What the Ontario government's sex assault action plan needs to do to go from promises to reality

By Tim Alamenciak - Published on Mar 16, 2015
The Liberal government's new sex-assault plan offers key proposals that could change the legal system.

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For sexual assault survivors and their advocates, now is the crucial moment between announcement and implementation.

The Liberal government’s new action plan has been publicized but not realized, and survivor-advocates, such as Nneka MacGregor and the women she works with as the executive director of the Toronto-based advocacy group Women at the Centre, are eager to see concrete change.

“We see this as an opportunity for us as women survivors to actually shape what the plan will look like,” said MacGregor. “There are some really good parts, but we are adamant our voices are not going to be left out.”

Last week, MacGregor gathered together a group of sexual assault survivors to discuss the government’s strategy and how to ensure their voices are heard as the province plots the real elements of change.

The aspirational document offers two key proposals that could result in major changes to the legal system. But the steps imagined in the plan are still in their nascent stage—wishes and commitments rather than specific actions. Each proposed change could be a potent force for equality and justice or fall short of expectations depending on how the programs and legislation unfold.

Core to the plan’s legal promises are a pilot project to offer free legal advice to sexual assault survivors and the removal of the limitation on civil actions. But the extent to which that will affect what lawyer Angela Chaisson calls a “horrendous” process of going through the criminal justice system remains to be seen. It’s unclear whether advice means a single phone call or a lawyer to accompany the victim throughout the process.

Independent legal advice is important because in criminal sexual assault trials, the complainant is often the only witness and they’re not represented by the Crown.

“Particularly in the criminal context, a lot of complainants are under the misapprehension that the Crown is their lawyer. The Crown isn't their lawyer. The Crown is the state's lawyer,” said Angela Chaisson, a lawyer with Ruby Shiller Chan Hasan Barristers who has represented complainants at sexual assault trials.

What the complainant tells the Crown isn’t covered under solicitor-client privilege, as it would be with private counsel. Not only that, but the Crown is obliged to disclose any and all relevant information to the defence – including statements made by the complainant.

Mandi Gray, a survivor of sexual assault  on the Women at the Centre committee, retained independent legal counsel ahead of the trial of the man she alleges raped her. She says her lawyer helped her understand the legal process and fight for her rights throughout.

“He was the first person who could actually tell me what was going to happen,” said Gray. Her trial hasn’t happened yet, but she said she’s contacting her lawyer – David Butt – as frequently as three times per week with questions about pre-trial requests and other processes.

Gray alleges a former classmate at York University assaulted her Jan. 30, 2015, at an informal gathering. Her case has yet to see the inside of a courtroom, and she already faces multiple processes and spends upwards of eight hours a day dealing with the fallout.

“The accused hasn't even had his first appearance yet,” said Gray. “I anticipated that I would consult with [my lawyer] a few times, but I didn’t recognize just how much I needed legal counsel because nobody took me seriously until I came in with a lawyer.”

The second major change to the legal system promises to remove the limitation on civil legal action in cases of sexual assault.

“That's huge,” said Gillian Hnatiw, a partner with Lerners LLP who handles sexual assault cases. “Because of the dynamics particular to sexual violence against all victims, men and women, there are many reasons why victims fail to take action in the two years described by the law.”

As it stands, the complainant must launch a civil action within two years of the incident (though there are a number of exemptions). According to Simona Jellinek, a lawyer who specializes in civil sexual assault cases, the rules are complex and limits are decided on a case-by-case basis.

“It is not an easy analysis to establish whether or not there’s a limitation period and when the limitation period begins,” said Jellinek.

Relationships with a power imbalance – for example, where a teacher sexually assaults a student – have no limitation on civil action. But the legal tests to determine limitation periods can be cumbersome and involve the survivor retelling their story, which can be an intensely traumatic experience itself.  

“Frankly, getting rid of [limits] completely will make it that much easier,” said Jellinek.

Many survivors wait until the criminal case has resolved, before commencing any kind of civil action. That can take years.

In the case of one Toronto-based survivor of sexual assault, her case took five years to get to trial. She didn't file a civil suit, and in her criminal trial the defence employed controversial tactics like bringing up her prior sexual history.

“In hindsight, there were many things that happened when I was on the stand that, if I would have had private counsel, there would have been a change. I think they would have stopped some of the questioning,” said the woman, who did not want to be named.

“They hung my clothes in the courtroom so they could see what I was wearing that night. They brought up past sexual experiences. They brought up a lot of my history. I just wonder if I had private counsel, they wouldn't have done that,” she said.

The action plan also targets rape shield laws, a section of the Criminal Code of Canada that prohibits bringing up a complainant’s prior sexual history, except in specific circumstances at the judge’s discretion.

The provincial government doesn’t have the power to change the criminal code, but the Liberal’s plan does propose working with the Law Society of Upper Canada, the province’s regulatory body for lawyers, to ensure standards are upheld.

“It seems to me that what they did here was they just said okay, let's look at all the laws we actually have jurisdiction over,” said University of Toronto law professor Brenda Cossman. “Where are the places that victims of sexual violence are coming to encounter provincial law that is somehow selling them short?”

The government said it would start developing concrete measures by fall 2015. The plan includes $41-million in financial commitments. The government will firm up the length and details of the free legal advice pilot, which is expected to launch at three locations, during summer 2015.

Lawyer Angela Chaisson said that while the plan makes bold promises, there’s more that could be done to address the factors surrounding sexual assault and its prosecution.

“I think it's going to take a lot to change the status quo. It's going to take a lot more than what's being offered,” said Chaisson.

Mandi Gray’s lawyer, David Butt, has worked as a prosecutor and is now in private practice representing victims of sexual assault. For the plan to be effective, Butt says it must make major commitments grounded in reality.

“A pilot project that allows someone to make a phone call once in a while isn't going to cut it. You need a pilot project that will empower those lawyers to appear in court and be with that victim throughout the process,” said Butt.

“It will make some incremental improvements, but I really think that the pilot projects, the pro bono legal advice, will serve their purpose if they demonstrate that the need is far greater than programs like that can deliver,” he said. “Until you start looking at a problem, you don't recognize the scope. Now they've committed to start looking at the problem, so maybe recognition of the scope will follow and once there's recognition of the scope maybe a more comprehensive action plan will be Phase 2.”

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