2019 QCCA 950, 2019 QCCA 950

Calise c. R. 2019 QCCA 950 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006906-182 (500-01-154473-174) MINUTES OF THE HEARING DATE: May 31, 2019 CORAM: THE HONOURABLE NICOLE DUVAL HESLER , C.J.Q. JACQUES DUFRESNE , J.A. MARK SCHRAGER , J.A. APPELLANT COUNSEL Frank Calise Mtre Antonio Perfetto (Antonio Perfetto ) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre Robert Benoit ( Director of Criminal and Penal Prosecutions ) On appeal from a judgment rendered on October 17, 2018 by the Honourable Nathalie Fafard of the Court of Quebec, District of Montreal.

DESCRIPTION : Appeal on sentence. Clerk: Stephane Robinson Courtroom: Pierre-Basile-Mignault. (RC.08) HEARING 10:36 Commencement of the hearing. 10:36 Submissions by Mtre Perfetto. 10:53 Recess of the hearing. 11:02 Resumption of the hearing. 11:03 Chief Justice of Quebec Duval Hesler informs Mtre Benoit that it will not be necessary for him to be heard by the Court. 11:02 BY THE COURT : JUDGMENT for reasons to follow – see page 3. 11:03 Conclusion of the hearing. (

s) Stephane Robinson Clerk BY THE COURT JUDGMENT FOR REASONS TO FOLLOW, THE COURT: [ 1 ] DISMISSES the appeal. NICOLE DUVAL HESLER, C. J.Q. JACQUES DUFRESNE, J.A. MARK SCHRAGER, J.A. Calise c. R. 2019 QCCA 950 COURT OF APPEAL

CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006906-182 (500-01-154473-174) DATE: May 31, 2019 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. JACQUES DUFRESNE, J.A. MARK SCHRAGER, J.A. FRANK CALISE APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutor REASONS FOR JUDGMENT RENDERED FROM THE BENCH ON MAY 31, 2019 [1] This is an appeal with leave from a sentence imposed on October 17, 2018 by the Court of Quebec, District of Montreal (the Honourable Nathalie Fafard).

Appellant received a suspended sentence for a period of one year accompanied by an order of probation requiring him to perform 120 hours of community service within 10 months. [ 2 ] Appellant pleaded guilty to one count of harassment pursuant to Section 264(1) (3)(

a) of the Criminal Code committed against a 16 year old boy between July 1, 2016 and September 28, 2016. On a daily basis, during the referenced period, the Appellant used vulgar language and made inappropriate comments to the complainant, a trainee cook in the restaurant where both worked.

He had tried to touch the complainant’s genitals over his clothing and stated that he could not wait until the complainant was 18 years old so that he could rape him. [ 3 ] The judge heard the Appellant and had the benefit of a presentence report as well as the victim’s impact statement. [ 4 ] The standard of review in sentencing appeals is well known.

Sentencing judges benefit from wide latitude since they have heard and seen the witnesses. “Ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit”. [1] [ 5 ] The thrust of the appeal is the argument that the judge erred in not acceding to the Appellant’s plea for an absolute discharge.

In such regard, the Appellant contends that the judge erred in the analysis of whether such discharge would be in the Appellant’s interest and in placing excessive weight on the sentencing principles of deterrence and denunciation over the Appellant’s personal circumstances. [ 6 ] An accused who pleads guilty may be discharged in lieu of a conviction “if the Court considers it to be in the best interest of the accused and not contrary to the public interest”. [2] This Court has observed that an accused’s best interest is manifested where he/she is of good moral conduct, has no criminal record, is not deserving of a deterrent sentence or one focused on rehabilitation, and for whom a conviction will not have patently harmful consequences. [3] [ 7 ] The Appellant submitted that a conviction would preclude him from visiting his 9 year old daughter as he would be barred entry to the United States. [ 8 ] The judge disagreed.

The Appellant had no contact with his daughter since his arrest. At the time of the sentencing hearing, he had not seen her for over a year nor did he adduce any evidence of attempts to recover access rights through the courts, so that his access rights remain subject to the permission of his ex-spouse, the custodial parent. Moreover, it was unclear whether the daughter was still living in the United States.

Lastly, as stated in the letter of the American lawyer produced by the Appellant, given the nature of the Appellant’s crime, even an unconditional discharge was not a guaranty that he would avoid exclusion from the United States. [ 9 ] Given the aforementioned factors and the standard of review, there is no reason to question the judge’s conclusion that it had not been established that a discharge was in the Appellant’s interest. [ 10 ] In considering the public interest element, the judge referred to R. v.

Rozon [4] enumerating the elements of general deterrence, gravity of the offence and its frequency of occurrence in the community as well as the public’s opinion and confidence in the judicial system.

[ 11 ] In such regard, the judge reviewed the impact of the crime on the victim and his vulnerability. She also noted the gravity of the offense which is punishable by a maximum of 10 years imprisonment as well as the commission of such offense by the Appellant on an ongoing basis over a two month-period. [ 12 ] The judge’s conclusion that the accused stood in a position of “trust and authority” with regard to the complainant may be questionable on the facts as the Appellant argues.

However, this single element taken alone would not be overriding given all of the other factors considered by the judge in determining an appropriate sentence.

Accordingly, intervention by this Court is not warranted. [ 13 ] Given the judge’s observations of the seriousness of the infraction, the accused’s moral responsibility and the age and vulnerability of the victim, the emphasis placed by the judge on the sentencing principles of denunciation and deterrence was not disproportionate and does not attract appellate intervention. [ 14 ] Lastly, the argument based on the failure to consider excessive media coverage as an attenuating factor in imposing sentence has no factual basis in the record. The only evidence of media coverage was of a single newspaper

article referred to in the Appellant’s testimony. [5] [ 15 ] These are the reasons for which the Court dismissed the appeal from the bench with reasons to follow. NICOLE DUVAL HESLER, C.J.Q. JACQUES DUFRESNE, J.A. MARK SCHRAGER, J.A. Mtre Antonio Perfetto For the Appellant Mtre Robert Benoit DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the Respondent Date of hearing: May 31, 2019