In the aftermath of the Ghomeshi trial, and the recent acquittal of three Toronto police officers accused of sexual assault, commentators and legislators have proposed that different rules apply to sex assault prosecutions than to other criminal cases. The reaction from the defence bar has been a vehement “no,” and with good reason, if the desired result is simply more criminal convictions. Nothing less than proof beyond a reasonable doubt is acceptable to find someone guilty of a criminal offence. However, what if there was an alternative system that did not have conviction as its raison d'être?
We believe society would be better protected by the implementation of a diversion and education program for such offences, then by the current all or nothing outcome that is the criminal trial. We also believe it would be better for accused persons and complainants.
From the point of view of an accused person, part of the unfairness of the present “all or nothing” system stems from the fact that the offence of sexual assault encompasses a wide swath of behaviour, from touching a person’s thigh to stranger rape. A man convicted of touching a woman’s rear through her clothes on the subway will have lifetime collateral consequences that may be appropriate for someone convicted of behaviour farther along the sexual assault continuum, but are too onerous for this less serious, albeit highly antisocial act. Those collateral consequences, which include failing a vulnerable sector check and its attendant loss of employment and volunteer opportunities, as well as issues entering various countries, cannot be mitigated by the Crown or Judge. Many police forces use the mere fact of the charge to retain an accused’s fingerprints and personal information, even if the accused is acquitted or the charge is withdrawn.
The often traumatic impact of the court process on sexual assault complainants is well documented. Less well documented is the pernicious effect of the limited range of choices complainants have in pursuing redress. All too often complainants who seek healing and personalized justice through court are disappointed to learn that the trial is not for or about them, but rather the process by which society deals with the accused’s anti-social behavior. A complainant can sue their attacker in civil court, but unless there is an institution such as a university to add as a defendant, the cost of commencing a civil action usually exceeds the benefit of litigation, even if the complainant succeeds.
In the criminal context, there is presently no way for the complainant to communicate to the accused her experience and its impact other than through the highly structured trial (or guilty plea) process. And, importantly, there is no way for an accused to say (as they sometimes do in our offices) that they are sorry; that looking back they see that they pushed too hard. These clients are often university aged, and these assaults usually involve alcohol. Only a client willing to risk creating evidence against himself would take that step. In light of the devastating lifetime impact of a sexual assault conviction, criminal defence lawyers tend to discourage their clients from creating such evidence before a contested trial.
So, we are left in an intractable position where many complainants choose to do nothing, and where many accused simply can’t take responsibility for their actions because the social cost is too great.
One possible solution is a diversion program for the less serious sexual assault cases.
Section 717 of the Criminal Code (RSC, 1985 c C-46.) provides statutory authority for using alternative measures to deal with a person alleged to have committed an offence, as long as doing so is not inconsistent with the protection of society and several conditions are met. Any diversion program would have to meet these criteria.
The program must be authorized by the Attorney General, as per s. 717(a); the Crown would need to be satisfied the alternative measure would be appropriate (s. 717(b)); the accused would need to fully and freely consent to participate (s. 717(c). The accused has to be advised of their right to counsel (s. 717(d)) and accept responsibility for the act that forms the basis for the offence, (s. 717(e)). The Crown must be of the opinion there is sufficient evidence to proceed with prosecution (s. 717(f)), or put differently, the Crown is of the opinion there exists a reasonable prospect of conviction, and the prosecution of the offence is not in any way barred at law (s. 717(g)).
In addition, we suggest the following additional criteria to a sexual assault diversion program:
- The offender was not in a position of trust or authority over the complainant;
- The complainant is not alleging they were drugged, or otherwise rendered incapable of consenting, by the accused;
- The complainant receives independent legal advice and voluntarily, without outside pressure, consents to diversion being used;
- The offender has no previous charges or convictions for sexual offences.
The diversion program should include for the accused an education and counselling program regarding enthusiastic, ongoing, affirmative consent. If the facts support it, drug and/or alcohol counselling may also be required.
Additionally, if the complainant wishes, an accountability process could be available. Both parties may have counsel, the process would be without prejudice, and no admissions, confessions, or statements accepting responsibility for a given act or omission would be admissible as evidence at any future civil or criminal proceeding (as per s717(3)).
Upon successful completion of the diversion program, the charge(s) against the accused would be withdrawn.
As Chief Justice McLachlin said in her remarks at the most recent Criminal Lawyer’s Association Fall Conference, “complainants…need to understand what is required of them in a trial and what they can realistically expect from it”. A criminal trial for a sexual offence is trying not only for the accused, but for all involved. When an accused is acquitted of sexual assault (in many cases the appropriate result), both the complainant and accused may feel angry and violated for having had to endure the process, and society often cries that the criminal justice system is unjust. In appropriate cases, an alternative system designed to address the specific offence of sexual assault may better achieve the complicated balancing of the rights of the accused with the expectations of the complainant.
About the authors
Nadia Klein is a criminal lawyer and associate at Moon Rozier LPC in Brampton. The views expressed herein are her own and do not necessarily reflect that of her employer. Robin Parker works at Paradigm Law Group doing criminal and regulatory law. She has prosecuted and defended sexual assault cases, as well as represented complainants, and has worked in community-based sex assault support organizations.
Any article or other information or content expressed or made available in this Section, is that of the respective author(s) and not of the OBA.
 The Toronto Police Service Policy provides that a person charged with something other than a primary or secondary designated offence pursuant to s 487.04 of the Criminal Code can apply to have their prints and personal information destroyed after one year. All of the sexual assault and related crimes are designated offences. Query the constitutionality of this policy. (See R. v. Dore,  O.J. No. 2845 (C.A.).)
 Outside pressure may include that from the complainant’s family or community, or the Crown threatening to otherwise withdraw the charge.