The delicate balance in the scales of justice was illustrated recently in Quebec by the reaction to a house jail sentence given to a man who sexually assaulted a woman. Quickly, voices were raised demanding that this no longer be possible. But the Quebec Association of Defense Lawyers (AQAAD) and a law professor suggest another avenue: leave all the options in the hands of judges, who are best placed to choose the appropriate sentence, one that can protect victims and send a message to society while facilitating rehabilitation.
Last month, the National Assembly decided: it does not want those convicted of sexual assault to be able to serve a “prison at home” sentence. A motion passed unanimously on February 15 asks Ottawa to amend the Criminal Code to prohibit this possibility.
Until recently, in sexual assault cases, judges could not impose a house sentence — also called conditional sentences. This possibility was offered to them by the recent passage last November of the Liberal government’s Bill C-5, which amended the Criminal Code accordingly. Ottawa said it wanted to tackle this problem in this way: Aboriginal, black and marginalized offenders are overrepresented in detention facilities.
Recently possible for sexual assault, the sentence has already been the subject of debate due to cases that have been publicized, including that of Jonathan Gravel who was imposed 20 months in prison to be served at home for anal penetration not consensual.
But prohibiting this sentence for all sexual assaults would be “nonsense”, said AQAAD president Ms.e Marie-Pier Boulet.
Because this offense covers a wide range of gestures, she explains. That house arrest is prohibited for a gang rape is one thing, but that it is never possible for a touching on the buttocks over clothing does not make sense, according to her.
And anyway, she says, it’s not because a judge has the possibility of imposing it that he will do it every time. “It’s not automatic. There are criteria to meet. »
Me Boulet points out that home imprisonment is not possible for most sex crimes anyway, including those against minors.
As for the objectives of the imposition of a sentence, the lawyer argues that the “deterrence” aspect is also there, because loneliness is very heavy for offenders. Such punishment also protects the victim: it means 24 hours a day at home, with no going out. In short, the victim is not likely to meet his attacker in the street, underlines the defense lawyer.
The National Assembly motion “invents a problem that isn’t a problem,” she said, and “sends the wrong message about the justice system, rather than explaining it.”
The president believes that it is preferable that judges keep this possibility, recalling that one of the principles of criminal law is to impose an “individualized” sentence, adapted to the offender.
If we take away all their room for maneuver and they don’t have the right to think, what use are the judges?
Movement of society
Law professor in the Department of Legal Sciences at UQAM Rachel Chagnon says she understands the indignation of the population, because the crime of Jonathan Gravel is “not insignificant. But on the subject of the motion, she specifies that “one cannot help but see a little political opportunism in it”.
These reactions, however, are part of a social movement that no longer wants to tolerate sexual assault, after decades when this crime has been trivialized, she says. “There is an awareness, an effort to put an end to this trivialization. Because in the past, we have seen judges show an incomprehensible indulgence in relation to certain men. »
But she still believes that judges should be given a good deal of leeway in determining the sentence: “They heard everyone. »
“The idea of trapping judges in minimum sentences does not serve the interest of justice at a certain level. »
There is an awareness, an effort to put an end to this trivialization [des agressions sexuelles]. Because in the past, we have seen judges show an incomprehensible indulgence towards certain men.
According to the professor, who is interested in issues affecting women, judges are well placed, “perhaps the best placed”, to find a sentence that truly meets the needs of society. She recalls that they also have scales to follow to choose her, depending in particular on the seriousness of the crime, the impact on the victim, as well as mitigating and aggravating factors. There is a way to guide judges without entirely removing a category of sentence from them, she summarizes, adding that they are better and better trained on the subject of sexual assault.
There is, however, this downside: it happens that judges “have a bubble in the brain”, she says, citing as an example the judge Matthieu Poliquin when he gave a conditional discharge to the engineer Simon Houle.
“That’s what the call is for,” she argues. The Court of Appeal also overturned his discharge and instead sent Houle to prison for 12 months.
The professor, however, has this caveat: by leaving judges all the leeway, “this should not come to undo all the work that has been done to raise awareness that sexual assault is a real crime”.