Are stiff sexual assault sentences deterring guilty pleas, forcing too many victims to testify?

Too many victims of sex crimes in Canada must face the difficult task of testifying about deeply distressing experiences in court, an "unfortunate" and "tragic" consequence of stiff sentences that offer no incentive for offenders to plead guilty and forgo a trial.

That's the suggestion made recently by one of Nova Scotia's top provincial court judges, who said many accused of sex offences are willing to "roll the dice" by going to trial because long sentences, often involving prison time, mean there is little benefit to admitting guilt.

The comments by Associate Chief Judge Rhonda van der Hoek at a court hearing in Kentville, N.S., come as the treatment of victims in the justice system continues to be widely discussed, along with concerns about sexual assault cases in some parts of the country being tossed due to delays.

Sexual assault cases are taking longer to make their way through the courts, many now saddled with lengthy pre-trial hearings that stem from 2018 changes to the Criminal Code aimed at protecting the rights of victims but which can slow the wheels of justice.

The prospect of a vulnerable victim being retraumatized during testimony figured prominently in a case before van der Hoek earlier this month, as she sentenced a 75-year-old man who pleaded guilty to sexually assaulting his 10-year-old sister in 1967 to two years probation.

The sentence was jointly recommended by the prosecution and defence. Crown attorney Nathan McLean noted the man's guilty plea was a "very, very mitigating factor" because the victim continues to struggle more than five decades later and will not have to relive the trauma by testifying in court.

The man was just 17 at the time of the offence, which means his name is banned from publication, despite his current age, and he was entitled to be treated as a youth by the court and face a much lower sentence than an adult.

"It is exceedingly, increasingly rare for people to plead guilty to charges of this nature," van der Hoek said. 

"I heard it said recently that there is almost no incentive for somebody to plead guilty and accept responsibility for committing a sexual offence because as adults, the sentences are long, they are almost always in periods of incarceration in a federal institution, and there is almost no benefit to pleading guilty. It's better to roll the dice and see what happens. 

"That rolling of the dice unfortunately means that many victims in this country have to testify because there's no incentive for a charged person to plead guilty, and that is unfortunate and tragic."

Peter Sankoff, a criminal defence lawyer and professor at the University of Alberta, said van der Hoek's comments are "100 per cent correct."

If someone faces prison time even if they plead guilty, he said, many will opt to go to trial and hope for an acquittal, especially if they already face social ostracism or have lost their job due to the charges.

"I'm not here to comment on whether it's a good idea, bad or good, for people to go to prison for long periods of time," Sankoff said in an interview. "I'm just here to state to you the obvious — that the more you ratchet up prison time, the less likely it is that people are going to plead guilty."

Between 40 and 57 per cent of sexual assault offenders found guilty in Canada in recent years were sentenced to custody, according to Statistics Canada, with higher incarceration rates for sex crimes against children and youth.