The criminal lawyer Michel Massicotte, a veteran, stood out to the public last year as a lawyer for Éric Salvail, acquitted of sexual assault.
Posted at 5:00 a.m.
But a defense lawyer’s job is much more often to negotiate a “good settlement” with the prosecution than to try to get his client acquitted in a trial.
And a “good settlement” is what his client André Boisclair has just obtained, sentenced for two sexual assaults to two years in prison – “minus a day”, which sends him to the Quebec prison system, federal penitentiaries administering sentences of two years or more.
Because if he had been sentenced for these very serious crimes at the end of a trial, the former minister could have received double the price.
A sexual assault of this type can often lead to three years in prison, depending on the circumstances. In this case, Boisclair participated in a gang rape, holding a young man to a bed while a man tried to sodomize the victim.
On another occasion, the former politician threw a young man onto a bed, stripped his pants and tried to penetrate him, even though the victim was screaming at him to stop. This is easily “worth” a year’s imprisonment. A sentence that would have been added to the first.
Although there was no trial, the two victims were heard before sentencing. Their heartbreaking testimony showed us how traumatic these events were and how their lives turned upside down. “I have a bad life that just won’t go away,” said one, who has given up on his studies and his dream of a political life. The second said he was “marked for life”.
Two years for such crimes (18 months for the first, 6 for the second) is therefore a lenient sentence.
It is not an unfair sentence, however. Why ? Because there’s a bounty for anyone who confesses guilt.
Canadian court statistics are not very reliable, but it is generally agreed that at least 80% of cases, even 90%, are settled by an admission of guilt by the accused. The system operates on this assumption: most things should be “settled” without a trial.
It’s not just a matter of cost. It is a way for both the accused and the state to manage the risk. In the case of André Boisclair, the defense and the prosecution had agreed to present the judge with a joint sentencing suggestion.
The advantage for the prosecution is, of course, to ensure a conviction without going through a trial, an exercise that is sometimes perilous, always costly, and by definition painful for the victims.
The advantage for the accused is to obtain a more lenient and predictable sentence.
Admitting criminal responsibility is a starting point for an accused claiming to be rehabilitated. André Boisclair, despite the fact that his crimes are particularly repulsive, is a good candidate for a relatively lenient sentence.
For crime is not punished in the abstract; it is a unique person who is inflicted with a punishment that is in principle tailor-made.
The former leader of the Parti Québécois has undergone therapy (he was “frozen” during the assaults, and admitted to a serious addiction, which his lawyer tried to pass off as an excuse) and undertook to have regular tests by blood tests his sobriety. He has the support of his family and his friends, a framework that is a positive factor in reintegration, with a lower risk of recidivism.
The crime must be “denounced” by a significant sentence, says judge Pierre Labelle.
But faced with a joint suggestion from the defense and the prosecution, the judges have very little leeway. Barring a frankly unreasonable proposal, the judges are obliged to agree to the suggestion made to them by experienced lawyers, who know the case and who make a complete presentation of it to the court. Otherwise, the agreements negotiated would not include any guarantee of results and would serve no purpose. It is therefore very rare for a judge to venture outside the beaten track of the agreement, and if he does so, he must justify it, under penalty of being overturned on appeal.
While two years in prison for these crimes is a relatively light sentence, it is nonetheless a real prison sentence. It will be followed by two years of “probation”. In the circumstances of this accused without a criminal record, it is not legally unreasonable, and Judge Labelle had little choice but to ratify it.