In imposing a prison sentence on Simon Houle, the Court of Appeal did three things at the same time.
First, of course, to correct bad judgment.
At the same time, the highest court in Quebec reminded the importance of cracking down on sexual assault to judges who would have missed a few judicial episodes.
Finally, she reminds us (without saying so) that a badly reasoned judgment can be repaired on appeal. Not by dismissing the judge who handed it down.
Simon Houle is the engineer who received a conditional discharge last June after pleading guilty to charges of sexual assault and voyeurism.
After a party well drunk at university, he had undressed a sleeping student, photographed her and penetrated her with his fingers.
The decision to absolve him caused a scandal, as much for his clemency as for his arguments. Judge Matthieu Poliquin said in particular that there was “only one victim” and that “the attack took place after all quickly”, an isolated and spontaneous act with no follow-up. The judge had recognized that the acts were serious, but he had especially insisted on the importance of the rehabilitation of the young engineer.
The fury was expressed on social networks, to the point that we demanded the dismissal of Judge Poliquin before the Council of the Judiciary.
One might be tempted to see Wednesday’s appeal judgment as an attempt to appease public opinion.
This is not the case. For anyone who has read a bit of the case law of recent years, the Poliquin judgment was seriously off the mark. The “range” of sentences usually imposed for sexual assaults of the same type varies from 12 to 20 months, underlines the Court of Appeal.
What’s more, the judge seemed to confuse the two crimes. Houle took nine photos of the victim’s sex and breasts and kept them on his phone for a month and a half.
It is already not an argument to say that the crime took place “quickly”. But in addition, this is not the case: Houle followed his victim in two rooms.
The absolution did not take into account the attack on the physical integrity of the victim and the “abuse of vulnerability”.
However, the door is not closed to an absolution in matters of sexual assault – it has happened before. But still it is necessary that the circumstances justify it and that it does not go against the public interest. To deviate so much from the usual “range” of sentencing with such serious facts was likely to undermine public confidence in the judiciary – it was clearly the case…
Remember, however, that last fall, the Conseil de la magistrature dismissed the complaints against Judge Poliquin, and with good reason.
It is here that we must distinguish between bad judgment and an ethical fault.
The Court of Appeal may have seriously “corrected” his judgment, it took the trouble to note that he had written a “neat” judgment. In the sense that he supported his argument by weighing the various arguments (the prosecution was asking for 15 to 18 months in prison), cited decisions, etc. This is not a badly made, sloppy, wacky judgment.
Judges have a margin of discretion and are not obliged to follow these “ranges”. They can deviate from it, because no case is identical, no accused is like another. It therefore happens that a judge leans towards severity, another towards leniency. And in the end, if the sentence does not suit the defense or the DPCP, an appeal is possible.
There again, the Court of Appeal will only intervene in a minority of cases, precisely out of respect for the judge’s power of discretion.
Only if the sentence is “manifestly unfit” or if the judge made an error of principle in his decision will the sentence be “corrected”. In other words, judges have some leeway, but not absolute.
But if judges had to be suspended or fired each time an appeal court changed their decision, we would have a new shortage of judicial labor on our hands…
Courts must retain the power to make decisions, even the most unpopular ones, without fear of reprisal.
That does not mean that they are infallible or indisputable, as we have just seen.