Décision

Caution: An order restricting publication under section 486.4 Cr.C. was rendered in first instance directing that any information that could identify the victims shall not be published in any document or broadcast or transmitted in any way.

[1]                The Crown seeks leave to appeal from a judgment of the Court of Québec, Criminal and Penal Division (the Honourable Dominique Larochelle), in which the respondent was sentenced, in relation to two counts of sexual interference, to 90 days’ imprisonment to be served intermittently on a one-day-per-week basis, as well as three years’ probation, including 100 hours of community service.

[2]                For the reason of Bachand, J.A., with which Hamilton and Sansfaçon, J.A. agree, THE COURT:

[3]                GRANTS the motion for leave to appeal;

[4]                DISMISSES the appeal.

[5]                This case provides the Court with an opportunity to address the extent to which the detrimental impact of a lengthy term of imprisonment on the offender’s family can operate as a mitigating factor in the sentencing process, and also to reaffirm the importance of appellate deference in sentencing matters. It is brought to us by the Crown, which seeks leave to appeal from a judgment of the Court of Québec, Criminal and Penal Division, in which the respondent was sentenced, in relation to two counts of sexual interference,[1] to 90 days’ imprisonment to be served intermittently on a one-day-per-week basis, as well as three years’ probation, including 100 hours of community service.

I. Context

1. Key facts

[6]                The parties agree on the facts that led to the respondent’s guilty plea on each count.

[7]                The first count relates to sexual interference on the respondent’s daughter X, who was aged 12 and 13 when the incidents occurred, in 2017 and 2018. Four or five incidents occurred when X and the respondent were alone in the respondent’s vehicle. On each occasion, he began by touching her leg all the way to her vagina, over her pants. He also touched her chest over her clothes. Every time, she asked him to stop and pushed his hand away. Another four or five incidents occurred when X and the respondent were in the family home. On almost all occasions, he came to her room while she was asleep and touched her vagina and chest, over her clothes. Again, every time, she asked him to stop and pushed his hand away. On one other occasion, the respondent grabbed X after she returned from school, pulled down her pants and touched her vagina, this time underneath her clothes.

[8]                The second count relates to a single incident of sexual interference on Y, a friend of X’s who was thirteen years old at the time. Y and the respondent were alone in his car while he was driving her to school. He touched her leg close to her vagina and kissed her on the top of her head. She responded by telling him that she did not like what was happening and pushed his hand away. He stopped.

[9]                The respondent, who was 50 years old at the time of sentencing, immigrated to Canada from Sri Lanka in 1999. He and his wife, V. Ga., have five children. The eldest, a boy who had been seriously ill since birth, passed away in December 2021, at the age of 18. X’s twin sister, who was also born with a serious illness, has been in foster care since shortly after her birth. X’s other brother, who was approximately 10 years old at the time of sentencing, is intellectually disabled. Her other sister, who was approximately eight at the time of sentencing, is in good health.

[10]           The respondent has been working as a long-distance truck driver since 2019, after having spent years working as a cook in various restaurants, during which time the family lived in a low-income housing project. He has always been the sole provider for his wife and children. Ms. Ga., who immigrated to Canada in 2002, speaks neither English nor French and does not work.

[11]           In July 2019, shortly after he was charged in the present case, the respondent began consulting a clinical psychologist and sexologist, Dr. Marc Ravart, who formally evaluated him in October 2019. In a detailed report issued in December 2019, Dr. Ravart noted that the respondent’s social support were limited, that he felt ashamed and understood that his behaviour had been wrong and abusive, that he had requested help, and that he was willing to do whatever was necessary to repair his mistakes and resume his family life. Dr. Ravart’s assessment of the causes of the respondent’s abusive behaviour was as follows:

ln my opinion, Mr. G.’s problem behavior was situational in nature, and not the result of a maladaptive sexual fixation towards minors. At the time, Mr. G. was experiencing stress and frustrations related to family issues and unmet intimacy and sexual needs. His presenting problem suggests a passive‑aggressive reaction to his unmet sexual needs. That is, he seemingly turned towards the victims in reaction to unspoken frustration toward his wife for not fulfilling his intimacy and sexual needs. He ignored and minimized the harm caused by his behavior. He also seems limited in knowledge of moral and social problems associated with child sex abuse.

Further analysis led Dr. Ravart to conclude that the respondent had low treatment and supervision needs, had no serious mental or sexual disorder, and represented a low risk for sexual reoffending against his children or other minors. In the end, Dr. Ravart recommended that the respondent undertake counselling sessions with a therapist, reach out to a mental health or spiritual counsellor within the Hindu Tamil community, and follow all recommendations made by the Director of Youth Protection (“DYP”) case worker to assist with the family healing process.

[12]           The respondent subsequently began a series of 12 therapy sessions with Dr. Ravart. In a report issued in May 2020 — shortly after the Court of Québec, Youth Division, declared that X’s security was in danger for reasons of sexual abuse[2] —, Dr. Ravart noted that the respondent was cooperative and making good progress. He also reiterated that the risk of reoffending was low. Moreover, after noting that Ms. Ga. and the children had expressed the wish that the respondent come back home, Dr. Ravart stated that he had no reservation and that, in his opinion, the process of reconciliation ought to be encouraged.

[13]           In January 2021, the DYP case worker reported on the developments of the previous nine months. She noted that, by May 2020, supervised visits between X and the respondent had gone well and that X was looking forward to his eventual return to the family home. She further noted that meetings she had organized with them in June and July 2020 had been positive, with X accepting the respondent’s apology and wishing for his return to the family home during the day. Her report also indicated that, by the beginning of July 2020, the respondent was spending three days a week at home, with no issues. Based on these findings, she recommended that the Court of Québec, Youth Division, no longer consider X’s security to be in danger for reasons of sexual abuse.

[14]           While the DYP case worker was positive with respect to the steps taken by the respondent towards repairing his mistakes, she expressed serious concerns about Ms. Ga.’s situation. She reported on an incident that occurred in August 2020, during which Ms. Ga. was disorganized and expressed suicidal intentions. She also noted that Ms. Ga. continued to discuss with X her longstanding conflict with the respondent, despite the DYP’s repeated requests not to do so. In the end, because of Ms. Ga.’s unwillingness to stop exposing her children to the conflict with the respondent, her inability to understand the impact of that conflict as well as the fact that she seemed more concerned about money than the well-being of her children, the DYP case worker recommended that the Court declare X’s situation to be compromised for reasons of psychological ill-treatment.[3]

[15]           In April 2021, the respondent pleaded guilty to both counts of sexual interference. He had no previous criminal record.

[16]           Two months later, the Court of Québec, Youth Division, accepted the DYP’s discontinuance of its application alleging that X’s security was in danger for reasons of sexual abuse.

[17]           The DYP filed a complementary report in October 2021. Its authors noted that the respondent and Ms. Ga. had been back together since June 2021 and that things had improved at home, notably because the respondent’s return had allowed her to better respond to the children’s needs. Despite those improvements, the authors recommended that the Court of Québec, Youth Division, declare X’s younger brother’s situation compromised for reasons of psychological ill-treatment.

[18]           By the end of the sentencing process, the respondent had resumed living with Ms. Ga. and their children.

2. Judgment under appeal

[19]           At first instance, the Crown sought a sentence of two years’ imprisonment and three years’ probation, along with a number of incidental orders. As for the respondent, he argued that a sentence of 90 days’ imprisonment to be served intermittently on a one‑day-per-week basis would be appropriate given his personal circumstances as well as the particular needs of his family.

[20]           In a detailed and carefully written judgment providing a thorough analysis of the record, the sentencing judge broadly agreed with the respondent’s position.

[21]           The judge was very much aware of the seriousness of the crimes committed by the respondent, which she characterized as abhorrent, as well as the Supreme Court’s strong statements, in Friesen,[4] that sexual offences against children are particularly heinous and that sentences for such offences must increase. She was also mindful of section 718.01 Cr.C., which requires sentencing judges to give primary consideration to the objectives of denunciation and deterrence with respect to offences involving the abuse of minors. She further underscored a number of aspects of the case militating in favour of a harsher sentence:

• the number of victims as well as their age;
• the repetition and long period during which the crimes were committed (with respect to X);
• the relation of trust and authority between the respondent and the victims;
• the fact that X was assaulted in her home, where she had a right to be safe; and
• the proven and presumed consequences on both victims.

In light of these considerations, the judge had no hesitation in concluding that a custodial sentence was warranted in this case.

[22]           Mindful that a just and appropriate sentence ought to be based on a proper consideration of all relevant circumstances, the judge identified a number of mitigating factors, including the respondent’s guilty plea, the absence of a prior criminal record, his regrets and awareness of the wrongful nature of the acts, his participation in psychosexual and psychosocial assessments, the low risk of reoffending, his employment situation, his role as sole financial supporter for his family, the hardship he suffered as a result of his children’s illnesses, as well as the challenges of social integration.

[23]           The judge also took into consideration — and gave significant weight to — the collateral consequences that the respondent’s incarceration would have on X and her siblings. Specifically, her findings of fact, which are not disputed by the Crown, were as follows:[5]

The sentence of prolonged detention of the accused requested by the prosecution would have dramatic consequences on the victim and her family’s short- and long‑term financial autonomy and on its ability to find housing. The wife of the accused would have to assume parental responsibilities on her own, while the DYP’s evidence demonstrates her lack of understanding of basic legal, financial and educational rules. She also has emotional difficulties and her cooperation with the DYP is difficult.

[24]           In addition to emphasizing the importance of avoiding a situation “causing the remedy brought by the sentence to be worse than the harm for the victim”,[6] the judge noted as particularly relevant the DYP’s conclusion to the effect that the resumption of contact between the respondent and X was in the latter’s best interest. She expressed her conclusion on this issue in the following paragraphs of her judgment:

[114]  Since December 2021, the family has been mourning the loss of the eldest son. They live in difficult socio-economic conditions. They are socially isolated. The accused complied with everything that was asked of him to solve his problem and to obey the law. X has forgiven him. She is not afraid of him, and she wants to move on with her life. A penitentiary sentence imposed on the father would maintain the stigma of judicialization on the whole family, and X would not escape this burden. The mother is not self-sufficient. Two other children in the family need to be supported, including a boy who poses particular challenges. It is likely that he would be parented by the mother.

[115]  It is early in X’s life to predict the effect of forcing the severance of her ties with her father and any other losses that would result from the sentence proposed by the prosecution.

[116]  It would be risky for the Court to conclude that these consequences are preferable, especially since it has not heard from X and since a specialized judge and an expert body in youth protection thought otherwise based on concrete evidence. This is especially true while the prospects for rehabilitation are favourable.

[117]  Moderation in sentencing and consistency in the decisions of the courts involved are more likely, in this case, to meet societal expectations.

[25]           In the end, while very much conscious that the sentence proposed by the respondent might seem lenient, the judge determined that it was just and appropriate in the specific circumstances of the present case, which she characterized as “unique”.[7] She thus imposed a global sentence of 90 days’ imprisonment to be served intermittently on a one-day-per-week basis, as well as three years’ probation, including 100 hours of community service.

II. Analysis

[26]           The Crown argues that the global sentence of 90-day’s imprisonment cannot withstand appellate scrutiny, firstly because the judge’s analysis is tainted by a number of significant errors in principle, but also because the sentence is demonstrably unfit.

1. Standard of appellate review

[27]           Before addressing each alleged error in principle as well as the sentence’s alleged unfitness, it is worth recalling the highly deferential stance that appellate courts must adopt in sentencing appeals. It is justified by the advantageous position of the sentencing judge, who “observe[s] the witnesses in the course of the trial and […] hear[s] the parties’ sentencing submissions”,[8] and is “usually familiar with the circumstances in the district where he or she sits and therefore with the particular needs of the community”.[9] It is also justified by the “profoundly subjective”[10] and discretionary[11] nature of the sentencing process. In Friesen, the Supreme Court explained its concrete consequences as follows:[12]

[26]  As this Court confirmed in Lacasse, an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit (para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44). Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. The weighing or balancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably” (R. v. McKnight (1999), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35, cited in Lacasse, at para. 49). Not every error in principle is material: an appellate court can only intervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence (Lacasse, at para. 44). If an error in principle had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if the sentence is demonstrably unfit.

[28]           With those principles in mind, I now turn to the two errors in principle that the judge allegedly made while considering mitigating factors.

2. The judge’s analysis of mitigating factors

[29]           The Crown argues that the judge erred in characterizing as mitigating factors, firstly, the respondent’s participation in psychosexual and psychosocial assessments and, secondly, the hardship he suffered as a result of his children’s illness and the challenges of social integration.

[30]           I disagree. While such elements may not correspond to the strict definition of a mitigating factor,[13] they can nonetheless be relevant in crafting a fit sentence. Regarding the respondent’s participation in psychosocial and psychosexual assessments, which he paid for himself despite his precarious financial situation, it reflects a desire for rehabilitation that the judge was entitled to take into consideration.[14] As for the hardship he suffered, it is well established that an offender’s socio-economic vulnerability and social marginalization can also be taken into consideration at the sentencing stage.[15] As the Court recently emphasized in C.K.:[16]

En l’espèce, non seulement l’intimé plaide-t-il coupable à l’égard de Y, mais il se dénonce dans le cas de X ; de même il est habité, selon le rapport présentenciel, par des remords, des regrets et de la honte. Le juge soulève aussi, à juste titre, les efforts de réhabilitation et les thérapies suivies par l’intimé depuis sa première sentence reçue en 2016. Enfin, il tient compte du « parcours singulier » de l’intimé, lequel, écrit-il, a été déshumanisé par les horreurs de la guerre, proposant alors une analogie avec la jurisprudence de la Cour suprême applicable au délinquant autochtone. Encore là, et contrairement à ce que fait valoir l’appelante, il ne s’agit pas d’une erreur de principe. La Cour suprême a en effet reconnu dans Friesen que la situation personnelle du délinquant pouvait avoir un effet atténuant sur la culpabilité morale, en plus d’affirmer dans l’arrêt Ipeelee « […] que rien dans l’arrêt Gladue n’indique que les facteurs historiques et systémiques ne devraient pas également être pris en considération dans le cas d’autres délinquants, non autochtones ». Tout revient donc à l’individualisation de la peine et à la pondération de tous ces facteurs ce qui, en soi, ne suffit pas pour constituer une erreur révisable.

[Emphasis added; references omitted]

3. The importance given by the judge to the dramatic consequences of a lengthy term of imprisonment on the respondent’s family

[31]           The Crown further argues that the judge erred in her analysis of the dramatic consequences that a lengthy term of imprisonment would likely have on the respondent’s family. It bears emphasizing that the Crown’s argument does not focus on the judge’s finding regarding the existence of such a risk. Rather, it focuses on the significance of that risk in the judge’s analysis of a fit sentence. The Crown’s contention is that the significant importance afforded to this factor both amounted to an error in principle and led to the sentence being demonstrably unfit.

[32]           I begin my analysis by recalling that, as recently emphasized by the Court of Appeal of Alberta, “[t]he sad fact is that many offenders leave behind children, dependent partners or ill and aged parents”, that “[t]his is an inevitable consequence of serious criminal behaviour for which a penitentiary sentence is warranted”, and that “a sentencing judge is not compelled to adjust the sentence to avoid the impact of this collateral consequence”.[17]

[33]           That said, it is also well established that, in exceptional and specific circumstances, the consequences of a lengthy term of imprisonment on the offender’s family may bear on the judge’s analysis of a fit sentence.[18] Relevant circumstances include the fact that the offender is the sole provider for his family,[19] as well as the fact that such a sentence would likely have disastrous effects on his family.[20] However, and crucially, such circumstances cannot be relied on “to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender”.[21]

[34]           It is also worth pointing out that the consequences of a lengthy term of imprisonment have been found to mitigate the sentence in cases, like the present one, where the victims were members of the offender’s family. One example is D.T.,[22] where the accused was found guilty of having sexually assaulted his spouse. The victim testified that her relationship with the accused had resumed shortly after the assault, that the assault was an isolated event, that she had forgiven him for what had happened, and that he had exhibited no violent behaviour since. The victim further testified that the accused was the family’s sole provider, and that if he were sentenced to a lengthy term of imprisonment, she and the two children would lose their house and belongings and have nowhere else to go. After having set aside the sentence imposed at first instance on the ground that it was tainted by an error of law, the Court sentenced the accused to 90 days’ imprisonment to be served intermittently, as well as three years’ probation. In doing so, the Court emphasized the exceptional nature of that sentence, while adding that a lengthy term of imprisonment would further penalize the victim by compromising her financial and psychological well-being, and thus defeat the objective of providing reparations for harm done to the victims.

[35]           That the consequences of a lengthy term of imprisonment may mitigate the sentence in cases where the victims are members of the offender’s family also finds support in the work of Professors Parent and Desrosiers. The following excerpt from their leading textbook is worth quoting at length:[23]

147.  Contrairement aux facteurs se rapportant à la gravité du crime et au degré de responsabilité du délinquant, les conséquences négatives pour la famille de l’accusé opèrent en périphérie de la peine, dans les marges de l’activité judiciaire. D’où leur importance relative. L’excentricité des considérations familiales par rapport au principe de la proportionnalité de la peine étant soulignée, il demeure que les tribunaux préfèrent généralement ne pas troubler l’équilibre familial, en punissant les personnes qui dépendent de l’accusé. Résultat : les conséquences familiales peuvent, dans certaines circonstances précises, constituer un facteur de mitigation de la peine. Sur ce point, citons l’arrêt R. c. Bunn dans lequel la Cour d’appel du Manitoba accorda un allégement de la peine au condamné en raison notamment du fait que ce dernier était le seul soutien de sa famille et jouait un rôle important à la maison auprès de son épouse invalide. D’après le juge Kroft, les charges familiales de l’individu militaient en faveur d’un emprisonnement avec sursis. […]

148.  L’emprisonnement peut parfois se révéler catastrophique pour la victime lorsque celle-ci est la conjointe de l’accusé et qu’une réconciliation entre les deux parties s’est produite entre-temps. Comme l’emploi de l’accusé est la seule source de revenus disponible pour la famille, une peine de longue durée aurait « pour conséquence de pénaliser encore plus la victime alors que la peine doit assurer la réparation des torts causés à la victime ». Une peine d’emprisonnement ferme de 90 jours à être purgée de façon discontinue, les samedis et dimanches, s’imposait donc en l’espèce. […] En somme, « ce n’est que dans des circonstances précises que les conséquences familiales peuvent constituer un facteur atténuant, notamment lorsque le prévenu est le seul soutien à sa famille ou bien agit comme aidant naturel ».

[Emphasis added; references omitted]

[36]           I hasten to repeat that relying on such circumstances can never justify departing from the fundamental requirement that the sentence be proportionate to the gravity of the offence and the moral blameworthiness of the offender.[24] This point is illustrated by the Court’s decision in H.K.,[25] where the Court held that the sentencing judge had not committed any reviewable error by refusing to mitigate the sentence because of its impact on the offender’s family, notably because there was a significant risk that he would reoffend against his spouse and children.

[37]           Based on the preceding analysis — and because it is undisputed, firstly, that the respondent was the sole provider for his wife and children and, secondly, that a lengthy term of imprisonment “would have dramatic consequences on the victim and her family’s short- and long-term financial autonomy and on its ability to find housing”[26] —, I am of the firm view that the judge made no error in principle by taking those circumstances into consideration as mitigating factors.

[38]           The key issue, then, concerns the weight she gave to those circumstances in her judgment.

[39]           A first point to note is that it is clear from her reasons that the judge was careful to consider whether there were other or more important considerations requiring a lengthy term of imprisonment — considerations relating, for example, to the objectives of denunciation and deterrence, or to the children’s possible interest in being separated from the respondent for their protection. My reading of her reasons leads me to the conclusion that, had she been convinced that the respondent’s children were at risk of being sexually abused by their father, or that the objectives of denunciation and deterrence could only be met by a lengthy term of imprisonment, she would not have given so much weight to the impact of such a sentence on the respondent’s family.

[40]           It is precisely in this context that the judge discussed the judgments made pursuant to the Youth Protection Act[27] (“YPA”). The Crown contends that she erred in principle in doing so, the argument being that her discussion of those judgments shows that she was inappropriately guided by objectives of the YPA rather than the principles of sentencing. However, the Crown’s position is based on an incorrect understanding of the judgment under appeal. The judge did not take into consideration the decisions made in the YPA‑related proceedings with a view to imposing a sentence furthering the objectives of that statute. Rather, she did so while assessing whether a sentence allowing the respondent to resume cohabitation with his family would place X and her siblings at risk of sexual abuse. In my opinion, that assessment was not only appropriate, but necessary because, again, the consequences of a lengthy term of imprisonment on the offender’s family can only mitigate the sentence in specific circumstances and in the absence of other considerations requiring the imposition of a more severe sentence.

[41]           It remains for this Court to consider whether the sentence is demonstrably unfit because of the weight given by the judge to the dramatic consequences of a lengthy term of imprisonment on the respondent’s family. The Crown submits that the sentence of 90‑days’ imprisonment is disproportionately lenient given the primary consideration that ought to be given to the objectives of denunciation and deterrence in cases involving the abuse of children,[28] as well as the relevant sentencing range. The Crown further contends that the Court’s intervention is required to craft a sentence that better reflects the seriousness of the crimes committed as well as the respondent’s moral culpability.

[42]           As the Supreme Court emphasized in Lacasse, the various expressions used by courts to describe a sentence deemed to be demonstrably unfit — “clearly unreasonable”, “manifestly excessive”, “clearly inadequate”, “representing a substantial and marked departure” — all reflect “the very high threshold”[29] that applies when appellate courts determine whether they should intervene on that basis. The Court also emphasized why appellate deference is so important in this context: “if appellate courts intervene without deference to vary sentences that they consider too lenient or too harsh, their interventions could undermine the credibility of the system and the authority of trial courts.”[30]

[43]           Lacasse is also instructive on the analysis to be undertaken while determining whether a given sentence is demonstrably unfit. The Court explained that the analysis must focus on the fundamental principle of proportionality, which ought to be considered both on an individual basis — “that is, in relation to the accused him or herself and to the offence committed by the accused”[31] — as well as by “comparison with sentences imposed for similar offences committed in similar circumstances”.[32] The Court added that “[t]he determination of whether a sentence is fit also requires that the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles set out in s. 718.2 be taken into account”,[33] while reiterating the importance of appellate deference: “however, it is up to the trial judge to properly weigh these various principles and objectives”.[34]

[44]           In my opinion, the Crown’s submissions fall short of establishing that the sentence imposed in the judgment under appeal is demonstrably unfit.

[45]           As mentioned earlier, the Crown first argues that the sentence runs afoul of the fundamental principle of proportionality because it ignores that, in cases of abuse involving children, priority ought to be given to the objectives of denunciation and deterrence. The Crown adds that it also ignores the gravity of the offences committed by the respondent.

[46]           However, those arguments are based on an incorrect understanding of the judgment under appeal.  Far from ignoring section 718.01 Cr.C. and the gravity of the offences, the judge explicitly emphasized that “priority must be given to the objectives of denunciation and deterrence”,[35] and she began her analysis by emphasizing the “abhorrent” nature[36] and seriousness[37] of the respondent’s crimes, as well as the importance that he “personally suffer significant consequences on his right to freedom”[38] through imprisonment.[39]

[47]           Moreover, the judge correctly pointed out that section 718.01 Cr.C. does not require sentencing judges to prioritize the objectives of denunciation and deterrence in an absolute manner or at all costs. In Friesen, the Supreme Court cited with approval this Court’s decision in Rayo, where Justice Kasirer explained that section 718.01 Cr.C. meant that denunciation and deterrence should be given relative precedence (“une préséance relative”).[40] Concretely, this entails that “the sentencing judge retains discretion to accord significant weight to other factors (including rehabilitation and Gladue factors) in exercising discretion in arriving at a fit sentence, in accordance with the overall principle of proportionality”.[41] The judge’s discretionary assessment of the weight to be afforded to those other factors is owed significant deference in appeal and, contrary to what the Crown’s argument essentially boils down to, the sentence’s apparent leniency does not in itself establish that it is demonstrably unfit.[42]

[48]           The Crown’s argument pointing to the fact that the judge imposed a sentence falling below the relevant sentencing range fails for similar reasons. The contention that, in light of that range, the judge was required to impose a term of imprisonment of at least two years[43] is mistaken. The Supreme Court could hardly have been clearer in Friesen: “sentencing ranges and starting points are guidelines, not hard and fast rules”;[44] appellate courts cannot intervene “simply because the sentence is different from the sentence that would have been reached had the range of sentence or starting point been applied”;[45] and, given the extensive leeway enjoyed by sentencing judges “to apply the principles of sentencing in any manner that suits the features of a particular case[,] […] a particular combination of aggravating and mitigating factors may call for a sentence that lies far from any starting point and outside any range”.[46]

[49]           In the present case, the judge was very much aware of the relevant range as well as the apparent leniency of the sentence she imposed.[47] It was within her discretion to depart from that range, even significantly, provided, of course, that the sentence remained sufficiently proportionate to the gravity of the offence and the degree of the respondent’s responsibility.

[50]           I add that I find the Court’s recent decision in M.B.[48] to be particularly relevant here. That case involved a Crown appeal from a sentence of 90 days’ imprisonment to be served intermittently and three years’ probation — including 240 hours of community service — that had been imposed on the respondent, who had sexually assaulted his former spouse. The record showed that the respondent had previously been convicted in relation to a sexual offence committed against one of his former spouse’s daughters. Mitigating factors included the respondent’s sincere remorse, his low risk of reoffending, his collaboration with authorities and his commitment to undertake therapy. Despite the sentence’s relative leniency, the Court concluded that any interference with the sentencing judge’s assessment would be inappropriate:

[19]  En somme, le juge remarque, ce qui est exact, que les peines imposées pour des infractions de même nature varient grandement, selon les circonstances. Il est conscient des fourchettes, qui lui ont été plaidées. Néanmoins, il explique pourquoi il choisit de ne pas imposer un emprisonnement continu d’une plus longue durée.

[20]  Le choix d’une fourchette de peines relève du pouvoir discrétionnaire du juge de première instance et ne peut, en soi, constituer une erreur révisable. La fourchette est un outil utile qui permet d’objectiver le processus d’imposition de la peine. Toutefois, les fourchettes ne sont que des guides et les juges ne peuvent « faire abstraction du fait que chaque crime est commis dans des circonstances uniques, par un délinquant au profil unique ». Le processus de détermination de la peine est une « opération éminemment individualisée qui ne se limite pas à un calcul purement mathématique ».

[21]  Ici, dans son exercice d’individualisation de la peine, le juge a pris en compte tous les facteurs, critères et considérations pertinents. Si la peine est indéniablement clémente, le requérant ne parvient pas à convaincre qu’elle est manifestement non indiquée, compte tenu des circonstances particulières de cette affaire.

[References omitted]

[51]           In the end, the Crown has failed to convince me that a sentence of 90 days’ imprisonment to be served intermittently on a one-day-per-week basis, as well as three years’ probation, including 100 hours of community service, is unreasonably lenient in the present case.

[52]           Undoubtedly, the crimes committed by the respondent are not only serious, but abhorrent. Furthermore, as the Supreme Court underscored in Friesen, “sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities”,[49] which is why it deemed it important to “send the strong message”[50] that, generally speaking, “[s]entences for these crimes must increase”.[51]

[53]           However, as the judge pointed out — a finding with which the Crown does not specifically take issue —, this case arises out of a “unique set of circumstances”,[52] mostly because of the also undisputed fact that imposing a lengthy term of imprisonment on the respondent would have dramatic consequences on X and the rest of the family. In light of that exceptional context as well as the other mitigating factors — including the findings and recommendations of the DYP —, it was open to the judge to craft a sentence that, while imposing a term of imprisonment, sought to avoid those dramatic consequences while also avoiding having the remedy brought about by the sentence cause further harm to X.

[54]           I surely would have agreed with the Crown had the sentence been crafted in a way that would have allowed the respondent to escape significant punishment. But that is not the case. As the Court has often pointed out, a sentence of 90 days’ imprisonment to be served intermittently is a significant restriction on an offender’s freedom that may allow the objectives of deterrence and denunciation to be met.[53] Concretely, in the context of this case, it means that the respondent, who works six days a week, will spend his sole day off incarcerated for a period of nearly two years. He will spend the following three years under a probation order pursuant to which he will be required to perform 100 hours of community service, which also constitutes a significant restriction on his freedom:[54]

Les travaux communautaires contribuent à l’objectif de favoriser la réinsertion sociale des délinquants, en plus d’être utiles à la communauté. Par ailleurs, ces travaux obligatoires dans le cadre d’une ordonnance de probation surveillée constituent un encadrement non négligeable pour un contrevenant qui est tenu à l’exécution d’obligations, sous contrainte de justice, en plus de contribuer à l’objectif de dissuasion individuelle du contrevenant à commettre d’autres infractions.

[References omitted]

[55]           In sum, the aspect of this case relating to the impact of a lengthy term of imprisonment on the respondent’s family turns on principles of deference requiring appellate courts to refrain from interfering “simply because they would have given different weight to the relevant objectives or because they might have expressed how deterrence and denunciation might be given precedence in sentencing in a case such as this differently”.[55]

4. The judge’s decision to order that the sentences be served concurrently

[56]           Finally, the Crown takes issue with the judge’s decision to order that the sentence of 90 days’ imprisonment to be served intermittently, which she imposed on each count, be served concurrently.

[57]           The Crown’s main submission is that the judge erred by departing from the general rule according to which sentences relating to different offences ought to be served consecutively. That argument is unfounded because, although the judge correctly found that the offences committed on X and Y were different, it is well established that sentencing judges enjoy a discretionary power to depart from the general rule with a view to achieving a global sentence that is respectful of the principle of totality.[56] That is precisely what the judge did in the present case.[57]

[58]           The Crown further contends that the judge’s methodology was flawed in that she focused her analysis on a global sentence instead of assessing each count separately. The Crown adds that the judge’s error led her to an absurd result, namely to impose identical sentences in relation to offences although the crimes committed against X were much more serious than the ones committed against Y.

[59]           I disagree. As the Court recently recalled in Lamoureux, while it is generally preferable to (i) determine the fit sentence in relation to each count, (ii) then determine whether the sentences ought to be served consecutively or concurrently, and, finally (iii) readjust if needed to ensure consistency with the principle of totality, it is open to sentencing judges to proceed by first determining an overall fit sentence and then imposing individual sentences that add up to the total.[58]

III. Conclusion

[60]           For the preceding reasons, I would grant the motion for leave to appeal and dismiss the appeal.

[1] Section 151(a) Cr.C.

[2] Youth Protection Act, CQLR c. P-34.1, s. 38 para. 2(d).

[3] Id., s. 38 para. 2(c).

[4] R. v. Friesen, 2020 SCC 9.

[5] Judgment under appeal, para. 61.

[6] Id., para. 94.

[7] Id., para. 110.

[8] R. v. Lacasse, 2015 SCC 64, para. 48. See also R. v. Friesen, 2020 SCC 9, para. 25.

[9] Ibid.

[10] R. v. Parranto, 2021 SCC 46, para. 13, quoting from R. v. Shropshire, [1995] 4 S.C.R. 227, para. 46.

[11] Id., para. 9.

[12] R. v. Friesen, 2020 SCC 9.

[13] On this point, see Émond c. R., 2019 QCCA 317, paras. 38-42. See also Clayton Ruby, Sentencing, 10th ed., Toronto, LexisNexis, 2020, p. 249 (no. 5.1).

[14] Clayton Ruby, Sentencing, 10th ed., Toronto, LexisNexis, 2020, p. 289 (nos. 5.124-5.125); Hugues Parent and Julie Desrosiers, Traité de droit criminel, 3rd ed., t. 3 “La peine”, Montreal, Thémis, 2020, pp. 204-207 (no. 122).

[15] See e.g. R. v. Ipeelee, 2012 SCC 13, para. 77, citing R. v. Gladue, [1999] 1 S.C.R. 688, para. 69. See also Hugues Parent and Julie Desrosiers, Traité de droit criminel, 3rd ed., t. 3 “La peine”, Montreal, Thémis, 2020, p. 198 (no. 117); Martin Vauclair and Tristan Desjardins, Béliveau-Vauclair, Traité général de preuve and de procédure pénales, 29th ed., Montreal, Yvon Blais, 2022, p. 1162 (no. 47.67).

[16] R. c. C.K., 2022 QCCA 539, para. 22.

[17] R. v. Upright, 2020 ABCA 329, para. 15.

[18] See e.g. McClelland c. R., 2020 QCCA 324, para. 164: “[c]e n’est que dans des circonstances précises que les conséquences familiales peuvent constituer un facteur atténuant”.

[19] Ibid. See also R. c. Londono, 2022 QCCA 1097, paras. 104-105.

[20] Poirier c. R., 2018 QCCA 1803, para. 37.

[21] R v. Suter, 2018 SCC 34, para. 49, cited in R. v. Upright, 2020 ABCA 329, para. 15. See also L.L. c. R., 2016 QCCA 1367 (leave to appeal to the Supreme Court of Canada denied, July 19, 2018, No. 37872), para. 143. See also Clayton Ruby, Sentencing, 10th ed., Toronto, LexisNexis, 2020, p. 348 (no. 5.294), where the author writes that, while “[w]herever possible courts avoid imposing sentences that will prejudice children or other members of the family[,] […] this principle operates only where there are no other or more important aspects requiring severe or deterrent sentences”.

[22] D.T. c. R., 2011 QCCA 1494.

[23] Hugues Parent and Julie Desrosiers, Traité de droit criminel, 3rd ed., t. 3 “La peine”, Montreal, Thémis, 2020, pp. 231-233.

[24] On proportionality being a “central tenet” of Canada’s sentencing regime, see R. v. Hills, 2023 SCC 2, paras. 56-59.

[25] H.K. c. R., 2015 QCCA 64, paras. 27-28.

[26] Judgment under appeal, para. 61.

[27] CQLR c. P-34.1.

[28] Section 718.01 Cr.C.; R. v. Friesen, 2020 SCC 9, paras. 101-105.

[29] R. v. Lacasse, 2015 SCC 64, para. 52.

[30] Id., para. 12. See also R. c. M.B., 2022 QCCA 1515, para. 11: “Le public doit avoir confiance que les tribunaux de première instance exerceront un jugement rigoureux en matière d’imposition des peines, en tenant compte des objectifs et facteurs pénologiques pertinents, et qu’ils auront le dernier mot en la matière, sauf dans des circonstances précises et restreintes où les cours d’appel pourront intervenir pour corriger des erreurs patentes ou des peines complètement hors du spectre.”

[31] Id., para. 53.

[32] Ibid.

[33] Id., para. 54.

[34] Ibid.

[35] Judgment under appeal, para. 67. The judge also noted on several occasions the Supreme Court’s strong statement in R. v. Friesen urging courts to depart from prior precedents and sentencing ranges in order to increase penalties for sexual offences against minors: see judgment under appeal, paras. 65-67 and 102.

[36] Id., para. 90.

[37] Id., paras. 71 and 92.

[38] Id., para. 107.

[39] Id., para. 92.

[40] R. v. Friesen, 2020 SCC 9, para. 104; R. c. Rayo, 2018 QCCA 824, para. 108.

[41] R. v. Friesen, 2020 SCC 9, para. 104.

[42] R. c. Rayo, 2018 QCCA 824, para. 111.

[43] See applicant’s brief, para. 9: “En application de ces fourchettes, établies bien avant l’arrêt Friesen, les crimes commis par l’intimé commandaient déjà l’imposition d’une peine d’emprisonnement d’au moins deux ans moins un jour” [emphasis added].

[44] R. v. Friesen, 2020 SCC 9, para. 37.

[45] Ibid.

[46] Id., para. 38.

[47] Judgment under appeal, para. 88, where the judge refers to the discussion in Perron c. R., 2015 QCCA 601, paras. 18-19.

[48] R. c. M.B., 2022 QCCA 1515.

[49] R. v. Friesen, 2020 SCC 9, para. 5.

[50] Ibid.

[51] Ibid.

[52] Judgment under appeal, para. 110.

[53] See e.g. R. c. Roy, 2013 QCCA 53, para. 6; R. c. Ruel, 2014 QCCA 1830, para. 9; R. c. Zawahra, 2016 QCCA 871, para. 22; R. c. Simoneau, 2017 QCCA 1382, para. 72. See also Martin Vauclair and Tristan Desjardins, Béliveau-Vauclair, Traité général de preuve and de procédure pénales, 29th ed., Montreal, Yvon Blais, 2022, p. 1211 (no. 48.115).

[54] R. c. M.B., 2022 QCCA 1515, para. 18, referring to Hugues Parent and Julie Desrosiers, Traité de droit criminel, 3rd ed., t. 3 “La peine”, Montreal, Thémis, 2020, pp. 372-373 (no. 275), as well as Bachou c. R., 2022 QCCA 1145, para. 90.

[55] R. c. Rayo, 2018 QCCA 824, para. 113.

[56] See e.g. R. c. Guerrero Silva, 2015 QCCA 1334, para. 59.

[57] Judgment under appeal, paras. 125-127.

[58] Lamoureux c. R., 2022 QCCA 1531, para. 11.