April 03, 2018
Dutil, Bouchard, Gagnon
Appeal from the sentence. Allowed.
The appellant appeals the overall term of imprisonment of 14 months imposed on him in connection with 2 counts of sexual interference with a child of less than 16 years of age. Although the objectives of denunciation and deterrence must be given particular weight, R. c. Bergeron (C.A., 2013-01-07), 2013 QCCA 7, SOQUIJ AZ-50925211, 2013EXP-229, J.E. 2013-119, established that, in some cases, other objectives must prevail. Indeed, the principle of proportionality of sentencing requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness and the seriousness of the offence. In this case, the victim voluntarily participated in the offending acts in the context of a romantic relationship approved by the parents of both parties, in which there was no psychological or physical violence, breach of trust, or abuse of authority. Thus, even though the case law analysis established that a young victim’s consent is not in itself a mitigating factor, it should nevertheless be taken into account.
Moreover, the trial judge committed a reviewable error in finding that the appellant’s relapse of cannabis use was detrimental to his rehabilitation as it discredited all of his efforts of rehabilitation and reintegration into society, which remain laudable. Consequently, because the judge did not correctly apply the principle of individualization in sentencing and did not take into account the particular circumstances of the offence, the sentence imposed is clearly unfit and demonstrably unreasonable. Thus, leaving aside the minimum sentence, the just and appropriate sentence is rather 90 days in custody, that is, 45 days for each count, to be served intermittently. Furthermore, the additional, mandatory orders imposed on the appellant also achieve the objectives of denunciation and deterrence. Finally, the judge did not err in finding that the minimum one-year sentence was constitutionally invalid in respect of the 3 hypotheses reasonably submitted by the appellant.
*Summary by SOQUIJ
Text of the decision:
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