Should all sex offenders be sent to jail?

iStock Judges would be in the best position to choose the appropriate sentence, believe several stakeholders.

The delicate balancing of 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 ruled: 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 calls on 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: Indigenous, black and marginalized offenders are overrepresented in detention facilities.

Possible recently for sexual assault, sentencing has already been an opportunity to debates because of cases that have been publicized, including that of Jonathan Gravel who was given 20 months in prison to be served at home for non-consensual anal penetration.

But prohibiting this sentence for all sexual assault would be “nonsense,” said AQAAD president Me Marie-Pier Boulet in an interview.

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 the clothes does not make sense according to her.

And in any case, she says, it is 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 house arrest is not possible for most sexual crimes anyway, including those involving minors.

As for the objectives of sentencing, 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 says, 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 they are takes away all leeway and they have no right to think, what are judges for?

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 trivial. But of the motion, she says, “You can't help but see a bit of political expediency 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 end this trivialization. Because in the past, we have seen judges show an incomprehensible indulgence towards 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 ​​tying judges to minimum sentences does not serve the interests of justice at some level. »

There is an awareness, an effort to put an end to this trivialization [of sexual assault]. Because in the past, we have seen judges show incomprehensible indulgence towards certain men.

— Rachel Chagnon

 

According to the professor, who is interested in women's issues, 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 however, has this downside: sometimes judges “have a bubble in their brains,” she says, citing Judge Matthieu Poliquin as an example when he granted a conditional discharge to engineer Simon Houle.

“That's what the call is for,” she argues. The Court of Appeal overturned her discharge and instead sent Houle to prison for 12 months. it shouldn't undo all the work that's been done to raise awareness that sexual assault is a real crime.”