The patient who did not open her eyes

Judge Joëlle Roy believed osteopath Sufyan Haji Bik, and that was enough to acquit him of sexual assault on a patient.

Until then, there is no reason to be surprised, much less to be outraged. In our system, an accused is entitled to the benefit of the doubt. If his version is believed, or if reasonable doubt remains about the evidence, the judge must acquit him.

Where things go wrong is in the explanations provided by the magistrate of the Court of Quebec to support her conclusions. Because there is a fine line between pointing out inconsistencies in a complainant’s version and accusing her of not being a “good victim”.

Judge Roy, subscribing to the remonstrations of the Court of Appeal, has clearly crossed the line here.

I am summarizing the facts to the extreme. A woman consults the osteopath for a hernia and disabling shoulder pain. She sees the professional three times. All three times, she had to take off her bra – with the help of the accused, given her shoulder pain. Already, the thing is strange, even more so when it comes to a back and shoulder problem. She says she even stripped completely naked on the third date.

The osteopath compliments him several times on his appearance. It seemed inappropriate to her, but she put it down to a cultural misunderstanding.

According to her, during this final session, the accused touched her breasts with a conical object exerting suction on her nipples. She doesn’t know what it is because she doesn’t open her eyes.

For the judge, the thing is improbable. Especially since during the same session, she said she took the accused’s wrist when he touched her penis during a massage.

Also improbable, according to the judge, was the fact that she walked naked into the treatment room whose door was open.

The accused denied any gesture with a sexual connotation. Her version is credible, concludes the judge, who adds that even if we accept the complainant’s version, it would not be a sexual assault: the action was quick, the accused had gloves, the body was oiled and the hand was could “slip”.

It is not clear how wearing gloves excludes sexual intent. Nor does the speed of the gesture change the matter. As for conveniently “sliding” towards the sexual organs because of the oil, this is a very funny digital accident for a specialist in bodily manipulation.

The accused says he wore two masks – it was in the middle of a pandemic. The complainant did not notice it, which seemed doubtful to the judge. More doubtful: how could she have felt his breath on her breasts with both masks?

I insist: it is obviously not the acquittal in itself which is questionable here. This is the analysis of the “defective” behavior of the complainant. The Supreme Court has long ruled that judges must avoid perpetuating stereotypes of blaming the complainant or maintaining the myth of the “good victim.” Judge Roy also recalls these principles at the very beginning of her judgment.

And yet, she does exactly that: looking for the right victim.

This woman could well have taken a towel if she was uncomfortable being naked, or even put her clothes back on, said Judge Roy. “She was free of it. »

We’re not that far from “why didn’t you hug your knees?” » of sad memory, which led to the dismissal of an Alberta judge.

This ignores the osteopath’s position of authority. But yes, she could have refused to take off her clothes. She could have gotten dressed. She could have opened her eyes. Etc. But there is nothing strange and unbelievable about obeying processing commands, even if those commands are misplaced.

This would not be the first victim to “freeze”.

Was there grounds for conviction, moreover? Maybe, maybe not. But it is a major error of principle to seek this “good” behavior, or a supposedly “normal” attitude. We can imagine that there will be an appeal.

And this is where we enter what is most worrying about this case: the competence of Judge Joëlle Roy herself.

Appointed only seven years ago, she was severely corrected by the appeal courts on several occasions.

• Last month, the Court of Appeal overturned one of its judgments where it had annulled a seizure, allegedly because the police did not have sufficient grounds, but only “suspicions”. No drugs had been observed or seized, Judge Roy said. But… that’s precisely why the police wanted a warrant: to seize it.

• In April 2022, the Court of Appeal overturns the acquittal of the leader of the ultranationalist group Atalante, who had broken into the premises of the Vice media. The absence of physical violence changes nothing, nor the “freedom of expression”, considered by the judge.

• In August 2022, the Court of Appeal accused him of having “completely evacuated” the violence of a crime by sentencing to community service a man who had broken the jaw of another. The Court of Appeal had to intervene twice, because the judge had invalidated an article of the Criminal Code prohibiting absolution in cases of serious assault – the Court of Appeal imposed one year in prison.

• In November 2021, the Court of Appeal criticized him for having sentenced to community service a man who disposed of construction waste intended for recycling in parking lots. The defense accepted a 12-month suspended prison sentence. Judge Roy’s decision was poorly reasoned, especially since the accused’s accomplice had been sentenced to 15 months.

• In January 2021, the Supreme Court criticized him for violating the rights of police officer Éric Deslauriers, whom it found guilty of involuntary manslaughter. The Supreme Court was particularly harsh with the judge.

Of course, there is nothing shameful for a magistrate to see one or more of his judgments overturned on appeal. There are sometimes different interpretations, and no one is immune to errors – otherwise there would be no need for appeals courts.

But apart from the quantity, there is the manner. And when we examine the judgments, we realize that these are repeated serious errors of judgment which are held against the judge.

This, even after correction, leads to new trials, costs, uncertainties, loss of credibility, etc.

At this level of correction, one can truly question his competence.

In short, it is not only this complainant who could open her eyes.