WAIVER: A FEMINIST ANALYSIS OF CHARGE BARGAINING IN SEXUAL ASSAULT PROSECUTION IN ONTARIO.

Author:Novac, Natasha
 
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I WHAT CHANGED: R V JORDAN AND "UNFOUNDED" 5 II RATIONALIZING CHARGE BARGAINING: CROWN, ACCUSED, AND SURVIVOR PERSPECTIVES 10 III TO PLEA OR NOT TO PLEA: PROS AND CONS TO CHARGE BARGAINING 15 A. "Haifa Loaf:" In Defence of Charge Bargaining 15 B. Drawbacks to Charge Bargaining 17 IV A FEMINIST RESPONSE TO CHARGE BARGAINING IN SEXUAL ASSAULT PROSECUTION 20 A. Charge Bargaining as Communication Breakdown 21 B. Punishment as Communication 25 V CONCLUSION 27 The landscape of prosecutorial decision-making around sexual assault in Ontario is changing. In particular, two recent developments have shifted the way that Crown prosecutors must approach sexual assault file case management. R v Jordan is a 2016 Supreme Court of Canada decision that mandates a shortened trial timeline in accordance with Charter section 11(b). (1) The Globe & Mail's report "Unfounded" is the result of a 20-month-long probe revealing that Canadian police jurisdictions tend to dismiss sexual assault allegations at the investigation phase at unusually high rates. (2) Collectively, these developments are prepped to have a significant impact on Crown decision-making in the context of sexual assault prosecution. Shifts in police protocol subsequent to "Unfounded" suggest that police investigators will consider lowering evidentiary screening thresholds for sexual assault allegations, thus inundating prosecutors with an influx of new sexual-assault-based cases. Meanwhile, Jordan encourages Crowns to dispense with more cases through resolution discussions to keep up with the mandated timelines for trial-bound files. Cumulatively, Jordan and "Unfounded" are likely to incentivize Crowns to downcharge sexual assault claims to non-gender-based crimes, such as common assault, in order to manage the influx of cases more quickly and efficiently.

This possibility--and its potential consequences--has yet to be discussed in commentaries surrounding prosecutorial strategy in sexual assault case management. In what follows, I seek to fill that gap. I also examine the ethical implications of a potential shift in Crown charging practices toward an increased reliance on charge bargaining to resolve sexual assault allegations. I conclude that such as shift would be problematic from a feminist advocacy perspective because it would impose a punishment on the offender disconnected from the crime committed. In the context of sexual violence, it is important to preserve the ability to signal, through criminal punishment, that sexual violence is socially reprehensible and is punishable by law. Absent this signaling, there is reason to doubt that criminal punishment in the form of a resolved charge will help to deter future acts of sexual violence.

This argument is supported by the fact that it dovetails with many survivors' recommendations for criminal justice reform. (3) Since sexual assault prosecution has taken the spotlight in public discourse in recent years, many complainants have commented on their motivations for turning to or declining to turn to the criminal justice process for relief. (4) Many survivors--though importantly, not all-have identified that one of their key motivations in coming forward to police was "taking a stand against gendered violence". (5) Charge bargaining, which obfuscates the fact that gendered violence is the target of criminal sanction, falls short of these survivors' hopes for what criminal sanction will accomplish. If criminal justice actors are invested in improving the relationship between the criminal justice system and survivors, prosecutors should work to ensure that their charging decisions reflect the outcomes that survivors hope to affect.

The argument that Crown Attorneys should consider the impact of pleading down sexual assault charges is an important one to make in today's prosecutorial environment, where Jordan and an anticipated increase in sexual assault charges make it more tempting than ever for prosecutors to scale down charges. This article intends to offer some normative guidance, rooted in feminist legal theory and ethics, to Ontario prosecutors grappling with increased pressure to reduce sexual assault claims. It also speaks to feminist legal advocates and elaborates on conversations in feminist advocacy circles around what type of response from the criminal justice system, if any, constitutes a feminist response to sexual violence. (6)

In Part I, I elaborate on how Jordan and "Unfounded" are likely to impact Crown charging decisions in the context of sexual assault complaints. In Part II, I take stock of the broader prosecutorial environment in Ontario in which charging decisions are made, focusing on the perspectives of the accused, the Crown, and the survivor in turn. In Part III, I outline some pros and cons associated with resolution discussions generally and with charge bargaining in particular. In Part IV, I offer a normative analysis of charge bargaining in the context of sexual assault prosecution, and illustrate why Ontario prosecutors should proceed with caution before downcharging sexual assault claims. I conclude by suggesting one answer to a perennial question in feminist legal advocacy circles: What does a feminist response to sexual assault in the context of criminal justice look like? (7) I suggest that bargaining down a sexual assault claim is not the response that feminist advocates are seeking, because in failing to communicate the wrongness of sexual violence as a gender-based crime, it is weakened in its capacity to promote deterrence.

I WHAT CHANGED: R V JORDAN AND UNFOUNDED

In Crown Attorneys' offices in Ontario, it is not unheard of for a prosecutor to reduce a sexual assault charge to a non-gender-based crime in a resolution discussion. Yet anecdotal evidence from justice officials suggests that the practice is uncommon. (8) Reports from the field indicate that as a general guideline, Ontario prosecutors engaging in charge bargaining around a sexual-assault-based allegation attempt to maintain the charge within the sphere of sexual assault crimes. Aggravated sexual assault may be bargained down to sexual assault, for example, in order to increase the likelihood of conviction, but sexual assault is rarely downgraded to common assault. One possible explanation for this pattern is that prosecutors have internalized the view that it is in the public interest to prosecute sexual assault to the full extent of the law. American scholar Richard L. Lippke has suggested that "plea bargaining", as it is known in the American vernacular, is uncommon in serious crimes such as sexual assault or homicide because prosecutors must contend with the twin pressures of victim advocacy and public opinion. (9) Though Ontario's unelected Crown prosecutors face a different set of institutional incentives than their American counterparts, the normative pressures imposed by survivor advocacy and public sentiment may nevertheless impact charging decisions. As it stands, there seems to be no formal rule against downcharging sexual assault in Ontario, and whether this tendency is a soft or firm office policy remains to be determined. Regardless of its source, it is a commendable trend.

Jordan and "Unfounded" threaten to reroute this positive trajectory. In the wake of these developments, there is reason to believe that charge bargaining in sexual assault cases will increase. Jordan imposes strict time limits on bringing an accused person to trial in accordance with Charter section 11(b). (10) Proceeding from the diagnosis that the old contextual framework for assessing section 11(b) violations had created "a culture of delay and complacency" in the courts, (11) in Jordan the Supreme Court of Canada ("the Court") rejected the long-standing contextual analysis of unreasonable delay in favour of hard-line presumptive ceilings. (12) Delays are considered presumptively unreasonable if the ceilings are exceeded, and the onus lies on the Crown to prove reasonableness and prevent an automatic stay of proceedings. The Court affirmed and clarified its approach in Jordan in 2017 in R v Cody, where it ruled unanimously that all participants in the criminal justice system must take responsibility for reducing delay. (13)

It is difficult to overstate the impact of Jordan and subsequent section 11(b) jurisprudence on the Canadian criminal justice system. Among other effects, Jordan and Cody have ramped up the pressure on prosecutors to offer individuals who have been accused reduced charges in resolution discussions, thus freeing up the Crown to focus on trial-bound files. Files with evidentiary insufficiencies are typically deemed unfit for court, so it is likely that this type of file will become more and more prone to being processed through a resolution discussion. Jordan thus has a unique impact on sexual assault files, which are often haunted by particular evidentiary difficulties. Common evidentiary challenges that attach to sexual assault complaints include an absence of physical evidence, a lack of witnesses, delays in reporting the incident to police, the inability or unwillingness of the complainant to testify, and ongoing social stigmas about survivors of sexual assault (i.e. "rape myths") that prevent police investigators from competently reviewing testimonial evidence. (14) These evidentiary features of sexual assault prosecution suggest that in response to Jordan, sexual assault allegations in particular will be ripe for the pleading. (15)

"Unfounded" is a 20-month-long national investigation by the Globe & Mail into police investigative practices around sexual assault complaints. (16) "Unfounded" revealed that one in five complaints in Canada are dismissed at the investigation phase as unfounded or "baseless," a noteworthy statistic given that sexual assault is already an underreported crime. (17) The statistics revealed by "Unfounded" sparked a public outcry from sexual assault survivor advocacy...

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