Judge Joëlle Roy believed osteopath Sufyan Haji Bik and that was enough to acquit him of the charge of sexually assaulting a patient.
Published at 1:23 am. Updated at 5:00 am.
Until then, there is no reason to be surprised, let alone outraged. In our system, a defendant is entitled to the benefit of the doubt. If his version is believed or if there are reasonable doubts about the evidence, the judge must acquit him.
What goes wrong lies in the explanations provided by the Quebec court judge in support of her conclusions. Because there is a fine line between pointing out inconsistencies in a complainant’s version and accusing her of not being a “good victim.”
Judge Roy, agreeing with the Court of Appeal’s objections, clearly crossed the line here.
PHOTO PATRICK SANFAÇON, LA PRESS ARCHIVE
Osteopath Sufyan Haji Bik
I summarize the facts to the utmost. A woman consults the osteopath about a hernia and disabling shoulder pain. She sees the professional three times. All three times she had to take off her bra – with the help of the defendant given her shoulder pain. Things are already strange, even more so when it comes to a back and shoulder problem. She says she even got completely naked on the third date.
The osteopath praises him several times for his appearance. It seemed inappropriate to her, but she attributed it to a cultural misunderstanding.
According to her, during this last session, the defendant touched her breasts with a cone-shaped object, thereby exerting suction on her nipples. She doesn’t know what it is because she doesn’t open her eyes.
For the judge, the matter is unlikely. Especially since during the same session she said she grabbed the defendant’s wrist when he touched her penis during a massage.
Also unlikely, the judge said, was the fact that she went naked into the treatment room, whose door was open.
The defendant denied any gesture with sexual connotations. Her version is credible, the judge concludes, adding that even if we accept the complainant’s version, it is not a sexual assault: the action was quick, the defendant was wearing gloves, the body was oiled and the hand could “slip”. .
It’s not clear how wearing gloves precludes sexual intent. The speed of the gesture doesn’t change anything either. The comfortable “sliding” to the sexual organs due to the oil is a very funny digital accident for a body manipulation specialist.
The defendant says he wore two masks – it was in the middle of a pandemic. The complainant did not notice, which seemed doubtful to the judge. Even more doubtful: How could she have felt his breath on her breasts with both masks on?
I emphasize: It is obviously not the acquittal itself that is in question here. This involves the analysis of the complainant’s “erroneous” behavior. The Supreme Court has long held that judges must avoid perpetuating stereotypes that seek to blame the complainant or perpetuate the “good victim” myth. Judge Roy also reminds us of these principles right at the beginning of her judgment.
And yet that’s exactly what she does: she looks for the right victim.
This woman could well have used a towel if she was uncomfortable being naked, or even put her clothes back on, Judge Roy said. “She was free of it. »
We’re not that far from asking, “Why didn’t you hug your knees?” » a sad memory that led to the firing of an Alberta judge.
This ignores the osteopath’s position of authority. But yes, she could have refused to take off her clothes. She could have gotten dressed. She could have opened her eyes. Etc. But there is nothing strange and incredible about obeying processing commands, even if those commands are misplaced.
This wouldn’t be the first victim to “freeze.”
Were there any other grounds for conviction? Maybe, maybe not. But it is a big mistake in principle to strive for this “good” behavior or a supposedly “normal” attitude. We can imagine that there will be an appeal.
And this is where we come in to what is most concerning about this case: the competence of Judge Joëlle Roy herself.
Appointed only seven years ago, she was sharply corrected several times by the appeal courts.
- Last month, the Court of Appeal overturned one of its rulings in which it had annulled a seizure, allegedly because the police did not have sufficient reasons but only “suspicious grounds”. No drugs were observed or seized, Judge Roy said. But… that’s exactly why the police wanted a warrant: to confiscate it.
- In April 2022, the Court of Appeal overturned the acquittal of the leader of the ultra-nationalist group Atalante, who broke into the premises of Vice Media. The absence of physical violence changes nothing, nor does the “freedom of expression” deemed by the judge.
- In August 2022, the appeals court accused him of “completely invalidating” the violence of a crime by sentencing a man who broke another man’s jaw to community service. The appeal court had to intervene twice because the judge had repealed an article of the penal code that prohibited absolution in cases of serious bodily harm – the appeal court imposed a prison sentence of one year.
- In November 2021, the appeal court criticized him for sentencing a man to community service who disposed of construction waste in parking lots for recycling. The defense accepted a 12-month suspended prison sentence. Judge Roy’s decision was poorly reasoned, especially since the defendant’s accomplice had been sentenced to 15 months in prison.
- In January 2021, the Supreme Court criticized him for violating the rights of police officer Éric Deslauriers and found him guilty of negligent homicide. The Supreme Court was particularly harsh on the judge.
Of course, there is no shame in a judge having one or more of his rulings overturned on appeal. Sometimes there are different interpretations and no one is immune from mistakes – otherwise there would be no need for appeal courts.
But apart from the quantity, there is also the manner. And when we examine the verdicts, we see that these are repeated, serious errors of judgment that the judge is accused of making.
Even after correction, this leads to new attempts, costs, uncertainties, loss of credibility, etc.
At this level of correction one can really question one’s competence.
In short, it is not just this complainant who could open her eyes.