Can a conditional discharge be the right sentence for sexual assault? Quebec legal experts weigh in

Warning: This story contains disturbing details of sexual assault. A list of resources for people who have experienced sexual violence appears at the end of the article.

A chorus of outrage from victims' rights groups, politicians and other Quebecers crescendoed this week, in the wake of a Quebec court judge's decision to grant a conditional discharge to a man who pleaded guilty to sexual assault and voyeurism.

Judge Matthieu Poliquin issued that ruling last month, after Simon Houle, an engineer from Trois-Rivières, admitted to sexually assaulting a woman in 2019 and, according to the judgment, taking photographs of her "private parts" while she slept.

Advocates for sexual assault survivors said the decision minimizes the gravity of sexual assault and could contribute to making victims hesitant to come forward with their own complaints.

A conditional discharge means Houle will not have a criminal record if he follows a series of conditions for a period of probation, in this case three months.

Some legal experts are now calling into question the weight certain factors, such as a person's professional status, bear on influencing a sentence and whether a conditional discharge can ever be the right call in a case of sexual assault.

Too lenient a message?

In his decision, the judge described how the victim, asleep at a party, was "awoken by the light from a camera. She felt fingers in her vagina moving back and forth." Her camisole was hiked up and her bra detached from the front.

A few days later, a friend of the perpetrator who was aware of the event looked into Houle's phone. "He then found, in the trash bin of the device, photos of a woman's private parts," the judge said.

Rachel Chagnon, a professor in the department of legal sciences at Université du Québec à Montréal (UQAM), says the role of a judge is to determine the most appropriate sentence for the individual case before him or her, by taking into consideration aggravating and mitigating factors.

"If the accused planned the crime, this is an aggravating factor. If the accused regrets his or her actions, this is a mitigating factor," she said.

She said in this case, the judge concluded there were more mitigating factors than aggravating ones, therefore opting for a lighter sentence. However, Chagnon questions the message a conditional discharge for sexual assault sends to the public.

In sentencing, "the appearance of justice is as important as justice itself in order to ensure public confidence in the system," she said.

"In a world where we recognize that historically we have not been severe enough, that we have not sent a clear enough message about the seriousness of sexual assault, does a sentence that appears at first glance to be relatively lenient send the message we want to send?" asked Chagnon, in an interview on Radio-Canada's Midi info.

Not a popular decision, but fair: criminal lawyer

In his decision, the judge said Houle "greatly regrets his actions" and the consequences of a criminal record "would have particularly negative and disproportionate consequences for him," in part because it would make it hard for him to travel for his job as an engineer.

Poliquin noted that Houle also sought therapy, and he admitted to sexually assaulting another woman in 2015. This admission, while "disturbing," according to Poliquin, also demonstrated his "desire for transparency" and Houle's serious approach to rehabilitation.

In coming to his decision, Chagnon said the judge gave considerable weight to the specific reality of the perpetrator.

"This raises the question of whether we are leaving too much room for subjectivity in regard to the sympathy one can have for the aggressor — if we didn't put too much emphasis on these elements."

However, Eric Sutton, a criminal defence attorney in Montreal, said elements of Houle's personal life are all relevant considerations that can't be ignored.

"I think we as a community would value someone who pleads guilty, shows remorse ... has undertaken therapy, is well-educated [and] wants to pursue a career as a professional," Sutton said.

While the majority of people would agree that sexual assault is a very serious crime, according to Sutton, "that doesn't mean that in no circumstances can someone get a discharge." He pointed out such rulings are increasingly infrequent in cases of sexual assault in Canadian law.

Sutton said that while generally someone guilty of sexual assault would end up with a conviction, in his view, a discharge was warranted in this particular case.

"[The judge] explains his reasoning process; he applies the right principles, and I think it's a very strong decision. It might not be a popular one, but I think it's really a fair one."

Avenues for appeal

Contrary to Chagnon, Sutton does not believe it's a judge's responsibility to teach or reassure the public. He said it's a judge's responsibility to make the right decision based on the facts they have before them.

The office of Quebec's Director of Criminal and Penal Prosecutions (DPCP) has said it will appeal Houle's sentence in the coming weeks.

Sutton says he agrees with critics who say Houle's admission to having sexually assaulted another woman four years earlier should have been "a concern" for the judge in this case, but he doesn't know if that alone will be enough for a higher court to quash Poliquin's decision, leading to a conviction.

The duration of the assault, which Poliquin said happened "all in all, quickly," might also be something a judge hearing the appeal would find to be an unworthy consideration, Sutton said.

Cassandra Richards, a criminal lawyer and researcher on sexual violence at McGill University, said the outcry over Houle's case underscores the clash in society over how best to hold people accountable for crimes of sexual violence.

"On the one hand, we have a movement that wants crimes of sexual violence to be taken seriously because they have, for way too long, not been taken seriously. And then on the other hand, we have a movement that's pushing for an alternative to prisons, which recognizes that prisons don't always keep our communities safer," she said.

"I think that the question is, can a conditional discharge take into consideration the seriousness of sexual assault? And I think for some people it can, [for] some people it can't."

There are resources and supports available to anyone who has experienced sexual violence: