When I was beginning to practice criminal law in the second half of the 1980s, a pair of detectives who had been partnered together for years were winding-up their careers.
They were remarkable police officers in many ways. They could tell, accurately, who the culprit was by the way he or she moved. They could arrest and cuff the toughest characters without anyone suffering a scratch. And they could charm a guy's own mother into being a witness against him.
What I was most impressed with, however, was their ability to separate the wheat from the chaff. They were ruthless in their pursuit of convictions in the serious cases, but if the offence was minor, or the client otherwise decent, they could be convinced to not even lay a charge.
They were not perfect, however. They were afflicted with several of the worst prejudices of men of their era, including horrible misconceptions about women and rape.
One morning prior to court starting, they told me about a young female sexual assault complainant they had essentially laughed out of the station the night beforehand when they didn't believe her story. Their account was shocking, but it is sufficient for the points I hope to make to simply write that they believed there were some situations where rape was impossible.
I believe they were both capable of learning better. A little education could have brought them around to being far more sensitive and adroit screeners of rape complaints and complainants in the same way they exercised their discretion to so fairly deal with so many other complaints and complainants. Furthermore, younger officers were already entering the force at that time who had been better educated and knew better.
Unfortunately, the response was much more dramatic: an elimination of the discretion not to charge in sexual assault complaints followed by an elimination of the individual Crown's discretion not to prosecute them. Since then, if a complaint is made, no matter how patently untrue, a charge has to be laid and the matter fully prosecuted. Virtually overnight, uneducated discretion was replaced withvirtually no discretion at all.
Now, more than two decades later, the question is, are we better off?
The fact that charges must flow from any complaint is obviously no secret to many sexual assault complainants. Complaints made immediately after discovering the accused has been cheating, or where one party owes the other money, or where the accused has used or otherwise non-criminally abused the complainant predominate.
As a result, there is no other serious charge laid that is so universally met with cynicism by judges and juries and no other serious charge that ends in more acquittals. While sexual assault can certainly take place in precisely such circumstances -- some men being spurred to violence by the same motivations as some women to lien -- there is not a scintilla of weighing now if one or the other scenario is patently more likely before deciding to charge and prosecute.
There are two major types of individuals who suffer as a result: real victims of sexual assault and those who should never have been charged in the first place.
For the former, whereas before they sometimes had to brave incredible ignorance and insensitivity to make their complaint, now they must brave the new cynicism: that they are another lying complainant using the criminal justice system to pursue their own agendas. Why go through the ordeal of complaining if no one is going to believe you? I worry that the women whose reporting of their victimization was intended to be encouraged by removing discretion to charge are still not coming forward.
For the latter, for the wrongly accused, there are few charges and prosecutions that scar a person more than a sexual assault prosecution. Pre-trial detention, for example, must often take place in isolation because other detainees, ironically, have their own rigid code requiring brutal mistreatment of anyone merely charged with such an offence.
Properly educated and trained police officers, with the discretion to not charge in the case of obviously untruthful complaints, could spare countless numbers of innocent individuals this fate every year. I am mindful of the fact that it was only last year, however, that a Toronto Police Service officer said woman should protect themselves against rape by not dressing like "sluts." A simple appeal process to the Crown's office could be put in place as protection for rejected complainants as a short-term monitoring safeguard while discretion is being reestablished in the case of these complaints.
In the end, sexual assault is a much bigger social issue than the criminal justice system can solve itself. No one should be deluded into thinking that the removal of discretion in the criminal justice system when it comes to the issue is helping to solve it.
It is impossible to deal justly with individual complainants and accused persons without the discretion to be able to treat them individually. Every removal of discretion from police officers and Crowns and judges -- be it in the form of directives to always charge and prosecute in the case of particular complaints, or to always seek a person's detention without bail in the case of particular charges, or mandatory minimum sentences -- guarantees injustice.
Every case, every individual involved in every case, and every situation which arises in a case must be capable of being dealt with on their own merits by properly educated and trained participants. This is because, of course, every case, every individual involved and every situation contained therein are different.
The fair administration of criminal justice has no place for ideologues, on the left or the right, who would further eliminate discretion.