Waiver: A Feminist Analysis of Charge Bargaining in Sexual Assault Prosecution in Ontario

By Novac, Natasha | University of Toronto Faculty of Law Review, Winter 2018 | Go to article overview

Waiver: A Feminist Analysis of Charge Bargaining in Sexual Assault Prosecution in Ontario


Novac, Natasha, University of Toronto Faculty of Law Review


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. …

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Waiver: A Feminist Analysis of Charge Bargaining in Sexual Assault Prosecution in Ontario
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