Sunday, April 18

Domestic violence: the Court of Appeal doubles the sentence of an accused

The Court of Appeal doubled the sentence of a man who beat and threatened his ex-wife with death after breaking into her home illegally. By revising this sentence, the highest court in the province reiterates the importance of strengthening victims and the public’s confidence in justice.

“Domestic violence and the context of [violation] of domicile are very important aggravating factors and should encourage the courts to privilege the deterrence and the protection of the society rather than the rehabilitation of an accused, ”writes Judge Allan R. Hilton.

Errors of principle are raised by the Court of Appeal in the decision rendered in May 2019 by Judge Joëlle Roy of the Court of Quebec. The latter sided with the arguments of the defense and sentenced the violent man to 12 months in prison with two years’ probation. The Crown, seeking 30 months in jail, appealed the case.

This is because, despite the accused’s heavy past, the magistrate focused on the mitigating circumstances to determine his sentence. In her decision, Judge Roy points out that the man admitted his guilt on two counts – he initially faced five counts -, that he expressed remorse and apologized to the victim. . She also notes that the man voluntarily undertook a six-month therapy, qualifying the process as a “significant act of rehabilitation”.

Yet an unflattering portrait of the man was painted by his probation officer. According to a pre-sentence report filed in court, the accused’s risk of recidivism was moderate.

Neglected injuries

Judge Roy did not take into account the case law on domestic violence either, notes the Court of Appeal, recalling that the courts have repeatedly stressed the weight to be given to the principles of denunciation and deterrence. The court also notes that some of the complainant’s injuries – a broken nose and head trauma – were ruled out by the judge, despite a medical report filed in evidence.

The Court of Appeal also underlined the judge’s criticisms of the complainant. “The victim first spoke with anger and anger towards the accused, at the beginning of her testimony. It took the intervention of the Court and a suspension for an update with the witness, in order to reframe his testimony, wrote the magistrate. This exercise was carried out with great difficulty for the victim who stammered and cried while recounting the impact of this altercation. “

The Court of Appeal concluded that the sentence was not properly assessed by Judge Roy, who “mainly focused on the rehabilitation of the accused. […] and on his guilty plea, which led to the pronouncement of a sentence which is manifestly inadequate ”.

To ensure the confidence of victims and the public in the justice system, particularly in domestic violence cases, the Court of Appeal considers it necessary to correct the sentence. “A sentence must be proportional to the seriousness of the offense and the responsibility of the offender,” notes Judge Allan R. Hilton. “Case law supports the 30-month prison sentence proposed by the prosecution,” he adds.

The Court of Appeal maintains the deduction for six months spent in closed therapy. Moreover, since the accused finished serving his sentence 18 months ago and now works in the health network, the Court of Appeal judges that, “in the context of the current health crisis […] further imprisonment could constitute an obstacle to his reintegration into society, in particular as regards his employment ”. The highest court in the province therefore suspended the remainder of the sentence he would have had to serve, but extended his probation by 12 months, which thus increased from two to three years.

Exemplary punishment

With this decision, the Court of Appeal demonstrates the importance of exemplary sentences in matters of domestic violence, underlines Rachel Chagnon, professor of law at UQAM. “By setting the sentence at two years less a day, they consolidate the seriousness of the offense committed and that means that, if he reoffends, he could not have a less severe sentence,” notes the lawyer.

The initial decision also demonstrates the importance of having a specialized tribunal, according to her. “The Court of Appeal corrects the decision of the trial judge whose judgment shows several stereotypes in this type of case. It gives a lot of hope to see that judges correct a decision while recalling the importance of exemplary sentences in domestic violence, the importance of assessing the dangerousness of the accused and of taking into account the suffering of the victim. ”

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