Sexism in the Legal System of Canada

Claims about the Ontario court system being unfair towards women who are involved in sexual assault cases because victims are forced to relive their assaults under cross-examination, are rebutted by defense lawyers who say “The system isn’t designed to be fair it’s not fair for the accused and it’s not fair for the victim either.”

Ottawa criminal defence lawyer, Tobias Okada-Phillips, stated this, explaining that he does not believe that the issues of sexual assault case proceedings are one sided.

“What if someone makes something up? There has to be a process to vet out liars and otherwise we’d have innocent people in jail and that’s the sort of unfairness that our system is designed, supposedly, to avoid at all costs”, Okada-Philips stated.

Out of all sexual assault incidents reported to and substantiated by police in Canada, between 2009 to 2014, only slightly over 1 in 10 (12 per cent) led to a criminal conviction. In comparison, nearly double the proportion (23 per cent) of physical assaults led to a conviction, according to a Statistics Canada report.

“The more we have people chanting that there’s no sexual assault convictions… like if we’re obsessed with statistics and conviction rates than guess what, there’s only one way to have a conviction which is somebody has to testify to trial”, said Okada-Phillips.

However, many women’s rights and anti-sexual assault activists have criticized the methods in which defense lawyers cross-examine victims involved in sexual assault cases.

“I’ve noticed, female victims are always asked about their sexual history, they’re always asked very graphic questions … when they don’t remember what exactly happened to them, defense lawyers will just bite at that and try to counter their credibility”

“ I understand that that’s their job but the way the questions are phrased are very aggressive and explicit”, said victim support worker at Ottawa Victim Services (OVS) and criminology student at Carleton University, Allysa Czerwinsky.

Criminal defense lawyer, Paul Lewandowski, stated that there are certain tools that he uses when proving that a client of his is not guilty of a sexual assault charge. “You look for details, you look for holes in the story line, you look for things that don’t logically make sense, you look for levels of intoxication… I’ve never ever seen or heard of a case where somebody actually asked ‘what were you wearing?’”

After the emergence of protests such as the ‘Time’s Up’ movement and ‘Me Too’ movement in October of 2017, which were created to bring about awareness to incidents of sexual harassment and assault and to encourage people to speak out against them, they have impacted the discussion of sexual violence in the United States as well as in Canada.

Some people feel that the Ontario court system has already seen significant improvement in terms of sensitivity and the way that it treats victims of sexual assault who must testify during their trial.

“They have victim dogs, they have a screen, you can testify in the video room, you can have a support person, you can have the Victim Witness Assistance Program there, there are many supports in place to make it as humane a process as possible”, said Lewandowski.

Others believe that there can be a less severe, less traumatizing ‘happy medium’ that can satisfy both the victim and the accused in legal proceedings pertaining to sexual assault.

“Like let’s say you’re at a party and somebody slaps somebody’s butt, which is a sexual assault…the prosecutors don’t want to let these things go … there can be some kind of compromise reached that doesn’t involve sexual assault convictions or her having to testify so there are ways to resolve things short of that, that could be more liberally used to satisfy all parties.”

Although support workers, like Czerwinsky, are happy with any improvements being made in the court system to help victims feel more comfortable testifying, Czerwinsky feels differently. Working so closely with victims of sexual assault, she still doesn’tt feel that these aids can fully address the larger issue of a woman having to rehash her traumatic experience in front of a court room.

“The court system operates in such a way that there is never really going to be an even playing field for victims because it’s an adversary system, so we’re always going to have two sides competing to win… I think there is a way that we can improve it a little bit but I don’t think that that’s ever going to disappear completely, unfortunately.”said Czerwinsky.