Impact of lengthy imprisonment on offender family’s is a mitigating factor

In a case that provided the Quebec Court of Appeal 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,” the appellate court dismissed an appeal by the Crown over a sentence handed to a man found guilty of two counts of sexual interference on his 12-year old daughter and her friend.

Keen on dispelling the Crown’s contention that the sentence of 90 days’ imprisonment sentence to be served intermittently was lenient and demonstrably unfit, the Appeal Court reiterated that sentencing ranges are only guidelines, reaffirmed that the objectives of denunciation and deterrence should be given relative precedence, and underlined that the detrimental impact of a lengthy term of imprisonment on the offender’s family can be considered as a mitigating factorin exceptional cases, affirm legal experts.

“It’s an excellent decision,” remarked Hugues Parent, a criminal law professor at the Université de Montréal and author of “Treatise on Criminal Law” which is cited in the decision. “Taking into account the impact of a person’s incarceration on the family can only be done when the sentence respects the principles of proportionality. It is certainly not a predominant factor in all cases, that’s for sure. It is only considered in exceptional cases where the person has a favourable profile.”

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Giving the middle finger is a fundamental right, says judge

Imagine. Court of Quebec Judge Dennis Galiatsatos was so outraged by the case before him, a ridiculous neighbourly dispute gone awry, that he admits he had to resist the urge to write the decision in bold and in caps.

In an animated and colourful decision in R. c. Epstein, 2023 QCCQ 630, Judge Galiatsatos acquitted a Montreal man charged with criminal harassment, (s. 264(1) Criminal Code) and uttering death threats (s. 264.1(1) Criminal Code) towards his neighbour, who “weaponized the criminal justice system in an attempt to exert revenge on an innocent man for some perceived slights that are, at best, trivial peeves.”

[174] In the modern-day vernacular, people often refer to a criminal case “being thrown out”. Obviously, this is little more than a figurative expression. Cases aren’t actually thrown out, in the literal or physical sense. Nevertheless, in the specific circumstances of this case, the Court is inclined to actually take the file and throw it out the window, which is the only way to adequately express my bewilderment with the fact that Mr. Epstein was subjected to an arrest and a fulsome criminal prosecution. Alas, the courtrooms of the Montreal courthouse do not have windows.

Judge Galiatsatos vividly sets the scene over what took place in a Montreal suburb in the spring of 2021:

[2]  Picture the following scene:

A beautiful spring day. A quiet street in a small residential neighbourhood, just steps away from two elementary schools, a daycare and a park.

Up the road, a 4-year-old girl rides her scooter in front of her house, with three adults sitting on camping chairs in their driveway watching her. Said driveway is adorned with chalk drawings made by the child.

A few metres away, another gathering of 9 children, spanning ages 2 to 8. Smiles from ear to ear. Some have bicycles, some have scooters. All are wearing helmets. Other children are simply walking, playing, getting much needed fresh air. They are all under the watchful eye of their parents.

Nearby are balloons and decorations in front of a home. Some snow is still seen melting. This is after COVID lockdowns had kept kids cooped up inside for far too long, and while onerous curfews were still active. Finally, the kids could play – during the daytime – and interact with one another.

On the street, there are chalk drawings made by children depicting a birthday cake and spelling “Happy 5th”.

Around the corner, various other adults and children are walking on the street. Some are walking their dogs. Everyone is smiling. At a later point, a young father holds his toddler in his arms.

[3]  To most, this scene represents a blissful snapshot of a suburban utopia. Peaceful, friendly community life.

[4] Yet, to the complainant and his family, this is an unbearable nuisance. An affront on many levels. So much so, that according to the objective video evidence, they drive dangerously near the children as a way to protest their presence and express their discontent. That is the backdrop of this case. The complainants have a list of grievances against the accused, his family, his young children and the other neighbours’ young children. These grievances are nothing more than mundane, petty neighbourhood trivialities…

[5] To the complainants, the presence of young families outside it is a source of scorn and vivid resentment that ultimately spilled over into a criminal complaint against their neighbour. A school teacher. A caring father of two young daughters who committed no crime whatsoever. A man who has somehow been subjected to criminal charges for almost two years.

[6] This injustice ends today.

In a finding that will reassure Quebecers, Judge Galiatsatos held that it is not a crime to dislike a neighbour, and it is not a crime to express it. Nor is it a crime to give someone the finger. Rather,

[168]…Flipping the proverbial bird is a God-given, Charter enshrined right that belongs to every red-blooded Canadian. It may not be civil, it may not be polite, it may not be gentlemanly.

[169] Nevertheless, it does not trigger criminal liability. Offending someone is not a crime. It is an integral component of one’s freedom of expression. Citizens are to be thicker-skinned, especially when they behave in ways that are highly likely to trigger such profanity – like driving too fast on a street where innocent kids are playing. Being told to “fuck off” should not prompt a call to 9-1-1.

Scorn aside, there is nothing funny about living with the spectre of being found guilty of criminal harassment and uttering death threats. As Judge Galiatsatos, the proceedings took a toll on the school teacher.

Man not criminally responsible because of sexsomnia

A 46-year old Montrealer accused of sexually assaulting a friend was found not criminally responsible for his actions after Court of Quebec Judge André Perreault found that he suffered from the rare disorder of sexsomnia, a defence that is seldom successful.

The episode of sexual somnambulism constituted an “automatism,” or an act committed during a state of unconsciousness or grossly impaired consciousness, but “with mental disorder, in the legal sense of the term,” held Judge Perreault, whose verdict neither acquitted nor convicted Yannick Giguère. 

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Quebec Appeal Court increases sentence for sexually assaulting a child

A 21-year old school janitor who sexually assaulted a 13-year old child had his sentence increased to 15 months imprisonment from 90 days by a divided Quebec Court of Appeal after the majority held that the trial judge failed to prioritize denunciation and deterrence as overriding factors.

The majority decision crystallizes the growing trend to mete out tougher punishments for sexual crimes against children following a seminal Supreme Court of Canada decision, and it appears to send a strong message to trial judges following a recent controversial decision that caused an uproar in the province, according to criminal legal experts.

“The message is clear,” said Université de Montréal criminal law professor and author Hugues Parent. “When there is no demonstration of rehabilitation on the part of the accused, when it is not convincing, the objectives of denunciation and dissuasion must be predominant, as a priority in child sex cases. So, from that point on, it is certain that the sentence will be very severe.”

According to Julien Grégoire, a Quebec City criminal lawyer, the Appeal Court judgment illustrates, despite the dissent, that the key principles of the landmark SCC decision in R. v. Friesen, 2020 SCC 9 involving the abuse and exploitation of children, “are now inescapable and it is not enough (for the courts) to state them but to apply them in practice.”

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Man acquitted of sexual assault because professional secrecy was breached

A man convicted of sexually assaulting a four-year-old child was acquitted by the Quebec Court of Appeal after it held that a confession he made during therapy should have been protected by professional secrecy.

The decision by the divided Appeal Court underlines that therapy group sessions do not mitigate a medical professional’s confidentiality obligations, reaffirms that professionals may be relieved of the duty of confidentiality but only under specific circumstances, and provides guidance over the role the Charter plays in the application of the so-called Wigmore test which determines whether or not communications are privileged, according to criminal lawyers.

“No one is going to seek treatment if they know that every time they say something, it will be used against them,” noted Marie-Pier Boulet, a Montreal criminal lawyer who heads the Association Of Defense Counsel of Quebec. “Essentially, the Appeal Court wants to protect professional secrecy in a therapeutic setting. Just as we want to protect therapeutic privileges of complainants so that they continue to have confidence that their privacy will be respected, their right to therapy and their right to professional confidentiality, the accused too have that right. Otherwise, no one is going to get help.”

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New trial ordered by Quebec Appeal Court for man convicted of sexual interference on a child

A new trial for a man convicted of sexual interference on a child was ordered by the Quebec Court of Appeal after it held that the trial judge’s refusal to allow the re-opening of the complainant’s cross-examination infringed his right to make full answer and defence.

In a decision brimming with guidance over the scope of sections 10 and 11 of the Canada Evidence Act to dispel “some confusion” around cross-examinations on prior inconsistent statements, the Quebec Appeal Court held that despite the impact of a new trial on the complainant, an autistic child, who will have to testify again, “no other outcome can be considered” when the right to a full answer and defence and the right to a fair trial have been infringed.

“My first reaction is to deplore a reflex on the part of some judges to bow to public pressure in matters of sexual assault, especially when the complainant is a young person,” remarked Jean-Claude Hébert, a prominent Montreal criminal lawyer. “The Court of Appeal, firmly based on the current state of the law, correctly criticizes the trial judge for having erred in the exercise of her discretion regarding the right to a fair trial, in which case an accused person must be allowed to make a full answer and defence.”

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Legal experts hope first remediation agreement under Criminal Code will lead to more

Nearly four years after the federal government added deferred prosecution agreements to the Criminal Code as part of its arsenal to fight corruption and other white-collar crime, legal experts hope that guidance provided by Quebec Superior Court in Canada’s first ever remediation agreement will prompt federal prosecutors and organizations to take advantage of the new way of settling criminal charges.

The comprehensive, meticulous and “important” decision introduces a “welcome” degree of certainty to the new process in the absence of accompanying regulations, guidelines or policies in the remediation agreement regime, according to legal experts. The ruling by Quebec Superior Court Justice Éric Downs sheds light on how remediation agreements will be broached by the courts, indicating that while they will not act as a “rubber stamp” in reviewing proposed settlements, the agreements will be afforded a high degree of deference, added the experts. The judgment also signals that self-reporting, though not a “hard condition,” will carry considerable weight as does “strong cooperation” to help sway the courts to sanction the agreement, they added.

“It’s an important decision because there were question marks around how the courts would approach the approval of a remediation agreement and how involved they would be in the process,” noted Louis-Martin O’Neill, a Montreal M&A and securities litigator with Davies Ward Phillips & Vineberg LLP. “The Court was very mindful of the fact that there is a huge need for stability in the system, and that implies that when a corporation starts to negotiate with the prosecution for a remediation agreement it has to know that unless something very grave happens, that agreement should stick when presented to the court.”

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Quebec legal community dismayed by secret criminal trial

The Quebec legal community, aghast and dismayed over a criminal trial that took place in complete secrecy, with no paper trail, is calling for a probe and demanding accountability to deter the “judicial charade” from taking place again.

The trial, which only came to light after the defendant chose to appeal the verdict before the Quebec Court of Appeal, did not have a case number and was never filed in the province’s judicial archives. As disturbingly, the names of the defence lawyer, the Crown prosecutor and the judge were excluded from the public record as were the offence, date and location of where the trial took place. Moreover, witnesses were interviewed out of court, and the parties asked the judge to decide the case based on transcripts.

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Quebec announces pilot projects for domestic and sexual violence specialized tribunal

The Quebec government is forging ahead with the deployment of a series of specialized sexual and domestic violence court pilot projects in spite of forceful opposition by the Chief Justice of the Court of Quebec, the tribunal that will manage and operate the new endeavour.

The Quebec government is launching five pilot projects in Quebec City, and the regions of Montérégie, Centre-du-Québec and Mauricie. The government selected districts based on a number of criteria, including “territorial and population realities”, the size of courthouses, the presence of community agencies working on sexual and domestic violence, and the presence of Aboriginal communities. Continue reading “Quebec announces pilot projects for domestic and sexual violence specialized tribunal”

Questions remain over Quebec’s GPS electronic tracking project for domestic violence offenders

Barely a month after a Quebec coroner recommended that people convicted of murdering their partners be compelled to wear electronic tracking devices when released from prison, the provincial government announced that some conjugal violence offenders could be ordered to wear tracking bracelets beginning next spring.

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Quebec Court of Appeal sets clear guidelines over use of screening devices for breath samples

Police officers who demand drivers to provide breath samples must have an approved screening device with them to be able to immediately conduct the test, ruled a full bench of the Quebec Court of Appeal, upending its own previous guidance that allowed delays depending on the circumstances.

The long-awaited ruling sets clear obligations for police officers, falls in line with Supreme Court of Canada jurisprudence that asserts that delays cannot be justified for practical reasons given that the right to counsel is temporarily suspended, and is widely expected to have an sizeable impact on impending cases, according to criminal lawyers.

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