2012 QCCQ 362, 2012 QCCQ 362

Unofficial English Translation R. c. Blaquière 2012 QCCQ 362 JD2489 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Criminal and penal division” No.: 500-01-043541-108 DATE: January 31, 2012 ______________________________________________________________________ PRESIDING:THE HONOURABLE SYLVIE DURAND, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v.

MATHEW BLAQUIÈRE Accused ____________________________________________________________________ JUDGMENT ON SENTENCING ____________________________________________________________________ [ 1 ] On November 23, 2011, the accused pleaded guilty to the following charge: “on or about March 21, 2010, at Montreal, in the district of Montreal, did commit an assault while carrying, using or threatening to use a weapon, thereby committing a

summary conviction offence under

section 267 (

a) of the Criminal Code ” . I- FACTUAL BACKGROUND [ 2 ] On March 21, 2010, a hockey game was played between two teams in the Quebec Junior A Hockey League. This is a non- contact league, that is, one that prohibits bodychecking. [ 3 ] This was a quarter-final game. The accused, Mathew Blaquière (“Blaquière”), was on one team and the victim, M. D. (“D.”), was on the opposing team. [ 4 ] The atmosphere was extremely tense. Several fights broke out throughout the game.

Many penalties were handed out. [ 5 ] Up until the moment when the accused attacked the victim, that is, twenty seconds before the end of the game, neither one had received a penalty. [ 6 ] The atmosphere in the stands was also tense. Parents fought with each other, and some players fought with the parents. [ 7 ] The police finally had to step in to end the fights. At least ten patrol cars were on the scene, and at least as many police officers surrounded the arena.

II- THE ASSAULT [ 8 ] At the time of the guilty plea, the prosecution and the defence explained that they had agreed on all the facts surrounding the events, except one. [ 9 ] The one fact on which they disagreed was the way in which the hockey stick had been used.

Did the accused engage in cross checking (hitting with a stick held horizontally in both hands) or did he just push the victim in the back while holding the stick (but without using it to deliver the blows)? [ 10 ] After hearing the evidence as to whether or not there had been cross-checking, I found that the prosecution had failed to discharge its burden of proof regarding this circumstance, which could have been considered to be aggravating.

[ 11 ] The defence having admitted everything else, the factual framework of the events is as follows. [ 12 ] Twenty seconds before the end of the game, during a time-out, while carrying his hockey stick, the accused pushed the victim twice in the back. He did not strike the victim with his stick, but held it in his hand while pushing him twice. The whole thing took less than two seconds. Then he dropped his stick and punched the victim in the face: five or six punches with his gloves on and another without his gloves.

III- Pleadings of the parties - The prosecution’s case [ 13 ] The prosecution contends that: - the Court must not treat these assaults as if they were part of the game - this attack must be treated in the same way as if it had occurred on the street - this is a non-contact hockey league, so there was no consent to roughness, much less assault - the attack stopped only when a third party intervened - the victim lost his protective helmet under the impact of the attack. [ 14 ] The prosecution suggests the imposition of a $400 fine and one year’s probation. [ 15 ] The prosecution is of the opinion that a discharge would not be appropriate in the circumstances since the evidence has not shown that it would be in the best interest of the accused.

Indeed, since the accused’s studies have only just begun, the prosecution believes that Blaquière would have more than enough time to apply for a pardon. [ 16 ] The prosecution contends, moreover, that a discharge would be totally contrary to the public interest. [ 17 ] According to the prosecution, in this type of case, and in this case in particular, a discharge does not work.

Crown counsel relies on the well-known case of Jonathan Roy, who received an unconditional discharge after repeatedly punching another hockey player. [1] [ 18 ] According to the prosecution, since hockey continues to be a violent sport, this shows the failure of the criminal justice system insofar as the deterrent purpose of a discharge in such situations is concerned. - The defence’s case [ 19 ] The defence seeks a discharge. [ 20 ] It bases its arguments on the facts surrounding the actions of the accused and his profile. [ 21 ] The accused was twenty years old at the time of the events; he is now twenty-one. [ 22 ] He has no criminal record. [ 23 ] He is the only one to have faced criminal charges following this game, where there were so many fights both on the ice and in the stands that several police officers had to intervene. [ 24 ] As a penalty, the accused was suspended for twelve games. [ 25 ] The accused does not have the reputation of a fighter. [ 26 ] According to both the game referee and the league president, the accused has no history of being violent during hockey games. [ 27 ] The accused cannot explain this unusual behaviour on his part.

He testified that perhaps it was due to [ translation ] “the intensity of the moment”. [ 28 ] He had no personal issue with D. [ 29 ] After joining another team for a few months, he quit the hockey league once and for all and has not played since. [ 30 ] The accused feels regret for what happened. [ 31 ] He apologized to the victim when they happened to meet in a bar some time after the events. [ 32 ] According to the accused, the victim responded coldly.

In fact, D. apparently told him that he was not interested in hearing an apology and that he only hoped that the accused would end up in jail. [ 33 ] D. testified at the sentencing hearing, stating that he did not remember saying those words during that encounter with the accused. [ 34 ] The accused is currently registered in an eighteen-month nursing program at a training centre. This will prepare him to be a

nursing assistant. [ 35 ] He then plans to earn a college diploma or bachelor’s degree in nursing. [ 36 ] In any case, he says that a criminal record would interfere with his earning a degree by preventing him from joining the professional association. [ 37 ] To earn a living, he works as a cashier at a grocery store for fifteen to twenty hours a week. [ 38 ] His

schedule is as follows: he attends courses from 7:35 a.m. to 2:55 p.m. every day. Then he works at the grocery store in the evenings and sometimes on weekends.

IV- THE ISSUE [ 39 ] The issue before us is this: Does Blaquière deserve to have a criminal record for what he has done? [ 40 ] That is basically the question to be decided here: on the one hand, an absolute or conditional discharge, and on the other, the imposition of a relatively small fine and unsupervised probation. [ 41 ] In either case, it is acknowledged that the safety of the public is not endangered and that there is no need to impose a heavier sentence. [ 42 ] The principal difference [ translation ] “lies in the fact that, in the first case, the offender is deemed not to have been charged, whereas in the second, he will be handicapped by a criminal conviction for the rest of his life”. [2] [ 43 ] The underlying issue: hockey violence.

V- CRITERIA FOR granting a discharge [ 44 ] In addition to the first two criteria set out in paragraph 730(1) of the Criminal Code , namely that the accused pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life , two other criteria are essential for a discharge. [ 45 ] The court must first consider that the discharge is in the best interest of the accused and, if so, must determine whether it is contrary to the public interest. [3] [ 46 ] In Rozon , [4] Pierre Béliveau J. defined the best interest of the accused as follows: [ translation ] ... the best interest of the accused assumes that the accused is a person of good character with no criminal record, though that is not fatal ..., that it is not necessary to register a conviction to deter the accused from committing other offences or to rehabilitate him, and that a conviction would have particularly negative consequences for him. [ 47 ] This definition was reiterated by the Court of Appeal of Quebec in Corbeil-Richard . [5] [ 48 ] With regard to the [ translation ] “particularly negative consequences” that a conviction could have, it is not necessary to show that those consequences would actually occur: it is sufficient that the possibility exists . [6] [ 49 ] As for the criterion of public interest, it is assessed, inter alia , by the seriousness of the conduct and its frequency in the community, by the need for general deterrence, and by the importance of preserving public confidence in the administration of justice. [ 50 ] What is the situation in this case?

VI- Is a discharge in the best interest of Blaquière? [ 51 ] This

summary conviction offence is punishable by a term of imprisonment not exceeding eighteen months. [ 52 ] The accused cooperated with police authorities as soon as he was advised that a complaint had been filed, that is to say, two months after the game. Before that, he had heard nothing about it since the game. [ 53 ] The accused is twenty-one and has no criminal record. Neither does he have a history of violence on the skating rink. [ 54 ] He apologized to the victim. [ 55 ] He pleaded guilty. [ 56 ] The alleged acts were not premeditated.

They were committed impulsively, did not target the victim specifically, and occurred in a highly charged atmosphere, twenty seconds before the end of the quarterfinal game. Blaquière had received no penalties up to that point. [ 57 ] Despite all the fights that occurred during the game, on the skating rink and in the stands, he was the only one who was charged. [ 58 ] The victim was not seriously injured. He had a black eye, a scratch on his forehead, and a swollen nose and cheek.

[ 59 ] The accused is an asset to society since he studies full time and works part time. [ 60 ] In eighteen months, he will have completed his training. He already plans to pursue his studies and earn either a college or a bachelor’s degree in nursing. [ 61 ] There is no concrete evidence that the ability to earn a nursing degree could be compromised by a criminal record.

But, as our Court of Appeal affirmed in Moreau [7] the accused does not have the burden to prove that such a consequence exists . [ 62 ] In Berish , [8] the Court of Appeal made the following comments after it was argued before it that a conviction was not a serious handicap given that the accused was studying at the École des métiers de la construction (construction trades school): [ translation ] [13] This is a curious argument. If he were older, if he had had an easy life, and if he travelled the world as a wealthy businessman, he would have been more entitled to a discharge.

This is a double standard that gives one pause. [14] Let us not forget that at eighteen or twenty, the future is still a wide open book. The handicap of a conviction could one day weigh very heavily even if we cannot define that weight as precisely today as in the case of an older offender. [ 63 ] For all these reasons, it appears to me that a discharge would be in the best interest of the accused.

VII- WOULD DISCHARGING BLAQUIÈRE BE CONTRARY TO THE PUBLIC INTEREST? [ 64 ] A discharge must not cause a well-informed public to lose confidence in the administration of justice. [ 65 ] The seriousness of the crime committed is an important factor to be considered at this stage of the analysis.

Indeed, the more serious the crime, the greater the risk that a discharge would be contrary to the public interest. [ 66 ] But what of the general deterrent effect of such a measure, in light of the fact that violence during hockey games is a common phenomenon? [ 67 ] In a 1988 case involving Dino Ciccarelli, [9] an NHL player, the judge denounced the violence of hockey games: “l am of the opinion that it is time now that a message has to go forth from the courts that unprovoked violence, whether in a hockey game or for that matter under any other circumstances, is not tolerated in our society. ...” and concluded that a discharge would be contrary to the public interest. [ 68 ] So this is not a new phenomenon.

Has there been a change in the level of violence? Has society become more or less tolerant of it than before? In the absence of evidence in that regard, I cannot comment on those questions. [ 69 ] But it is clear that violence such as perpetrated by the accused against D. is unacceptable, has nothing to do with the game of hockey, and must not be tolerated under any circumstances, either before, during, or after a game. The message must be persuasive. [ 70 ] That said, must the message necessarily include the imposition of a sentence that would create a criminal record?

In other words, in certain situations, can a discharge satisfy the criterion of deterrence? [ 71 ] The prosecution emphasizes the risk of trivialization that a discharge would entail.

More generally, it is hockey violence that the prosecution urges me to denounce by my decision. [ 72 ] In Berish , [10] the Court of Appeal asks the following question in the context of a case of possession for the purpose of trafficking: [ translation ] Is there a danger that a discharge would set a bad example for young people who might be tempted by the lure of easy drug money? [ 73 ] The Court of Appeal affirms that being caught is in itself an element of deterrence for any person with no previous record. [ 74 ] In Rozon , Béliveau J. recalls that in Meneses [11] the Court of Appeal for Ontario states that the arrest and court appearance of an offender can be an effective deterrent for people who are not criminals, and these are precisely the ones who are candidates for a discharge. [ 75 ] As for the question of the credibility of the legal system as well as the objective of denunciation, Béliveau J. says this: [ translation ] … the question is whether a reasonable and informed person would consider that, in addition to the stigma and denunciation already incurred, it is necessary, taking into account that this would add to the punishment that an accused would normally face in the same circumstances, that there also be a formal stigma and denunciation. ... [12] [ 76 ] In this case, it appears to me that, if fully informed of the situation, the public would not lose confidence in the legal system if the defendant were discharged. [ 77 ] It should be added that the concept of public interest includes the possibility that a person could become useful to society and support themselves. [13]

[ 78 ] In its search for an appropriate criminal sanction, the Court must also seek proportionality between the sentence and the offence committed. [ 79 ] It is clear that the Court must take into account the frequency of this type of crime in the community.

But the individualization of the sentence is a fundamental principle of sentencing. [ 80 ] I am of the opinion that this assault was an isolated incident and that the accused presents no risk of re-offending. [ 81 ] Making the Blaquière case an exemplary case of denunciation of hockey violence would, in my view, place too much emphasis on the objective of general deterrence. [ 82 ] Blaquière is a young man who has everything he needs to begin a productive career in the relatively near future.

It would be unfair to make him carry on his shoulders the full weight of the needed denunciation of hockey violence. [ 83 ] In conclusion, I believe that a discharge is in the best interest of Blaquière, is not contrary to the public interest, and is the appropriate measure in the circumstances. FOR THESE REASONS, THE COURT: ORDERS an absolute discharge; EXEMPTS Mathew Blaquière from payment of the victim fine surcharge and costs . _______________________________ SYLVIE DURAND, J.C.Q. Mtre Dennis Galiatsatos For the prosecution Mtre Isabelle Lavoie For the accused Hearing dates: November 23 and December 15, 2011