Levesque, Rancourt, Beaupré

Appeal from the sentence. Allowed in part; a 12-month conditional sentence of imprisonment with certain conditions is substituted for the prison term. Request for a constitutional exemption to the application of s. 490.013(2)(a) of the Criminal Code (Cr. C.). Dismissed.

The appellant was convicted of indecent assault for acts committed in 1971 against the victim, who was then almost 9 years old. The accused, the partner of the victim’s godmother, kissed her and caressed her vulva. It was a single, isolated act that had serious repercussions for the victim. The appellant contested the sentence of 2 years less a day and 3 years’ probation ordered by the trial judge.

In his analysis of the aggravating factors, the judge double counted the victim’s age and the ill-treatment of a person under 18 years of age. This is an error in principle that had an impact on the sentence since the only other aggravating factor accepted by the judge was breach of trust, which had devastating consequences for the victim. The judge also erred in considering the objective gravity of the offence, that is, the inherent wrongfulness of the acts committed, as an aggravating factor, which, in combination with the first error, definitely had a determinative effect on the sentence.

In this case, a sentence of imprisonment was appropriate, even if it was a single, isolated incident since the objectives of denunciation and dissuasion had to prevail. That said, given the circumstances of the case, the nature of the contact, the appellant’s situation, and the interests of society, a prison sentence of 2 years less a day was demonstrably unfit. The effect of the trial judgment was to chastise the appellant for the offence committed rather than further the individualization of sentencing. The sentence must therefore be set aside and replaced by a just and appropriate sentence that is proportionate to the seriousness of the offence and the moral blameworthiness of the appellant.

The teachings in R. v. Proulx (S.C. Can.2000-01-31), 2000 SCC 5, SOQUIJ AZ-50068947, J.E. 2000-264, [2000] 1 S.C.R. 61 , which were established long before R. v. Friesen (S.C. Can., 2019-10-16), 2020 SCC 9, SOQUIJ AZ-51680674, 2020EXP-902, [2020] 1 S.C.R. 424 was rendered, remain relevant and must be taken into account, given the recent legislative amendment conveying the legislature’s will to now allow a conditional sentence for convictions of sexual assault where circumstances allow it and conditions are met.

In this case, the paramount objectives of denunciation and deterrence can be effectively attained by a conditional sentence served in the community. The accused is now 76 years old, has no criminal record, is an asset for society and for his family, is in poor health and presents almost no risk of re-offending. The acts committed on the victim are not the most objectively serious through the lens of such acts and occurred only one time. The harm to the victim is serious, which justifies a sentence of imprisonment. However, the circumstances of this case require that this imprisonment be adapted to the needs of the case and adequately balanced to allow the appellant to benefit from a conditional sentence. The fit and proportionate sentence for the appellant is a 12-month sentence of imprisonment in the community.

Also, the request for a constitutional exemption from the application of s. 490.013 (2) (a) Cr. C. must be dismissed.

Text of the decision: http://citoyens.soquij.qc.ca