r v. NICOLO GIUSEPPE, 2024 QCCQ 312

R. c. Nicolo 2024 QCCQ 312 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF LAVAL CITY OF LAVAL “Criminal Division” No.: 540-01-104954-220 DATE: January 5, 2024 ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE LAROCHELLE, J.C.Q. ______________________________________________________________________ THE KING Prosecutor v. NICOLO GIUSEPPE Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On April 5, 2023, Mr.

Giuseppe Nicolo pleaded guilty to committing common assault against X, a fourteen-year-old teenager, on May 18, 2022. The offence was prosecuted on

summary conviction (section 266 (

b) Cr. C.). [ 2 ] The facts can be summed up as follows. [ 3 ] The accused, aged 55 at the time of the events, is the father of a teenager who attended the same school as the victim. [ 4 ] The uncontradicted evidence shows that a year before the events, while she was in Secondary II, the accused's daughter began to be intimidated by a group of students. The situation had begun while the students were restricted to their COVID bubble classes due to the pandemic, and she was assigned to a group that was new to her and started to bully her constantly in school and beyond the school environment.

They were twenty students or more. [ 5 ] The accused's daughter, who until then had been doing well at school, became withdrawn. Her grades dropped. [ 6 ] Despite a change of school in Secondary III, the harassment resumed. The dramatic effects on the teenager returned, both psychologically and in terms of performance. [ 7 ] The accused or his wife contacted the schools to intervene but neither a meeting with the principal in Secondary II, nor a meeting with a social services worker in Secondary III solved the problem. [ 8 ] On May 18, she had taken refuge from her bullies in a department store near the school.

She called home to get help without giving details of her situation. [ 9 ] The accused and his wife went to pick her up in the family car. When they arrived, they called her on her cellphone, and she came out to join them. She told them that the complainant, in the company of the other bullies, had told her to commit suicide.

Upon hearing this, the accused snapped. [ 10 ] He asked his wife to drive to the end of the parking lot to join the complainant who was hanging out there with his group, with the intention of talking to him, scaring him, and maybe bringing him to school to meet the principal. [ 11 ] But when he got out of the car, he snapped. He grabbed the complainant by the neck and showed him his daughter, asking if he recognized her. He then slammed the complainant's head against the door. [ 12 ] Initially, he had no intention of touching him.

There was some confusion in his testimony, which reflects his emotional state at the time of the event. The surveillance camera footage shows that he did commit the alleged assault, while his wife tried to calm him down. [ 13 ] The complainant wrote a victim impact statement. He experienced a loss of trust in adults. He noticed bruises on his neck that remained for more than two weeks. There were also bruises on one arm. [ 14 ] He felt pain in his neck and forehead for two weeks.

[ 15 ] His family was afraid of the accused, who lived near them. Profile of the accused [ 16 ] The presentence report attests to the following. [ 17 ] He experienced the death of his father at a young age and the death of his mother in early adulthood. Through his parents, and then his extended family, he developed pro-social values, focusing on family and work. This led him to adopt a law-abiding lifestyle, right up to his current offence. [ 18 ] The accused entered the job market at the age of fifteen while completing his high school diploma.

For the past 28 years, he has worked for the same company in the manufacturing sector. He works full-time and puts in between ten to twenty hours of overtime a week. [ 19 ] He has a good network of family and friends. He has never used drugs and avoids alcohol because of the risk of cancer in his family. [ 20 ] He met his wife 32 years ago, and they have been married for 25 years.

They are the parents of their daughter, who was involved in the event, and of a twenty-year-old son. [ 21 ] Given the nature of the offence, even though he was never involved in other incidents of violence, the probation officer focused on emotional management. He found no evidence to suggest that the accused was impulsive or violent in any area of his life. [ 22 ] He did not try to absolve himself of responsibility for his actions. To the probation officer, he also explained the events and his attempts to stop the bullying by meeting with school officials.

He explained that the racist comments made to his daughter and the incitement to commit suicide had caused him to react strongly. When he confronted the complainant, he wanted to instill fear in him so that he would stop harassing his daughter. He acknowledged the inappropriateness of his actions and expressed sincere regret. [ 23 ] The accused wanted to protect his daughter. He had no criminal intent when he arrived at the scene but acted emotionally while feeling provoked by the victim. [ 24 ] The judicial process has produced the expected effects.

The risk of recidivism is low. [ 25 ] The accused's genuine interest in receiving a discharge is proved by his need to travel to the United States to see his family and to benefit from/manage a timeshare property. What is the proper sentencing measure in the circumstances? [ 26 ] The prosecution asks the Court to suspend the passing of the sentence under

section 731 of the Criminal Code , while the accused asks to be discharged absolutely. General principles of sentencing [ 27 ] Sentencing is a highly individualized process that involves striking a delicate and necessary balance between the various principles decided by the legislator. [ 28 ] It is worth recalling certain sentencing principles set out in sections 718 et seq . of the Criminal Code . [ 29 ]

Section 718 Cr. C. reads as follows. 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, 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 following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 30 ] In addition, the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the offender. It must be adapted to the aggravating or mitigating circumstances linked to the commission of the offence and the offender's situation.

[ 31 ] The Court must pay particular attention to the fact that the offence committed by the accused constitutes mistreatment of a person under the age of eighteen (ss. 718.01 and 718.2 (a) (ii.1) Cr. C . ). [ 32 ] The sentence must be consistent with sentences generally imposed on offenders for similar offences committed in similar circumstances (s. 718.2 (

b) Cr. C . ). Before considering the deprivation of liberty, the judge must examine the possibility of less restrictive sanctions (s. 718.2 (

d) Cr. C . ). [ 33 ] It is well known that a conviction can have detrimental effects in many spheres of a person’s life, unrelated to the facts of the case or the risk of danger posed by the person. [ 34 ] A discharge means that the person who benefits from it shall be deemed not to have been convicted, despite proof of guilt. [ 35 ]

Section 730 of the Cr. C. sets out the conditions under which a discharge may be ordered and its effect. The provision requires that the offence does not prescribe a minimum sentence or a sentence of imprisonment for fourteen years or for life. In addition, it requires that the discharge be in the best interests of the accused and not contrary to the public interest. [ 36 ] In R. c .

Abouabdellah , [1] the Court recalled that: La règle d'or en la matière est qu'un justiciable ne doit pas, dans les faits, subir un châtiment qui n'a aucune mesure avec sa faute, singulièrement, comme en l'espèce, lorsque le justiciable n'a pas de casier judiciaire et que l'acte criminel n'a pas été prémédité et que cet acte criminel, quoiqu'évidemment répréhensible, n'a pas une gravité relative importante; [ 37 ] As a general rule, discharges are granted to first-time offenders with a favourable profile, for offences at the lower end of the scale, which are isolated, thoughtless, and circumstantial.

The aim is to avoid imposing a punishment on the accused that is disproportionate to the offence. [ 38 ] Rozon [2] sums up the notion of the accused's best interests. The genuine interest of the accused presupposes that the latter is a person of good character, with no criminal record (although this is not an impediment), that it is not necessary to record a conviction to deter the accused from committing further offences or to rehabilitate him, and that a conviction would have particularly negative consequences for the accused.

It is not necessary to demonstrate that these consequences will occur; it is sufficient that the possibility exists. [ 39 ] The real possibility that the accused will suffer immediate employment consequences alone may justify a discharge. [ 40 ] As for the notion of public interest, it must take into account the objective of general deterrence, the seriousness of the offence, its impact on the community, the public's attitude towards it and its confidence in the justice system. [ 41 ] In R. c.

Hudon , [3] the Court of Appeal decided that whether it is contrary to the public interest raises the question of how a reasonable and well-informed person would react if the accused were to be discharged, since the public interest must be assessed at this stage considering the objectives of deterrence and denunciation. Is there a risk that the public will lose confidence in the justice system? [ 42 ] More recently, in Sadak c .

R ., [4] the Court added: [29] Le critère de l’intérêt public commande par ailleurs une prise en compte de la gravité de l’infraction à la lumière des circonstances de l’affaire et, ultimement, un questionnement portant sur la confiance du public dans le système judiciaire si l’accusé devait être absous [27]. [References omitted.] [ 43 ] In R. c . Douab , [5] Justice Jean-François Gosselin of this Court expressed the view that the public interest, within the meaning of

section 730 Cr. C . , is less likely to be compromised when the gap between the measure and the range of penalties generally imposed for a given crime is not marked.

Thus: [53] [...] l'évaluation de ce que commande l'intérêt public est directement fonction de l'écart existant entre la mesure sentencielle alternative de l'absolution d'une part, et la peine qui s'imposerait normalement dans les circonstances d'autre part: plus cet écart sera marqué, et moins l'intérêt public pourra s'accommoder d'une absolution; et, à l'inverse, moins l'écart sera considérable, et plus alors l'intérêt public sera susceptible d'être adéquatement servi par une mesure sentencielle qui n'emporte pas de condamnation.

Autrement dit, la marche est plus haute si le crime à sanctionner mérite, par exemple, une peine d'emprisonnement. The range of relevant penalties and factors for analysis [ 44 ] The applicable range of penalties is difficult to pin down precisely, given the wide variety of circumstances in which offences are committed. [ 45 ] Authors Parent and Desrosiers surveyed the abundant Quebec case law on the sentences imposed for

summary assaults, for which discharges are generally imposed. They note that this category of assault is characterized by the predominance of mitigating factors. For the most part, they say, these are minor offences committed by people with no criminal record.

They add that these offences often appear to be the result of impulsive acts outside the character of the offender, with courts generally showing leniency towards individuals whose conduct occurs in a particular context. [6] [ 46 ] They also observe that in the presence of a mix of mitigating and aggravating circumstances, sentences oscillate between conditional discharge, fine, suspended sentence and conditional imprisonment, while the good reputation of the accused, the presence of stable employment and rapid recognition of guilt militate in favour of discharge.

The gratuitousness of the act, the degree of violence, the trauma caused, and the vulnerability of the victim are all factors which, along with others, may militate against discharge. [7]

[47] It is important to remember that imposing a sentence is not about avenging a crime. As the Supreme Court noted in R. v. M.(C.A.):[8] 80 … The legitimacy of retribution as a principle of sentencing has often been questioned as a result of its unfortunate association with"vengeance" in common parlance. See, e.g., R. v. Hinch and Salanski, supra, at pp. 43-44; R. v. Calder (1956), (MBCA), 114 C.C.C. 155 (Man. C.A.), at p. 161.

But it should be clear from my foregoing discussion that retribution bears little relation tovengeance, and I attribute much of the criticism of retribution as a principle to this confusion. As both academic and judicialcommentators have noted, vengeance has no role to play in a civilized system of sentencing. See Ruby, Sentencing, supra, at p. 13.Vengeance, as I understand it, represents an uncalibrated act of harm upon another, frequently motivated by emotion and anger, as areprisal for harm inflicted upon oneself by that person.

Retribution in a criminal context, by contrast, represents an objective, reasonedand measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard tothe intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender'sconduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just andappropriate punishment, and nothing more. As R.

Cross has noted in The English Sentencing System (2nd ed. 1975), at p. 121: "Theretributivist insists that the punishment must not be disproportionate to the offender's deserts." Analysis [48] The specific factors of this case must be analyzed to determine the defendant's responsibility and the objectives to be prioritized. [49] The Court lists the following aggravating factors: − The complainant is a minor, while the accused is a mature adult; − The assault caused persistent bruising and pain for two weeks; − The complainant developed distrust of adults; − His mother lost days of work to be with him in the days following the events and to accompany him to court. [50] Mitigating factors are the following: − The fact that the accused has admitted his guilt; − He has no criminal record; − He feels remorse and shame; − He took

part in the preparation of a presentence report, offering a great deal of cooperation; − The report is positive; − The accused is an asset to society, through his pro-social values, the family responsibilities he assumes and his work; − He is of good character; the gesture is isolated, and recurrence is unlikely. [51] At the end of the analysis, the Court finds that it is not necessary to impose a sentence to deter the accused from committingoffences, to protect society or to raise his awareness. [52] In a civil dispute, he compensated the plaintiff with a significant sum, thus fulfilling the goal of righting wrongs towards thecomplainant himself (section 718 (

e) Cr. C.). To compensate society, he donated two thousand dollars to be distributed to theorganization named CAVAC. [53] That said, while it must be recognized that it is generally necessary to denounce child abuse by imposing a penalty, this is not thecase here. [54] The harassment to which the complainant and his group subjected the accused's daughter was violent behaviour that had animpact on her and her family. The context was toxic, with a backdrop of racism and the incitement to suicide of a vulnerable teenageraffected by months of harassment, despite the parents' requests for help.

All those involved in this story would do well to learn from it.Harassment, as experienced by the accused's daughter, assault, as experienced by the victim, and legal proceedings, as experienced bythe accused, are all situations that leave their mark. [55] Admittedly, the accused broke the law. His actions are highly reprehensible. He was wrong to take the law into his own handsand for having been unable to control himself in the heat of the moment. [56] Since the events, he paid the price. Moreover, he has made amends and has shown that the complainant and his family have noreason to fear him.

Let us hope that this

chapter in their lives can now be closed. [57] An absolute discharge is the proper measure in this case. CONCLUSION ACCORDINGLY, THE COURT: [58] GRANTS the accused an absolute discharge.

[ 59 ] EXEMPTS the accused from the fine and surcharge. __________________________________ DOMINIQUE LAROCHELLE, J.C.Q. Mtre Brenda Toucado Counsel for the prosecutor Mtre Joseph La Leggia Counsel for the accused Dates of hearing: January 5, 2024. September 5, 2023 November 9, 2023