Policy Options by Elizabeth Sheehy and Simon Lapierre 26 October 2017
In R. v. Cody this summer, the Supreme Court decisively affirmed its interpretation of the Charter right to a trial “within a reasonable time.” The principles, previously laid out in the Jordan decision, have resulted in increasing numbers of applications for stays of prosecution and growing pressures on federal and provincial governments to commit more resources to hiring judges and prosecutors. A hidden cost of Jordan may well be the undermining of efforts by police and prosecutors to improve the prosecution of crimes of male violence against women.
A recent panel discussion at the University of Ottawa, hosted by the Feminist Anti-Violence (FemAnVi) Research Collective, explored the potential negative impacts of Jordan on how the criminal justice system responds to violence against women, including sexual assault and intimate partner violence. The Supreme Court in Jordan sent a strong message condemning the complacency around lengthy pretrial delays. It provided hard outer limits:18 months for one-stage provincial court trials and 30 months for two-stage superior court trials, counted from the date of charging until the completion of trial. Beyond those time frames, accused persons are presumptively entitled to have their charges stayed for unreasonable delay.
The only exceptions permitted are cases where the Crown can demonstrate “exceptional circumstances” or “particularly complex” matters. The Court said that chronic delay or lack of institutional resources such as courtrooms or staff will not amount to “exceptional circumstances.” Instead the Crown must identify unforeseeable events such as medical emergencies. It said as well that the gravity or seriousness of the offence is irrelevant to the analysis. Thus, included in the first wave of stays of prosecution following Jordan were murder charges, including for a Quebec man who stabbed his wife to death, and charges against men for sexual abuse of children.
The Court cautioned that legislatures and courts must invest the resources necessary and develop measures to ensure effective and timely processing of criminal trials. The Court noted pointedly, “For Crown counsel, this means making reasonable and responsible decisions regarding who to prosecute and for what, delivering on their disclosure obligations promptly with the cooperation of police, creating plans for complex prosecutions, and using court time efficiently. It may also require enhanced Crown discretion for resolving individual cases.”
What does all this mean for how the justice system deals with violence against women?
Meaghan Cunningham, who is Ontario’s East Region Sexual Violence Crown and sits on the Ontario Ministry of the Attorney General’s Sexual Violence Advisory Group, has been engaged in the work of introducing Crown prosecutors and police to the research on the impact of trauma on victims. Trauma-informed training, as it is called, has the effect of normalizing and explaining women’s behaviour during and after a sexual assault, as well as their compromised ability to recall all aspects of the attack and reproduce a chronological account. This training helps to undo unfair and unrealistic expectations and beliefs about victims’ behaviour and allows decisions about credibility and reliability to be founded in the victim’s experience instead of in myth and stereotypes about how a “real” victim behaves.
The implications of this approach include greater investment in investigations by police, more charges being laid, additional prosecutions moving forward and possibly investment in expert testimony to support women’s accounts. Another outcome is the early assignment of a prosecutor in cases involving vulnerable victims. The prosecutor is expected to carry out that role throughout the trial, even when it entails further scheduling delays.
Sexual assault law reforms such as those contained in the Liberal government’s Bill C-51 add to the complexity here. The proposed Criminal Code changes would “expand the ‘rape shield’ provisions to include communications of a sexual nature or communications for a sexual purpose.” Defence lawyers who wish to rely on this type of evidence will have to engage in a voir dire process so that a judge can assess its admissibility, and women will be entitled to standing and may bring their own lawyers to contest the issue. The outcomes from trauma-informed practice and the potential law reforms require more time and more resources — not less.
Meanwhile, conviction rates for sexual assault are extremely low, as are conviction rates for assault by an intimate partner. Currently, the test Ontario Crowns must consider for the decision to prosecute is whether there is a “reasonable prospect” of conviction — not a likelihood. They must also determine whether there is a public interest in pursuing the prosecution. At the policy level, as long as there is a reasonable prospect of conviction, it is usually thought to be in the public interest to prosecute sexual assault and intimate-partner assault cases in order to protect both victims and other members of the public.
Jordan raises a number of questions. Will Crowns in those provinces that use a “reasonable prospect of conviction” standard feel pressured to instead use a “reasonable likelihood of conviction” standard in order to lessen their caseload and ensure that they do not lose their prosecutions to successful applications for a stay? This tightening up of the Crown’s standard for prosecution might have the effect of weeding out the more difficult prosecutions of violence against women, even though the public interest may demand that the evidence against the accused be publicly aired. If, as the Court suggests, Crowns must prioritize certain crimes or perpetrators or exercise their discretion in “individual cases,” does this mean individual Crown attorneys bear the responsibility of pursuing certain types of crime or harms or injuries over other cases? Is this to be assessed by the attorney’s own moral compass, by public opinion or in light of regional differences? Must attorneys general reset their policy guidelines for the exercise of Crown discretion for violence against women in light of Jordan? Will Crowns experience pressure to accept guilty pleas to lesser offences and sentences in order to preserve the integrity of their prosecutions?
Moreover, the media coverage of the actual and potential impacts of Jordan has had direct consequences for women who have experienced intimate-partner violence, as noted at the panel discussion by Sylvie Langlais, president of the main shelter association in Quebec (Regroupement des maisons pour femmes victimes de violence conjugale). Hearing about cases that are being stayed, including those involving violence against women, diminishes women’s trust in the criminal justice system, which is already low. Even more than before, women question the relevance of pressing charges and express serious concerns regarding the possible outcomes of the court process.
Other consequences for women include police efforts to minimize the delays by waiting until they have gathered all the evidence before they press charges against the perpetrator. This means there can be several months between the reporting of an incident to the police and the laying of charges by police. During this time, women are anxiously waiting, with little or no protection and no certainty about whether charges will result. In this context, women feel let down and abandoned by the criminal justice system.
It is unfortunate indeed that the Court failed to address the implications of its decision in Jordan for crimes of violence against women. Canadians, including those who work in the justice system, have been riveted by the recent accounts of sexist violence. They are engaged deeply in thinking about how the criminal law might better respond to the harms inflicted on half our population by male violence. Nuance, complexity and commitment are needed urgently. The leadership gap left by the Court must be filled by federal and provincial legislators and attorneys general, in consultation with the independent women’s movement. Now is not the time to abandon such hard-earned gains for women who experience this form of violence.
Elizabeth Sheehy teaches sexual assault law at the University of Ottawa Faculty of Law.