Law in Quebec

“It is certain that criminal defence lawyers will use this ruling and explore every opportunity,” remarked Louis Frédérique Carmichaël-Moreau, a Montreal lawyer with Heller Carmichael, who had successfully pled the case. “We had an exceptional case because the person had no malicious intent, but misunderstood the concept of consent, which has evolved in recent years, especially since the MeToo phenomenon.”

The Quebec Appeal Court has in no way denied the seriousness of the sexual assaults that were committed, but it does take into account the nature and severity of the acts committed, the context in which the touching occurred, and the “very positive” profile of the individual who, following these events, consulted a sexologist and “truly” realized the inappropriateness of his actions, noted Hugues Parent, a Université de Montréal criminal law professor and author.

“From a legal standpoint, there is no doubt that the individual, despite a certain lack of understanding of the criminal consequences of his actions, is criminally responsible,” said Parent who wrote “Treatise on Criminal Law” and “L’imputabilité,” (Accountability) a book that addresses the guidelines for criminal responsibility in Canada. ““There is no doubt that this is sexual assault because from the moment you touch someone sexually while they are asleep, it is automatically a lack of consent. Consent is only valid when a person is lucid and aware of what they are doing. However, from a moral standpoint, the Court recognizes that these actions stemmed from a certain misunderstanding of the concept of consent.”

The appellant believed that it was part of the couple’s ritual to caress his former partner while she was sleeping to instigate sex, pointed out Marie-Pier Boulet, Montreal criminal lawyer and head of the Association of Defence Counsel of Quebec. “His acknowledgment of wrongdoing and introspection demonstrate a change in attitude,” said Boulet. “This does not mitigate his legal responsibility, but must be taken into account in assessing his moral responsibility.”

Maxime Simard, 28 at the time when he was involved in a 10-month relationship with the 21-year old victim, was found guilty of one count of sexual assault in September 2024 after Court of Quebec Judge Benoît Gariépy found that he touched the victim over her clothes on a dozen occasions while she was asleep in order to “initiate” sexual relations with her. He admitted he committed the gestures, but evidence revealed he stopped when she signalled she did not want to have sex.

The trial judge sentenced him to eight months’ imprisonment to be served in the community, finding that that a conditional discharge would be contrary to the public interest. Judge Gariépy considered several aggravating factors, including the mistreatment of an intimate partner, the abuse of trust as the acts were perpetrated while the victim was asleep and therefore vulnerable, the frequency of the acts, and the “significant” impact on the victim who was still suffering from the effects of past physical and sexual assaults from her father and her ex-partner, who was also her pimp. He also noted mitigating factors, such as the accused’s lack of a criminal record, low risk of recidivism, stable employment and family support. Judge Gariépy concluded that Simard did not demonstrate he had a genuine interest in obtaining a discharge even though the provincial regulatory body that oversees the industry suspended his permit application pending the conclusion of the criminal proceedings against him. The trial judge noted that the appellant “has no idea whether his sentence will have any effect on whether or not he is granted a broker’s license.” As a result, Judge Gariépy held that Simard’s professional prejudice “is only theoretical at best.”

Simard appealed the sentence, maintaining that the trial judge erred in his assessment of what constitutes a genuine or best interest in obtaining a discharge and did not give sufficient weight to the “penological” objective of social rehabilitation in his analysis of the public interest. He asked the Appeal Court to overturn the trial court’s judgment and replace the imprisonment to be served in the community with a conditional discharge.

Appeal Court overturns decision

The Quebec Appeal Court overturned the sentence after concluding the trial judge committed several “decisive” errors, beginning with his interpretation of the notion of “best interests.” Contrary to the trial judge’s conclusion, it was not necessary to know the final decision on the appellant’s license application to conclude that there was a possibility of prejudice, held the Appeal Court in a per curiam unanimous decision in Simard c. R., 2025 QCCA 1062, with Justices Manon Savard, Geneviève Marcotte and Peter Kalichman sitting on the bench. The fact that the regulator, the Organisme d’autoréglementation du courtage immobilier du Québec (OACIQ), suspended the appellant’s license application pending the outcome of the criminal proceedings is evidence that there is at least a “possibility of professional prejudice,” added the Appeal Court. Simard therefore had a genuine interest in obtaining a conditional discharge, held the Appeal Court.

This is a “crucial” finding, otherwise it would be necessary to wait for a regulatory agency to impose a consequence in order to demonstrate harm, which would unnecessarily delay the process, said Boulet.

The trial judge also erred in failing to individualize the sentence and did not consider the principle of proportionality in his analysis of the public interest. Instead he only took into account the objectives of denunciation and deterrence, found the Appeal Court. The trial judge also failed to consider mitigating factors when determining whether a discharge would be contrary to the public interest, did not analyze the objective of rehabilitation this case, and examined the offence without analyzing the particular circumstances in which it was committed. “Certainly, sexual assault is objectively a serious crime, but it is an error to treat all cases as having the same subjective gravity without considering the particular facts,” underlined the Appeal Court. A sentence must always be “proportionate to the seriousness of the offense and the degree of responsibility of the offender,” and must consider all penal objectives, said the Appeal Court.

“Moral responsibility is quite important when it comes to sentencing because, in fact, the fundamental principle in determining the sentence is that, ultimately, the sentence must be proportional to the seriousness and degree of moral responsibility of the individual,” said Parent. “I’ve analyzed cases of discharge for sexual assault, and while acquittal for sexual assault cannot necessarily be ruled out, it is normally limited to rather superficial touching.”

The challenge facing the Appeal Court in crafting the sentence was to find the appropriate balance and weight between the aggravating factors and mitigating factors at play in the case, added Parent. “In terms of the seriousness of the crime, given the nature of the acts, we cannot say that it is an extremely serious crime in any particular way, but there are nevertheless aggravating factors that cannot be ignored,” such as the number of times he touched the vulnerable victim while she was asleep, explained Parent. “On the other hand, when we look at the individual’s degree of moral responsibility, it remains true that the acts were committed in a context where the individual clearly misunderstood the concept of consent.”

The Appeal Court found that a conditional discharge would not be contrary to the public interest. While repeated acts do not “generally favour a discharge,” the circumstances leading to the offense must be considered, held the Appeal Court. The offence consisted of sexual acts of “lesser gravity” and were halted when she refused his “advances,” said the Appeal Court. His “lack of understanding” of the notion of consent reduces his moral responsibility as does the remorse he felt. While his acts contributed to the “perpetuation” of the victim’s trauma, there were not the cause of all the trauma she suffers, added the Appeal Court. As a result, Simard “merits” a sentence at the lower end of the sentencing range, concluded the Appeal Court.

“The Court reiterates that the public interest requires individualization,” said Boulet. “The offense should not be viewed in broad terms (as) the specific facts may reveal a different degree of seriousness. In this case, the acts were committed over clothing, stopped as soon as they were refused, and took place in the context of a regular intimate relationship. The seriousness remains real, but is less than in cases of sexual assault characterized by a higher degree of violence.”

The Appeal Court decision sends a timely reminder that judges may grant a conditional discharge in sexual assault cases if the circumstances warrant it, noted Carmichaël-Moreau. He points that ever since a 2022 controversial case in which Court of Quebec judge granted a conditional discharge to a Trois-Rivières man who pleaded guilty to sexual assault and voyeurism on a woman who was sleeping during a party in an apartment, lower court judges have been extremely reluctant to provide a conditional discharge. In R. c. Houle, 2023 QCCA 99, the Quebec Appeal Court overturned the judgment and sentenced Simon Houle to serve concurrent prison terms of 12 months of imprisonment for sexual assault and two months for voyeurism.

The Appeal Court took great pains to underline that the “physical harm to the victim” in the Houle case was “much more serious” than in the case at hand.

“The Court of Appeal reminds judges that they may grant a conditional discharge, that they must grant discharge, provided that all the criteria in section 730 are met,” said Carmichaël-Moreau.

RELATED:

• Man acquitted of sexual assault because professional secrecy was breached
• Sexual assault conviction does not, in itself, justify dismissal
• Quebec Appeal Court increases sentence for sexually assaulting a child
• Man not criminally responsible because of sexsomnia

This story was originally published in Law360 Canada.