2021 QCCQ 8214, 2021 QCCQ 8214

R. c. Villeneuve 2021 QCCQ 8214 COURT OF QUEBEC Criminal & Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL N° : 500-01-203593-204 DATE : September 10 th 2021 ______________________________________________________________________ BEFORE THE HONOURABLE DENNIS GALIATSATOS, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecution v. MARK VILLENEUVE Accused ______________________________________________________________________ REASONS FOR JUDGMENT ______________________________________________________________________ [ 1 ] Mr.

Villeneuve is charged with breaching the condition of a probation order (s. 733.1(1) C.C. ). [ 2 ] Supervised probation orders are routinely issued in the judicial district of Montreal. Among the various conditions imposed, it is common to require that the accused “undergo therapy or counselling arranged or recommended by his probation officer”. In fact, the standardized probation forms include it as a template condition.

This practice is widespread across the country. [1] [ 3 ] Despite the frequency of such a condition, there is little caselaw dealing with an accused’s failure – or even outright refusal – to undergo counselling. [ 4 ] That is what occurred in the case at bar. [ 5 ] In December of 2017, the accused was convicted of multiple counts of sexual interference with a minor (s. 151(

a) C.C. ), making and possessing child pornography (s. 163.1(2)

(4) C.C. ) and making sexually explicit material available to a child (s. 171.1(1)(

b) C.C. ). He was sentenced to 2 years -1day imprisonment, followed by a three-year probation order. The probation would be supervised by an officer during its entirety. [ 6 ] In addition to conditions prohibiting the accused from being in the presence of minors, the order required him to undergo any “therapy” recommended by the probation officer. The exact wording of the condition, which is the source of some concern for the Court, will be addressed below. [ 7 ] The accused acknowledges that he did not submit to any such counselling.

He believes that he did not need it, adding that it might even be detrimental to his development and to the progress he has made since his release from custody. [ 8 ] To be clear, this judgment does not address the wisdom, necessity or basic usefulness of the impugned condition when it was originally imposed. It is presumed valid. After all, although the accused had ample opportunity to challenge the condition (with which he explicitly disagreed) on appeal, he did not do so. As such, he is not free to attempt a collateral attack at this juncture.

The “breach first, challenge later” approach has been firmly rejected by the Supreme Court of Canada. [2] [ 9 ] Moreover, based on the nature of the offences for which he was sentenced, all of which involved sex crimes on children, it seems obvious that some form of specialized treatment was critical in order to curb the accused’s risk of reoffending after his release from jail.

This is further evidenced by the fact that a prohibition order under s. 161 of the Criminal Code was also imposed on him by the sentencing judge. [ 10 ] Alas, that is irrelevant to whether or not the Crown has proven the offence of breaching probation beyond a reasonable doubt. FACTUAL OVERVIEW 1- THE EVIDENCE OF THE PROSECUTION [ 11 ] Benoit Leblanc, the accused’s probation officer, testified at trial.

[ 12 ] After the accused’s release from jail, their first mandatory meeting together took place on May 30 th 2019. During that meeting, the officer explained all the probation conditions to Mr. Villeneuve. The officer also took the time to explain the other applicable ancillary orders, including the s. 161 C.C. prohibition order and the mandatory compliance with the S.O.I.R.A. provisions under s. 490.012(1) C.C. [ 13 ] Incidentally, Mr.

Villeneuve disagreed with all of them. [ 14 ] Notably, with respect to the supervised probation order, the accused disagreed with the condition requiring him to pursue any follow-up or counselling regarding his sexual misconduct. In his view, since he did not suffer from any sexual delinquency, he did not need any treatment. [ 15 ] Seeing the accused’s reaction, the probation officer explained to him that his only option was to contest the condition’s existence in court and attempt to have it removed. Otherwise, he would have to comply with it. At that point, Mr.

Villeneuve expressed that he would in fact mount a court challenge. [ 16 ] During that first meeting, the officer did not suggest any specific counselling program or facility to the accused. Instead, he gave the accused a one-month grace period to see if he would file a court challenge. He later granted him further extensions, given the summer months and the purported unavailability of the accused’s lawyer. [ 17 ] In total, there were nine meetings with the accused and his probation officer between May and October of 2019. At no point did Mr. Villeneuve ever challenge the condition in court.

Ultimately, on October 1 st 2019, the accused advised that after conferring with his lawyer, he would not mount a legal challenge to the condition after all, since the probation officer had discretion as to whether or not to require counselling. He simply asked the officer to forgo the recommendation. Unfortunately for Mr. Villeneuve, the probation officer did in fact believe that therapy and follow-up were necessary for the accused. Mr.

Leblanc’s view was consistent with the conclusions in the pre-sentence report and the psychosexual assessment, both of which opined that the accused needed to pursue treatment for sexual delinquency – whether he wanted to or not. [ 18 ] At each one of the meetings, the officer raised the issue of a follow-up for sexual delinquency, but each time, the accused repeated that he was not a sexual delinquent, that a follow-up was unnecessary and that he did not wish to attend any program. [ 19 ] Faced with such an attitude, the probation officer was flexible.

He canvassed whether or not the accused would be willing to attend therapy of a more general nature, which would address all of Mr. Villeneuve’s personal issues, including his sexual conduct. In other words, said therapy would not solely focus on sexual behaviour. [ 20 ] Despite the officer’s attempts to accommodate the accused, the latter still refused. Mr.

Leblanc explicitly warned the accused that if he did not comply, he would submit the file for a breach of probation charge. [ 21 ] Throughout these meetings, given the accused’s complete close-mindedness, the officer never recommended any specific program. [ 22 ] When asked in cross-examination why he did not refer the accused to a specific place, the officer explained that for sexual delinquency, there are five organizations in Montreal that are typically used by the probation services.

He added, however: [translation] If we refer someone to those organizations, the subject must have a desire to participate, because it is up to him to contact the resource. But if he does not want to have a follow-up and does not want to invest himself in it , the organization itself will refuse to accept him from the outset. That is why I did not specifically refer Mr. Villeneuve to an organization. [3] [emphasis added] 2- THE EVIDENCE OF THE DEFENCE [ 23 ] The accused testified in his defence. [ 24 ] He acknowledges that he knew of the condition and that he refused to abide by it.

He also recognizes that his probation officer repeatedly warned him that non-compliance would lead to a new criminal charge. [ 25 ] Nevertheless, he claims that it was impossible for him to comply with the condition, as it would cause him significant trauma. [ 26 ] While serving his jail sentence for the above-mentioned sex crimes, on his own initiative, he asked to be transferred from Montreal to the detention centre in Percé, where they offered a program for sexual delinquency. He started the program with high hopes.

However, one day, as he was returning to his cell, the prison guards informed him that a random search of his quarters had revealed child pornography. The Sûreté du Québec launched an investigation. [ 27 ] When he met with the investigators, they explained to him that “child pornography” can take many forms, including written text, which was what they had found in his cell. This left Mr. Villeneuve flabbergasted. Although he had in fact drafted various explicit sexual materials, they were about his own life.

In fact, that task had been part of his treatment program: he had to write about his traumatic childhood experiences, as a form of autobiography, in order to then address his emotional issues.

[ 28 ] Ultimately, the accused was not charged with any crime. However, the experience left him feeling deeply betrayed. He had tried to seek help and better himself, only to have the State use his efforts against him. [ 29 ] He testifies that the experience left him traumatized. [ 30 ] After that incident, he asked to return to the Montreal detention centre where he simply served the rest of his sentence, being paroled at the 2/3 mark. [ 31 ] When asked why he did not undertake counselling as recommended by his probation officer in 2019, the accused answers that he was too scared and uncomfortable.

If he was forced to comply, it might have a deep impact on his life and it might even prompt him to reoffend. Thus, in his view, it was no longer in his best interests to engage in treatment programs. Instead, he would try to stay “on the straight and narrow” on his own. [ 32 ] If he felt like he needed help, he would ask for it. However, for the time being, he was doing better on his own. In fact, in the last 2 ½ years, he had not been in trouble with the law. He worked very hard to achieve that success. POSITIONS OF THE PARTIES [ 33 ] The defence raises what it describes as a “defence of impossibility”.

Counsel submits that Mr. Villeneuve’s prior negative experience with his counselling program (while detained) caused him such a degree of trauma that it would be emotionally impossible for him to comply with further counselling. [ 34 ] In essence, his experience at the Percé jail “irrevocably soured him” on the possibility of pursuing more therapy. [ 35 ] The Crown responds that the accused admitted the offence in his testimony.

For instance, he acknowledged (1) knowing about the condition, (2) willfully refusing to comply with it and (3) being repeatedly warned by the officer that he would be charged with breaching probation if he did not respect the condition. Nothing more is required to prove the offence. [ 36 ] During the closing arguments, the Court raised the issue of the probation order’s problematic wording. Based on their reactions, it appears that neither party had noticed the significant clerical error in the text of condition #5, which forms the basis of the charge.

ANALYSIS 1- THE APPARENT CLERICAL ERROR IN THE PROBATION’S CONDITION [ 37 ] The entire trial proceeded on the assumption that the accused had allegedly breached a condition of his probation order requiring him to undergo counselling recommended by his probation officer regarding his sexual deviance problem . In fact, at the start of the trial, the defence admitted that the probation order [4] was valid and in force at the time of the alleged offence. [ 38 ] However, a careful reading of the probation order reveals that the actual condition was quite different.

It reads as follows: Suivre toutes les thérapies recommandées par l’agent [de probation] relativement à son problème de thérapie sexuel . [translation] To follow any therapy or counselling recommended by the probation officer regarding his sexual counselling problem . [ 39 ] Interestingly, the text of the condition is faithfully reproduced in the charging document alleging a breach of probation under s. 733.1(1)(

b) C.C. The count, as drafted, charges Mr. Villeneuve with having failed to follow therapy for his sexual counselling problem . [ 40 ] Alas, it is not in evidence that the accused ever had a “sexual counselling problem”. More importantly, it is not in evidence that the probation officer ever recommended that Mr. Villeneuve attend counselling regarding a “sexual counselling problem”. [ 41 ] Fundamentally, and with great respect to those responsible for the drafting error, it is unclear to the Court what a “sexual counselling problem” even is.

Conditions of a probation order must be clear, unambiguous and enforceable. [5] [ 42 ] In the case at bar, the condition, as drafted, seems unintelligible. Accordingly, it is unenforceable. [ 43 ] To be fair, it seems obvious to all the parties in this file – and to the Court – that the wording in the probation order is the result of an unfortunate typo. It may seem logically irresistible to infer that the condition meant to subject the accused to counselling for his sexual deviancy , at the request of the probation officer. [ 44 ] However, that condition – as drafted – forms the basis of the charge.

It is an integral part of the actus reus of the offence. [ 45 ] When it comes to amending a count on a charging document, it is trite law that the caselaw mandates a flexible approach. The amendment powers in the Criminal Code are broad and were designed to facilitate adjudication on the merits and avoid results predicated on deficiencies in the charging documents. They also strive to ensure that a multiplicity of proceedings does not arise from single transactions.

These rationales underscore the sound proposition that a fair criminal justice system prioritizes substance over form. [6] The applicable standard under s. 601 of the Code is whether the accused would suffer “irreparable prejudice” as a result of the amended charge. [7]

[ 46 ] However, the problem here is not with an improperly drafted count. As mentioned above, the count accurately reproduces the predicate condition. As such, there is no amendment to be made to the count. [ 47 ] Instead, the problem lies with the actual condition of probation order # 500-01-141487-162 / 500-01-141763-166, which forms the basis of the alleged crime. Alas, it is too late to revert back to December of 2017 and attempt to correct the error. I do not have the jurisdiction to do so at this juncture. Moreover, s. 601 C.C. does not allow for such a correction to be made.

Something entirely different is contemplated here. [ 48 ] As mentioned above, the defence cannot challenge the validity of a condition at the breach stage. Such an attempt would run afoul of the prohibition against collateral attack. [ 49 ] The same reasoning must apply to the Crown. Had the parties or the probation officer noticed that the condition was improperly drafted from the outset, the Crown could have (and should have) moved to correct the error by going on appeal or alternatively, by making an application to the sentencing judge to rectify her order.

Since the Crown did neither of those things, it cannot seek to correct the underlying error at the 733.1 prosecution stage. [ 50 ] At trial, in a remarkable display of intellectual integrity, defence counsel candidly acknowledged that the condition obviously referred to counselling for sexual delinquency. This inference was inescapable if we read the document as a whole, in its proper context. The concession was understandable. [ 51 ] Nevertheless, despite counsel’s reluctance to exploit this apparent administrative oversight, the net result still leaves the Court in an untenable position. Mr.

Villeneuve is charged with a crime. That crime is narrowly defined by a condition that he was bound to respect in his probation order. In the case at bar, on a plain reading of the condition, the probation officer never recommended that the accused undergo counselling for a “sexual counselling problem”. [ 52 ] For this reason, the accused must be found not guilty. [ 53 ] In the event that my

interpretation of the condition is wrong in law (and given the defence’s conciliatory stance regarding the drafting error), the Court’s analysis will continue below, for the purpose of possible appellate review. As will be seen, even if the condition had been properly drafted, the Court would have still acquitted the accused. 2- THE OBLIGATION TO ATTEND “THERAPY” AT THE DIRECTION OF THE PROBATION OFFICER [ 54 ] As mentioned above, condition #5 requires the accused to undertake and follow any “therapy” recommended by the officer. The defence acknowledges that the condition applied.

Moreover, its validity was never challenged on appeal. Despite these admissions, it is important to review the principles set out in the caselaw as they will inform how the terms of the condition are to be interpreted. [ 55 ] The condition was drafted in French, even though the accused is Anglophone. The word “ thérapie ” can be interpreted – and translated – in different ways.

Obviously, it can refer to “therapy” (in the sense of psychotherapy) or “counselling” more generally. [8] However, in the French-language daily courtroom vernacular, the term “ thérapie ” is also used to refer to a treatment program, [9] particularly a substance abuse rehab-type program. [10] In fact, in my experience sitting in bail court in the judicial district of Montreal, the word “ thérapie ” is most commonly used in French to refer to a drug or alcohol addiction program, either at a residential facility or on an outpatient basis. [ 56 ] In certain cases, this distinction may become important.

For instance, if “ thérapie ” refers to a substance abuse program, s. 732.1(3)(g)(g.1) C.C. requires the offender’s consent before it can be added to a probation order. [11] Without his consent, he cannot be forced to attend such treatment.

Evidently, if such a condition may not be imposed by the Court without the offender’s consent, it certainly cannot be added by a probation officer through some delegated exercise of power. [ 57 ] Thus, to be clear, in the case at bar, the Court will interpret “ thérapie ” as “counselling”. [ 58 ] The principal virtue of probation is the flexibility it provides to the sentencing court. [12] The residual power to craft individualized conditions of probation under s. 732.1(3)(

h) C.C. is very broad. It constitutes an important sentencing tool. As recognized by the Supreme Court in R. v.

Shoker , while the primary purpose of a probation order is rehabilitation of the offender, protection of the public is an equally legitimate objective. [13] In applying the residual clause, what is required is a nexus between the offender, the protection of the community and his reintegration into the community. [14] [ 59 ] A sentencing judge cannot delegate a judicial function, [15] which is why great care is needed when entrusting a probation officer with the power to make recommendations to the offender, for which non-compliance may lead to criminal liability.

There will often be a fine line between the improper delegation of judicial functions and the legitimate administration of a probation order by an officer for purposes of supervising the offender and implementing the judge’s conditions. [ 60 ] The imposition of a condition is for the judge to determine, but the day-to-day supervision can be properly delegated to Probation Services, who have the necessary expertise to adapt the program of rehabilitation to the needs of the accused. As expressed by Steel J.A. in R. v.

Traverse , it is unrealistic and impractical to expect the sentencing judge to foresee every nuance in the carrying out of terms of probation. [16] [ 61 ] The caselaw recognizes that sentencing judges may include a mandatory condition of counselling without the offender’s consent. [ 62 ] In R. v. Duguay , the accused was convicted of indecent exposure for exposing his genitals to a 14-year-old girl. He was sentenced to 45 days' imprisonment and a two-year probation order. From the outset, he expressed that he was unwilling to participate in

any sex offender treatment program. Despite his objection, the sentencing judge imposed probation conditions requiring the offender to: ... attend, participate in and successfully complete any assessment, counselling or program as directed by the probation officer which may include: (

a) sexual offence prevention; (

b) a full-time attendance program for sex offenders, and you shall comply with all rules and regulations of any such assessment, counselling or program. [17] [ 63 ] This condition was similar to the one in the case at bar in two respects: (1) it was imposed against the will of the accused and (2) the legal duty to participate in a counselling program depended on a request being made by the probation officer. [ 64 ] The British Columbia Court of Appeal upheld the validity of such a condition.

First, unlike a condition prescribing “treatment”, a condition mandating counselling did not require the offender’s consent. [18] [ 65 ] As for the probation officer’s involvement in the decision-making process, after reviewing the provisions of s. 732.1, the Court recognized that Parliament must have intended to confer upon sentencing judges the ability to delegate some functions to probation officers when imposing optional conditions under s. 732.1(3)(h). [19] It then went on to determine whether or not said condition constituted impermissible delegation of a judicial function.

The Court observed that the emphasis Parliament has placed on exploring reasonable alternatives to incarceration means that probation officers play an increasingly important role in identifying community-based sentencing options and ensuring that offenders comply with conditions designed to protect society and facilitate their rehabilitation. [20] [ 66 ] The Court of Appeal concluded that the condition, as drafted, did not improperly grant the probation officer the power to craft the terms of the sentence.

Instead, it was limited to the legitimate delegation to the officer of a discretion in putting the terms of the sentence into effect. [21] [ 67 ] In R. c. X. , the Quebec Court of Appeal adopted a similar approach. The young offender was convicted of sexual assault.

On appeal, he contested the validity of a condition of his probation order requiring him to: Participate in and complete a rehabilitation activity aimed at adolescents having committed a sexual offence, tailored to his needs as determined by his probation officer. [22] [ 68 ] The Court of Appeal acknowledged that the wording of the condition could be problematic.

For instance, as drafted, if it referred to a “treatment program” for sexual delinquency, the condition would be invalid, due to the offender’s lack of consent. [ 69 ] However, based on the evidence presented, the Court of Appeal interpreted the condition as referring to a counselling-type program, which was permissible even without the offender’s consent (as opposed to sexual delinquency treatment). The program’s objective was to raise awareness in the offender and not to “treat” him per se . [23] It was not result-based. 3- THE PROPOSED DEFENCE OF “IMPOSSIBILITY” [ 70 ] The defence advanced by Mr.

Villeneuve is dismissed by the Court. [ 71 ] Counsel referred to a “defence of impossibility”. To be clear, he did not mean a defence of “true legal impossibility”, which could apply, for instance, in cases where an accused tries to commit an imaginary offence not known to Canadian law. [24] [ 72 ] Instead, counsel meant to impart that as drafted, the condition could not realistically be respected by the accused without him risking grave emotional prejudice.

In a way, the defence resembles that of “impossibility of compliance”, which is generally invoked in matters of contempt of court or regulatory offences, by which the defendant asserts that he exercised due diligence and did everything possible to comply with the terms of the order, [25] or alternatively, that it was not physically or morally possible to comply with the law. [26] [ 73 ] Even assuming said defence was open to the accused, it would certainly not apply in the case at bar. Compliance with the condition was neither impossible nor particularly difficult.

At the very most, to quote defence counsel, the thought of compliance “caused the accused a great deal of stress”.

That is not sufficient to discharge an offender from his probation order, the terms of which were imposed for the protection of the community… and in this case, vulnerable children who may be preyed upon by a sex offender. [ 74 ] Alas, it will often be the case for convicted offenders to experience stress caused by the terms of their supervised probation orders. [ 75 ] To be sure, breaching probation under s. 733.1(1) C.C. is a full mens rea offence requiring subjective fault to be established by the Crown beyond a reasonable doubt. [27] Here, Mr.

Villeneuve explicitly acknowledged that he had knowledge of the condition and that he understood it. He was also repeatedly warned about the criminal consequences of non-compliance. Nevertheless, he preferred to attempt his rehabilitation on his own, opining that he did not need any help. Thus, he knowingly failed to act in accordance with his probation order. [ 76 ] The mens rea is amply established by the evidence.

It was essentially admitted by the accused under oath. [ 77 ] That leaves the issue of a “reasonable excuse” mentioned at s. 733.1(1), which provides an additional statutory defence to the accused, above and beyond simply negating mens rea . [28] [ 78 ] Where the defence relies on a reasonable excuse, the accused bears the legal or persuasive burden of proving it on the balance of probabilities. [29] [ 79 ] The statutory defence of reasonable excuse is considerably broader and far less stringent than the defence of necessity. [30] Nevertheless, it must still be rooted in legitimate and pressing concerns.

What constitutes an acceptable excuse will vary according to the circumstances of each case. To succeed as a defence, the excuse must be a reasonable one, which, viewed objectively, provides sufficient

reason for the violation of the court order. [ 80 ] The defence of “reasonable excuse” takes its meaning in part from the nature of the particular offence to which it applies. The specific purpose underlying a criminal offence informs the meaning to be given to the statutory defence of excuse. [31] [ 81 ] In the case at bar, Mr. Villeneuve has failed to establish any reasonable excuse. He made a conscious choice to disregard a condition because he disagreed with it. If this was sufficient to displace a condition, the entire regime under s. 732 C.C. would crumble.

The fact that the accused had a previous negative experience with a treatment program at the Percé detention centre does not alter this basic rule. Although the Court is sensitive to the fact that the accused was deeply disappointed with how things transpired at the jail, entirely new programs were contemplated by his probation officer in 2019. Moreover, the road to rehabilitation is often a difficult one. When addictions and behavioural disorders are at play, it is common for the person to experience failures, pitfalls and relapses along the way. Some programs prove to be ineffective or ultimately unsuccessful.

This is not a reason to abandon the exercise altogether.

Instead, that is precisely why supervised probation orders provide for a follow-up with a probation officer, who can monitor the offender’s progress and make timely adjustments and suggestions with the objective of attaining some measure of improvement in addressing the problem. 4- THE FACT THAT THE ACCUSED WAS NOT REFERRED TO A SPECIFIC PROGRAM OR FACILITY [ 82 ] Had the condition been properly drafted, there would have been another significant problem with how it was carried out by the probation officer, which goes to the offence’s actus reus . [ 83 ] As mentioned above, it may be legally permissible to impose residual probation conditions, even when they are predicated on recommendations by a probation officer.

Nevertheless, although allowed in the right circumstances, such situations often create difficulty, as Salhany underscores in Canadian Criminal Procedure . [32] Recall that while administrative functions can be delegated, judicial functions cannot. [33] There is no bright-line test and the mere fact that a condition is routinely imposed (without much analysis) does not obviate the need to exercise great care in imposing, applying and enforcing it. [34] [ 84 ] Accepting the proposition, as the Court of Appeal did in Duguay , that a probation officer can have the delegated power to recommend and mandate specific counselling for the offender, the power is still an exceptional one that should be interpreted narrowly, given its implications on jurisdiction. [ 85 ] Since the area is fraught with danger, it is critical that any recommendation made by the officer be as clear as possible.

After all, it carries the weight of potential criminal sanctions which can impact the accused’s liberty interests. It goes to the core behaviour required of the accused. [ 86 ] With that in mind, where the condition sets out that the accused must follow any therapy recommended by the officer , in the Court’s view, it is incumbent on the probation officer to clearly and specifically recommend a given program. It does not suffice that the officer explain the types of programs contemplated to the accused. [ 87 ] That is so for two reasons.

First, the probationer is entitled to understand exactly what program he is being required to follow, before making an informed decision as to whether or not he will comply. Such a decision might be different for “program A” than it would be for “program C” or “program D”. Conceivably, the accused might wish to research the program or seek feedback from others having undertaken it in the past. [ 88 ] To be clear, the accused would not be entitled to pick and choose, nor would he have a right of veto.

However, at the very least, he would have the right to make a truly informed decision to refuse to comply and consciously expose himself to the criminal consequences of doing so. [ 89 ] Here, I sympathize with the probation officer, who viewed the process as futile, given the accused’s adamant refusal to follow any program from the outset. The evidence established that the accused was completely close-minded. Nevertheless, a clear recommendation must be made before registering the probationer’s refusal and submitting the file for criminal prosecution.

Much like cases involving a charge of refusing to provide a breath sample in a drunk driving context, it is important that a clear and unambiguous demand be made by the officer. It is equally important that the accused’s refusal be fully informed and unequivocal. [ 90 ] The Court’s second concern stems from the reasons identified by the probation officer for not referring the accused to a specific resource:

(1) The officer had five counselling programs in mind.

(2) Each of those programs required the participant ( i.e. the offender) to want to seek help and to fully invest himself in the program.

(3) Subjectively, Mr. Villeneuve did not desire to seek help. He believed that he did not have an underlying problem.

(4) Thus, the probation officer assumed (perhaps correctly) that the programs would refuse admission to Mr. Villeneuve.

(5) For that reason, he chose not to refer the accused to any specific program. [ 91 ] In the Court’s view, such reasoning suffers from a fatal flaw. [ 92 ] It is trite law that Mr. Villeneuve was legally bound to respect his condition. As such, he was legally obligated to participate in the specific counselling program(

s) recommended by his probation officer.

[ 93 ] However, the criminal law cannot force Mr. Villeneuve to desire to undergo treatment. Similarly, the criminal law – and the heavy sanctions it entails – cannot force Mr. Villeneuve to acknowledge that he has a sexual delinquency problem or to believe that he needs professional help to address it. Obviously, it would be beneficial to all if he came to that realization. However, he has not. [ 94 ] A basic tenet of our Rule of Law is that every citizen is entitled to disagree with the law; even the criminal law.

Every citizen has the right to criticize it and subjectively believe that the law is “bad” in the broadest sense. Every probationer is entitled to think that his conditions are unfair or superfluous. [ 95 ] Of course, individuals are still bound to obey the law and comply with their conditions. The criminal law can legitimately seek to control one's behaviour. However, it cannot criminalize the accused’s opinion about his perceived predicament. A basic illustration of this principle is seen in the field of taxation. What matters is that Person X pay his taxes.

He may disagree with the tax regime, he may disagree with his assessment, he may protest that the federal government has no God-given right to tax him, he may fervently criticize the CRA’s employees for being unfair or incompetent… However, if he pays his taxes despite his harsh views, he cannot be charged with tax evasion. Conversely, the criminal law cannot require Person X to agree with the regime or to pay his taxes with a smile on his face. [ 96 ] This approach is consistent with the Quebec Court of Appeal’s observations in R. c. X.

As mentioned above, in that case, the probation order subjected the accused to counselling for sexual offenders against his will. Although it upheld the condition, the Court of Appeal specified that a mere lack of enthusiasm on the part of the accused could not be a basis for criminal liability. [35] Nor could he be charged with breaching probation due to the fact that he disagreed with the conditions. [36] [ 97 ] In the case at bar, the evidence shows that the probation officer did not refer Mr.

Villeneuve to a counselling program because he assumed – from the outset – that any program would refuse to accept the accused, on account of his poor attitude and close- mindedness. [ 98 ] In other words, since Mr. Villeneuve failed to acknowledge the need for counselling, he was never granted the opportunity to attend counselling… all the while, he was legally obligated to attend counselling. [ 99 ] In the circumstances, based on how the accused’s file was managed by the Probation Services, practically speaking, condition #5 of his probation order could never be respected. Albeit indirectly, Mr.

Villeneuve was criminally penalized for his opinion. [ 100 ] Such a result is untenable. [ 101 ] In the circumstances, despite the accused’s fervent reluctance to attend counselling, he should have still been referred to a specific program or organization. In other words, he should have been given the option to attend a specific counselling program, even with his bad attitude and firm belief that he did not need to be there. [ 102 ] If he still refused to attend, criminal liability would ensue. CONCLUSION FOR THESE REASONS , the accused is found not guilty. __________________________________ D.

GALIATSATOS, J.C.Q. Ms. Matilde Bouchard Articling student for the Crown M e Michael Morena Counsel for the accused

Hearing date: August 3 rd 2021