court from making a lengthy review of the case law that establishes a range of sentences for this type of offence from 9 months to 3 years of imprisonment [1] . [ 8 ] Since a fit sentence would be, according to the Crown, less than two years of imprisonment, the Court has the duly to determine whether the sentence can be served in the community.

It will be possible if the Court is convinced that a conditional sentence of imprisonment would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing. [ 9 ] As for this first condition, the Court is satisfied that if the accused was to serve his sentence in the community, he would not endanger the safety of the community even though he did not recognized the sexual interference and did not go through a therapy. [ 10 ] The accused is 58 years old, has no criminal record, and complied with the conditions of his interim release for close to 4 years. [ 11 ] Would such a sentence be consistent with the fundamental purpose and principles of sentencing? [ 12 ] In imposing a sentence, a Court must consider the following objectives enacted by sec. 718 of the Criminal Code : to denounce unlawful conduct; to deter the offender and other persons from committing offences; to separate offenders from society, where

necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to the community; to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 13 ] As for the objectives of denunciation and deterrence they have to be given primary consideration according to the Québec Court of appeal [2] and to sec. 718.01 of the Criminal Code . [ 14 ] Since accused would not endanger the community if he was to serve a conditional sentence of imprisonment, the objective of separating him from society will be necessary only if the other objectives must be given prevailing importance. [ 15 ] The objective of rehabilitating the offender must be given here little weight since the accused does not recognize having a problem and has denied sexually exploiting his stepdaughter. [ 16 ] The objective of repairing at least in part the harm done to his victim will never be achieved considering accused’s attitude, unless he finally, like many accused persons who claimed their innocence in a trial but acknowledged their guilt after a verdict of guilt, recognizes that he harmed the victim. [ 17 ] The objective of promoting accused’s sense of responsibility and acknowledgment of the harm done to his victim must therefore also be given primary consideration in this case. [ 18 ] As a matter of principles, the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, according to sec. 718.1 of the Criminal Code . [ 19 ] The Criminal Code provides, for the offences accused was declared guilty of, for a maximum sentence of imprisonment of 10 years (since August 9, 2012, a minimum term of imprisonment of one year, but none at the time these offences were committed).

They are therefore serious crimes. [ 20 ] Accused’s responsibility towards these offences is total.

He is, and was not, suffering from a known mental disease; he is, and was not, affected by an intellectual deficiency which could have altered his judgment and his awareness of what he was doing; nor was he intoxicated in any way. [ 21 ] The Québec Court of Appeal in the case of L. ( J.J. ) [3] stated 8 factors to be considered when determining an accused’s responsibility for sexual offences involving a minor person, factors that the British Columbia Supreme Court applied in the case of T.P.C. , describing them as follows : • The nature and intrinsic gravity of the offences which is is affected by, in particular, the use of threats, violence, psychological threats and manipulation; • The frequency of the offences and the time period over which they were committed; • The abuse of trust and the abuse of authority which are involved in the relationship between the offender and the victim; • The disorders underlying the commission of the offences : the offender’s psychological difficulties, disorders and deviancy, intoxication, etc.; • The offender’s previous convictions : proximity in time to the offence charged and the nature of the previous offences; • The offender’s behavior after the commission of the offences : confessions, collaboration in the investigation, immediate involvement in a treatment program, potential for rehabilitation, financial assistance if necessary, compassion and empathy for the victim (remorse, regret, etc.); • The time between the commission of the offences and the guilty verdict as a mitigating factor depending upon the offender’s behavior (the offender’s age, social integration and employment, commission of other offences); • The victim : gravity of the attack on his or her physical or psychological integrity reflected by, in particular, age, the nature and extent of the assault, the frequency and duration of the assault, the character of the victim, his or her vulnerability, abuse of trust or authority, lingering effects [4] . [ 22 ] The Québec Court of appeal reaffirmed with regularity the relevancy of these factors [5] . [ 23 ] In the light of these factors, it is even clearer that accused’s responsibility is total. [ 24 ] An other sentencing principle requires a sentence to be adapted to any aggravating or mitigating circumstances relating to the offence or the offender ( sec. 718.2 (

a) of the Criminal Code ). [ 25 ] The mitigating circumstances relating to the accused are the following : • The absence of a criminal record; • The fact that, being 58 years old, he has been an asset of the community, having the same job for 33 years;

• The fact that he is, with his sister, taking care of an 88 years old mother; • The fact that he complied for nearly 4 years with the conditions of his undertaking; • The fact that accused was a volunteer in the church is certainly not a mitigating factor, in the contrary; [ 26 ] As for the mitigating factors relating to the offence, the Court sees none. [ 27 ] It is not because the crime was committed 15 years ago that it becomes a mitigating factor.

Such delays are inherent to this type of offence [6] . [ 28 ] The fact that there was no more threat, violence or constraint than necessary to commit a sexual abuse is not in itself a mitigating factor. If it existed, it would be an aggravating factor [7] . [ 29 ] Turning now to the aggravating factors related to the offence, the fact that the sexual abuse was repeated on a regular basis for a period of many years is certainly one. [ 30 ] The fact that he, as a stepfather, abused a position of trust and authority in relation to the victim who was in her tender years is another one (sec. 718.2(

a) iii of the Criminal Code ). [ 31 ] The serious problems sustained by the victim for years, even though she is going better now, but remains with scars from “The Darkness” she described in Exhibits P-1, P-2 and P-3, do certainly constitute an aggravating circumstance. [ 32 ] As for the aggravating circumstances related to the accused, apart from abusing his position of trust and confidence, the fact that he was acting as a father for the victim, supposedly to raise her, to teach her how to develop herself in a healthy and normal way, but for selfish reasons ruined her development and self-esteem, is clearly one. [ 33 ] The fact that accused was involved with the church tended to show that he would not behave improperly, especially in the mind of a young child, and this is certainly an aggravating circumstance. [ 34 ] Other sentencing principles require the Court to look for all available sanctions other than imprisonment that are reasonable in the circumstances ( sec. 718.2 (

d) and (

e) of the Criminal Code .) and to impose on an accused sentences similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (sec. 7182(

b) of the Criminal Code). [ 35 ] As already mentioned sentences ranging from 9 months to 36 months of imprisonment are normally and regularly imposed for this type of offences [8] . [ 36 ] Is a conditional sentence of imprisonment a fit sentence in the circumstances of this case? [ 37 ] Certainly not if we consider the overwhelming weight of all the aggravating circumstances in comparison with the mitigating circumstances that we have here. [ 38 ] Certainly not if we consider the overwhelming weight of the predominant sentencing objectives in this case, namely denunciation, deterrence, promoting a sense of responsibility and acknowledgment of the harm done, compared with the objective of rehabilitation. [ 39 ] Certainly not if we consider the circumstances of this file, the absence of justifiable reasons for a lenient sentence [9] and the case law for this type of offences [10] . [ 40 ] Therefore it is a sentence of incarceration that has to be imposed on counts no. 2 and 3 and the Court sentences the accused to serve a concurrent term of imprisonment of 20 months on those counts. [ 41 ] The accused will be dispensed from paying the fine surcharge considering the length of the sentence and the period when the crimes were committed. [ 42 ] The Court is ordering the accused, according to sec. 490.12(1) of the Criminal Code , to comply with the Sex Offender Information Registration Act for life. [ 43 ] The Court is making the order prohibiting the accused to have in his possession the weapons mentioned in sec. 109 of the Criminal Code for the time period enacted by that section, namely 10 years for certain types of weapons and for life for the others. [ 44 ] The Court is making the order, under sec. 487.051 of the Criminal Code , for the taking of bodily substances of the accused for the purpose of DNA analysis.

PC/nc PAUL CHEVALIER, J.C.Q. Me Caroline Lafleur, For the Crown. Me Lloyd Fischler For the accused.

Date of the hearing : August 28, 2014