Social media was ablaze in 2022 when an engineer, who had pled guilty to counts of sexual assault and voyeurism, was granted a conditional discharge. 

A conditional discharge is a sentence whereby the offender pleads guilty, but no conviction is registered. This means that they avoid a criminal record (provided that they abide by the conditions of their probation, which typically entails a non-communication order, community service, and/or a donation, among other things). 

In granting the offender a conditional discharge, the judge took into consideration his career as an engineer (and his difficulty in securing employment in that field if a criminal record check came back positive), as well as his need to travel for work. There were other factors as well (the guilty plea, the displays of remorse, the hours of therapy that the offender had completed, the relatively short duration of the offence, etc.). 

The DPCP decided to appeal the decision, and the reasonableness of the judge’s verdict was analyzed by the Quebec Court of Appeal (“QCCA”) who ultimately overturned the discharge and substituted it with a term of imprisonment. 

While the decision to grant a discharge to this offender in particular, may have been up for debate, there is a much broader question that many may be asking: will it ever be appropriate to accord a discharge to someone guilty of sexual assault?

What is a Discharge, and Who is Eligible?

Discharges are a sentence discussed in s. 730 of the Criminal Code. As a matter of law, an absolute or conditional discharge may only be accorded if the crime in question does not carry a mandatory minimum sentence or a maximum sentence of 14 years incarceration or more. In addition to the aforementioned legal requirements, in order for an individual to benefit from a discharge, avoiding the imposition of a criminal record must be in the offender’s best interest and must not be contrary to the public interest. 

When it comes to the interest of the offender, while it is obviously in everyone’s best interest to avoid a criminal record, our courts require something more substantive to illustrate the need to avoid a criminal record. To that end, the court typically looks at the collateral consequences of a criminal record on an individual’s: employment prospects, immigration status, ability to travel, etc. 

When it comes to the public interest, the court assesses whether a reasonable and well–informed public would view a discharge as unjust. It should be noted that the test is not if a discharge is in the best interest of the public, it merely cannot be contrary to the public interest (in this sense, the test is more lenient). When assessing public interest, it is a reasonable and informed public who is not only privy to the facts of the offence but the profile of the offender. 

The QCCA has repeatedly given direction to our lower courts when it comes to the imposition of discharges. Firstly, discharges are not to be viewed as an exceptional measure (if the aforementioned criteria apply to an offender, the court must consider such a sentence). Second of all, even if the crime for which the offender pled guilty is considered a “scourge,” a discharge can still be accorded. 

When it comes to the ideal candidate for a discharge, the QCCA has proclaimed that it is someone who is well integrated in their community, who doesn’t need immense rehabilitation, and whose reintegration into society could be disproportionately harmed by the imposition of a criminal record.  

Can a Discharge be Granted for Sexual Assault?

With the above in mind, sexual assault is an offence that does not carry a mandatory minimum sentence and carries a maximum sentence of ten years imprisonment. Therefore, it is not statutorily barred from a discharge, so the only question to ask (on a case-by-case basis) will be whether a discharge is in the best interest of the offender in question and whether it is not contrary to the public interest.

Given that sexual assault is any touching of a sexual nature that takes place without consent, it covers a broad range of actions (anything from an unwanted kiss or grope to violent forced penetration), the details of the offence (and the nature of the offender accused) will vary immensely. 

In determining a fit sentence for a sexual offender, the QCCA in the 2015 case of Morasse c. R provided a number of factors to consider in determining the gravity of the offence (such as: the degree of violence present, the frequency and duration of the acts, whether there was an abuse of a relationship of trust or authority, the criminal record of the offender, the consequences to the victim, the offender’s behaviour following the act in question, etc.). 

Therefore, the most severe acts of sexual assault will never result in a discharge (because no matter how much it may be in the offender’s interest to avoid a criminal record, it will be contrary to the public interest). However, the door for a discharge is certainly open in theory for more “minor acts” of sexual assault.

It’s important to keep in mind that courts do not sentence based solely on the offence, but also based on the offender, so any discussion about discharges will not only be based on the factual matrix of the sexual assault, but based on the profile of the offender who committed said assault. 

For that reason, while discharges for sexual assault in Quebec (and Canada at large) are rare, they are not unheard of, and there are a number of cases coming out of our courts where first-time offenders with promising futures and excellent profiles received discharges for “minor acts” of sexual assault. Indeed, in the somewhat recent case of R c. Gravel, our Court of Appeal upheld a discharge that was granted to a man who was guilty of sexual assault, formally affirming that such a sentence is available for this crime (even if it will rarely be accorded). 

If you have been charged with sexual assault and have questions, comments or concerns about sentencing and want to avoid a criminal record, call us today for a consultation! / You no doubt have many questions and are concerned about your future. You require the guidance and support of experienced criminal defence lawyers in Montreal who have repeatedly helped people like you. Contact us today to learn how we can guide you through this challenging time. We are fully prepared to take on your case. Let’s get started!