Hamilton, Beaupré, Hardy

Appeal from sentence. Allowed.

The appellant appeals from a judgment of the Court of Québec sentencing the respondent to a total conditional prison term of 18 months, followed by 24 months’ probation, for offences of harassment and assault committed against his spouse while they shared a community of life and harassment of his former spouse and her new partner six years after the breakup.

The trial judge made two errors in principle that had an impact on the sentence in failing to correctly assess the risk that sentencing the respondent to a conditional sentence represented for the community. First, the judge unreasonably limited the scope of the [translation] “community” in question in finding that because the respondent had committed the offences against his spouse in a domestic context, the community was not concerned. The community’s safety, however, is not just about the community as a whole, but can also be about just one person. The judge thus altered the applicable test.

Second, the judge did not assess the respondent’s risk of re-offending or, at least, omitted to give enough weight to an accumulation of relevant factors. Even if the Court were to find that the judge had taken certain factors into account to assess the respondent’s risk of re-offending, which the Court does not, these factors in no way counterbalance the other unfavourable and decisive factors, including the long period over which the offences occurred, the respondent’s criminal record for similar offences, the circumstances of the harassment he inflicted on his former spouse and her new partner six years after the separation, his lack of insight, and the fact that he remained in custody during his trial.  Moreover, had the judge found that there was even a minimal risk of re-offending, she did not analyze the gravity of the harm likely to arise from a repeat offence.

These errors justify the Court’s intervention. The judge committed an error in principle when she characterized the subjective gravity and the respondent’s moral blameworthiness as [translation] “moderate” indiscriminately to each of the offence-related acts. The respondent’s degree of moral blameworthiness with respect to the assaults, including those involving punching the victim’s stomach while she was pregnant and trying to strangle her, is high, particularly since they occurred over a long period punctuated by other acts of physical violence.

Furthermore, the Court must take into account the context of domestic and post-domestic violence and the importance of the objectives of deterrence and denunciation in such matters, in conjunction with the considerations associated with the vulnerability of female victims of domestic violence. These considerations are of particular importance when the assaults are committed against a pregnant woman.

In this case, a total prison term of 18 months, that is, 12 months for the assaults; 9 months, to be served concurrently,  for the criminal harassment during the community of life; and 6  months, to be served consecutively, for the harassment after the separation, constitutes a just and appropriate sentence. The 10‑month conditional sentence the respondent has left to serve should therefore be replaced by a sentence of 9 months’ imprisonment, which, after taking into account the days of pre‑sentencing custody served by the respondent, is adjusted to 6 months.

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