Strong sentences are needed to deter intimate-partner violence, even when an offender shows signs of being rehabilitated, Quebec’s top court says.
In a case involving a man who broke the nose of a woman he had been seeing, and who threatened to kill her, the Quebec Court of Appeal became the latest appellate court to tell trial judges they are not being tough enough on domestic assault.
Quebec Court Justice Joëlle Roy had given Patrick Davidson of Montreal one year in jail and two years probation for his March, 2017, attack. The appeal court said it should have been two years less a day, with three years probation.
“Even when an accused shows encouraging signs of rehabilitation, the objective of rehabilitation should not take precedence over the objectives of deterrence and denunciation in matters of domestic violence,” Justice Stephen Hamilton wrote in a ruling released this month, supported by Justice Allan Hilton and Justice Marie-Josée Hogue.
Most provinces have had similar rulings in the 25 years since the federal government changed sentencing law to require judges to treat violence against an intimate partner as an aggravating factor, according to Isabel Grant, who teaches at the University of British Columbia’s Allard School of Law. (Prof. Grant studied 82 appellate rulings on this issue between 1996 and 2016.)
Women’s shelters report domestic violence is spiking during the COVID-19 pandemic. In Quebec, there were eight killings of intimate partners reported in an eight-week period this winter and early spring. Over all, the Canadian government cites a 20- to 30-per-cent increase in demand for shelter services.
In Nova Scotia, a man drunkenly beat his spouse with a clothes iron and a wine bottle. He was sentenced to two years of house arrest. The province’s appeal court replaced the sentence with 22 months in jail. In 11 cases, appeal courts replaced non-custodial sentences with jail terms, Prof. Grant found.
In an Alberta case, a masked man hid in his ex-girlfriend’s apartment and attacked her from behind. At trial, he received a sentence of two years house arrest. The Alberta Court of Appeal replaced that in 2005 with a sentence of 18 months in jail.
“Appellate courts continue to tell trial judges that deterrence and denunciation should prevail in these cases but we have yet to see trial judges consistently follow that direction,” Prof. Grant said in an e-mail.
Mr. Davidson was intoxicated and seeking to recover money he had lent to the son of a woman he had been seeing. When she went outside her home on a March night in 2017 to give him the money, he grabbed her keychain and entered her apartment against her wishes, the appeal court said in its ruling.
He then “hit her in the face, pushed her into the wall and held her against the couch while twisting her arm. He threatened to kill her if she called the police.” She suffered a broken nose and head trauma. He pleaded guilty to breaking, entering and committing assault, and uttering death threats. The Crown asked for a 30-month sentence; the defence proposed 12 months.
There are two kinds of deterrence in sentencing: deterrence aimed at the offender (called specific deterrence) and deterrence aimed at society (general deterrence).
Justice Roy dismissed general deterrence as a “vague” principle. She was more concerned with deterring Mr. Davidson himself. In Justice Roy’s view, he was partly rehabilitated. He had been sober for two years and completed 15 sessions at the McGill Domestic Violence Clinic. He had also obtained a diploma in nursing. He had not worked in recent years, and was not working despite his diploma. She concluded he had adopted a way of life that would help him avoid a recurrence.
But the appeal court said Justice Roy gave Mr. Davidson too much credit for an incomplete rehabilitation, a guilty plea, apology to the victim and expressions of remorse, and had not looked closely enough at the aggravating factors – the invasion of the woman’s home, the victimizing of an intimate partner and a criminal record of violence.
Even so, as he had already served his sentence – he was released after four months – and in the 18 months since then had become employed in the health care sector during the pandemic, it declined to order him back to jail. (Mr. Davidson also spent six months in a closed treatment facility before being sentenced.)
Manon Monastesse, the executive director of the Quebec federation of women’s shelters, was critical of the appeal court’s decision not to send Mr. Davidson back to jail, at least on weekends. And she would like to see more consistency from the trial judges.
She said in an interview that the courts should treat domestic violence more like drunk driving. “When the police arrest someone, it’s not, ‘did you lose your job, oh, you had a divorce, I’m so sorry.’ There’s nothing somebody can say that will prevent them from getting fees and having their driver’s licence taken away. So why in domestic violence do we take into account all those kinds of things?”
McGill University law professor Marie Manikis offered a different viewpoint: Long sentences meant to deter others can harm an individual’s rehabilitation, and there is a lack of evidence that general deterrence works.
“It is quite clear from the facts of this case that the initial sentence coupled with this respondent’s rehabilitative efforts have gone a much longer way towards” achieving longer-term goals of public safety and the reintegration of an offender, she said in an e-mail.