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Actors Lauren Young (L) and Jessica Mann walk out of the courthouse after movie mogul Harvey Weinstein was sentenced to 23 years in prison on March 11, 2020 in New York City.

www.RoyRochlin.com/Getty Images

Canadians could be forgiven for thinking they misheard when learning of the sentence handed down to disgraced Hollywood mogul Harvey Weinstein earlier this week.

Twenty-three whaaa – ? Twenty-three months, surely.

To Canadians, a punishment of 23 years in prison, which was the actual sentence handed down to Mr. Weinstein by Justice James Burke on Wednesday, sounds patently absurd for a couple of sexual offences. We are, after all, inured to the idea that the uniquely devastating crime of sexual assault is punishable by just a couple of years behind bars – if that.

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Granted, the severity of Mr. Weinstein’s sentence was somewhat surprising in its own right. The former producer faced a minimum of five years in prison and a total maximum of 29 years, after being convicted last month of a criminal sex act in the first degree and rape in the third degree. Justice Burke leaned toward the maximum in sentencing Mr. Weinstein to 23 years, although his decision will almost certainly be challenged on appeal.

Indeed, in telling Mr. Weinstein, “This is your first conviction, not your first offence,” Justice Burke might as well have said: I considered unproven allegations outside the purview of this courtroom in determining my sentence. Mr. Weinstein’s lawyers will have fun with that one.

But the notion that a predator could be sentenced to anything close to 23 years in prison for sexual offences alone is practically inconceivable from a Canadian perspective. In this country, we like to send our offenders to prison for less time than it might take for victims to secure regular, adequate psychological services.

There are examples from every year, from every province, of every type of sexual predator. Hamilton neurologist Pierre Picard was sentenced to 18 months in prison after pleading guilty to assaulting his patients. Peter Hoyles, a repeat sex offender in St. John’s, was sentenced to three-and-a-half years in prison for sexually assaulting a 14-year-old girl and uttering threats. He assaulted another person after he was released and sentenced to another 18 months. Former medical student Prachur Shrivastava raped an unconscious woman at a Calgary party, and was sentenced to three years and nine months behind bars – a sentence he is now appealing because, he argues, that length of time is excessive.

This is to say nothing of the habitual and notorious Canadian child sex offenders – Peter Whitmore, Graham James and Gordon Stuckless, to name just a few – who have been in and out of the prison system for years. Mr. Weinstein, on the other hand, could very well die in prison. The U.S. judicial system likely won’t give him ample opportunities to reoffend.

There is conflicting information about recidivism rates for sexual offenders in Canada, partially because so many assaults go unreported or untried. A 2004 aggregate study pegged the recidivism rate between 17 per cent and 21 per cent when only looking at convictions, but when we consider unreported offences and those that never make it to a courtroom, the recidivism rate is much higher – as high as 88 per cent, according to one Canadian study.

It’s also hard to draw a direct comparison between U.S. prison sentences and those handed down in Canada because of the way we prosecute sexual assault. In the United States, rape is a distinct crime in and of itself; in Canada, it falls under the umbrella of sexual assault. Our system also treats sexual assault as a hybrid offence, meaning it can be prosecuted summarily (with a maximum sentence of 18 months if the complainant is older than 16) or as an indictable offence (with a maximum sentence of 10 years if the complainant is older than 16).

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All of that said, looking at general trends, the majority of Canadian offenders guilty of sexual assault (which of course, could include a vast range of criminal behaviours) will spend less than one year in custody. According to Statistics Canada data on known custody lengths for adult offenders, only 20 per cent spent 24 months or more in custody.

One could argue that keeping sexual offenders locked up for longer periods of time would serve little purpose without enhanced efforts at rehabilitation. That the difference between six months and six years will only delay the risk to the community – not eliminate it.

However, when a victim comes forward, tells his or her story, sits through criminal proceedings, testifies publicly and is potentially cross-examined, and then later learns that his or her abuser will spend just a few months or years in prison, it creates a disincentive for other victims to engage with the justice system.

Why report an assault, after all, if the perpetrator, even if convicted, will be out in no time? Mr. Weinstein’s victims, fortunately, don’t have to ask themselves that question.

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