R.
v. Quash
Bobby
Quash suffers from fetal alcohol syndrome, a type of irreversible and
untreatable brain damage. In his case, he requires an 'external brain' to
function on a day-to-day basis and prevent him from making poor choices.[1] He has a long criminal record
that includes a previous statutory rape conviction for having had sexual
relations with a twelve year-old child while she was under the influence of
alcohol that he had provided for her, and has shown "little remorse
for this s. 271 and to some extent blamed the victim and showed disrespect
towards females".[2] He was twenty years old at the time. He was noted as a high risk to
re-offend by both the LSI-R and STATIC-99 risk assessments and placed into the
care of a group home as a condition of his probation.[3] He is being sentenced in this
case for a second rape, carried out while breaking that condition, of his aunt
by marriage while she was sleeping beside his uncle.
The judge quotes the Ontario Court of Appeal in R.
v. Whiskeyjack, 2008 93 O.R. (3d) 743 in determining the
priorities to weigh in sentencing:
The
task of the sentencing judge is to weigh the aboriginal offender’s circumstances
and his or her interest in rehabilitation or restorative justice with the
community’s interest in deterrence, denunciation and the need for social protection.[4]
After doing so,
however, he focuses only on deterrence and denunciation, nary mentioning a
further word regarding social protection! The primary issue in this case ought not
to have been deterrence or denunciation but the safety of the community, and
the perpetual threat that the defendant poses to it. In cases of repeat
criminal offenders who continue to pose a threat of harm, the collective rights
of the community for safety from that harm far outweigh any individual rights
that the repeat offender has to personal liberty. That strong defender of
individual liberty himself, Mills, would argue that the community has the
inalienable right to protect itself from harm – this is his famous harm
principle. As the defendant is unable to fully understand his actions or the
consequences of them, there is no end to the risk that he poses. The risk will
not end with a period of reflection in incarceration, with the help of a social
worker, with medication, with education, with a promise to change or by
providing him with any other sort of help. In order to protect the community
from this risk, there is consequently no solution other than to remove the
defendant from it - either through incarceration or by some other means. The
pre-sentence report stated this clearly:
…without a group home style residence, with a high
staff to resident ratio, coupled with an extremely stringent community supervision
order, Mr. Quash will continue to put the community at risk for further sexual violence.[5]
However, the judge focused solely on the issues of
deterrence and denunciation, rightly or wrongly arguing that deterrence has a
limited role to play in the case and that a mentally handicapped person should
not be skewered on a stick and held up as an example for all of the rogue
peasants to cower in fear over.[6]
Without discussing the social science of the effectiveness (or lack thereof) of
deterrence in general, let us put this argument aside as inconsequential in the
face of the more pressing issue of the community's right to protect itself.
More important is that he then blatantly contradicts the scientific evaluation
presented in the pre-sentencing report with some kind of base ideological
liberalism in stating "I accept that Mr. Quash wishes to change his
life from what it has been".[7]
Now, to be fair, the judge does point out that placement in a group home would
be ideal but that, as one is not available locally, and the defendant has
indicated a desire to change his ways, a lenient sentence is preferable to
lengthy incarceration.[8]
This all rests on the assumption that rehabilitation is possible if everybody
just tries really hard, which in this case is nothing less than the egregiously
naive replacement of a solid scientific assessment by a wobbly philosophical
assumption. A universe where deductive philosophy overpowers empirical science
would be a beautiful one for us logicians to frolic in freely, but, alas, it is
not ours; the report clearly states that the defendant does
not have the cognitive abilities required to change his life from what it has
been and must remain under constant supervision in order to not pose a threat
to others.[9]
Continuing to entertain the ideological fairy tales of liberalism in the face
of hard science will not make anybody safer. Even accepting that the defendant
has the ability to state whether he wishes to change or not is completely
ignoring the weight of the scientific evidence, and perhaps even good sense as
his counsel would not advise him to state otherwise, and should be viewed as
bluntly incompetent. He clearly read the report; either he ignored it or he
didn't understand it.
In arguing for a reduced sentence, the court drew on
case law to make a number of outlandish arguments that upheld the assumptions
of rape culture. The first is that because the defendant did not continue to
attempt to rape the victim further by inflicting force after he was pushed off,
the assault is somehow less severe than it would have been had he done so.[10] Therefore, the sentence for
this less violent rape should be shorter than the slap on the wrist that the
more violent rapist received? In case law, two wrongs apparently make a right. The
second is that "the aggravating impact of the prior sexual assault is
not as significant"[11]
because the prior rape was statutory and the difference in mental age was not
great, despite the fact that the defendant showed little remorse. This
trivialization of rape, and upholding of rape culture, was a strong factor in
the lenient sentencing.
He also
makes a mockery of the criminal code by invoking a section (718.2(e)) that
states that special attention needs to be drawn to the (socio-economic)
circumstances of aboriginal offenders, and follows that up with a number of irrelevant
comments about the residential school system. While it may be true that the
lingering effects of the residential school system are deeply
profound, and a lack of parenting (amongst other socio-economic factors) may be
a root cause of crime in some circumstances, it is blatantly clear in this case
that the cause of the defendant's recurrent criminality is the defendant's
mental handicap, whether the result of abuse suffered by the defendant's mother
or not, and not anything else. In the context of this specific case and the
perpetual harm that the defendant poses to the community, there's no function
in bringing up the topic and certainly no value in upholding the case as an
example where leniency should be shown to a repeat offender who has been dealt
a very bad hand and deserves another chance; this particular offender is
incapable of being rehabilitated, so showing leniency cannot lead to any
positive outcome. To the contrary, it can only increase the risk of further
harm. The judge has really badly missed the point of this section of the
criminal code, and the accusation of incompetence is pertinent on this point as
well.
As the pre-sentence report
clearly indicated, no measure short of permanent incarceration in a jail or
group home can eliminate the threat that the defendant poses to society.[12] While the ideal may be
placement in a guarded group home, if the necessary resources to allow for this
are not existent then the rights of the community to protect itself ought to
take priority and the defendant, unfortunately, ought to remain humanely
incarcerated until such a group home can be built.
LAWS 3504,
LAWS 3504,
Sept , 2012
Also note that,
unfortunately, Bobby Quash was, in fact, convicted of rape a third time.