By Elizabeth Comack

Previously published in the Winnipeg Free Press September 11, 2024

The Free Press reported on Aug. 30 the sentencing of Arcel Bissonnette, a doctor convicted of sexual assault against his female patients ( Sex-assaulting ex-doc earns 12-year jail sentence). At a trial last November, Bissonnette was convicted of sexually assaulting five women during pelvic examinations between 2001 and 2017. In February, the doctor pled guilty to charges involving the sexual assaults of two more women in 2005 and 2011.

The five women who had to take the stand and recount their experiences to the court should be lauded for their incredible courage. But statements made by the judge during sentencing are especially noteworthy.

The defence had argued for a sentence of nine years in prison on the grounds that Bissonnette had already suffered enough given the public shame he has endured and the loss of his career (the College of Physicians and Surgeons had revoked his medical licence in January). His lawyers also presented support letters from former co-workers and patients describing their client as “meticulous, trustworthy and kind.”

King’s Bench justice Sadie Bond, however, firmly rejected the defence’s position.

She pointed to the irreparable harms this ex-doctor had inflicted on his patients, telling him: “It’s not an exaggeration to say you have scarred your victims, perhaps for life… You violated their trust and abused your authority as a doctor.” The judge also acknowledged that the victims had “demonstrated courage and strength in coming forward … and resolving to take back their lives” and deemed the sexual violation of each of the women to be “egregious.”

In rejecting the defence’s position of a nineyear sentence, Bond held, “Negative publicity and loss of livelihood are common consequences of criminal prosecution. They cannot be seen as replacements for appropriate punishment.” She then imposed a sentence of 12 years.

The judge’s comments made me sit up and take notice. Let me explain why.

Having studied the criminal justice system for over five decades, I’ve long been aware of the ways in which class privilege enters into the legal arena.

Osgoode Hall law professor Michael Mandel put the issue most starkly back in the 1980s when discussing the sentencing process:

“The courts recognize it as a legitimate part of the sentencing function to determine the severity of the sentence on the basis not only of the nature of the offence, but also the nature of the offender … Part of this has to do with the criminal record but a good part of it has as well to do with the extent to which the offender fulfills his or her role in the productive apparatus.”

In other words, Mandel was arguing that offenders who have class privilege (doctors being one group) are seen by the courts as not only requiring less punishment (as they’ve already demonstrated their ability to conform) but also as deserving less punishment. Whereas, those who are marginalized (by virtue of their poverty or unemployment) have demonstrated their failure to conform, and therefore require harsher punishment to push them in that direction.

I found evidence of Mandel’s claim in research I conducted on cases that appeared before the Manitoba Court of Queen’s Bench.

One of those cases involved a chiropractor who had been convicted of sexually assaulting his receptionist and four female patients. He was sentenced to two and one-half years imprisonment for assaulting his receptionist and six months concurrent on each of the remaining four counts.

Similar to the Bissonnette case, a second set of sexual assault charges involving four more female patients was laid, to which the man pled guilty. The judge sentenced him to six months on each charge to run concurrent with the two and one-half years he was already serving.

Also similar to the Bissonnette case, the defence provided letters of support as to the doctor’s “good character,” and endeavoured to paint his client in a sympathetic light by emphasizing the “devastating effects” of the case on the man due to the publicity that surrounded the trial and the loss of his licence to practice.

His lawyer told the court: “He was making a good deal of money, with a good practice and an excellent lifestyle, and all that is gone. And those are factors to consider.” Given that his client was now financially bankrupt and experiencing clinical depression, the image that emerged was of a man who had “already suffered enough.” He was to be pitied — not punished.

Judging from the two and one-half-year sentence he received for sexually assaulting nine women, it would appear that the court agreed.

In contrast, the 12-year sentence handed down in the Bissonnette case says the judge was much more alive to the fact that a sexual offender’s class privilege does not trump the life altering harms he inflicted on his victims.

One can only hope that this decision sets a precedent for how the courts respond to cases of gender-based violence going forward.

Elizabeth Comack is a distinguished professor emerita in the Department of Sociology and Criminology and the University of Manitoba and a research associate with the Canadian Centre for Policy Alternatives – Manitoba.