Covid 19's Impact On Out of Custody Sexual Assault Cases In Ontario
I want to talk to you today about how the COVID-19 pandemic has effected out of custody sexual assault cases of Ontario. First of all, let me define out of custody cases. Out of custody means you have been arrested but you received bail, so you are out in society. You are not sitting in jail, waiting for your trial. So basically, I want to talk to you about minor sexual assault case. First of all, I fully realize that anyone does any sexual assault, no matter how minor, is very serious. But let’s talk about for example of a fleeting buttock grab at a bar or a fleeting type in a case where a man, unfortunately and unwantedly touches a woman’s breast for example. In those types of cases, even on a normal day, you can sometimes avoid a jail term. It’s on a copse as to whether a person is facing a short jail term or not. With the COVID pandemic going on, the court system as you know, was paused from March until July 6, 2020. By the way, it’s only open in a limited way right now. We just have a limited trials going on. But there has been a great perception of a cascading delay of cases, this backlog of cases, and due to that, the Crown Attorneys are doing a number of things. Number one, they have to come to grips with their cases. If they got a sexual assault case, they’re going to ask themselves, and this is the test in Ontario, “Is there any reasonable prospect of conviction?” In other words, if it’s such a weak case, that they can’t win, why are they running it? That’s the normal test and that’s a test that should always be applied first of all. But politically, if you look at it, sometimes it’s difficult to for the Crown to pull a case frankly, I use to be a Crown Attorney, I had the difficulty of doing that for various reasons. Number one, some Crowns are inexperienced, so they can’t assess the case properly. Even an experience Crown might say to themselves, rather than face the wrath of the victim who is pushing me to proceed with this case, do I really want to proceed and tie up, you know, court time, in limited courts where the case is, I know, I am going to lose? That’s going to be the conversation the Crowns are going to have across the province, and that is happening right now frankly, with all the criminal cases, they have to do this, and it’s quite right and proper, if there’s no way of winning a case, then why are we running it. So that’s one point. The other point so, let’s take that minor case that I talked about, so that’s a case where the Crown Attorney might say to himself, well look, I’m going to ask for a short jail term, or I am going to ask for no jail term, a fine, probation, maybe even a conditional discharge, in the right case. What I have found, is for our minor cases, some sexual assault cases, we were getting reasonable resolutions the Crown’s knew that they had move those cases, they said to themselves, we had no idea when the trials are going to take place, this could result in other cases that are more serious getting thrown out. So there were good deals to be had on minor cases and they are, so it’s a good time to hire a lawyer right now. For a more serious sexual assault cases beyond that, there’s not a lot of room for the Crown to maneuver. They are not going to be offering deals on rape cases where a person, you know, date rape range is two to three years in Ontario. They are not going to be offering, you know deals on that. They are going to be assessing the cases. So there’s no question, if there’s no reasonable prospect. And I say “no reasonable prospect of conviction” because that’s the test, okay, they have to come to grips with that. But there is still, obviously there’s a great benefit on any sexual assault case, if you want to defend it, you need to hire a lawyer, and the other thing is, our court system was paused but for those people who hired a lawyer this summer on a sexual assault case, and we have many clients like that, we were able to move their file. It takes weeks to get a case ready to set for trial. So if you sat in your hands and you didn’t hire a lawyer well now you are hiring a lawyer, it’s going to take fourteen, sixteen, eighteen, twenty weeks for the lawyers’ ready to set it for trial date. So that delay if I might put it that way, is kind of on you. If delay emerges in this system, and it may or may not, there’s a perception it will, it might not, we don’t know, it’s early days right now, you’ll be in a better position to argue delay, if you are able to go to the courts and say look I moved this file, my lawyer did, I am ready to set a trial date, I want the earliest trial date as possible, and they say to you , for example in August, we can’t offer you a trial date for over eighteen months, well guess what, you could potentially win the case, for delay. So there’s all sorts of reason to hire a lawyer to defend your case, to get a great deal, to take advantage of delay if it emerges, and that’s what’s basically going on with our clients and the court system. The message I want to leave you with is don’t delay, hire a lawyer now, it is never been a better time to hire a lawyer for any type of criminal case, including sexual assault cases in Ontario.