Court of Appeal of Quebec

R. c. Houle

Gagnon, Gagné, Lavallée

Application for leave to appeal the sentence. Granted. Appeal from the sentence. Allowed; a total sentence of 12 months’ imprisonment is substituted for the conditional discharge granted at trial.

The respondent was granted a conditional discharge after pleading guilty to counts of sexual assault and voyeurism. He inserted his fingers in the victim's vagina and took photographs of her private parts while she was sleeping. The prosecution argues that the trial judge erred in his assessment of certain mitigating factors, exercised his discretion unreasonably, erred in finding that the criterion of the accused's best interest had been met, failed to sentence the accused on the count of voyeurism, and imposed a patently unreasonable sentence.

The judge imposed only one sentence for both counts, contrary to section 725(1)(a) of the Criminal Code (R.S.C. 1985, c. C-46). This is not an error per se, given that Parliament itself tempered this provision. The judge appears to have lost sight, however, of the offence of voyeurism when determining the fit sentence. Even if it were assumed that he wanted to determine a global sentence, his reasons do not establish that he took the aggravating factors of that offence into consideration, in particular the number of photographs, their content, and the fact that they remained accessible on the respondent's telephone for 44 days. The judge also failed to consider the invasion of the victim's privacy and the violation of her dignity. In addition, the photographs show that the respondent continued to assault the victim after she sought refuge in the kitchen.  The judge did not list this relentlessness as an aggravating factor.

The judge erred in assessing the respondent's admission that he touched another young woman's private parts while she was sleeping. He could minimize the significance of this earlier conduct due to the respondent's transparency and serious attitude to his psychological treatment. However, he could not characterize the sexual assault and voyeurism as isolated and contextual acts in the respondent's life. These errors had an impact on the sentence. They lessened the subjective gravity of the offences and the respondent’s degree of responsibility and resulted in a sentence that does not respect the principle of proportionality. The Court must determine the just sentence.

The respondent’s lack of prior violent offences and his age are not mitigating factors. Without neglecting the respondent's rehabilitation, the sentence must denounce his unlawful conduct and the harm done to the victim. Assuming that the criterion of the best interest of the accused to be discharged was proved, the criterion of the public interest was not.  The difference between a conditional discharge and sentences imposed in similar cases is too great for it not to risk undermining the public’s confidence in the administration of justice and therefore harming the public interest. The principle of parity of sentencing weighs in favour of a term of imprisonment. The respondent is sentenced to 12 months' imprisonment on the count of sexual assault and 2 months on the count of voyeurism, to be served concurrently.

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