MIND THE GAP: BUILDING CONFIDENCE IN SEXUAL ASSAULT PROSECUTIONS
Sexual assault prosecutions in Canada suffer from a curious dichotomy. On the one hand, we enjoy perhaps the most progressive sexual assault laws around, which should be praised as the gold standard. On the other hand, we are facing a crisis of confidence in the prosecution of those laws, marked by low reporting rates and victim dissatisfaction.
The law and prosecution of sexual assault in Canada has a shameful past, and one that strongly reflected a high level of inequality between the sexes. For example, historically a man could not be charged with raping his wife. If a man raped a woman and then married her there was no offence. Intercourse could not be considered “forced” unless the victim was of chaste character, and an accused was allowed to infer a victim’s passivity as consent. The offence of rape required proof of penetration. A victim had to report immediately to be believed, and the testimony of a victim required corroboration for a conviction.
Major reforms to the Criminal Code began in 1983 and continued throughout the 1990s. The offence of rape was replaced with the offence of sexual assault, broadening the range of conduct captured from kissing and fondling all the way to penetration.
In fact, a conviction for sexual assault could stand even if there was no sexual touching, provided there was the apprehension of imminent harm or offensive contact that violated the victim’s sexual integrity. 2 The common law rules requiring corroboration and recent complaint were eliminated 3 and a victim’s character and reputation became inadmissible for the purpose of either challenging or supporting credibility. 4 A person could be charged with sexually assaulting a spouse. 5
Importantly, the new law established the concept of affirmative consent, defining consent as the “voluntary agreement to engage in the sexual activity in question” and enumerating a non-exhaustive list of circumstances where no consent is obtained. 6 Further, the defence of mistaken belief in consent was limited by excluding self-induced intoxication and wilful blindness and by including a “reasonable steps” requirement. 7 These new provisions reflected a growing belief in society that the law must protect and promote the sexual autonomy and personal integrity of every individual and that individuals should have absolute control over who touches their body and how. 8
Rules of evidence specific to sexual assault were enacted to protect a complainant from the gratuitous disclosure of private records 9 and to limit the admission of evidence of a complainant’s sexual history where it engaged discriminatory myths and stereotypical reasoning (the Rape Shield Law). 10 And the introduction of the Canadian Victims Bill of Rights in 2015 recognized and strengthened testimonial and participatory protections for victims of sexual assault who are involved in the criminal process.
The modern concepts established in Canada’s sexual assault laws have been reinforced by our highest court. The Supreme Court of Canada has cautioned against unfair and improper questioning of complainants of sexual assault. We are reminded of Cory J’s words in Osolin that “[a] complainant should not be unduly harassed and pilloried to the extent of becoming a victim of an insensitive judicial system”, “cross examination for the purpose of showing consent or impugning credibility which relies upon ‘rape myths’ will always be more prejudicial than probative … [and] can fulfill no legitimate purpose”, and “[a]s a general rule, the trial of an accused on a charge of sexual assault need not and should not become an occasion for putting the complainant’s lifestyle and reputation on trial.”11
The Court has also rejected the notion that complainants of sexual assault have a higher tendency than other complainants to fabricate stories based on “ulterior motives” and are therefore less worthy of belief.” 12
In Charter jurisprudence as well as the legislation and its preambles, there are strong, recurring statements about society’s interest in encouraging reporting of sexual offences, the high incidence of sexual offending on females and children, the power imbalance that often exists between men and women, the goal of seeking the truth, the need to remove discriminatory beliefs and biases from the fact finding process and the importance of a complainant’s dignity and privacy and right to full protection of the law.
However, despite the progress made in our sexual assault laws, we still face significant challenges in the reporting, investigation and prosecution of sexual assault cases. It is estimated that there are over 600,000 incidents of sexual assault per year in Canada but only 5% of incidents are reported to the police, and a charge is laid in less than half of those cases. Where a complaint results in a charge being laid, less than half proceed to a hearing in criminal court. 13 With such low reporting and a high attrition rate, the sad reality is that a very small fraction of sexual assault cases reach prosecution.
The reluctance of victims to report sexual assaults may be a reflection of how victims are treated by the justice system. Many victims have expressed lack of confidence in the system and fear of having their personal and sexual lives publicly and unjustly judged. Some report feeling “re-victimized” by questions about their sexual past, by what they were wearing and how they acted at the time of the assault, and by being made to feel as if it was their fault or that they “asked for it” through their behaviour.
Often, victims feel that the outcome of a case is determined by the actions of the victim rather than by the actions of the accused. 14 Some victims complain of spending multiple days on the witness stand and conclude that the reporting and court process is re-traumatizing and may even be worse than the initial trauma itself. 15
Public confidence in the ability of our justice system to effectively prosecute sexual assaults has also been eroded by unfortunate and insensitive comments by the judiciary and the subsequent reporting of those comments in the media. A judge in Alberta asked the sexual assault complainant why she didn’t just keep her knees together and queried “[s]he knew she was drunk … is [there] not an onus on her to be more careful?”16 In acquitting a taxi driver of sexually assaulting his unconscious female passenger, a judge in Nova Scotia declared in his judgment that “a drunk can consent”, which, while a correct statement of the law, is objectifying in its tone. 17 A judge in Quebec, while convicting another taxi driver of sexually assaulting a woman in his car, commented that the victim was “a little overweight, but she has a pretty face” and went on to say she was possibly even “a little flattered” because “maybe it’s the first time he’s interested in her.”18
As a society, certainly we recognize that women do not ‘ask for it’ just because they wear tight clothes and get drunk. We appreciate that women are not in a perpetual state of consent. We know the difference between legitimate impeachment and pernicious myths. And as lawyers, we are committed to our obligation to discharge our responsibilities honourably and with integrity, to protect the dignity of individuals, and to be courteous, civil and act in good faith. 19 At the same time, regardless of our individual role in the criminal justice system, we must all work to ensure that no citizen is deprived of his or her liberty without due process.
This inherent conflict between protecting the rights of victims and ensuring the right of an accused to full answer and defence can never be fully reconciled, but we can aim to strike the right balance between two competing ideals. How do we do that? Some of the problems articulated above can be addressed through education and training for police officers, prosecutors and judges, a process that is already taking place across the country. But the treatment of sexual assault victims in the courtroom demands fairness and decency, which does not undermine the high standard of proof necessary for a conviction and the right to full answer and defence. Our rules of evidence and procedure support such a paradigm and ensure that relevant and admissible evidence can be properly considered by a trier of fact. There are ample tools for the defence to present its case without engaging inadmissible myths and stereotypes or resorting to unethical conduct. Crown Attorneys can and should adequately prepare a victim for court to ensure that she carries realistic expectations about the process, and to ensure that she can most effectively provide testimony in the search for the truth. Judges have a responsibility to ensure that the rules of evidence are respected and that everyone, including a complainant, is treated with dignity.
Through awareness, education and diligence, every sexual assault prosecution could be conducted by judges and counsel who know the law and understand its proper application. Our gold standard of black letter law can be matched by a gold standard of professionalism, which will in turn narrow the gap between the system we have and the confidence of the public in that system.
Jill Witkin, Crown Counsel for the Ontario Ministry of the Attorney General, is the co-author of Emond Publishing’s Prosecuting and Defending Sexual Offence Cases: A Practitioner’s Handbook, along with defence counsel Daniel Brown.
Prosecuting and Defending Sexual Offence Cases: A Practitioner’s Handbook Authors: Daniel Brown & Jill Witkin
General Editors: Justice Vincenzo Rondinelli & Brian H. Greenspan
Foreword: Marie Henein
Publisher: Emond Publishing
Page Count: 446
Publication Date: October 2017
Regular Price: $99
Series Subscription Price: $85
Details & Sample Chapter: https://emond.ca/pdso
1 Crown Counsel, Ontario. Any opinions expressed in this article are those of the author alone and do not necessarily reflect those of the Ministry of the Attorney General
2 R. v. Chase,  2 SCR 293; R. v. Edgar, 2016 ONCA 120
3 Sections 274 and 275 Criminal Code
4 Section 277 Criminal Code
5 Section 278 Criminal Code
6 Section 273.1 Criminal Code, introduced in 1992
7 Section 273.2 Criminal Code
8 See debates during second reading of Bill C-49 by Minister of Justice and Attorney General Kim Campbell.
9 Sections 278.1-278.91 Criminal Code
10 Section 276 Criminal Code
11 R. v. Osolin  4 S.C.R. 595 at pp.521-523
12 R. v. G.(A.)  1 S.C.R. 439 at para 3
13 Rotenburg, Cristine. 2017 Police-reported sexual assaults in Canada, 2009-2014: A statistical profile. Juristat. Vol. 37, no.1. Statistics Canada Catalogue no. 85-002-x.
14 Select Committee on Sexual Violence and Harassment, Final Report, 1st Session, 41st Parliament, 64 Elizabeth II
19 Law Society Rules of Professional Conduct: 2.1-1, 4.1 and 5.15 (Ontario)