Timeliness of sexual assault trials another victim of COVID-19

Timeliness of sexual assault trials another victim of COVID-19

By Caitlin Taylor

The right to a timely trial is enshrined in the Canadian Charter of Rights and Freedoms, but that legislative promise is endangered by the coronavirus lockdown. Those involved in sexual assault cases are especially impacted, considering the painful social stigma that accompanies the crime.

For alleged victims, the wait to confront their assailant is longer than ever. According to a news story, an Alberta sexual assault crisis centre is noticing “some big delays” in getting cases heard, with hearings adjourned multiple times or judges changed before the trial is complete.

“The waiting, the not knowing, the delays in court, or when things are adjourned multiple times, can add to levels of frustration and again, reintroduce more trauma for them,” the centre’s CEO states. These trials are by judge only, according to the article, with social distancing protocols limiting the number of people a courtroom.

I can understand the frustration of people who say they were sexually assaulted, watching as their trial dates are extended into the future. They want to get it over with and deal with the trauma they suffered. We all know that justice delayed is justice denied

The accused deserves a timely trial

Those accused of sexual assault are also frustrated by COVID-19 delays. They want their day in court so they can tell their side of the story as they strive to clear their name. They face a daunting legal process that can drag on for years, with no guarantee of vindication.

Long criminal trials cause suffering and frustration for everyone involved, especially defendants who are often forced to live apart from their family. These delays are not only personally upsetting but they also contravene the rights of every Canadian.

Under s. 11(b) of the Charter, anyone charged with a crime has the right to be tried in a reasonable time. In 2016, the Supreme Court of Canada (SCC) decided an important appeal – commonly referred to as the Jordan decision – that spelled out how long is too long to wait for a trial. The court ruled that limit was 18 months for provincial court trials and 30 months for superior court trials.

In its judgment, the SCC said these limits protect both the accused and society. The accused will be spared the “overlong subjection to the vexations and vicissitudes of a pending criminal accusation.” Canadians at large also benefit, court documents note, since everyone wants “the quick resolution of the case either by reintegrating into society the accused found to be innocent or if found guilty by dealing with the accused according to the law.”

As of Sept. 30, 2020, 289 Jordan applications have been filed in Alberta courts with 32 granted.

Technology to the rescue

To help clear the backlog of criminal and civil cases, Alberta courts have been embracing the use of technology, allowing people to swear affidavits remotely and to file documents

I recently defended a client on the WebEx teleconferencing platform, which can be used provided both sides follow procedures set out by the Court of Queen’s Bench.

While I see the advantages of allowing people to testify from home, there are also drawbacks. In court, the judge and opposing council really need to see the body language of those giving testimony and not just watch their facial image on a screen.

Alberta’s top judge has said that things won’t return to business as usual once the pandemic comes to an end, according to a news report. After describing courtrooms as potential “petri dishes” for the coronavirus, Chief Justice Mary Moreau states the biggest change is a move to an advanced “e-filing” platform to replace email filing.

“The tragedy of the crisis has led to the urgency of putting into place some IT solutions, which will be in place for the long (haul) and affect some really fundamental changes in how we do our work in the court,” Moreau said.

As we emerge from the COVID lockdown I am sure the courts will learn how to blend modern technology with the traditional methodology, as an efficient justice system is a more equitable justice system.

Some sexual assault allegations are false

While charges of sexual assault should only be laid when the evidence warrants it, national policing data compiled by The Globe and Mail in 2017 revealed that one of every five sexual assault allegations in Canada is dismissed as baseless. Reporters gathered data from more than 870 police forces and determined that more than 5,000 allegations of sexual assault are closed as unfounded by Canadian law enforcement every year.

“The result is a national unfounded rate of 19.39 per cent – nearly twice as high as it is for physical assault (10.84 per cent), and dramatically higher than that of other types of crime,” the story states.

Judges have also recognized the danger posed by being that every alleged victim is telling the truth.

In a 2017 Ontario Superior Court case, a justice wrote in her judgment: “Although the slogan ‘Believe the victim’ has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence. That is antithetical to the fundamental principles of justice enshrined in our constitution and the values underlying our free and democratic society.

“The presumption of innocence, and along with it the standard of proof beyond a reasonable doubt, are important safeguards to ensure that no innocent person is convicted of an offence and deprived of his liberty,” she added. “Without these protections, there would be a serious risk of wrongful convictions – an outcome that cannot be accepted in a free and democratic society.”

Contact Dunn and Associates Criminal Defence Lawyers

Sexual assault is a serious offence and it is to your advantage to have experienced, knowledgeable counsel working in your defence. We can provide a free consultation and guide you through the legal process. Call us at 403-233-0443.