r v. FARHANG MODEL, 2023 QCCQ 2742

R. c. Model 2023 QCCQ 2742 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Criminal and penal division” No: 500-01-196153-198 DATE: May 2, 2023 ______________________________________________________________________ PRESIDED BY THE HONOURABLE JUDGE ROBERT MARCHI, J.C.Q. ______________________________________________________________________ HIS MAJESTY THE KING Prosecutor v. FARHANG MODEL Accused ______________________________________________________________________ REASONS FOR SENTENCE ______________________________________________________________________ An order restricting publication has been rendered pursuant

section 486.4 (1) of the Criminal Code directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. [ 1 ] The Accused, Farhang Model, has pleaded guilty to an accusation of sexual assault prosecuted by

summary conviction. [ 2 ] A pre-sentence report (PSR) as well as a sexologist’s report for sexual offences (SR) were prepared. [ 3 ] Evidence was tendered by both parties at the pre-sentence hearing. THE POSITION OF THE PARTIES ON SENTENCE [ 4 ] The prosecution has requested that I impose upon the Accused a firm jail term of 10 to 12 months. As to the Accused, while in agreement that a jail term should be imposed, he is requesting that a jail term of 15 months be served in the community pursuant the

Section 742 of the Criminal Code ( Cr.C .). [ 5 ] For the following reasons, I believe a firm jail term must be imposed upon the Accused, since a conditional sentence would not be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 Cr.C . THE FACTUAL CONTEXT [1] [ 6 ] The Victim is an acquaintance of the Accused. Before the day of the commission of the offence, they had had sexual relations. During one of those past sexual relations, the Accused attempted an anal penetration upon the Victim.

She asked the Accused to stop since she did not enjoy the practice of anal sex. [ 7 ] The night of the assault for which the Accused pleaded guilty to, the Accused, a guest at the Victim’s residence, engaged in an anal penetration upon the Victim and pursued the penetration despite her refusals to engage into this type of sexual practice. THE EVIDENCE ON SENTENCE [ 8 ] The partner of the Accused testified on sentence on his behalf. She is her partner in life as well as since July 2022, in a business dealing in dog daycare, pension, and grooming.

A sum of $20 000 has already been invested in the business and she hopes to expand. She is more in managing the business while the Accused is more involved in the day-to-day operations of the business. According to her, a firm jail term imposed upon the Accused would mean the end of the business. [ 9 ] She stated in her testimony that the Accused made her aware of the present accusation in January 2021.

She also stated that the Accused is very respectful regarding consent in sexual relations. [ 10 ] A statement [2] from the Victim has been filed into evidence as well as text messages exchanged between the Victim and the Accused the day after the event. [3] The curriculum vitae [4] of the Accused has also been filed.

[ 11 ] The Accused has no criminal record. ANALYSIS [ 12 ] The purpose and sentencing principles are well known and are set forth in Sections 718 to 718.2. That being the case, the cardinal principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 13 ] Parliament has also indicated that a court that imposes a sentence shall take into consideration specific principles in specific circumstances. One shall apply here: the fact that the offence had a significant impact on the victim, including her health and her financial situation. [5] [ 14 ] Objectively, the offence of sexual assault prosecuted by

summary conviction is punishable by a maximum period of imprisonment of 18 months [6] . This is a factor I considered in reaching my decision not to impose a conditional sentence upon the Accused. [ 15 ] Subjectively, the offence of sexual assault encompasses a wide range of behaviors, going from mere touching to more serious behaviors, such as the one the Accused engaged into. Despite the decision of the prosecution to accept a guilty plea on an offence of sexual assault prosecuted by

summary conviction, the fact remains that penetrating a sexual partner anally against her will is a most serious one. The invasion of the Victim’s intimacy can hardly be more important. [ 16 ] In reaching my decision, I also considered the various decisions submitted by the parties. It will not be necessary to review them individually.

Rather, their review has been useful in determining the appropriate sentencing range [7] applicable to this case, having in mind that “ [the] determination of a “fit” sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case ” [8] . [ 17 ] It was also most useful in determining if a conditional sentence could benefit the Accused.

In fact, this is basically the only issue to be decided in this case since both parties agree that a jail term should be imposed. [ 18 ] In reaching the decision not to impose a conditional sentence upon the Accused, I took into consideration the following elements. [ 19 ] The seriousness of the behavior performed by the Accused. As I wrote previously, the offence of sexual assault encompasses a wide range of behaviors, going from mere touching to more serious behaviors: penetrating a sexual partner anally against her will is a most serious one.

The invasion of the Victim’s intimacy can hardly be more important. [ 20 ] Especially when the Victim had already in the past made it clear to the Accused that no meant no.

She writes the following in her statement: [9] I assumed that when I had told him NO to anal sex in our text conversations leading up to the rape, that I had made myself clear and he would respect that, because we were friends. [ 21 ] Not only did the Victim said “NO” during the intercourse but she had told him “NO” before the intercourse and she did so the day after the intercourse in the text messages: [10] When I said no, i fucking meant NO.

That cannot happen again. [ 22 ] To paraphrase L’Heureux-Dubé J. in the landmark case of Ewanchuk : [11] What could be clearer? [ 23 ] In those circumstances, one can hardly accept the explanation put forward by the Accused in the PSR about the ambiguity of the consent: [12] In his post-offence reaction, the offender states that he pleaded guilty after his lawyer explained the legal aspects of consent to him. While he admits after the fact that their sexual encounter was not consensual because the victim filed a complaint, he denies that he intentionally assaulted her.

According to him, he misread her signals and believed that she was consenting, claiming that sometimes saying no means ‘continue’ rather than ‘stop’. […] [ 24 ] In those circumstances, I agree with the probation officer when she writes in the PSR that: [13] In our view, the offender is rationalizing the events and downplays his acts by arguing about the ambiguity of consent. […] [ 25 ] I also took into consideration the fact that the offence had a most significant impact on the health of the victim [14] , including: having nightmares every night, cause a constant state of fear, having her doctor prescribe her medication for insomnia and post-traumatic stress disorder (PTSD), for which she is still medicated for, a constant state of stress which has begun to manifest with various physical problems as well a psychological problems for which she has done therapy. [ 26 ] She also felt betrayed by a person she considered as a friend and that he simply got what he wanted, no matter how she felt. [ 27 ] Recently, in the case of Lemieux c.

R., [15] Doyon J., writing for the Court, cited with approval the following paragraph from Sentencing , 10 th Edition, by Clayton C. Ruby:

§5.93 […] The rule respecting breach of trust has been extended to situations where it seems strained. A sexual assault upon a close friend has been regarded as breach of trust because, had the offender and the victim not been friends, the victim would not have allowed the offender to sleep in the living room of her premises. [ 28 ] The evidence in this case clearly shows that had the Accused and the Victim not been friends, they would not have had a sexual relation in the first place.

This is clearly a breach of trust, an aggravating factor. [ 29 ] Another factor pointing towards a firm jail term for the Accused is the common opinion of the probation officer [16] and the sexologist [17] that the risk of sexual reoffending for the Accused can be described as medium or moderate. [ 30 ] Also is the fact that according to the sexologist, the Accused is more concerned about the consequences for him than about the potential consequences for the Victim [18] .

And that according to the probation officer, the Accused regrets the event, though this seems principally because of the legal problems that have ensued [19] . [ 31 ] In reaching my decision to impose upon the Accused a firm jail term, I also took into consideration the following mitigating factors: • the guilty plea entered by the Accused, which ensured that the Victim did not have to testify; • the absence of a criminal record; • apart from the intrinsic violence comprised in all sexual assaults, the fact that no violence was used by the Accused against the Victim; • the conclusion of the sexologist to the effect that the Accused shows no sexual deviance; • the possible impacts of the period of detention of the Accused on his business and his partner.

On that point, the Court must specify that those impacts on third parties stem from the behavior of the Accused and not from the severity of the law; [20] • the delay that elapsed since the commission of the offence and the fact that the Accused did not re-offend. [ 32 ] Given all those reasons and after pondering the various factors, I conclude that imposing a conditional sentence upon the Accused would not be consistent with the fundamental purpose and principles set out in Sections 718 to 718.2 Cr.C ., more specifically regarding the criteria of denunciation and deterrence, and the social condemnation of the type of behavior adopted by the Accused towards the Victim. [ 33 ] Therefore, I do believe that the words of Doyon J. in Lemieux c.

R. fully apply here: [21] [110] En conclusion, j’estime que l’emprisonnement avec sursis n’est pas approprié au motif que, pour reprendre les termes du paragr. 742.1

a) C.cr ., cette peine ne serait pas conforme « aux principes énoncés aux articles 718 à 718.2 / with the principles of sentencing set out in sections 718 to 718.2 », et ce, malgré l’obligation pour les tribunaux d’envisager une peine moins privative de liberté. Les circonstances du dossier mènent inexorablement à une peine d’incarcération. FOR THESE REASONS, the Court: [ 34 ] IMPOSES a sentence of 12 months of imprisonment on the only count of sexual assault; [ 35 ] PROHIBITS the Accused, pursuant to

Section 743.21(1) Cr.C . during the custodial period, from communicating, directly or indirectly, with the Victim or the members of her immediate family; [ 36 ] ORDERS , pursuant to

Section 487.051(1) of the Criminal Code , that the Accused provide samples of bodily substances that are reasonably required for the purpose of forensic D.N.A. analysis; [ 37 ] ORDERS , pursuant to Sections 490.012(1) and 490.013(2)

a) of the Criminal Code , the Accused to comply with the Sex Offender Information Registration Act for 10 years; [ 38 ] ISSUES a 24-month probation Order, including the following conditions: • Keep the peace, be of good conduct; • The first 12 months of the Order to be supervised by a probation officer; • Report to a probation officer within 7 working days of his release from prison and thereafter, whenever required by the officer and in the manner directed by the officer; • Undergo any treatment or therapy recommended by the probation officer, including the Programme de Sensibilisation à la délinquance sexuelle (SDS) , as stated by the sexologist in his report; • Prohibition to communicate directly or indirectly and in any manner with the Victim and the members of her immediate family; • Prohibition to be in a radius of 300 meters of the domicile, place of work or school of the Victim and her immediate family; • Prohibition to refer directly or indirectly and in any manner to the Victim and the members of her immediate family on any social network;

• Prohibition to have in his possession any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance. __________________________________ ROBERT MARCHI, J.C.Q. Mtre Carolyne Paquin Counsel for the DPCP Mtre Ginette Gravel Attorney for the Accused Date of hearing: March 30, 2023