The Court has emphasized on several occasions the added weight that must be given to the objectives of denunciation and deterrence in the context of domestic violence.Indeed, sentencing in these matters pursues two main imperatives:
to denounce the unacceptable and criminal character of domestic violence and
to enhance the confidence of the victims and the public in the administration of justice.
[31] Even though denunciation and general deterrence have indeed been characterized as “des objectifs flous”, my colleague Vauclair, J.A., wrote in R. c. Harbour that they are generally useful and must be weighed with care:
[83] Par ailleurs, je souligne que la dénonciation et la dissuasion générale sont des objectifs flous pouvant mener rapidement à une peine disproportionnée s’ils ne sont pas pondérés avec soin. Tout en reconnaissant leur utilité générale, la Cour a souligné à plus d’une reprise le caractère incertain et limité de l’objectif de dissuasion générale […].[11]
[Emphasis added]
[32] Moreover, the Court has emphasized on several occasions the added weight that must be given to the objectives of denunciation and deterrence in the context of domestic violence.[12] Indeed, sentencing in these matters pursues two main imperatives: to denounce the unacceptable and criminal character of domestic violence and to enhance the confidence of the victims and the public in the administration of justice.[13]
[33] The judge did not refer to this jurisprudence. She mentioned two recent judgments from this Court pertaining to sentencing principles, Bernard c. R.[14] and Lacelle Belec c. R.,[15] but these decisions do not involve domestic violence and, moreover, concern offenders with very different profiles than the one at hand, both being young persons with no prior convictions. She made no reference to the principles and objectives that must prevail in matters of domestic violence or how they must be balanced with the rehabilitation steps made by an accused.
[34] Moreover, even when an accused shows encouraging signs of rehabilitation, the objective of rehabilitation should not take precedence over the objectives of deterrence and denunciation in matters of domestic violence.[16] As Rousseau-Houle, J.A., wrote:
[…] si la réhabilitation demeure un facteur important dans la détermination de la peine, elle ne doit pas, surtout dans un contexte de violence conjugale, prévaloir démesurément sur les facteurs de dissuasion et d’exemplarité de la sentence. Madame la juge Wilson dans R. c. Lavallée, 1990 CanLII 95 (CSC), [1990] 1 R.C.S. 852, à la page 872, a rappelé “qu’il est difficile d’exagérer la gravité, voire la tragédie, de la violence domestique. L’attention accrue portée à ce phénomène par les médias au cours des dernières années a fait ressortir aussi bien son caractère généralisé que ses conséquences terribles pour les femmes de toutes les conditions sociales”.[17]
[35] This is particularly true in the present matter, where the judge found that the Respondent’s rehabilitation remained incomplete. Moreover, her finding as to the Respondent’s adoption of a way of life aimed at avoiding any recidivism is at odds with the pre-sentence report. To the contrary, the probation officer explained that the Respondent’s plan to avoid relapses is based on “la pensée magique”, and his balance, “fragile”.[18] The probation officer also expressed concerns that his support network is insufficient.[19]
[36] In these circumstances, it was an error in principle for the judge not to give greater weight to the objectives of denunciation and deterrence.
A sentencing judge therefore has the discretion to take into account the time spent in closed therapy as a relevant factor in the overall determination of a fair and appropriate sentence.
[50] On this matter, the sentencing judge referred to Bernard c. R.[33] This decision addresses the issue of how the Court should account for a period of house arrest as a “relevant factor” in the determination of a fit sentence. I consider that the principles identified in this judgment are applicable to the evaluation of time spent in closed therapy:
[36] Although it is sometimes identified as a mitigating factor, it is more of a “relevant factor” in the analysis. More recently, this Court reiterated the fact that [translation] “there is no doubt that, when sentencing, a judge may consider the conditions of release, but this consideration is discretionary”, and it specified that the conditions of release do not constitute a mitigating factor as such, but, rather, should play a part in the final crafting of a fair and just sentence: R. c. Sanon, 2018 QCCA 892, para. 8.
[…]
[38] Although giving consideration to the strict conditions of release falls within the exercise of a sentencing judge’s discretionary power, this power must nevertheless be exercised judicially. Given a judge’s obligation to consider all the relevant circumstances of the offence and the offender that are brought to his attention in a particular case, the judge was required to explain why he set aside this factor, unless the reasons were clearly evident from the record. It bears reminding that a judge’s obligation to provide reasons when imposing a sentence is also a statutory one: s. 726.2 Cr.C. Failing adequate reasoning, less deference will be due, and the Court may choose to intervene: R. c. Cardinal, 2012 QCCA 1838.
[51] A sentencing judge therefore has the discretion to take into account the time spent in closed therapy as a relevant factor in the overall determination of a fair and appropriate sentence.
[52] Although the sentencing judge appears to give an automatic credit for the time spent in closed therapy, the Crown fails to convince me that the credit is unreasonable. The sentencing judge explained that the Respondent completed a closed therapy with success and has remained sober since the commission of the offense, in addition to being on his way towards rehabilitation. As such, I see no grounds to overturn her decision on this matter. Six months will be deducted from the term of imprisonment of thirty months. The sentence will be set at twenty-four months less a day.
