2011 QCCQ 13685, 2011 QCCQ 13685

R. c. J.R. JM2240 Sentence. Sexual interference. Invitation to sexual touching. Stepfather. Position of trust. Absence of remorse. Credit for the delay in the sentencing process. 2011 QCCQ 13685 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Criminal Division No: 500-01-044234-109 DATE: October 27, 2011 ______________________________________________________________________ BY THE HONOURABLE SALVATORE MASCIA, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Plaintiff v. J.R.

Petitioner-Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On the 27 th day of October 2011, I sentenced the accused to a 51 month prison term for charges relating to sexual interference (section 151 Cr. Code and invitation to sexual touching (s. 152 of the Cr. Code). In my decision—rendered orally—I explained that an appropriate sentence would have been a term of 65 months of incarceration.

The accused, however, was given credit for the 12 months he spent in pre-trial custody and an additional credit of two months for the inordinate delay it took to finally sentence him. [ 2 ] Once my judgement had been read, one of the parties suggested that I provide a written version of my decision. At that time, I indicated that a written version of my judgement will be slightly revamped allowing for any corrections relating to structure, style or word choice.

I also mentioned the possibility of amplifying certain aspects of the decision. [ 3 ] Modification and amplifications notwithstanding, the following represents the substance of my oral judgement on sentence. Introduction [ 4 ] J.R. was found guilty after a trial of one count of sexual interference (s. 151 Cr. Code) and of another count of invitation to sexual touching (s. 152 of the Cr. Code). The accused was acquitted on the count of committing a sexual assault on the child, X, contrary to section 271 (1)(

a) of the Cr. Code. The acquittal, however, was predicated on an application of the so-called Kineapple principle. [ 5 ] The victim in the present matter was the oldest son of the accused's common law spouse. The incidents giving rise to the charges against the accused occurred over a two-year period when the victim was between 12 and 14 years old. [ 6 ] Though I found the accused guilty, he continues to maintain his innocence. On sentencing, there is no act of contrition that could serve as a mitigating factor.

In both the pre-sentencing report and in the psychosexual report, there was no evidence of empathy for the victim. The accused explained the charges against him as the machinations of a troubled, vengeful and easily manipulated child. Blame was also cast on the mother of the child for encouraging the laying of false accusations.

[ 7 ] Mr. R.'s criminal record includes a sexual assault back in 1994. As was the case in the present matter, the victim in the prior conviction was the child of his common law spouse. Issue and positions of the parties [ 8 ] The issue in the case at bar is one of determining the appropriate sentence. I will set out hereafter the respective arguments of the parties.

Position of the Crown [ 9 ] The Crown, represented by Me Carolyne Paquin, argued that in matters relating to sexual assaults on children perpetrated by adults in a position of trust, deterrence and denunciation have to be the paramount factors in sentencing. For her, a fit sentence would be one of six years of imprisonment. [ 10 ] In support of her position, she has ably set out the following aggravating circumstances: 1. The accused, as the de facto stepfather of the victim, abused his position of trust and authority, s . 718.2(a)(iii) of the Cr. Code. 2.

The victim in the present matter was a child, s. 718.2(ii.1) of the Cr. Code. 3. The prohibited acts occurred on a regular basis over a period of two years. 4. The nature of the acts perpetrated on the victim: mutual masturbation and fellatio; the use of sexual toys or gadgets (vibrator and a dildo);on one occasion the victim used a dildo to sodomize the accused; on four occasions the accused asked the victim to submit to acts of sodomy (offer declined by the victim). 5. The accused has a criminal record for a similar offence.

In 1994, he received a two-month sentence for sexually abusing the four- year-old daughter of his then common law spouse. 6. The negative tenor or both the psychosexual report and the presentence report. In both assessments, the risk of re-offending was described as moderate to high. [ 11 ] In support of her position that a six-year sentence was fit and appropriate under the circumstances, the crown referred to numerous cases contained in her book of authorities. In a later

section of this judgment, I will review the tenor of the cases submitted by the prosecution. [ 12 ] Me Rodolphe Bourgeois, acting for the accused at the sentencing stage of the proceedings (he was not the attorney at the trial), could not really highlight mitigating circumstances. Indeed, there were no mitigating factors in the traditional sense. Having maintained all along that he was innocent and that he was the victim of a conspiracy hatched by a confused child and a vindictive ex- common-law spouse, the accused could not express remorse. In the absence of

an act of contrition, the accused could not even acknowledge the error of his ways, make amends and point to the salutary effects that therapy could have in controlling his base desires. [ 13 ] In maintaining his innocence, other mitigating factors were also lost to the accused: For instance, he could not ask for clemency on the basis that he spared the victim the usual stresses or trauma associated with testifying in court.

Likewise, he could not get special consideration for having saved court resources. [ 14 ] In the absence of mitigating circumstances, Me Bourgeois' arguments could only mitigate the gravity of the otherwise aggravating factors outlined by the Crown. Let me set out the gist of these arguments: 1. The absence of remorse should not be held against the accused. To this effect, Me Bourgeois, has referred to the case law which establishes that an accused has the right to maintain his innocence and that the absence of remorse should not be considered an aggravating factor. 2.

Abuse of trust should not be an aggravating factor under the circumstances of this case. In essence, Me Bourgeois pointed to the difficult relationship between the victim and the accused to claim that there was never any trust between the two. Thus, the accused could not be said to have abused his position of trust vis-à-vis the child as no trust ever existed between the two to begin with. 3. For Me Bourgeois, the fact that the victim was under 18 years of age should not consitute an aggravating factor.

This argument was predicated on the fact that a victim in a s.151 and s.152 offence of the Criminal Code is, by definition, a minor. The youth of the victim is already considered in the crime itself. Hence, sentencing considerations that take into account the young age of the victim unnecessarily compound the aggravating circumstances against the accused. 4. With regards to the prior conviction of the accused, the defence submits that it should be given very little weight as it dates back to 1994. 5.

The defence dismisses the crown's claim that sexual paraphernalia (that is the use of sexual aids) is an aggravating circumstance. For Me Bourgeois, the use of such toys is inconsequential when considering the relative gravity of the facts and circumstances of this case. 6. Me Bourgeois—though not insensitive to the gravity of the offence in the present matter—categorizes this case as one of middling gravity. Thus, the sentence meted out should not be at the higher end of the scale. In support of this argument, Me Bourgeois referred to a

series of cases where sentences imposed by the courts for sexual assaults perpetrated by an adult on a child ranged from 1 to 4 years of incarceration. For that matter, most of the cases cited by the defence were of the three-year variety. Reference was made to one decision where the particular gravity of the facts attracted a six-year prison term. 7. With regards to the negative aspect of the pre-sentence report and the psychosexual report, Me Bourgeois insisted that these assessments were tainted by the fact that the accused did not acknowledge his responsibility.

In essence, Me Bourgeois discounted the value of the reports as they have failed to remove from the equation the accused's right to maintain his innocence and the fact that want of remorse in such situations is not—from a juridical point of view—an aggravating factor. 8. The fact that the accused left the family residence one month before the victim laid a formal complaint was given a positive spin by the defence.

According to this argument, the departure of the accused helped foster the psychological process needed for the victim to lay a charge [1] . [ 15 ] After reviewing and commenting the cases in the defence book of authorities, Me Bourgeois submitted that a fit sentence would be one of two years of incarceration followed by a probation of three years. The defence submission on sentence took into consideration that the accused—at the time of sentencing—will have served one year of pre-trial custody.

Relevant facts on sentencing [ 16 ] Aggravating circumstances will certainly be relevant in assessing fitness of sentence. It will be recalled that the defence attorney classified the sexual assault in the case at bar as being one of mid-range gravity and as a consequence thereof should only attract a mid-range sentence [ 17 ] What are the relevant acts of sexual misconduct in the following matter? The acts I accept as proven according to the legal standard include: 1. Acts of mutual fellatio and masturbation.

These acts occurred in different areas in the apartment: in the bedroom the victim shared with his younger brother, in the washroom and in the living room. 2. On at least one occasion (it's difficult to say from the evidence how often this would have occurred), the accused used a vibrator on the victim. In his testimony, the victim simply stated: «A vibrator was put on my penis…». 3. The accused—on four separate occasions—asked to sodomize the victim with a dildo. The offers were promptly turned down by the victim and the accused did not force the issue. 4.

On one occasion, the victim—-using a dildo—sodomized the accused. 5. In order to facilitate the commission of the prohibited acts with the victim, the accused resorted to coercion and manipulation. More specifically, I am referring to: (

i) threats of violence by the accused on the victim if the latter dared divulge the prohibited nature of the acts committed; (ii) bouts of kindness by the accused toward the victim that lasted circa two days from the commission of the prohibited acts;(iii) «hush money» given by the accused to the victim in order ensure that the latter kept the prohibited acts a secret. [ 18 ] The sexual assaults in the bedroom were so brazen that they are deserving of more ample description: X and his younger brother slept in bunk beds in one of the bedrooms of the family apartment.

Y, the younger brother, slept on the top bunk and X slept on the bottom bed. In the evenings—sometime between 10 and 11 o'clock at night—the accused would enter the boys' bedroom and stand by the bunk beds. While the accused was engaged in a conversation with the younger boy lying in the bed above, X (lying in the bed below) fondled the accused's private parts. [ 19 ] When the conversation with the younger boy was over, the accused dropped to the lower bunk and engaged in sexual misdeeds with X.

At times, the knocking of the bed against the wall was so loud that Y would lift up the mattress of his bed in order to see what was causing the raucous in his brother's bed below. [ 20 ] Y never witnessed any sexual play between the accused and the victim. The sexual fondling stopped suddenly whenever Y lifted his mattress and both the accused and the victim pretended nothing was going on. Y's curiosity was usually rebuked with an order from the accused to go back to sleep. [ 21 ] Before closing his testimony, Y added that his brother and the accused were often in the washroom together.

This allegation was corroborated by the accused who complained that the victim had the annoying habit of wanting to use the washroom every time he (the accused) was there. Applicable law Paramount principle: denunciation and deterrence [ 22 ] The ten-year maximum penalties the legislature has set for offences at ss. 151 and 152 of the Criminal Code reflect

community abhorrence and concern regarding the sexual abuse of children by adults. In sentencing such offenders, general deterrenceand denunciation has to be the most important factor and especially so when the offender is in a position of trust to the victim. [23] The dominant principles of deterrence and denunciation in sentencing accused that have sexually assaulted children havebeen emphasized time and again by our courts of superior jurisdiction. In the case of R. v.

Brouillette, 1985, J.Q. no 315, JusticeRothman of the Quebec Court of Appeal stated: [I]n my view, the focus of sentencing in child abuse cases of this kind must be the protection of society. Children, the parents and thecommunity generally have a right to expect that sentences in these cases will transmit a firm and unequivocal message, that criminalabuse of children will not be tolerated but will, on occasion, involve appropriate punishment[2]. [24] Similar pronouncements can be found in appellate jurisdictions across Canada. In the case of R. v. W.B, (1992), (AB CA), 73 C.C.C. (3d) 530 (Alta.

C.A.), with respect to governing principles and factors to be considered by a judge whensentencing an offender who has sexually assaulted his child, the court stated that: When the accused stands in a parental or other family relationship with the child, such that he has assumed the duty to protect the childfrom harm and is the repository of trust placed in him by the child, a sexual assault committed by him upon the child constitutes a gravebreach of that duty and an outrageous breach of that trust. [p. 537] Sentencing of an accused person (it will usually be a man, so we will speak of a man) for major sexual assault on a child will be basedmainly on the principles of general deterrence (the hope that the sentence will deter other persons from engaging in such acts) anddenunciation (the sentence expresses the community’s condemnation of such conduct and society’s need to reinforce the simple principlethat it will not tolerate abuse of power and breach of trust by any person vis-a-vis a child).

On a lesser scale the sentence to be imposedwill express the court’s hope that the sentence will teach the accused himself not to engage in similar unusual acts again, a hope that willoften be slender because sexual abuse of children may be the outward expression of an accused’s severe emotional difficulties. Finally,the court may by its sentence provide an opportunity to rehabilitate the accused . . . [p. 549] [25] The abuse of trust is considered more serious where the offender is the father (or family member) of the victim. Sentencesmust be of a severe nature and little leniency can be given.

Society in general and the courts in particular have a duty to protect its mostvulnerable members. [26] In the case of R. v. Gagné, Court of Quebec 2009, my colleague, Judge Legault, in his usual eloquent prose, highlighted howvulnerable the child was at the hands of an adult bent on sexually abusing him: La victime sera utilisée comme rien d'autre qu'un objet sexuel par l'accusé. L'accusé aussi devant les réticences ou résistances de lavictime, reprochera à la victime ses refus, la privera de récompenses, la culpabilisera et multipliera les pressions psychologiques pourarriver à ses fins.

Partie combien inégale pour un tout jeune home qui n'a d'image parentale que cet accusé qui s'en réclameimmoralement et qui est avide de l'attention et l'intérêt de l'accusé dont la dépendance affective est réelle. (par. 9) [27] Though judge Legault's comments were particular to the case before him, the situation he described applies equally well inother cases of child sexual abuse by accused in a position of authority. Indeed, children in a family situation are virtually helpless againstsexual attack by the male parent. All too often, the child is afraid to inform upon the parent or the step-parent.

Of particular concern infamily situations is that children are required to obey their parents or the person who is standing in lieu of a parent. The offender exploitsthat authority and his power to discipline the child Relative gravity of the facts and circumstances considered [28] Aside from the paramount consideration of denunciation and deterrence, a sentence must be proportionate to the gravity ofthe offence and the degree of responsibility of the offender: s. 718.1Cr.

Code. [29] In a case of sexual assault on a child, a sentencing judge must consider where the facts of the particular case lie in a spectrum—at the far end of which lies the worst type of sexual assault contemplated by ss. 551 and 552 of the Criminal Code. In some cases, thedegree of violence, the physical harm inflicted, the form of the sexual acts, the degree of coercion to ensure compliance and subsequentsilence, and the humiliation incurred by the victim are significant.

In order to mete out an appropriate sentence, it is often necessary forthe judge to set out on the record where, on the relevant scale of seriousness, the particular offence lies. [30] A sexual assault of an extended duration will necessarily add to the seriousness of the offending as the suffering and thehumiliation of the victim will be increased.

Thus, child sexual assault cases where there are multiple prohibited acts occurring as part ofa background of continuous abuse, rather than mere isolated events, will be an important aggravating circumstance in sentencing. [31] In assessing where on the spectrum of odiousness a sexual assault has to be placed, a sentencing judge must also considersuch factors as the level of humiliation and degradation intrinsic to the commission of the offending acts. [32] Finally—and I realize that I am referring to principles laid out in the previous subchapter—the fact that a sexual offence on a

minor is committed by a person in a position of trust is a material factor in assessing the seriousness of the various kinds of offencescontemplated by sections 551 and 552 of the Criminal Code. Parity in sentencing [33] A further principle of sentencing is that a sentence imposed should be similar to sentences imposed on similar offenders forsimilar offences committed in similar circumstances: s. 718.2(

b) Cr. Code. [34] A person convicted of an offence has the right to expect a sanction that will not be more severe than the sanctions imposed onothers who are similarly situated. The community, explained Justice Veit of the Alberta Court of Appeal, in the case of of R. v.

Osterag,2000 ABCA 232 CanLII, par 11, «has the right to expect that a person convicted of an offence will not receive a more favourablesanction than others who are similarly situated and have committed similar offences.» [35] An appropriate sentence, therefore, must be mindful of the punishments meted out by our courts for other similarly situatedaccused. Both counsel have submitted an impressive array of cases to support their respective positions. I will deal with these cases in alater

section of my judgement. Analysis Personal circumstances of the accused [36] Though the dominant principles in sentencing adults accused of sexually assaulting children under their authority are those ofdenunciation and deterrence, a judge must still consider the personal circumstances of the accused. [37] At the time of the commission of the offences, the accused was between 41 and 43 years of age. Today—at the date ofsentencing—he is 48 years old.

Prior to his arrest, the accused was unemployed and took care of the children in the household: his twostep sons: X and Y as well as two younger children he fathered with the mother of his common law spouse. In the past, he was gainfullyemployed as a cook. —Criminal record of sexual assault [38] The accused has a criminal record that includes a theft in 1979 for which he was handed a suspended sentence with a two-year probation and a sexual assault in 1994 for which he was sentenced to 60 days of jail along with a two-year probation.

The victim ofthe sexual assault was the four year-old daughter of his then common law spouse. It is a crime he denies—to this day—havingcommitted and blames the family of the victim for having invented the charges[3]. [39] For the defence, this prior conviction of sexual assault should be given little weight as it dates from 17 years ago. [40] Perhaps there are crimes whose importance diminishes with the passage of time. However, previous convictions regardingthe sexual abuse of children are always significant when it comes to meting out punishment for an offender who commits a similaroffence. In R. v.

Lavoie, (QC CA), the accused was found guilty of sexual assault and the lower court sentenced theaccused to a fine of 3,000$ The accused's criminal record included a conviction for rape 12 years earlier. For the Court of Appeal therelevance of the accused's prior conviction could not be mitigated by the mere passage of time: Même vieux de 12 ans, on ne peut, à mon avis, ignorer un antécédent de viol dans une affaire de ce genre.

Si la portée à donner peutêtre moindre que s'il s'agissait d'un antécédent tout récent, cela ne veut pas dire pour autant qu'il faut traiter Lavoie comme s'il s'agissaitd'une première offense. Le viol était, à l'époque, un crime passible d'emprisonnement à perpétuité; que la sentence ait alors été clémenten'efface pas pour autant la condamnation. [41] A prior conviction is even more important when it bears disturbing similarities with the crime set for sentencing.

As was thecase in the 1994 conviction, the accused in the present matter took advantage of his position of authority and trust to abuse the child ofhis common law spouse.

Also, in both instances the accused maintained his innocence and claimed to be the victim of trumped upcharges. [42] A criminal record for similar crimes is an aggravating factor in the sentencing context because of what it tells the sentencingjudge about the need for specific deterrence, the chances of successful rehabilitation, and the likelihood of recidivism[4]. [43] Next, I wish to point out that the interval between offences is not as long as the defence would want us to believe. The priorconviction dates from 1994; the abuse of the child in the present matter began in 2004 and ended in 2006.

The accused waited 10 yearsbefore repeating his offence and not 17 years. [44] Thus, for all the afore-mentioned reasons, the accused's criminal record is highly relevant and will figure in the equationwhen assessing the appropriate punishment to hand down.

-The presentence report and the psychosexual report [45] Two professional assessments were prepared for consideration on sentencing: a traditional presentence report prepared by acriminologist and psychosexual report prepared by a qualified psychologist-sexologist. Both reports were extremely negative. [46] For one thing, the accused was depicted as an individual who holds little, if any empathy, for the victim. At page 12 of thepsycho-sexual evaluation, the psychologist wrote that the accused has no appreciation of the harm his actions have wrought on thevictim.

In the same report, it was also noted that the accused openly expressed his disdain (mépris) for the victim. [47] From both reports, we learned that the accused referred to the victim as a troubled boy bent on causing problems[5]. For thatmatter, the accused claimed that the victim—whilst in a fit of anger—invented the charges against him for the sole purpose of exactingrevenge.

In the laying of false charges, the victim was aided and abetted by his mother[6]. [48] From the psycho-sexual report, we note that the offender has little understanding of the factors that led to the offence[7].Similarly, he does not possess the requisite skills or tools to avoid future recidivism[8]. [49] For Me Bourgeois, the observations and conclusions in both assessments were tainted by the fact that the accused denied hisresponsibility for the crimes committed. How can he show remorse or regret when he maintains his innocence?

How can he understandthe factors that led to the commission of a crime when he claims he is innocent? [50] It is trite law that an accused should not be punished more severely for maintaining his innocence (see Lepine v. The Queen,2007 QCCA 70; R. v. A.(K.) (Ont.C.A.) (1999) 137 C.C.C.(3); R. v. Vu (B.C.C.A.) (2003) 176 C.C.C.(3); R. v.

Gresley, QC CS). [51] Does this mean that I must dismiss in toto the observations and conclusions made by the experts who drafted the reports? [52] Even if we subtract from the equation the accused's claim of innocence and the consequent lack of remorse, the experts stillpredicated their opinion on objective criteria. The drafters of both assessments, for instance, considered the accused's past conviction forsexual assault and the similarity it bore with the case at bar[9]. [53] In both assessments we note that the accused denies his responsibility for the prior conviction.

In both assessments he claimsto have been set up and cites some form of conspiracy on the part of his stepchild and his common law spouse against him. [54] He shows no empathy for the accused in the present matter. Nor does he show any for the victim of his first delict back in1994. [55] Sure he has the right to maintain his innocence for this crime and for his prior conviction. For the sentencing judge, however,there must be some limits.

If we follow the defence logic to the extreme, an accused could have 10 or even 15 prior convictions relatingto the sexual abuse of children and he can continue to deny his responsibility in every case with the consequent want of remorse andregret. Is a sentencing judge supposed to let pass this want of empathy for his victims as a natural consequence of his right to maintainhis innocence? I think not. With regards to his prior conviction, at least, I have to consider that I am dealing with a man who cares not theslightest for the harm his actions have wrought on his victim.

The experts have no doubt seized upon the callous and opportunist natureof the accused's personality. [56] Finally, it should be noted that the psycho-sexual report was also predicated on two clinical risk-assessment tests: the Static-99R and the Stable 2007. From the accused's test scores, the expert was able to evaluate the risk of re-offending as being moderate tohigh. Position of trust: does it apply to the accused? [57] As mentioned in an earlier

chapter when discussing the position of the parties, the defence argued that the usual aggravatingfactor of abusing a position of trust does not apply to the accused. In essence, this argument held that the tenuous or difficult relationshipbetween the accused and the victim precluded the very existence of any «trust» between the two. As there was no trust, how can wereprimand the accused for abusing a position of trust and authority? [58] This argument cannot stand. Firstly, it ignores that the accused came into the victim's life when the latter was but a child ofseven years.

For all intensive purposes, the accused was the only father figure the victim had ever known for a great deal of hischildhood. While the mother of the child worked the evening or the night shift at a café, the accused assumed de facto authority of thehousehold. He was the one who ensured the care of the children. According to the evidence, he was the one who put them to bed in theevening. [59] Though the relationship between the accused and the victim was not an easy one, the evidence suggests that X wanted theattention and the approval of his step-dad.

In his testimony, X stated that his stepfather was mean and sometimes cruel towards him.However, after a sexual episode, his step-dad's conduct modulated somewhat and he was kinder to the victim for a period of two or threedays. For X, a sexual act with the accused carried the hope or the implicit promise that the latter would be nicer to him. [60] Next, it must be emphasized that the concept of trust has to be interpreted in the broadest sense of the term. In the case of R.

v. A.G.A., 2010 ABCA 61 , at para. 7, the Alberta Court of Appeal stated that The word trust means “confidence in or reliance on some quality or attribute of a person”: R. v. Audet, (SCC), [1996] 2S.C.R. 171 at para. 35.

In Audet, the court said that the words used by Parliament in s. 718.2(a)(iii) “must take into account the purposeand objective pursued by Parliament of protecting the interests of young persons who, due to the nature of their relationships with certainpersons, are in a position of vulnerability and weakness in relation to those persons.” Audet, supra, at para.36. [61] As the de facto father figure, the accused wielded authority and influence over the child.

Hence, in the general sense of theword, the accused was in a position of trust with respect to the victim. [62] Finally, as a matter of public policy, the usual aggravating circumstance of the abuser being in a position of trust cannot bediluted every time the victim and the accused do not get along.

Even in a difficult relationship between a defiant teenager and the defacto parent, the latter is placed in a position to wield influence and coercion over an adolescent who—more often than not—is illequipped to oppose the sexual advances of his aggressor. [63] Society has an obligation to protect all children who are victims of adults placed in a position of authority or influence overthem. It cannot be emphasized enough, children need special protection; they are vulnerable since they are not mature enough norphysically capable of defending themselves.

Since children cannot protect themselves, the State is given the responsibility to protectthem from the persons who wield authority over them. [64] Thus, for all the afore-mentioned reasons, the aggravating circumstance of being in a position of trust applies fully to theaccused. Aggravating circumstance relating to the youth of the victim [65] It will be recalled that Me Bourgeois argued that the aggravating circumstance relating to the young age of the victim doesnot apply to charges of sexual interference and invitation to sexual touching.

In essence, Me Bourgeois, stated that the said crimes, bydefinition, have to have a minor as a victim. The youth of the victim is already factored into the crime itself. Thus, sentencingconsiderations relating to the young age of the victim constitutes, at best, unnecessary surplusage and, at worst, unjustifiably compoundsthe aggravating factors against the accused. [66] In support of this argument, Me Bourgeois relied on the judgement of Justice Pronovost of the Superior court of Quebec in R.v. B.J. 2007-12057 S.C.

In this decision, justice Pronovost, expressed his disagreement with Justice Sansfacon of the Court of Quebecwho, in another case, expressed the view that in a s. 151 offence the tender age of the victim was an aggravating circumstance. Therelevant passage of Justice Pronovost's decision reads as follows: Pour le procureur de la Couronne, on retrouve le 1er facteur cité par le juge Sansfaçon, soit « les mauvais traitements infligés à sesenfants ». Respectueusement pour cette opinion, le tribunal ne la partage pas. L’argumentation du procureur de l’accusé nous sembleplus conforme.

En effet, lorsqu’on parle de « mauvais traitements infligés à des enfants », ce sont de mauvais traitements autres que cequi constitue les gestes faisant

partie de l’infraction elle-même. Ce sont des traitements qui peuvent précéder ou suivre la commission del’infraction, mais qui ne sont pas des faits constituant l’infraction. [67] With the greatest of respect, I cannot agree with the analysis of Justice Pronovost. Sections 151 and 152 of the Criminal Codedefine a crime and set out minimum and maximum sentences (if tried by way of indictment, minimum 45 days of jail and sets themaximum sentence at 10 years). Aside from setting out the lower and upper limits of imprisonment for an offender, the said sectionsdon't provide any guidance for meting out punishment.

At s. 718.2 (ii.2) the legislator sets out one of the factors a judge must consider,namely, the young age of the victim. Having arrived at the conclusion that the accused was guilty of the crime set out at ss. 151 and 152of the Criminal Code, the law obliges me to consider as an aggravating factor on sentencing the young age of the victim. [68] Sections 151 and 152 are not unlike other provisions of the code where the legislator merely sets boundaries for the minimumand maximum sentence that could be handed down.

The fact that the said sections involve a minor does not mean that on sentencing Ishould not be mindful of the aggravating circumstance set out at s. 718 .2 (ii.1) of the Criminal Code. [69] In the end of the day, can one really argue that the young age of the victim is not an aggravating factor? Whether theaggravating factor is intrinsic to the definition of the crime itself or whether the aggravating factor is supplemented by considerations setout in the sentencing provisions of the Criminal Code, does it really make a difference? No matter how you cut it, a child has beenharmed.

Civil society recognizes that the damage a child suffers as a result of sexual assault from a person in a position of authority isdevastating. Consequently, the need to protect children from exploitation and to deter others from acting in a similar fashion assumesparticular significance when it comes to sentencing. Credit for having left the family residence before charges were laid [70] Me Bourgeois argued that the accused's departure from the family residence created the appropriate climate for the victim tolay charges. This argument cannot stand muster.

If the accused left the family residence, it was certainly not with the intent of creatingsome sort of a cathartic moment in the life of the victim. He left because another man seemed to be taking up to much space in the familyhome and perhaps to much space in the mind and heart of his common law spouse. If Mr. R.'s departure from the home helped

precipitate the laying of charges, it was certainly a case of «malgré lui». [71] Moreover, presenting such an argument flies in the face of the accused's claim of innocence. Indeed, if he has done nothingwrong, how could his departure from the family home have helped foster the conditions needed for the victim to lay charges? [72] I will not spend more time on this argument. I believe the defence even regrets having brought it up.

Relative gravity of the offence committed [73] Me Bourgeois for the defence pleaded that the facts and circumstances in the case at bar are of mid-range gravity.Consequently, the punishment meted out should reflect the middling gravity of the prohibited acts. [74] While the facts of this case cannot be characterized as stark horror, I cannot agree with the defence's assessment on objectivegravity. Let me set out, hereafter, the aggravating circumstances: 1. The abuse occurred on a regular basis over an extended period: circa two years. As mentioned in an earlier

chapter of thisjudgement, a sexual assault of an extended duration will necessarily add to the seriousness of the offending as the suffering and thehumiliation of the victim will be increased. 2. The sexual acts committed could be described as degrading or humiliating: reciprocal fellatio and masturbation; on one occasionthe victim sodomized the accused with a dildo; four verbal requests by the accused to sodomize the victim; and the use of sexual gadgets. 3. The use of threats and manipulation to coerce the child. 4.

Finally, and most importantly, the position of trust of the offender who stood in the place of a father to the victim for a period ofcirca nine to ten years. The very figure who has a moral and societal duty to protect the child, becomes, instead, the perpetrator of harm.Experience shows that there is an increased risk of psychological harm when a child was sexually abused by a person in a position ofauthority (see R. v. W.B.S.; R. v.

M.P. 1992, CanLII 2761 AB.CA ). [75] Generic remarks pertaining to the likelihood of future psychological damage to a victim of sexual assault perpetrated by anadult are commonplace. In the case at bar, however, there could be no doubt that the victim was psychologically harmed by theprohibited acts and that he will need counselling. [76] When testifying at the trial stage, X mentioned that the sexual acts were a source of shame and embarrassment.

When hesuspected that his brother might be aware of what was happening, he begged him not to tell anyone or else he would have to throwhimself from the window. [77] At the sentencing stage, X addressed the manner in which the actions of the accused affected his personal life: • He had issues with anger. • He had difficulty trusting anyone. • At school he had difficulty concentrating. [78] At present, X is being seen by a psychologist. We hope that all goes well. [79] Not without importance was the harm done to the other members of X's family.

Though X's mother did not testify at thesentencing phase, there can be no doubt that she is riddled with guilt. While she worked in the evenings at a coffee shop in Town A, shethought her children were secure under the watch of her common law husband. Regrettably, her trust was misplaced. Principle of proportionality and review of the jurisprudence [80] In an earlier

section of this judgement, I referred to the principle of proportionality, that is, a sentence should not exceed whatis just and appropriate given the moral blameworthiness of the offender and the gravity of the offence, I also referred to the principle thata sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances: s.718.2(b).

Said differently, a person convicted of an offence has the right to expect a sanction that will not be more severe than thesanctions imposed on others who are similarly situated. [81] Both counsel have submitted extensive authorities to support their position. It is difficult, if not impossible to find case lawwhere the facts and circumstances are identical to the case at bar. Ultimately, each case must be understood upon its own facts and byreference to the objective circumstances therein.

Such objective considerations will include, amongst other things, the nature of thesexual delict, its duration, the harm caused upon the victim, and the relationship between aggressor and the accused. Appreciating theselimitations upon the exercise of looking at comparable cases, one can nevertheless draw some very clear indications of a sentencingrange from a number of the decided cases. [82] In the cases submitted by the defence, sentences ranged from one to to four years. More particularly, a sentence in the threeyear range appears to be the leitmotif in the defence book of authorities.

I will review, hereafter some of these decisions and make thenecessary distinctions with the case at bar. [83] In the case of R.L. v. The Queen, 2010 QCCA 173 , the Quebec Court of Appeal upheld a three year prison term

imposed upon an individual found guilty of charges relating to sexual interference, invitation to sexual touching, sexual exploitation andsexual assault. The accused was the uncle of the victim and the prohibited acts occurred on a regular basis over a five to six year period. [84] In the matter of R. v. R.D., EYB 2008-146777, QC.CA, the accused was found guilty of sexually assaulting his stepchild. Theprohibited acts included masturbation, cunnilingus, digital penetration, attempted fellatio, and one act of intercourse. The abuse occurredcirca two to three times per week over an eight-year period.

The Court of Appeal substituted a three-year prison term to the eighteen-month conditional sentence originally imposed by the trial judge. [85] In R. v. S.T., 2007 QCCA 1447 , the accused pleaded guilty to a count of sexual interference, s. 151 of the CriminalCode. The victim was the daughter of the accused's common law spouse. The acts of sexual misconduct occurred over a three-yearperiod and included digital penetration, attempts at vaginal penetration, and one act of penetration. In order to facilitate the commissionof the prohibited acts, the accused would reward the victim with gifts.

Of particular note, the victim was pregnant with the accusedchild[10]. [86] In first instance, a conditional sentence of 18 months was pronounced by the trial judge. On appeal to the Court of Appeal ofQuebec, a 42-month sentence was substituted. [87] In R. v. S.H., 2007 QCCA 998 , another matter involving charges of sexual interference, the Quebec Court of Appealsubstituted a 90-month sentence to the original 60-month sentence imposed by the trial judge. The victims of the sexual assault includedthe teenage girls of the accused's common law spouse and his own son.

The prohibited acts spanned a four-year period and included actsof fellatio, cunnilingus and sexual intercourse. The accused had no criminal record and the pre-sentence report was negative. [88] If Me Bourgeois included the case of S.H. in his book of authorities, it was simply to juxtapose the relative gravity of thefacts therein with those of the case at bar.

Said otherwise, the point was made that sentences on the upper echelon of the spectrum mustonly be reserved for the worst cases. [89] Me Paquin, for the Crown, began her submissions on sentencing by making the following distinction between the accused inthe case at bar and the accused referred to in the defence book of authorities: the latter, unlike the former, had no previous convictions.For the Crown, that factor alone warrants a more severe sentence for Mr.

R.. [90] Next, the Crown reviewed the cases in her book of authorities where we note, for the most part, significantly higher sentencefor accusations akin to the one at bar. I will briefly outline these cases hereafter. [91] In the case of R. v. L.L., 2009 QCCQ 5397 , my colleague, judge Healy imposed a 42-month sentence to an accusedwho pleaded guilty to one count of sexual interference and to a second count of invitation to sexual touching. The victim was thegrandson of the accused's common law spouse.

The prohibited acts occurred on a regular basis when the victim was 6 to 14 years old. [92] The accused in L.L. had no criminal record and the pre-sentence report was qualified as negative.

From the report, JusticeHealy noted that the accused minimized his responsibility and tended to blame the victim. [93] In a comparative analysis with the case before the bar, we note, firstly, that the accused in L.L. did not have a criminal record.Next, even though the accused did minimize his criminal liability, he did enter a guilty plea. [94] The defence, for its part, noted that the abuse in L.L. lasted three times longer than the case at bar. Thus, on the "gravityscale" the case at bar is objectively less serious than the one in L.L and warrants, therefore, a lighter sentence. [95] In the case of R. v.

Gagné, 2009 QCCQ 13879 , the accused pleaded guilty to a count of sexual assault on a child.The assault occurred on a daily basis over a five-year period when the victim was between seven and thirteen years old. The acts ofsexual misconduct were described by the sentencing judge as highly intrusive and included masturbation, fellatio and sodomy. Theaccused was 69 years old of poor health and had no criminal record.

After eloquently setting out the humiliation, degradation andpsychological consequences for the victim, Justice Legault sentenced the accused to a five-year prison term. [96] Both Crown and Defence gave their own spin when comparing the facts and circumstances in Gagné to the case at bar. TheDefence pointed to the fact that the exploitation in Gagné spanned a longer period of time and was more intrusive. In response, theCrown noted that the accused in Gagné had no criminal record. [97] In G.D. c. R., 2009 QCCA 1290 , the sexual abuse occurred when the accused was called to baby-sit the victim.

Theprohibited acts included reciprocal masturbation and fellatio, sodomy of the accused by the victim and attempts by the accused tosodomize the victim. The sexual exploitation of the child began when he was 11 years old and continued for a three-year period. [98] The accused in G.D. was found guilty pursuant to a trial and sentenced to six years of jail. He had no priors. [99] In the case of R. v. Prud'homme, (QC CA), the Quebec Court of Appeal upheld a four-year sentence foran accused found guilty of sexually assaulting a six-year-old boy. The accused had no record. [100] In R. v.

A.G.A., supra, the accused was found guilty of sexual assault, sexual interference and invitation to sexual touching. Thevictim, who was but five years old, was a foster child in the accused's parents household. Aggravating factors included anal penetrationand the fact that the sexual acts spanned several years. Mitigating factors for the accused included the absence of a criminal record,support from his family, and secure employment. Notwithstanding these mitigating circumstances, the Alberta Court of Appealaugmented the original three-year sentence to a five-year prison term.

In justifying the enhanced prison term, the Court of Appeal,highlighted the aggravating circumstance of the accused being in a position of trust and the need to protect children from abuse[11]. [101] If the accused with no record was handed a five-year term in A.G.A, than surely Mr. R.—who has the unenviable distinction ofhaving a record for sexual assault—should be dealt with more harshly in sentencing. Moreover, the position of trust in the case at bar

(step-father) was more important than that of the accused in A.G.A who was merely the son of the foster parents of the victim. Sentence [102] In consideration of all of the above, I am of the view that an appropriate sentence would be one of 65 months of incarceration.The accused's privation of liberty, however, will be attenuated modestly by the inordinate amount of time it took to move from theconviction phase of the proceedings to the actual pronouncement of the sentence. I will explain my reasons below.

Also, from theaccused's penal servitude there will be a credit for the 12 months he has already spent in custody. -Enhanced credit for time spent in custody whilst waiting for sentence [103] I found the accused guilty on March 30, 2011. A further seven months will have elapsed before sentence is pronounced today(October 27, 2011). The accused has been detained since his arrest back in October 2010.

Should the accused be given enhanced creditfor the time spent in custody while waiting to be sentenced? [104] In deciding the issue of enhanced credit, I must first describe the stumbling blocks that delayed the pronouncement of sentence:Following the guilty verdict on March 30, 2011, submissions on sentencing were fixed for April 8, 2011. Meanwhile, the accusedremained in custody. At that last date, it was apparent that a congested court docket would not provide sufficient time to hear therespective arguments of the parties. Thus, sentencing arguments were postponed to June 10, 2011.

To ensure that the case would proceedwithout incident, a two-hour afternoon time slot was reserved for the parties. [105] On that last date, I asked defence counsel (not the attorney before me on sentencing) if he wanted the probation services toprepare a presentence report and a psychosexual evaluation of the accused. After concurring with his client, the attorney stated that theaccused was amenable to the said assessments. Given the inherent delay in preparing said reports, sentencing was then set for August 8,2011.

The said date also took into account the limited availabilities of the parties during the summer vacation period. [106] Unfortunately, one of the reports could not be completed in the anticipated time. Thus, another date was set for sentencing,September 8, 2011. A two-hour time slot was reserved to ensure the case would proceed as scheduled. However, at the said date, therewas only sufficient time to hear the submissions of Me Bourgeois for the accused.

Once again, another date was set in order to completethe sentencing submissions of the Crown: October 14, 2011. [107] Following the submissions of the Crown, sentencing was scheduled for the 27th day of October 2011. [108] In the Supreme Court of Canada decision of R v. MacDougall (SCC), McLachlin J. (as she then was)explained at par. 47 that the sentencing process carried with it certain inherent delays: The inherent time requirements of sentencing include the time required to prepare pre-sentence material, subpoena necessary witnessesand

schedule the sentencing proceeding. They may also include a judge’s illness up to the point when it is reasonable for the Crown toapply to have the judge removed and replaced. The reasonableness of the inherent time requirements of sentencing must be assessed on acase-by-case basis.

The inherent time requirements of sentencing do not fall under the time guidelines for the pre-conviction period asset out in Morin, supra, and Askov, supra. [109] One may even argue that the accused—by agreeing to participate in the preparation of the two assessments reports—has toaccept some of the inherent time-delay in the sentencing process. [110] This being said, the accused should not have to shoulder the entire blame for the delay in sentencing. Part of the delay wasbrought on by miscalculations regarding the time it would it would take to present the respective arguments of the parties.

Part of thedelay was also occasioned by the availability of court resources and the difficulties inherent in accommodating the schedules of all theparties concerned. Finally, part of the delay was brought on by the fact that a report could not be completed in the requested time. [111] In R v. MacDougall, supra, the Supreme Court of Canada held that the right to trial within a reasonable time guaranteed by s.11(

b) of the Charter covers the entire court process – that is, it extends beyond the trial and includes the sentencing phase of theproceedings. Consequently, an unreasonable delay between the time of conviction and the time it takes to pronounce sentence willconstitute a violation of that right. [112] One reason for according s. 11(

b) protection to the sentencing phase is to minimize the effects of exposure to criminalproceedings in the life of the accused. As McLachlin explained at par. 34 of her judgement: The [convicted] person lives in suspense, uncertain of his or her fate, unable to get on with his or her life, and faced with all the stressand anxiety that this entails… In a very real sense, the «trial» that will determine the convicted person’s fate is not over until sentencehas been passed. [113] Other reasons for extending s. 11(

b) protection to the sentencing phase included the accused's liberty interests as well as theaccused's right to a fair trial. With regards to trial fairness, McLachlin J. noted at par. 35 in MacDougall that an accused could still callwitnesses at the sentencing phase of the proceedings. [114] McLachlin J. also noted that there is an important societal interest in seeing that accused are sentenced in a reasonable delay: (D)elay in sentencing may result in the convicted person not getting the rehabilitative treatment he requires at an early stage, therebyputting society at greater risk upon release and dimming the prospects of rehabilitating the person to the status of a productive and

responsible member of society. Delay in sentencing frustrates this goal. —Limited scope of s. 11(

b) at the sentencing phase [115] Though s. 11(

b) of the Charter extends to the sentencing phase, its scope is not as extensive as in the pre-conviction stage. Commenting on the nine month delay between conviction and sentencing of the accused in MacDougall, McLachlin J. stated that «itoccurred in the post-conviction phase of proceedings when the interests engaged by s. 11(

b) were more attenuated (…) than in the pre-conviction phase» [12]. [116] The mitigated scope of the s. 11(

b) Charter protection was also addressed in the Supreme Court decision of R. v. Jones, (SCC), 1994), 89 C.C.C. (3d) 352. at p. 394, where Gonthier J., writing for the majority stated that: [T]his court held in Lyons, ss. 7 to 14 protection has a more limited scope when applied to the sentencing process. Once guilt has beenestablished, our fundamental principles of justice dictate a focus on the most appropriate sentence for the guilty party.

To assume that s.7 post-trial protection should be identical to pre-trial and trial protection ignores a rather critical intervening fact: the accused has beenfound guilty of a crime. Having so found, the court places greater emphasis on the interests of society in developing a sentence that isappropriate to the guilty party. [117] Other cases have also held that the public’s interest in having a fit sentence imposed on the accused is significantly greater thanits interest in having the accused sentenced promptly. McIsaac J. of the Ontario Superior Court of Justice in R. v. WTV, [2003] O.J.

No.5332 at page 5 stated the position as follows: Given the various interests in tension, I am persuaded that the fundamental change of status of the applicant from accused to offenderjustifies the fulcrum being moved in favor of the public interest: see R. v. Teskey, [2003] A.J. No. 648 (Q.B.) at paragraph 28. Thedelay related to the need to find out what makes the applicant “tick” far outweighs his liberty and security interests. I am sure that thepublic would tolerate a delay in a prompt sentence in favour of a fully-informed sentence[13]. [118] Though not egregious, the sentencing process for Mr.

R. was much longer than necessary. The facts and circumstances of thecase contain no inherent complexities that warrant a seven-month delay in pronouncing sentence. The accused did not cause any of thedelays. Instead, the inordinate delay was caused by miscalculations in the time required to submit arguments, a congested court docket,the need to coordinate the schedules of the parties and the fact that a report that was not completed in time. [119] I assume that a conviction for sexual assault on a child must lend itself to significant stress and anxiety in the mind of theaccused.

This stress and anxiety is only exacerbated when sentencing is unduly delayed. The accused has the right to receive hissentence as soon as possible and to go on with his life, be he detained or not. [120] Aside from the generic prejudice relating to the anxiety experienced by an accused whilst waiting for a sentence to be handeddown, there is also the practical issue of parole application.

In delaying the sentencing process, the accused lost the benefit of countingtime against parole admissibility as soon as possible. [121] Having arrived at the conclusion that the delay in sentencing the accused was unreasonable, what should be the appropriateremedy? In answering this question I must be mindful of the following factors: 1. The attenuated scope of s. 11(

b) Charter guarantees at the sentencing phase; 2. The inherent delays in the sentencing process; 3. The fact that the delays in the present matter were not egregious. [122] In consideration of the above, the accused will be given a modest two-month discount from what would otherwise have been asentence of 65 months. Credit for pre-trial custody. The accused has been detained since the date of his arrest circa 12 months ago. Thus, from the 63-month sentence an additional period of12 months will be deducted. The accused will therefore serve—as of this date—a sentence of 51 months of incarceration.

Ancillary orders: [123] In addition, I make the following orders: 1. Victim Surcharge: Given that the accused will be incarcerated for the next 51 months, there will be no victim surcharge. 2. DNA: Both sections 151 and 152 are primary designated offences for the purposes of the DNA legislation. Therefore, I orderthat a sample of his DNA be taken. 3. Registration as a sex offender: Both sections 151 and 152 are designated in paragraph (

a) of 490.011 for the purposes of the

sexual offender registry. Accordingly, I make an order under

section 490.12(1) that the accused comply with the Sex Offender Information Registration Act as soon as possible. Bu virtue of

section 490.13(2)(

a) of the Cr. Code, the order will end 20 years after today. 4. An Order Under s. 161 : Pursuant to s. 161 of the Cr. Code, I make an order prohibiting the offender from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming a volunteer in a capacity, that involves a position of trust or authority towards a person under the age of ten years. The order will be for a five-year period from the date of the release of the offender from imprisonment. __________________________________ SALVATORE MASCIA, J.C.Q.

Me Carolyne Paquin Attorney for the Plaintiff Me Rodolphe Bourgeois Attorney for the Petitioner-Accused Oral decision October 27, 2011, Written decision November 10, 2011