Can a conditional discharge be appropriate to punish a sexual aggressor? The subject has been on everyone’s lips since Judge Matthieu Poliquin, who recently absolved an engineer who wanted to avoid a criminal record for his career, has been criticized from all sides. But what does the law say about sentencing? Lawyers consulted by The duty tackle this complex question.
“What sentence should be given to the accused who admits having committed a sexual assault by inserting his fingers into the victim’s vagina and touching her breasts as well as voyeurism by taking photos of the victim’s private parts? here, the whole thing, while she’s unconscious? »
This question is the judge himself who asks it as an introduction to his decision on which the public, like politicians, has been firing red balls since Monday, arguing in particular that it minimizes the seriousness of sex crimes.
The Crown had demanded 18 months in prison for Simon Houle, who committed this assault in 2019.
“We have to admit that firm imprisonment is the preferred sanction in this matter”, said Judge Poliquin himself, before recalling that “every rule has exceptions” and that “in appropriate circumstances, a more lenient may be considered.
Simon Houle, who pleaded guilty to sexual assault and voyeurism, has obviously found favor in his eyes.
But not for everyone. Even the Minister of Justice Simon Jolin-Barrette – who, incidentally, appointed this judge to the bench last fall – made a rare outing against a judgment on Wednesday, saying he was “deeply shocked”.
In sexual assault cases, while a conditional discharge is not common, it is not exceptional either, explains criminal lawyer Me Charles B. Cote. The Criminal Code allows it for this type of offence, adds the lawyer who has 30 years of experience in criminal law.
The Court of Appeal, itself, said it: the absolution should not be an exceptional measure, underlines the lawyer specialized in criminal law Me Veronique Robert. According to her, it is rather necessary to wonder if it is a case which justified it.
Judges often point out that sentencing is not an exact science and is a very difficult exercise that involves considering a long list of criteria provided for in the Criminal Code.
Here, the decision seems to deviate from the sentencing ranges seen in such cases, believes Me Robert, who describes it as “surprising” given the seriousness of the assault committed and the heavy impact on the victim.
The judgment also details the serious consequences that the woman suffered: she increased her consumption of alcohol and drugs, she experienced school failures, and dark thoughts led her to be hospitalized in psychiatry.
It is however possible to deviate from the sentence ranges, because it must be individualized, depending on the specific case of the offender, adds the lawyer.
Two people can thus receive a different sentence, even though they have committed the same crime. The offender also benefited from favorable factors recognized by case law: in particular, he pleaded guilty (which avoids the victim having to testify), he regrets the actions taken and he undertook therapy without the Court ordering it.
As for M.e Michaël Lessard, doctoral student at the University of Toronto and professor of law, he notes that the judgment does not seem to sufficiently consider certain objectives of the sentence, namely the denunciation of crimes and the deterrence of those who would be tempted to commit them.
However, Judge Poliquin’s decision is “not indefensible”, according to Ms.e Side. His legal conclusion is in itself well-structured, and he cites “proper and justified” previous decisions. The lawyer argues, however, that the magistrate may not have considered the negative factors, including the impact on the victim, with as much importance. “Me, I found it problematic and I am a defense lawyer,” he says.
Even if the decision will not necessarily receive the approval of his colleagues in the judiciary, others will not find it outrageous, adds the criminal lawyer.
Moreover, on Wednesday, the Quebec Association of Defense Lawyers (AQAAD) denounced the virulent attacks against the judge and his decision: “The critics ignore the many passages of the judgment which denounce the behavior of the accused and the importance of denouncing a sexual assault,” underlines the president of the Association, Marie-Pier Boulet, in a press release.
Words that shock
Among the sentences of the judgment which are denounced in the public square is this one: the magistrate writes that the sexual assault took place “all in all quickly”. He does not list this criterion as a “mitigating factor”, but uses it to describe the aggression.
“There is no acceptable duration” when it comes to sexual assault, nor acceptable aggression, exclaimed Me Side. For a victim, it will always be too long, and that has a major impact on her, he said in an interview. A short duration is not a mitigating factor, adds Me Robert.
AQAAD made a point of providing this explanation: the sentencing exercise implies that the judge must take an interest in all the factors surrounding the commission of the offence. “Discussing the duration of the attack is part of it. This observation did not have the effect of reducing the seriousness of the acts committed. »
In his assessment of mitigating factors, Justice Poliquin considered the “young age” of the offender. At 27 at the time of the attack, “it is difficult to speak of young age”, reacts Me Side.
In granting the discharge, the judge also took into account that the offender had maintained that he had to travel for his work as an engineer. A conviction would therefore have “particularly negative and disproportionate consequences […]which could hamper his career,” he wrote.
It is a criterion which exists and which must be evaluated, indicates Me Side. The Court of Appeal will have to assess whether too much importance has been given to it here. To say that an engineer must necessarily travel is quite surprising, adds Me Lessard.
The latter points out that the judge drew up a long list of aggravating and mitigating factors – a usual way of doing things for magistrates, he says – and that it is not easy to understand which ones weighed the most in the balance.
“It is deplorable for the understanding of the public and the victims. »
Different fate on appeal?
The Director of Criminal and Penal Prosecutions has already indicated that he wants to appeal the decision.
Appealing is the proper way to criticize a judgment, argues AQAAD.
Me Lessard recalls, however, that when it comes to choosing the appropriate sentence, the Court of Appeal gives the judges a lot of leeway and tends to respect their decisions, which are closely linked to the facts.
But even if she did not interfere, that would not mean that Judge Poliquin’s decision would constitute “a precedent”, since it is a decision of a lower court (as opposed to the Court of appeal or to the Supreme Court, whose judgments have much more weight), and since sentencing judgments are very limited to the specific case of the offender: another judge could set him aside and not follow his example.