Doyon, Marcotte, Healy

Application for leave to appeal the sentence. Granted. Appeals from convictions and from the sentence. Dismissed.

The appellant was convicted on one count of sexual assault against a friend's spouse. He was sentenced to 12 months in prison. The appellant argues that the trial judge resorted to stereotypes to discard his testimony and accept the complainant’s, and that he erred in his assessment of the evidence. With respect to the sentence, he is of the view that the judge erred in assessing the mitigating and aggravating factors. He asks that an 18-month conditional prison sentence be imposed on him in light of the amendment to s. 742.1 of the Criminal Code (R.S.C. 1985 c. C-46) made since the judgment.

The complainant was in no state to receive the appellant's advances and even less so to reciprocate. In that context, the judge did not rely on any prejudice to reject the appellant's testimony. Instead, he concluded that the behaviour of a person in the complainant's situation could not correspond to the one described by the appellant. It was up to him to decide between the contradictory versions concerning the physical impossibility for the appellant to force the complainant to perform fellatio on him. Thus, the judge did not engage in an assessment that was unequal and unfair to him. The contradictions between the complainant's testimony and that of her spouse do not concern the essential elements of the offence and are inconsequential. The judge applied the appropriate legal rules, and his assessment of the evidence is free of any reviewable errors.

According to R. v. R.A.R. (S.C. Can., 2000-01-31), 2000 SCC 8, SOQUIJ AZ-50068948. J.E. 2000-261, [2000] 1 S.C.R. 163, the appellant can now seek a conditional sentence because he is entitled to the benefit of any legislative amendment on the sentence in effect at the time of the appeal. The trial judge obviously did not consider a conditional sentence, so the Court must now do so by exercising its own discretionary power. In the context of this exercise, it must show deference to the trial judge's findings of fact. In this case, even though the appellant has no criminal record, is an asset to society, and has a stable family situation, incarceration is required to prioritize the objectives of denunciation and deterrence. The weight of the aggravating factors, that is, the consequences to the victim as well as the fact that the appellant violated her physical, sexual, and psychological integrity, that he exploited her vulnerability, and that his actions are an abuse of trust, is determinative. A conditional sentence is not appropriate. It may have a denunciatory and deterrent effect, but the circumstances of a case may require incarceration, as this one does.

Finally, establishing reference tools to impose conditional sentences is a delicate exercise because that sentence had been prohibited since 2007. Using judgments rendered prior to 2007 would risk unduly lightening the sentence, given the evolution of the case law. Today, sentences may be harsher. It would be just as wrong to determine the sentence by unduly insisting on the sentences ordered since 2007. The legislative amendment is too recent to accurately identify the judgments that could be used in a valid comparison for conditional sentences.

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