Many sexual assault cases did not proceed due to judge shortages, court and Crown delays: OCRCC responds

Multiple sexual assault cases did not proceed through the legal system in Ontario recently, due to foreseeable judge shortages[1], court delays[2], and Crown delays[3].

As a result, those who were charged in these cases were not held accountable by the criminal justice system. Moreover, sexual violence survivors who had the courage to report did not see their case proceed: “it doesn’t really feel like an end, because there’s been no defining moment,” one sexual assault survivor said. “I’ll never get that. And [the accused will] probably never get in trouble for what he did”[4]. 

Other criminal justice cases that have been similarly ‘stayed’ or ‘thrown out’ in Ontario have affected adults, youth and children who reported sexual violence, as well as survivors of human trafficking[5]. 

As sexual violence survivor advocates, we at Ontario Coalition of Rape Crisis Centres (OCRCC) are incensed by these realities. Sexual assault already has the lowest rate of reporting to police amongst all violent crimes[6]. Practical barriers – and negative experiences – connected to the court process only makes things worse for victims who come forward. Incidences like these discourage survivors from seeking support or justice. These system failings also erode the public’s trust in our criminal justice system. 

There must be better system responses for sexual violence survivors.

 

Sexual assault cases recently ‘stayed’ or ‘thrown out’ in Ontario

Charges in a criminal case can be ‘stayed’ or ‘thrown out’ when a judge or a Crown decides that the case cannot continue. When a case is stayed or thrown out (i.e. dismissed), it does not mean that the charge is withdrawn, that a victim or offender was victorious, or that the crime did or did not occur: instead, “the issue of guilt or innocence is never determined”[7]. 

Stays “can be granted when the state has acted unfairly, including a failure to bring the case to trial in a timely manner”[8]. In 2016, the Supreme Court of Canada decision (R. v Jordan) established deadlines for when a trial must be completed. Delays that go on longer than these timelines violate the accused’s right to be tried within a reasonable time. An accused can then file a Jordan application; from there, a judge can grant the charges to be stayed. In Ontario, this is what has been affecting violent crime cases, including a number of sexual violence and child sexual abuse cases[9]. 

In its review of stayed criminal justice cases, a Canadian media outlet pointed out that since the Jordan ruling came into effect, 86 Ontario sexual assault cases have been thrown out due to delays. Moreover:

“Ontario set three record highs last year: the number of completed applications [for stays, based on an exceeded Jordan timeline]; the percentage of them that were granted; and the number granted (125), more than double the year before”[10].

These criminal justice realities have serious impacts for sexual violence survivors in Ontario. As if police reporting, seeing a charge laid and preparing for court wasn’t hard enough already, within this context the benefits of reporting have decreased for victims, and the possible outcomes have become less-promising.

 

Our criminal justice system’s ability to support sexual violence survivors

The Canadian criminal justice system’s capacity to support sexual violence survivors is already poor. The realities of sexual assault reporting ‒ and our criminal justice system’s effectiveness in holding offenders accountable ‒ make survivors think twice about reporting. 

Even when victims do report, conviction rates for sexual assault remain low[11]. Low convictions give the erroneous impression that sexual assault is a rare crime; low convictions also shore up victim-blaming myths. Unfortunately, many social misconceptions (“myths”) concerning sexual assault persist in our communities[12]; low convictions fuel these misconceptions. Misconceptions about sexual violence tend to harm victims, shifting the blame to the victim/survivor and minimizing perpetrator accountability[13]. 

In this climate, many fear not being taken seriously or believed. This is a reality for survivors: one in five victims of sexual assault experience victim-blaming, or being made to feel responsible for their own victimization[14]. 

All this de-validates the experiences of sexual violence survivors. Things are even harder for racialized survivors of violence, survivors from the 2SLGBTQQIA+[15] community, and survivors with complex confidentiality issues, such as youth and human trafficking survivors. Many survivors of sexual violence do not trust the police or the criminal justice system: the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls notes that many “families and survivors talked frankly about their reasons for not reporting violence to the police or not reaching out to the criminal justice system – even in cases where there had been severe acts of violence perpetrated against them”[16]. 

In order for people to feel safe enough to talk about what they’ve been through, there must be an environment in which sexual violence survivors feel believed, seen and heard. There must also be a system that is clearly responsive to victims of crime. 

Recent realities in our criminal justice system, in which cases are stayed or thrown out, do not reflect this. 

 

There’s work to do to uphold the rights of sexual violence survivors

Sexual assault cases that are stayed or dismissed are having a harmful impact on those affected by sexual violence and our communities. These trends fly in the face of some of the progress made by the #MeToo movement, and other past legal victories led by the sexual violence support movement. 

Here’s what you can do to help: 

• Talk about these legal realities with others you know, and their impacts on sexual violence survivors.

 

• If something has happened to you, we want you to know that there are people who believe you and are here to support you. For example,
  • You can talk to a trusted friend, family member or other person you feel safe with
  • You can contact a sexual assault centre. Sexual assault centre services are free and confidential. You don’t have to report what happened to the police in order to get support at a sexual assault centre.

 

• Contact your federal Member of Parliament (MP) and tell them that you are concerned about the impact of stays and dismissed cases upon sexual assault survivors and other survivors of violent crime (find your MP here). Specifically, the federal government is responsible for addressing judicial vacancies across the country.

 

• Contact your provincial Member of Parliament (MPP) and tell them that you are concerned about the impact of stays and dismissed cases upon sexual assault survivors and other survivors of violent crime (find your MPP here). Specifically, the provincial government is responsible for addressing practical court issues, such as courtroom bookings and availability, Crowns, and funding for community-based sexual violence survivors supports and prevention.

 

• Insist that the Province invests in community-based programs that help survivors of violence, such as sexual assault centres. Sexual assault has the lowest rate of reporting to police amongst all violent crimes[17], and the criminal justice system is not meeting the needs of most survivors. Investment in sexual assault support services that are situated in criminal justice services will only reach a minority of survivors. Community-based sexual assault centres support survivors that are reporting, those that are not reporting, and work with recent as well as historical sexual assault survivors. When a victim does report, we support them as they prepare for sharing their experiences, and taking part in the criminal justice system. In order to do all this important work, community-based sexual assault centres need intentional investment.

 

• Ask the Province to invest in community-based programs helping people through the criminal justice system: for example, the Sexual Violence Legal Advocacy program at Sexual Assault Support Centre of Waterloo Region supports survivors of sexual violence in understanding their legal options and taking their first steps in accessing justice. We want all community-based sexual assault centres to have this funded program.

 

• Ask the Province to addresses the problems that get in the way of timely court dates in sexual violence cases. Addressing these problems can lead to increased justice for victims, and, where charges are laid, better experiences for survivors who engage the criminal justice system.

 

Ontario Coalition of Rape Crisis Centres (OCRCC) is a network of 30+ community-based sexual assault centres in Ontario. If you or someone you know has experienced sexual violence, go to https://sexualassaultsupport.ca/get-help/.

 

[1] Gallant, Jacques for The Star. April 9, 2024.  ‘An embarrassment to the administration of justice’: Trudeau government blamed as Toronto child sex assault cases fall apart.

[2] Burke, Ashley for CBC News. Sep 11, 2023. Retired corporal says she’s lost faith in the justice system after sex assault charge stayed.

[3] King, Angela for CBC. Nov 27, 2023. Double-booked courtroom, Crown delays lead to Ontario sex assault case being thrown out

University of Toronto student says justice system failed her

[4] King, Angela for CBC. Nov 27, 2023. Double-booked courtroom, Crown delays lead to Ontario sex assault case being thrown out

University of Toronto student says justice system failed her

[5] Gallant, Jacques for The Star. April 9, 2024.  ‘An embarrassment to the administration of justice’: Trudeau government blamed as Toronto child sex assault cases fall apart.

[6] Statistics Canada. Released: 2021-08-25. Criminal victimization in Canada, 2019. 

[7] Steps to Justice. Glossary: stayed

[8] Steps to Justice. Glossary: stayed

[9] Gallant, Jacques for The Star. April 9, 2024.  ‘An embarrassment to the administration of justice’: Trudeau government blamed as Toronto child sex assault cases fall apart.

[10] King, Angela for CBC. Nov 27, 2023. Double-booked courtroom, Crown delays lead to Ontario sex assault case being thrown out

University of Toronto student says justice system failed her

[11] See The Attrition Pyramid (Sexual Assault). Online: http://www.vawlearningnetwork.ca/our-work/issuebased_newsletters/issue-1/Issue_1-LN_Newsletter_May_2012_.pdf, page 2.

[12] See: The Learning Network. Overcoming Barriers and Enhancing Supportive Responses: The Research on Sexual Violence Against Women A Resource Document. May 2012: 14.

[13] The Learning Network. Overcoming Barriers and Enhancing Supportive Responses: The Research on Sexual Violence Against Women A Resource Document. May 2012: 11.

[14] Cotter, A. and Laura Savage for Statistics Canada. Release date: December 5, 2019.

Gender-based violence and unwanted sexual behaviour in Canada, 2018: Initial findings from the Survey of Safety in Public and Private Spaces. Online: https://www150.statcan.gc.ca/n1/pub/85-002-x/2019001/article/00017-eng.htm

[15] This initial stands for “Two-Spirit, lesbian, gay, bisexual, transgender, queer, questioning, intersex and asexual.” It may also appear as LGBTQ2SIA, or in shortened versions such as LGBTQ2S or LGBT+. Learn More: The 519, Definitions/glossary

[16] National Inquiry into Missing and Murdered Indigenous Women and Girls. 2019. Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls. Online: https://www.mmiwg-ffada.ca/wp-content/uploads/2019/06/Final_Report_Vol_1a-1.pdf: 628.

[17] Statistics Canada. Released: 2021-08-25. Criminal victimization in Canada, 2019. 

 

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