Recently, the parliamentarians of the National Assembly of Quebec, grouped like sheep, endorsed a motion by the Minister of Justice, Simon Jolin-Barrette, “to make the offense of sexual assault inadmissible to prison sentences in the community”. Only the federal Parliament could reinstate this measure initially designed by a Conservative government.
Let us recall the first objective of the Criminal Code: to protect society, prevent crime and contribute to respect for the law. The courts frequently insist on deterrence and the denunciation of abusive behavior causing harm to the victims and disturbing the collective tranquility.
In short, the dominant mission of a criminal court is not to help victims by administering therapeutic justice, but to ensure public safety by punishing offenders, following a fair and equitable process.
The guilt of an accused person being established, distressing consequences ensue, including the unworthiness of a public conviction. The imposition of a sentence by a court must imperatively be proportional to the seriousness of the offense committed.
When it comes to voting for or against a provision of the Criminal Code, the requirement of individuality of a penal sanction is totally beyond the competence of parliamentarians. Populist or realistic, the vote of elected officials never takes into account the facts and circumstances characterizing the behavior of an accused and the harm suffered by a victim.
Responsibility of the judge
In each court case, it is the judge’s responsibility to render justice in an informed manner, taking into account the specific circumstances of the offense committed. The adversarial procedure allows the parties to display aggravating or mitigating factors. In addition, the law provides the opportunity for the parties to appeal the fitness of a sentence. This safety valve necessarily eludes parliamentarians.
In addition to the infliction of a sentence, the infamy linked to sexual abuse carries several stigmas: potential DNA sampling, imposition of prohibitions, and above all registration in the national register of sex offenders.
In court, the participation of a plaintiff is limited to that of a prosecution witness. At the sentencing submissions stage, he is allowed to speak, but only to explain the content of his written statement regarding the prejudices suffered and felt.
In short, a victim does not have the status of a stakeholder in the legal debate. Only the public prosecutor (in the name of the King) and the accused have the right to give evidence and plead as to the merits of a sentence. According to the Supreme Court1the assessment of the appropriateness of a sanction rests exclusively with the trial judge.
In some foreign jurisdictions, in search of efficiency, an integrated approach is favored that includes fragments of criminal law, civil law and family law. This jurisdictional aggregate is not possible in Canada. Criminal law, procedure and rules of evidence fall under the exclusive jurisdiction of the federal Parliament.
Federal Law
In 2015, a federal law – called the Canadian Victims Bill of Rights – determined that the criminal justice system refers to the investigation and prosecution of offences, the correctional process and supervised release. Administrative procedures related to mental disorders are included in this process. Under a victims’ charter, all steps related to the jurisdiction of a court are excluded.
In Canada, each government agency must respect the limits of its institutional role. Our Constitution determines that the federal state writes the Criminal Code, while the provinces see to the administration of justice. Above all, our constitutional charter relating to rights and freedoms assures everyone of legal guarantees against the laws and regulations of the State and its agents.
The Supreme Court has worked hard to sanctify the dogma of judicial independence. Judges are not subject to any superior hierarchical authority, except the Judicial Council. The institutional independence of judges reflects a deep commitment to the separation of legislative, executive and judicial powers.
This is a protection against any form of interference, regardless of the source… including a politically charged motion!