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.”
Sebastian Londono, a Columbian native who arrived in Canada in 2013 at the age of 19, was found guilty in 2019 by Court of Quebec Judge Stéphane Godri of sexual interference and invitation to sexual touching of a 13-year old student at the school where he worked as a janitor. The trial judge declared the minimum one-year term of imprisonment under s. 152(a) of the Criminal Code to be inoperative with respect to him and sentenced him in 2020 to 90 days of imprisonment to be served intermittently and two years’ probation.
The prosecution appealed, arguing that the sentence was demonstrably unfit, and that the judge committed errors in principle in assessing the inherent gravity of the offences, the breach of trust and manipulation of the victim, and by holding that the victim actively participated in the events.
The Quebec Appeal Court, allowed the appeal, with dissenting reasons, after it concluded that the trial judge’s reasoning was tainted by errors in principle that had an impact on sentencing, beginning with the actual age of the victim. The trial judge erroneously believed the victim was 15 years old at the time of the events, a finding that the Appeal Court found to be a determinative error as it placed the child on the cusp of legal age of consent when in fact she was 13 and had just reached adolescence. Londono’s “moral culpability is heightened because of the great vulnerability of a 13-year-old child, which is a significant aggravating factor,” found Appeal Court Justice Guy Gagnon writing for the majority in R. c. Londono, 2022 QCCA 1097. Justice Peter Kalichman concurred but Justice Dominique Bélanger dissented.
The trial judge, while sentencing Londono, also erred by finding that the victim “was an active participant” in the sexual “relations.” Justice Gagnon, following guidance issued in Friesen, held that this was an error of law. The trial judge’s comments tend to minimise the “reprehensibility” of Londono’s actions and equate the victim’s “allegedly participatory attitude” with a form of consent on the part of a person who is not of an age to consent, held Justice Gagnon. Moreover the trial judge’s remarks ignore an obligation adults have to protect children, an onus that precludes sexual relations, said Justice Gagnon, adding that taking advantage of a child’s emotional vulnerability to violate his or her sexual integrity is clearly aggravating factor. “Finally, the same excerpt is difficult to understand in the context of a guilty verdict for the crime of invitation to sexual touching,” noted Justice Gagnon. “It was (Londono) who incited the victim to sexual touching, not the other way around.”
“Can we really talk about active participation when that participation stems precisely from the immaturity of the girl’s age, the fact that she is 13 and the individual’s position of trust?” asked rhetorically Parent, author of a trilogy of books on criminal law entitled “Traité de droit criminel” (A Treatise on Criminal Law), dealing with accountability, guilt and sentencing. “Those arguments inferring that the victim participated will disappear.”
Justice Gagnon also found that the trial judge erred when he stated that Londono was involved in a “certain situation” of breach of trust. He also found that the trial judge erred in law and under accepted evidence when he held that Londono had no authority over the victim and “did not have a role at school where trust was at stake.” That is not the case, said Justice Gagnon. “There is no doubt in my mind” that any person working in a school or in an environment where the “clientele” is composed essentially of minors becomes de facto a person in a position of trust in the same way as a guardian or an animator is, held Justice Gagnon. A school concierge who is regularly in contact with minors is a person in a position of trust for schoolchildren as they should be able to rely on the caring and concern of the adult if their situation at school is compromised, said Justice Gagnon. He acknowledged however that a school janitor is not in the same position of trust as a teacher. “It is all a question of context,” said Justice Gagnon.
The message from the Appeal Court is clear, said Parent. As soon as a person is in a position of trust and uses or abuses this position of trust to take advantage of a child, significant prison sentences will be imposed. Justice Gagnon pointed out that the legislator “expressly invited” judges sentencing for an offence against children “to pay particular attention” to the objectives of denunciation and deterrence from the earliest stages of their analysis. Deterrence and denunciation factors in sentencing for offences against children are not general considerations, but rather must be the judge’s primary consideration, added Justice Gagnon. After taking into account aggravating factors such as the young age of the victim and her vulnerability, the premeditation of the acts, the abuse of trust, the psychological and emotional consequences of the aggression on the victim who blames herself for what happened, and the fact the crime only ceased after being denounced, the majority held that Londono should be sentenced to 15 months in jail. The sentence however was suspended because Londono had already served his sentence in the summer of 2021 and he has been working, respecting his probation, and is financially providing for his family.
Justice Dominique Bélanger would have substituted the sentence imposed in first instance with a six-month term of imprisonment and suspended the sentence. “It seems to me that, fundamentally, it is nuances such as the extent and/or tenuousness of the position of authority or trust, the nature of the sexual contact, its duration and frequency, the age difference between those involved and the individualised assessment of the risk of recidivism that divide the majority from the dissent,” said Grégoire.
“Quite a pirouette”
A Quebec criminal lawyer who wished to remain anonymous said that the Appeal Court decision in many ways is sending a message to trial judges, particularly after a controversial decision issued this summer. A decision by Court of Quebec Judge Matthieu Poliquin to grant a conditional discharge to a man who pleaded guilty to sexual assault and voyeurism, holding that a criminal record would “have a significant impact” on his engineering career, caused an uproar.
But the Appeal Court unwittingly undermined its message by suspending the sentence, added the criminal lawyer. “When we see that the Court of Appeal, after all its supposed reflection on the need to denounce through the imposition of harsher sentences, decrees that the sentence it has just handed down will not be served, quite a pirouette, isn’t it?”
Parent does not see it that way. The law professor believes that the courts, beginning with the Supreme Court in Friesen and followed by the appellate courts, are putting the accent on denunciation and dissuasion when it comes to sexual crimes against children. Just as the courts came down hard on drinking and driving in the 1990s, the courts view such crimes as a scourge that must be dealt with severely, said Parent.
“We have come to realize the prevalence of this type of offence and the seriousness of the impact that sexual assaults can have on the victims, particularly children,” said Parent. “The court must react and are reacting”.
This story was originally published in The Lawyer’s Daily.