R. c. Perrier, 2013 QCCS 1658 (CanLII)
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[112] Dans Drabinsky, la Cour d'appel de l'Ontario écrit :
167 Second, individuals who perpetrate frauds like these are usually seen in the community as solid, responsible and law-abiding citizens. Often, they suffer personal and financial ruin as a result of the exposure of their frauds. Those factors cannot, however, alone justify any departure from the range. The offender's prior good character and standing in the community are to some extent the tools by which they commit and sustain frauds over lengthy time periods. Considerable personal hardship, if not ruin, is virtually inevitable upon exposure of one's involvement in these kinds of frauds. It cannot be regarded as the kind of unusual circumstance meriting departure from the range.
168 In holding that prior good character and the personal consequences of the fraud cannot push the appropriate sentence outside of the range, we do not suggest that they are not relevant mitigating factors. They must be considered in determining where within the range the sentence should fall.
169 The trial judge recognized the many mitigating factors advanced on behalf of the appellants. These included their many and diverse contributions to the community, particularly the cultural community, their strong family support, their sterling reputations in the community, the absence of any criminal record and, in Drabinsky's case, his significant physical disability. Drabinsky suffers from the effects of polio, a disease he had as a young child. His mobility is impaired and he is often in considerable pain. His problems will worsen with age.
170 We agree with the trial judge's determination that the mitigating factors, while impressive, did not justify a departure from the established range of sentence. In particular, there is no evidence that Drabinsky's health problems, while significant, cannot be addressed by the correctional authorities. Certainly, on the trial evidence, Drabinsky leads a very full and active life, despite his very real disability. We think the trial judge was correct in determining that the sentences should fall within the range of sentences imposed for this type of offence.
[113] Ces commentaires s'appliquent tant à M. Perrier qu'à M. Godler.
[114] Par ailleurs, l'impact sur la famille de M. Perrier, notamment sur son fils, ne justifie pas de s'écarter de la fourchette des peines en semblables matières. Les auteurs de l'ouvrage Sentencing écrivent :
Wherever possible courts avoid imposing sentences that will prejudice children or other members of family. It should be stressed that this principle operates only where there are no other or more important aspects requiring severe or deterrent sentences.
[115] Dans R. v. Spencer, le juge Doherty formule les commentaires suivants au sujet de l'impact de la peine sur la famille du délinquant :
46 It is a grim reality that the young children of parents who choose to commit serious crimes necessitating imprisonment suffer for the crimes committed by their parents. It is an equally grim reality that the children of parents who choose to bring cocaine into Canada are not the only children who are the casualties of that criminal conduct. Children, both through their use of cocaine and through the use of cocaine by their parents, are heavily represented among the victims of the cocaine importer's crime. Any concern about the best interests of children must have regard to all children affected by this criminal conduct.
47 The fact that Ms. Spencer has three children and plays a very positive and essential role in their lives cannot diminish the seriousness of her crime or detract from the need to impose a sentence that adequately denounces her conduct and hopefully deters others from committing the same crime. Nor does it reduce her personal culpability. It must, however, be acknowledged that in the long-term, the safety and security of the community is best served by preserving the family unit to the furthest extent possible. In my view, in these circumstances, those concerns demonstrate the wisdom of the restraint principle in determining the length of a prison term and the need to tailor that term to preserve the family as much as possible. Unfortunately, given the gravity of the crime committed by Ms. Spencer, the needs of her children cannot justify a sentence below the accepted range, much less a conditional sentence.
[116] Ces commentaires sont pertinents en l'espèce.
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