Do harsh sexual assault sentences deter admissions of guilt and force large numbers of victims to come forward?

In Canada, many sex crime victims face the difficult task of testifying in court about extremely distressing experiences; This is an “unfortunate” and “tragic” consequence of harsh sentences that do not encourage criminals to plead guilty and forgo prosecution.

This follows a recent opinion by one of Nova Scotia’s top provincial court judges that many people accused of sex crimes are willing to “roll the dice” by going to court because long sentences, which often include jail time, mean there is little benefit in agreeing to it A suggestion that says. guilt.

Deputy Chief Judge Rhonda van der Hoek’s comments at a hearing in Kentville, N.S., come at a time when the treatment of victims in the justice system continues to be widely debated. Concerns that sexual assault cases in some parts of the country are being delayed due to delays.

Sexual assault cases are taking longer to work their way through the courts; many are now grappling with lengthy pre-trial hearings resulting from 2018 amendments to the Criminal Code that aim to protect the rights of victims but can slow down the wheels of justice.

The possibility of a vulnerable victim being re-traumatized during deposition came into sharp relief in a case before van der Hoek earlier this month; In this case, a 75-year-old man who pleaded guilty to sexually abusing his 10-year-old sister in 1967 was sentenced to two sentences. annual probation.

The sentence was jointly recommended by the prosecution and defense. Crown attorney Nathan McLean said the man’s admission of guilt was a “very, very mitigating factor” because the victim was continuing to fight more than fifty years later and would not have to relive the trauma by giving evidence in court.

The man was only 17 years old when he committed the crime; This means that despite his current age, his name is banned from being published and he has the right to be treated as a juvenile by the court and face a much lower sentence than an adult.

“It’s extremely, increasingly rare for people to plead guilty to accusations of this nature,” Van der Hoek said. he said.

“I heard it said recently that there is almost no incentive for someone to plead guilty and accept responsibility for committing a sexual crime because as adults the sentences are long, they are almost always incarcerated in a federal institution, and there is almost no benefit to pleading guilty. It is better to roll the dice and see what happens.

“The roll of the dice unfortunately means that many victims in this country have to come forward because there is no incentive for an accused person to admit guilt, and that is unfortunate and tragic.”

Peter Sankoff, a criminal defense lawyer and professor at the University of Alberta, said van der Hoek’s comments were “100 percent accurate.”

If someone pleads guilty but faces prison time, he said, many people will opt to go to trial and hope for an acquittal, especially if they already face social ostracism or have lost their job because of the charges.

“I’m not here to comment on whether it’s good, bad or a good idea to keep people in prison for long periods of time,” Sankoff said in an interview. he said. “I’m here to tell you the obvious: the longer you extend prison time, the less likely people are to plead guilty.”

According to Statistics Canada, 40 to 57 per cent of convicted sexual assault offenders in Canada in recent years have been detained; Incarceration rates are higher for sexual crimes against children and youth.

More serious cases are dealt with more harshly. A Nova Scotia judge reviewing cases across the country found that sentences for sexual assault involving sexual intercourse range from 18 months to four years, even if the perpetrator has no criminal record.

In 2020, the Supreme Court of Canada called on judges to impose higher sentences on adults convicted of sex crimes against children, saying longer sentences such as 10 years in prison should not be unusual.

But not everyone agrees that lower sentences could lead to more criminal charges.

Toronto lawyer Dawne Way, who represents sexual assault victims in criminal cases, said sex crimes remain a “highly stigmatized crime.” It is also difficult to judge them.

Often there is not much evidence beyond the testimony of the complainant and the defendant; In most cases, consent is the main issue and, like other crimes, the prosecution faces a high burden of proof beyond a reasonable doubt.

“In many ways, the nature of sexual assault is such that it opens the door to a lot of acquittals,” Way said.

The low number of criminal charges wasn’t the only concern Van der Hoek expressed at his sentencing hearing in Kentville earlier this month. He also noted that cases were taking an “excessive” amount of time due to the number of pre-trial filings.

A spokesperson for the Nova Scotia Public Prosecution Office noted that many sexual assault cases involve pre-trial hearings, where the judge must determine whether text messages, videos and other types of communications between the defendant and the complainant can be used as evidence. .

The Criminal Code’s “rape shield” provision restricts how a complainant’s sexual history can be used at trial. The aim is to guard against “twin myths”, which mean that other sexual activities make them less believable or more likely to consent. Another section aims to protect the complainant’s privacy, such as psychiatric records.

In order for the defense to access or use this information, it must first convince the judge. Hearings can be lengthy and sometimes last longer than the hearing itself.

In 2018, the federal Liberal government expanded the laws. Bill C-51 would subject the complainant’s sexual communication (not just the activity) to the rape shield provision.

In addition, the judge’s approval is now required to use personal records about the complainant at trial that are already in the defendant’s possession, such as text messages between two people, if they contain information with a reasonable expectation of privacy.

The legislation also gives complainants the right to be represented by their own lawyers at hearings to determine what evidence about them will be given to the defense or used at trial.

“Several changes have been made to Canadian laws regarding sexual violence criminal prosecutions to ensure a balance between the interests of victims and the rights of defendants,” Nova Scotia Public Prosecution Service spokeswoman Melissa Noonan said in an email. he said.

“While these filings are a critical part of the legal process to ensure fairness and justice for all parties involved, it takes significant time to prepare briefs and conduct these hearings in court.”

Cases take longer

The time it takes for sexual assault cases to progress through the court system in Nova Scotia has doubled over the past decade, reaching an average of 422 days last year.

However, the prosecution noted that pretrial hearings were not the only time-consuming element, pointing out that “cell phones have evolved into handheld supercomputers containing large amounts of data that must be “analyzed, stored and disclosed” before it can be used as evidence.

A cell phone can send 5,000 pages of text messages, Way said, and “I’m not just throwing that away.”

Another problem causing delays, he said, was defense attorneys applying to use the records as the trial date approached. This could delay the hearing date and increase the risk of the case being dismissed due to delays in violation of deadlines set by the Supreme Court of Canada in 2016.

Complainants then had to choose between asserting their right to protect their privacy or waiving them to keep the case on track, he said.

“The situation the complainants are in is untenable,” he said.

‘Like a perfect storm’

Sankoff said some changes in the law stemmed from public outcry following specific cases, but the results were to turn sexual assault investigations into “a long discussion about secondary issues like records.”

“It’s not good for the survivors that cases take a long time, and it’s bad for the survivors that the cases are not resolved through criminal charges,” he said.

“It’s kind of like a perfect storm. In a sense, we’ve created these conditions where we continue to push for outcomes that we think are more desirable, and by more desirable I mean more conviction and better processes for those who survive the system.”

“But I’m here to tell you this: These decisions have had huge consequences, and we haven’t tried and reconciled what they are yet, but we’re starting to see the consequences, and the consequences of these decisions are starting to show up almost every day.”