Proposed sexual assault court in Quebec long overdue

If a proposed special tribunal to handle sexual assault cases in Quebec soon becomes reality, its creation would be the first of its kind in Canada and one of the very few such specialized courts in the world.

In a powerful display of bipartisan female solidarity, representatives of Quebec’s four major political parties are promoting the idea first brought forward a year ago. An exploratory meeting took place in Montreal in early January and Quebec Premier Francois Legault has said he is open to the idea.

Véronique Hivon of the Parti Québécois has been at the helm of this pioneering effort. She initially proposed the idea after bring inspired by victims coming forward to report their sexual assaults during the #MeToo movement only to, often, be left discouraged by the process.

Justice Minister Sonia LeBel of the Coalition Avenir Québec government, Hélène David of the Quebec Liberal Party and Christine Labrie of Québec Solidaire, have all committed to making this tentative proposal a permanent reality.

During the group’s recent appearance on the Quebec television talk show Tout le Monde en Parle (TLMEP) Hivon commented that everyone in the group feels that their number one priority is to find a way to re-establish faith in the system for sexual assault victims.

“We want to be able to tell victims, you are heard, and as elected officials it’s our job to adapt the system to your complex reality rather than you be forced to adapt to the system," she said.

“Many victims, the majority of which are women, choose not to press charges, so what do we do with them?” David asked during the show. “Should we not help them in any way we can? Are we supposed to leave them reliving their nightmare, feeling all alone? We need to help organizations who have the expertise to help them, to accompany them to court, if they so choose to go that route, but also to simply help them navigate their trauma.”

A major aspect of the proposed idea is the establishment of integrated centres offering help to survivors. “When a victim reports a crime, they won’t only talk to a police officer, but will be able to immediately see a psychologist, a social worker, a prosecutor who will be able to explain the legal ramifications of pressing charges and what the process will look like,” David added. “Some victims are afraid to report a crime because the system immediately forces them to press charges and many have no desire or aren’t ready to do so. Many victims aren’t even in the frame of mind to press legal charges or speak to the police immediately following their assault. They’re traumatized and simply need to be heard. But the healing process would start right away by being able to offer a victim these services.”

Not a court of angry feminists, intent on revenge

Contrary to some people’s misguided fears that a special court would circumvent accusers’ rights or eliminate the presumption of innocence, believing every victim’s testimony unquestionably, the goal isn’t to change the Criminal Code but to reform and improve both the way the laws are applied in Quebec and the process. The group has gone to great lengths to assuage those fears and made it clear during every appearance that the court would aim to centre both female and male victims’ needs without infringing on fundamental human rights.

“Our most important responsibility is to regain victims’ faith in our legal system,” said Hivon on TLMEP. “Because, right now it’s non-existent. But there is no intent to interfere with the presumption of innocence and with the fundamental rights of the accused. The idea of a specialized court is to re-establish trust in the system, to show that the system can adapt, and to rely on trained individuals who understand the particularities of sexual violence. And that will make a difference.”

Speaking on Radio-Canada, LeBel reiterated that the objective of a special tribunal would be to better understand the reality of sexual assault victims and not to change the laws in any way. Before becoming justice minister, LeBel spent 20 years as a Crown Prosecutor and witnessed first-hand the routine failure of the legal system to handle sexual assault and domestic violence cases with the severity and sensitivity that they require.

“The presumption of innocence remains,” she said. “We need to have a better understanding of what victims are going through, why they’re reacting the way that they are. We need better training for people in the field, better support system for victims, and the understanding that for sexual assault and domestic abuse victims criminal court may not always be the best option for them, but restorative justice might also be another way.”

LeBel highlighted that the primary objectives of a special tribunal would be to better understand the reality of sexual assault victims, offer better training for people in the field, and a better support system for victims.

Sexual violence is a unique crime with legal challenges

This new approach advocated by the group essentially recognizes that sexual violence crimes are distinctly different from other crimes and, therefore, must be approached differently.

Sexual assault victims must deal with an array of complex elements. They often face societal stigma, generalized misconceptions that they lie or exaggerate for personal benefit or revenge; they face their own internalized feelings of shame, self-doubt or fear of reprisals at home or at work; as well having to build up their courage to report it to police who will often dismiss and minimize the case or dissuade them from pressing charges. If their case does makes it to court, they often endure a brutal cross examination that often re-victimizes them and routinely contend with judges and lawyers who are ill-equipped to treat them fairly and with dignity. Is it any wonder that most victims never even bother reporting the crime?

As part of their overall effort to revamp and update the current system, the group aims to provide judges, prosecutors and court staff with the education to understand the complex intricacies of sexual assault and how it affects victims’ seemingly contradictory or hard-to-explain behaviour. It also aims to provide a holistic approach, by collaborating and taking into consideration the expertise of advocates and community organizations that have long been working to provide support and a voice to victims of sexual assault. These social and psychological problems change the dynamic of these specific crimes and require people knowledgeable and aware of the intricacies that won’t immediately question the motivations of a victim because they contradict themselves or took a long time to report a rape.

Rachel Chagnon, a professor at UQAM’s Law Department, supports the creation of such a tribunal because she believes that sexual assault cases are not legally treated the same way as other crimes are.

“If someone physically attacks you and injures you, we don’t begin the court case by asking the victim if they wanted to be attacked, if they gave the impression that they welcomed it,” she said in a Le Devoir interview in 2017. “But when it comes to victims of sexual violence, we demand that they prove that they didn’t want any sexual contact. […] Sexual violence is the only crime where we examine the notion of consent to prove that a crime has been committed. You have to demonstrate beyond a reasonable doubt that there was no consent, and as a result, you position the victim as a potential liar from the beginning of the legal process.”

According to Chagnon, it’s one of the biggest weaknesses of the current legal system and one of the main reasons why so many victims choose not to come forward. Statistics Canada research shows one in 25 women in Canada experienced sexual assault in the last year, yet only about five per cent of sexual assaults are reported to police. Far too many barriers remain for victims seeking justice and the legal system lets too many down. On top of that, unacceptable delays continue to needlessly torture victims seeking a resolution and quick help.

During their appearance on Tout le Monde en Parle, Labrie mentioned the delays in the system and how improvements need to be made.

“There aren’t just legal delays,” she said. “Delays to see a psychologist are just as bad. Right now, you’re on a waiting list for approximately eight months to see someone at the CALAC (Quebec Coalition of Sexual Assault Center) in Sherbrooke, and in some regions of Quebec it’s an 18-month wait to see someone. These are unacceptable delays because victims need to be heard when they’re ready to talk.”

While the number of police-reported sexual assaults in Canada has indeed spiked since the #MeToo movement (with Quebec reporting the largest increase) it has not resulted in more criminal charges, with most cases remaining unsolved or deemed unfounded by police. Speaking of unfounded cases, a 20-month investigation by Globe and Mail journalist Robyn Doolittle in 2017 on how police handle sexual assault allegations exposed deep flaws in the process. We need to do better. We owe it to survivors.

“The fact that the legal system has to prove that the victim isn’t lying (to establish beyond a shadow of a doubt that there was no consent) before the legal defense is even presented, as well as the fact that a crime of intimacy often has no witnesses, is what makes proving sexual violence so difficult,” Chagnon says.

“There are specific psychological elements that come into play when sexual violence, workplace harassment or domestic violence are concerned, where there is often a context of authority, vulnerability, or power over someone,” LeBel explained on the talk show.

“The typical reactions of a victim no longer apply in these situations," she explained. "Why did she stay with him? Why did she continue talking to her abuser? Why didn’t she move? Why didn’t she call the police? These are the kinds of questions that makes someone uneducated on victim behaviour question their motives and credibility. These questions can’t apply in these cases."

Current legal system ill-equipped to deal with sexual assault

There is no denying that both the legal system and the people working within it are often ill-equipped to handle sexual assault cases and improvements must be made. Our court system is, after all, a microcosmos of society and all its deeply ingrained prejudices and misconceptions about sexual assault can easily seep in and impact the judgment of judges and juries who are human and fallible. Our Canadian legal system has glaring examples of why a special court to handle sexual assault would be a good idea.

In 2018, Craig Penney, a Toronto defence lawyer who referred to a victim as “Silly Sally,” was disciplined for trivializing and minimizing the experiences of many sexual assault victims he was defending in court.

Speaking on the case of a 49-year-old taxi driver who was found guilty of sexually assaulting a 17-year-old girl, Quebec court judge Jean-Paul Braun suggested that she was probably “a bit flattered” by the attention and said in 2017, “She has a bit of weight on her, but she has a pretty face.”

In 2018, a Quebec Appeal Court admonished a trial judge for acquitting a father accused of incest over a 16-year-period because he couldn’t understand why it took the victim so long to come forward. Stereotypical or preconceived notions of how a sexual victim is supposed to behave is often the tipping point in judgments and perfectly illustrates how dangerous a lack of knowledge of sexual violence can be for a victim's attempt to get justice.

And who, of course, can forget Federal Court Judge Robin Camp who wondered why a young rape victim, violated over a bathroom sink, couldn’t “just keep her knees together” to avoid being penetrated. The judge was forced to resign after news of his comment became public knowledge, but has since been reinstated.

A first for Canada, but not for the world

While no specialized tribunals dealing exclusively with sexual assault currently exist in Canada, Hivon has repeatedly referenced special sex assault courts that have been created in South Africa (where the number of women raped are among the highest in the world) and a recently introduced sexual assault pilot court project in New Zealand as models for the one proposed here.

South Africa has had sexual assault courts since 1993, part of a pilot project that aimed to reduce “the insensitive treatment of victims” and improve conviction rates. A 2013 task team report identified an increase in conviction rates and a decrease in turnaround times among the courts’ “main achievements.” While it’s still too soon to assess if the pilot project in New Zealand is making it less traumatizing for victims to come forward, initial figures look promising, showing that these courts have slashed trial wait times from two years to an average of just eight months.

In Canada, other provinces have also started looking at different approaches to treating sexual assault cases, as the #MeToo movement has revealed the serious limitations our current system has in dealing with victims.

In Ontario, new changes in the provincial labour law gives health and safety inspectors new powers to order a sexual harassment investigation at the expense of the employer, and victims of sexual assault and workplace harassment have also started seeking justice through the Ontario Human Rights Tribunal because the system is easier and gentler on those who bring forward complaints. Unlike civil court, victims aren’t cross examined as aggressively. Ontario and B.C. have legal clinics that provide free representation for those undertaking human-rights complaints.

The United Nations has been clear in recommending the creation of tribunals specialized in violence against women “guaranteeing timely and efficient handling of cases of violence against women," arguing that "when they have adequate resources, there is evidence that specialized units in the justice system are more responsive and effective in enforcing laws on violence against women."

According to the UN, “specialized courts provide a stronger possibility that court personnel will be gender-sensitive, experienced in the unique characteristics of violence against women cases, and may be able to process cases more quickly, reducing the burden on victims.”

If Quebec were to implement sexual assault courts, it would be in line with its historical tendency to be ahead of the national curve on some social issues. It was in Quebec that the first gay civil union took place. It was in Quebec that subsidized day cares first offered families the opportunity to balance work and home life better than anywhere else in the country. It was in Quebec that the debate on medically assisted death began and still continues with recent court challenges arguing the law doesn’t go far enough.

While much remains to be discussed and clarified, and attention must be given to ensure that a poorly conceived or administered new system doesn’t undermine intended efforts, the message remains clear: the current system is failing victims and a specialized sexual assault court, along with a broader, more holistic approach towards helping survivors, can improve both the treatment of victims and the legal system's efficiency.

"Why has the #MeToo movement been so powerful and why are so many people choosing to publicly denounce their abusers?" asked LeBel during the group's TV appearance. "Because they no longer trust the legal system.”

The women's earnest efforts to put aside political differences and work together to improve a legal system and bureaucratic process that desperately needs improving is not only a perfect example of bipartisan solidarity but illustrates how women entering the political arena can change politics for the better and for the greater good. It's time to do right by sexual assault survivors -- and this would be a huge step in that direction.