Report of the Coordinating Committee of Senior Officials Working Group on Access to Justice for Adult Victims of Sexual Assault
In October 2016, the Federal/Provincial/Territorial (FPT) Ministers Responsible for Justice and Public Safety tasked the Coordinating Committee of Senior Officials (CCSO) - Criminal Justice with the creation of a Working Group to:
Why adults? The Working Group’s mandate focuses on sexual assault against adults, as opposed to children, in order to address the unique challenges associated with the issue of consent in adult sexual assault cases. The scope of victimization covered includes those over the age of consent to sexual activity, which is 16 years of age with some close-in-age exceptions (section 150.1 Criminal Code). Moreover, the Working Group limited its examination to sexual assaults committed by adults who were 18 years of age or over at the time of the alleged offence , thereby excluding the application of the Youth Criminal Justice Act.
The resulting CCSO Working Group on Access to Justice for Adult Sexual Assault Victims was formed under the co-lead of Canada and Ontario with representation from all jurisdictions. Membership in the Working Group includes Crown prosecutors, police, criminal law policy lawyers and analysts, the Canadian Centre for Justice StatisticsFootnote 1 and the Directors of Victim Services from across Canada.
The Working Group’s mandate relates to the criminal justice system and therefore excludes civil remedies to sexual offences, including non-criminal responses to sexual assault on university campuses and sexual harassment in the workplace that fall short of the criminal threshold for sexual offences.Footnote 2 While the criminal justice system generally encompasses the following four independent institutions that apply the criminal law - notably the police, prosecutions, the criminal courts, and corrections - this report focusses principally on police, victim services and prosecution services.Footnote 3 In compiling the report, the Working Group has consulted with police, Crown and government-based victim services working in this area. The report is complemented by research commissioned on access to justice for Indigenous victims of adult sexual assault, as well as the neurobiology of trauma and its relevance to the investigation and prosecution of adult sexual assault cases.Footnote 4
Meaning of access to justice: Access to justice is a principle that flows from respect for the rule of law and, as such, is a fundamental value of the Canadian criminal justice system. For adult victims of sexual assault in particular, access to justice means that: victims feel comfortable reporting crimes to police; police investigations are conducted thoroughly in an objective and timely manner; charges are laid where they meet the legal criteria; and, prosecutions are conducted fairly, with supports provided to victims. While a sexual assault victim may face many challenges in the aftermath of a sexual assault, this report focusses solely on criminal justice system barriers that a victim may face following a sexual assault, which impede access to justice.
While many of the challenges identified in this report relate to broad societal issues that cannot be addressed solely through the criminal justice system, the Working Group discussed the role the criminal justice system could play as part of an overarching effort to address these underlying concerns. The Working Group discussed a variety of mitigation strategies to address the challenges facing adult victims of sexual assault in accessing the criminal justice system. The recommendations that ensued are suggestions that are interspersed throughout the report to accompany the challenges to which they respond. It should be noted that some of the non-legislative measures mentioned in the recommendations may already be in place, in whole or in part, within certain jurisdictions. These measures were identified by the Working Group in its efforts to gather promising practices and have been shared with all of the jurisdictions, which may decide, if they have not already done so, to implement measures inspired by them.
The Working Group’s 17 recommendations are reproduced below.
The Working Group also recommends consideration be given to supporting organizations such as the National Judicial Institute to provide education for the judiciary on the law of sexual assault and the role that discriminatory myths and stereotypes can play in the misapplication of the law. (Subsection 3.10)
Major Criminal CodeFootnote 5 reform of Canada’s sexual offences began in 1983 and continued throughout the 1990s. These reforms, which were largely in response to concerns raised by sexual assault victims and their advocates, were intended to encourage reporting and improve the criminal justice system’s response to reports of sexual violence. The resulting statutory framework reflects an ongoing discourse between Parliament and the judiciary, involving efforts to balance the often competing rights of victims and the accused.Footnote 6 Chapter 3 provides more information on the existing legal framework governing sexual assault against adults in Canada, proposed reforms, and some persisting challenges.Footnote 7
Like many other jurisdictions, Canada faces challenges in terms of reporting, investigating and prosecuting sexual assault cases. According to the 2014 General Social Survey (GSS) on Victimization, only one in twenty (5% E)Footnote 8 sexual assaults were reported to police, a rate over seven times lower than that for physical assaults (38%).Footnote 9 Even when sexual assaults were reported to and substantiated as a crime by police, less than half (41%) resulted in a criminal charge.Footnote 10 The attrition rate of sexual assault cases continues across the justice system: charged sexual assaults were significantly less likely than physical assaults to have been concluded in court and just over half (55%) of those that were, resulted in a finding of guilt.Footnote 11 Overall, even sexual assaults that were substantiated as a crime by police were less likely than physical assaults to lead to a criminal conviction (12% versus 23%).Footnote 12 Recent data on sexual assault in Canada and some of the questions this data raises are explored in Chapter 4, which also addresses the various challenges facing victims of sexual assault in their encounters with the criminal justice system.
Terminology: Generally, various terms are used to refer to the individual who has been sexually assaulted, including “complainant” in the context of a criminal trial, “victim”, and “survivor”. “Victim” is used in this report; however, the term is not intended to convey a lack of agency on the part of the person victimized or to imply guilt with respect to an accused person. This report also refers to victims as female and perpetrators as male, in recognition of the gendered nature of the crime. This is not meant to imply that males or persons with other gender identities are not also victims of sexual assault.
In response to the unique challenges in investigating and prosecuting adult sexual assault cases, a number of jurisdictions, both domestic and international, have explored and implemented some innovative responses. Given Canada’s federal system - where the Parliament of Canada is responsible for the criminal law and procedure (much of which is contained in the Criminal Code) and the provincial legislatures are principally responsible for the administration of justice, which includes enforcing the Criminal Code, prosecuting Criminal Code offences (except in the territories), and the delivery of victim services – there are myriad innovative approaches to sexual assault across the country. The Working Group examined some key emerging and promising practices from Canada and other common law jurisdictions as set out in Chapter 5.
The Working Group proposed some recommendations that result from its review of relevant practice, policy and legislation. These recommendations are suggestions aimed at improving access to justice for adult victims in sexual assault matters. Several recommendations involve amendments to the Criminal Code and have therefore been submitted to the federal government for consideration. However, most of the recommendations relate to the administration of criminal justice, which falls under the jurisdiction of the provincial and territorial governments, although projects funded by the federal government in these areas may also be relevant. These recommendations have been formulated by the Working Group, in accordance with its mandate, as part of an effort to identify promising practices in this field. They have already been shared with the governments, and those who do not already have similar promising practices in place may choose to implement such measures. The recommendations are listed in Chapter 1 and appear throughout the report in text boxes.
This chapter provides an overview of the criminal law that applies to sexual assault against adults. Within Canada’s adversarial criminal law system, jurors and/or the judiciary are tasked with determining whether the Crown has established the accused’s guilt beyond a reasonable doubt. The accused’s constitutional right to a fair trial requires defence counsel to expose any frailties in the Crown’s evidence, including through rigorous cross-examination of witnesses. Testifying in sexual assault trials can be extremely difficult, even traumatizing, for victims. As a result, the criminal justice system strives to strike a balance between protecting the Charter rights of the accusedFootnote 13 and ensuring that victims are treated with compassion, respect and dignity, including respecting their Charter rights.Footnote 14 Canada’s sexual assault laws have evolved to reflect these competing considerations, as well as societal interests, and are generally acknowledged to be amongst the most progressive and comprehensive in the world.Footnote 15
The Criminal Code sexual assault provisions have evolved over time in response to ongoing concerns about the criminal justice system’s treatment of sexual assault victims. Major reform of the criminal law’s approach to sexual violence began in 1983 and continued throughout the 1990s. These reforms were intended to encourage reporting, improve the criminal justice system’s response to reports of sexual violence and remove discriminatory views of victims that perpetuated myths and stereotypes about victims of sexual violence and how a “true victim” is expected to behave.
In 1983, act and gender-specific sexual offencesFootnote 16 were replaced with the three gender neutral sexual assault offences we have today.Footnote 17 These offences capture a much broader range of conduct, i.e., all non-consensual sexual activity ranging from sexual touching to penetration, and focus on the level of violence used by the assailant, rather than the type of sexual act committed. Furthermore, certain common law rules that applied only in the context of sexual assaultFootnote 18 were abrogated. For example, the Criminal Code now specifies that:
In 1992, the Criminal Code was amended to add a definition of “consent” for the purposes of the sexual assault provisions, along with a list of circumstances in which no consent is obtained as a matter of law.Footnote 23 The 1992 reforms also limited the availability of the defence of honest but mistaken belief in consent in a number of ways, including to require the accused to show that he took reasonable steps to ascertain consent in order to advance the defence.Footnote 24 Moreover, the original rape shield provisions, enacted in 1983, were amended to respond to the Supreme Court of Canada’s (SCC) 1991 Seaboyer decisionFootnote 25, which struck them down on the basis that they had the potential to exclude evidence relevant to the defence. The rape shield provisions are designed to protect victims’ privacy interests by preventing the defence from introducing evidence of the victim’s sexual history to show that she is less worthy of belief or more likely to have consented (referred to as the “twin myths”). The amended rape shield provisions also include a special procedure through which such evidence may be adduced for legitimate purposes.Footnote 26 The SCC upheld these provisions as constitutional in its 2000 Darrach decisionFootnote 27.
In 1997, the Criminal Code was again amended to add the third party records regime,Footnote 28 also to protect complainants’ privacy interests in private information contained in, for example, the complainant’s therapeutic or medical records, by preventing the accused from engaging in “fishing expeditions” to seek production of such records simply to undermine the victim’s credibility. These amendments responded to the SCC’s 1995 O’ConnorFootnote 29 decision, which established a new procedure for the production of records in which the victim retains a reasonable expectation of privacy. The new regime seeks to balance the accused’s constitutional right to make full answer and defence with the victim’s privacy rights and establishes a special procedure to be followed where an accused seeks production of the victim’s private records. The SCC upheld these provisions as constitutional in its 1999 Mills decisionFootnote 30.
Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act,Footnote 31 which was introducedin the House of Commons on June 6, 2017, proposes a number of reforms that seek to clarify and strengthen Canada’s sexual assault laws. The reforms would:
RECOMMENDATION #1: The Working Group supports the objectives of Bill C-51’s amendments intended to clarify the law on sexual assault and to provide greater protection for the complainant’s private records when the accused seeks to access such records, or adduce them as evidence in sexual assault trials.
There are three levels of sexual assault in the Criminal Code:Footnote 36 sexual assault (section 271);Footnote 37 sexual assault with a weapon, threats to a third party or causing bodily harm (section 272);Footnote 38 and, aggravated sexual assault (section 273).Footnote 39 Similar to the assault offences (sections 266 to 268), these offences increase in severity based upon the level of violence involved. Although “sexual assault” is not defined in the Criminal Code, “assault” is defined as the intentional application of force to another person, whether directly or indirectly, without the consent of that person (section 265). Moreover, the SCC has interpreted “sexual assault” as an assault of a sexual nature such that, viewed objectively, the sexual integrity of the complainant is violated. In making this determination, courts may consider the following factors:
All criminal offences have both an act element (actus reus or “guilty act”) and a mental element(mens rea or “guilty mind”), both of which must be proven beyond a reasonable doubt to secure a conviction. To establish the act element of the offence of sexual assault, the evidence must show:
While the first two elements are objective, the absence of consent is determined by reference to the victim’s subjective internal state of mind at the time the contact occurred, i.e., it must be determined whether the victim, from her perspective, gave consent to the sexual activity at issue.Footnote 41 In making this determination, the court must consider both the definition of consent (section 273.1) and the circumstances in which no consent is obtained in law (subsections 273.1(2) and 265(3)).
The mental element of the offence of sexual assault, on the other hand, is a matter of the accused’s state of mind; the evidence must show that the accused intended to touch the victim sexually, knowing that she did not consent, or being reckless or willfully blind to that fact.Footnote 42 Where it is found that the victim did not in fact consent, the defence of honest but mistaken belief in consent may be considered.
The Criminal Code defines “consent” for the purposes of the sexual assault offences as “the voluntary agreement of the complainant to engage in the sexual activity in question” (subsection 273.1(1)). Relevant case law has also established that the definition of consent requires that consent be:
The Criminal Code lists circumstances in which consent is not obtained in law or the law vitiates any consent provided. Specifically, for the purposes of the sexual assault offences, no consent is obtained in law where:
Furthermore, for the purposes of both the assault and sexual assault offences, consent is not obtained where the victim submits or does not resist by reason of:
Where it has been established that the victim did not in fact consent, the accused may assert that he nonetheless honestly believed that the victim was consenting, i.e., he may raise the mistake of fact defence of honest but mistaken belief in consent. To raise the defence, the accused must be able to point to evidence that shows that he believed the victim affirmatively communicated, by words or conduct, her agreement to engage in the sexual activity.Footnote 49 However, the accused’s belief in consent cannot be based on a mistake of law. For example, a belief in consent that is based on one of the circumstances in which no consent is obtained in law (e.g., subsections 273.1(2) and 265(3)) provides no defence,Footnote 50 nor does a belief that silence, passivity or ambiguous conduct constitutes consent,Footnote 51 given that the definition of consent requires that consent be affirmatively expressed through words or conduct.
Moreover, the Criminal Code specifies that the defence of honest but mistaken belief in consent is not available where the accused’s belief in consent arose from self-induced intoxication, recklessness or willful blindness or where the accused failed to take reasonable steps in the circumstances to ascertain consent (section 273.2). When assessing the reasonableness of the accused’s conduct, a trier of fact may consider what the accused knew and whether a reasonable person aware of those circumstances would take further steps to ascertain whether the victim was consenting.
The Criminal Code creates exclusionary rules of evidence that apply in sexual assault trials to evidence of a victim’s sexual history, i.e., evidence of prior sexual activity other than the sexual activity that forms the subject matter of the charge, whether with the accused or another person (section 276). Their objective is to remove myths and stereotypes about sexual assault victims from the trial process. Two distinct evidentiary rules apply:
In determining admissibility under the presumptive exclusionary rule, the judge must take into account a non-exhaustive list of factors, which involve a balancing of the accused’s and the victim’s interests, as well as societal interests. Specifically, a judge must consider:
Sections 276.1 to 276.5 establish a special procedure that must be followed if the accused seeks to introduce evidence of the victim’s sexual history under the presumptive exclusionary rule. The current notice period for rape shield application hearings is 7 days. However, should Bill C-51 come into force, victims will have the right to be represented by counsel for these hearings and may need more time to realize this right.Footnote 52
RECOMMENDATION #2: The Working Group recommends considering extending the notice period for admissibility of evidence applications under section 276 of the Criminal Code (rape shield provisions) from 7 to 30 days.
The Criminal Code limits the accused’s ability to seek production of the victim’s private records that are in the possession of third parties and establishes a special procedure to be followed where production of such records is sought (sections 278.1 to 278.91, referred to as the third party records regime). For the purposes of these provisions, “record” is defined as “any form of record that contains personal information for which there is a reasonable expectation of privacy” (section 278.1). A non-exhaustive list of examples of such records is provided, which includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social service records and personal journals.Footnote 53 However, records made by persons responsible for the investigation and prosecution of the offence at issue are specifically excluded.
Prosecutors cannot disclose to the accused any of the victim’s private records that are in their possession or control unless the victim has expressly waived her legislative protections (section 278.2). In these circumstances, prosecutors must notify the accused that the record is in their possession without disclosing the record’s contents (subsection 278.2(3)).Footnote 54
Seeking production of the complainant’s private records is a two-step process:
Specifically, in determining whether a record should be produced for review by the judge or to the accused, the judge must consider the salutary and deleterious effects on the accused’s right to make full answer and defence and on the right to privacy, personal security and equality of the victim, the record-holder or any other person to whom the record relates. In so doing, the judge must take into account a number of factors:
Participating in criminal justice proceedings can be extremely difficult and is often traumatic for victims of sexual offences. Sexual assault victims often fear re-traumatization through the criminal justice process, particularly where the victim is required to testify at both a preliminary inquiry and a trial (the accused may request a preliminary inquiry, if charged with an indictable offence (unless the indictable offence is listed in s 553 of the Criminal Code, in which case the provincial court or, in Nunavut, the Nunavut Court of Justice, has absolute jurisdiction). To address this concern, the Criminal Code contains a number of provisions that can make it easier for victims to provide their testimony. For example:
These testimonial aids and other protection measures were enhanced in 2015 in the Victims Bill of Rights Act, which also enacted the Canadian Victims Bill of Rights (CVBR)Footnote 56. The Criminal Code amendments complement the CVBR, which establishes certain rights for victims of crime in four areas, i.e., the right to information, protection, participation and to seek restitution. For more information see Annex 2.
Accessing these testimonial aids remains a challenge, particularly in remote and fly-in communities. Many courthouses do not have adequate closed-circuit facilities. Further, not all Crown prosecutors may have been trained on the recent amendments. Victims are not always aware of their rights under the CVBR. Since 2015, further amendments regarding testimonial aids have been suggested, in particular to address inconsistencies between the official language versions of certain provisions, the omission of a reference to a relatively new offence in another (section 162.1), and the lack of a specific provision related to support dogs. Courts have been allowing the use of support dogs as a testimonial aid for vulnerable witnesses who testify in criminal proceedings, even though there is no specific Criminal Code authorizing provision.
RECOMMENDATION #3: The Working Group recommends considering the following:
The Criminal Code requires courts to consider as an aggravating factor on sentencing the fact that the crimes were motivated by bias, prejudice or hate based on factors such as race, national or ethnic origin, mental or physical disability, sexual orientation or sex (paragraph 718.2(a)(i)). Similarly, offences that involved abuse of a spouse, a common-law partner, a child or a position of trust or authority are also to be treated more seriously at sentencing (paragraphs 718.2(a)(ii) or (ii.1) & (iii)). Victims of sexual offences can also choose to present a victim impact statement at the time of sentencing to describe the impact the crime has had on them (section 722). Where a community is impacted by a sexual offence, a community impact statement may also be submitted (section 722.2)Footnote 57. Restitution may also be available to victims for readily ascertainable losses directly related to the crime (section 738).
Following a finding of guilt in sexual assault cases, there are a number of ancillary orders that are mandatory, including DNA orders,Footnote 58 Sexual Offender Information Registration ActFootnote 59 (SOIRA) orders, and weapons prohibition orders.Footnote 60 The Crown may also consider whether it is appropriate to seek a long term offender (LTO)Footnote 61 or a dangerous offender (DO) designation on an offender.Footnote 62
Parliament exhibited a marked, and justifiably so, distrust of the ability of the courts to promote and achieve a non-discriminatory application of the law in this area. (…) History demonstrates that it was discretion in trial judges that saturated the law in this area with stereotype.Footnote 63
Despite the robust legislative provisions described above, misapplications of the law persist.Footnote 64 Although errors are often addressed on appeal, lengthy appeal processes can significantly negatively impact victims. A number of highly publicized recent cases have drawn attention to this issue.Footnote 65 For example, in R v Barton,Footnote 66 the Alberta Court of Appeal found that the trial judge had madenumerous errors in instructing the jury on sexual assault generally, the defence of honest but mistaken belief in consent, and evidence of prior sexual conduct.Footnote 67
The law on sexual assault is complex and requires an understanding of discriminatory myths and stereotypes that have been applied to sexual assault victims. Accessing ongoing training on the law, including relevant law reform, can be challenging for police, prosecution services and victim services in terms of funding and scheduling coverage to facilitate attendance. Judicial education is judge-led and provided by organizations such as the National Judicial Institute in order to respect the constitutional principle of judicial independence.
RECOMMENDATION #4: The Working Group recommends that consideration be given to making training on the law of sexual assault, as well as the role that discriminatory myths and stereotypes can play in the misapplication of the law, available to criminal justice system professionals, including victim service providers, police and Crown prosecutors. The Working Group suggests that this training could be supported by:
The Working Group also recommends consideration be given to supporting organizations such as the National Judicial Institute to provide education for the judiciary on the law of sexual assault and the role that discriminatory myths and stereotypes can play in the misapplication of the law.
This chapter describes the prevalence and nature of sexual assault against adults in Canada, drawing on national data collected and reported by Statistics Canada. The data indicates the scope, underreporting, risk factors for sexual assault, as well as the attrition of sexual assault cases in the criminal justice system.Footnote 68 While the data raises many unanswered questions, it also provides the context to better understand the various challenges facing adult victims of sexual assault in their interactions with the Canadian criminal justice system. This chapter also examines other research, including victim surveys and medical research on the neurobiology of trauma. The challenges examined by the Working Group are primarily focused on the attrition of sexual assault cases; namely, low reporting, charging and conviction rates.
The most common indicators of criminal justice system success are: (i) a trial on the merits within a reasonable time; (ii) evidence is presented firmly, but fairly; (iii) prosecution was conducted in a professional and skilled manner and (iv) victims feel they were treated fairly and respectfully, regardless of the outcome. When measuring sexual assault victims’ access to justice, other indicators of success could include:
Academics and the courts have indicated that the prevalence of “rape myths” in Canadian society represents a significant challenge that permeates the reporting, investigation, prosecution and adjudication of sexual assault cases. These persist today. Recently, the SCC agreed with the Alberta Court of Appeal that a trial judge had erred by judging “the complainant’s credibility based solely on the correspondence between her behaviour and the expected behaviour of the stereotypical victim of sexual assault.”Footnote 70 The trial judge relied on a lack of evidence that the complainant avoided the appellant after the sexual assault. The SCC said that this constituted an error law.
A rape myth is an inaccurate assumption about sexual violence and how victims are expected to behave. These myths include the “twin myths,” i.e., that women who have had sexual relations in the past are more likely to consent to sexual activity and less worthy of belief when they allege that they did not consent. Other myths and stereotypes that have been described in the research and case law include:
Victims themselves are not immune to the insidious effects of these assumptions and may blame themselves for what happened.Footnote 78 Despite increasing appellate court refutations of rape myths, negative attitudes towards sexual assault victims are prevalent and can play into assessments of credibility throughout the criminal justice process, including at both the police investigation and the trial stages.Footnote 79 The continuing prevalence of rape myths contribute to the potential for re-victimization throughout this process and negatively impact effective investigation and prosecution of sexual assault against adults.Footnote 80
Conduct frequently exhibited by sexual assault victims can be misunderstood by criminal justice professionals and even interpreted as indicators of deception. However, research on the neurobiology of trauma shows that much of this behaviour is in fact typical of persons who have experienced traumatic events. For example, victims are often unable to recall events in a chronological or detailed fashion. However, research shows that memories associated with a traumatic experience are encoded in the brain differently than “normal” memories. Annex 4 provides more details on the neurobiology of trauma.
During a traumatic event, elevated hormone levels flood the blood stream, with effects lasting up to 96 hours. Theses hormones affect the memory encoding process such that, immediately following the assault, victims can have significant gaps in their memory of the event. Research has shown that at least two nights of sleep are required to begin to fill the memory gaps. As a result, police interviews conducted immediately following the assault may not be effective from an investigation perspective, and, moreover, may work against the victim who might later recall new details that may diverge from her earlier account and consequently undermine her credibility.Footnote 81
Neurobiology research also indicates that humans have evolved to freeze first when under threat and then flee as opposed to the common belief in the “fight or flight” response. Many victims exhibit conduct that may be viewed as inconsistent with their allegations of sexual assault, including:
These behaviours are viewed by experts to fall within the normal range of expected conduct for a victim who has experienced trauma. Some may reflect the victim’s attempt to avoid further violence or to convince themselves that the event did not occur.Footnote 82
Traditional police interview techniques are designed to elicit victims’ or witnesses’ knowledge of factual details related to a crime such as the perpetrator’s appearance, type of weapon used, or type of motor vehicle at the scene. This type of questioning, however, has been shown to be ineffective in gathering details from someone who has been traumatized. To avoid misinterpretations of victims’ reactions to sexual assault, criminal justice system professionals require information about the neurobiology of trauma. For example, experts suggest that police should focus on the subjective experience of the victim rather than a linear description of the alleged assault. Similarly, in certain cases, adjudicators could benefit from the introduction of expert evidence on the neurobiology of trauma to contextualize the evidence of the victim and to provide an explanation as to why myths and stereotypes are prohibited in the fact finding context. However, finding witnesses in Canada with the appropriate expertise, and successfully securing the admission of such evidence is challenging. Trauma-informed police interview techniques that incorporate an understanding of the neurobiology of trauma are discussed later in this report as a promising practice.
RECOMMENDATION #5: The Working Group recommends consideration be given to making training on the neurobiology of trauma in the context of sexual assault available to criminal justice system professionals, including victim service providers, police and Crown prosecutors.
National data on the prevalence of sexual assault in Canada is primarily retrieved from two complementary data sources: a national household survey of Canadians who self-report their experiences of victimization – the General Social Survey (GSS) on Canadians’ Safety (Victimization)Footnote 83 - as well as official police records - the Uniform Crime Reporting Survey (UCR)Footnote 84 - which record reported incidents of crimes and are submitted to Statistics Canada. The UCR data may be linked to court records in order to follow sexual assault cases through the criminal justice system and to analyze court outcomes.Footnote 85 Additional studies are also referenced in this chapter. In particular, the Department of Justice Canada undertook in-depth interviews with male and female survivors of sexual violence, which provide the often overlooked victim perspective.Footnote 86
In 2014, it is estimated that there were 636,000 sexual assaults self-reported by Canadians to the GSS. This translated into a rate of 22 sexual assaults per 1,000 Canadians, which remained unchanged from the rate reported 10 years earlier.Footnote 87 Over the same time period, however, both the incidence of violent and non-violent offences captured through the GSS significantly declined.
In 2014, police reported approximately 21,000 sexual assaults.Footnote 88 Police-reported sexual assault rates declined between 2004 and 2014 (from 72 to 58 incidents per 100,000 population), which is consistent with the decline of violent crime in Canada overall.Footnote 89 However, the decline in police-reported sexual assaults is inconsistent with the stable rate of self-reported sexual assaults over the same 10-year period as measured through the GSS on Victimization.Footnote 90
Sexual assault is one of the most underreported violent crimes in Canada, with an estimated one in twenty (5%E) coming to the attention of authorities.Footnote 91 This underreporting may be attributed to the personal nature of the offence and the shame, guilt, and negative stigma that often comes with being victimized sexually.Footnote 92 According to the GSS on Victimization, the most common reasons victims did not report to police were because victims:
Victims also refrain from reporting sexual assault for fear of: reprisals from the perpetrator; adverse impacts on their careers or livelihood; or, facing the perpetrator and being cross-examined in court. Some victims may not report because they are unaware that the sexual assault experienced is in fact a criminal offence and that they could report.Footnote 94 For instance, in the context of sexual assault within marriage, some women may not be aware that their husbands are not immune from criminal prosecution for sexually assaulting them.Footnote 95 Moreover, in the context of intimate partner sexual assault, victims may have additional reasons not to report, including not wanting their partner to face criminal sanctions, particularly where they are dependent upon their partner financially.Footnote 96
There is no evidence that victims of sexual assault are any more likely than victims of other crimes to make false accusations when reporting to police. Yet, some criminal justice system professionals may still be skeptical of sexual assault victims’ allegations on the basis of a perception that many women will claim they were raped when they regret having had consensual sexual activity or because they are seeking revenge. However, the SCC “… has rejected the notion that complainants in sexual assault cases have a higher tendency than other complainants to fabricate stories based on ‘ulterior motives’ and are therefore less worthy of belief. Neither the law, nor judicial experience, nor social science research supports this generalization.”Footnote 97 For example, on the basis of some studies conducted in common law jurisdictions, it is estimated that between 2% and 8% of sexual assaults reported to police constitute a false reportFootnote 98, which is on par with the estimated rate of false reporting for other crimes.
While physical injuries resulting from a sexual assault are uncommon, results from the 2014 GSS show that many victims suffer emotional and psychological trauma. Fifteen per cent of victims reported experiencing three or more long-term emotional consequences that may be consistent with post-traumatic stress disorder (PTSD).Footnote 99
Victims of sexual assault report reduced confidence in the police and increased fears for personal safety. While nearly half (45%) of Canadians who had not been a victim of sexual assault reported having “a great deal of confidence” in police, less than one-third (29%) of victims of sexual assault felt the same. Instead, victims of sexual assault were more likely to report having no to “not very much confidence” (15%E) or “no confidence at all” (7%E) in police than those who were not victims of sexual assault (6% and 2%, respectively). Victims of sexual assault were also more likely to feel unsafe while using public transportation alone at night, walking alone at night, or simply being home alone at night.Footnote 100
Several years ago, the Department of Justice Canada undertook in-depth interviews with male and female adult survivors of sexual violence. Participants were recruited through advocacy and support centres in several cities, as well as in the Northwest Territories.Footnote 101 A number of participants indicated that officials need to be more sensitive when interviewing victims, as they often feel that they are not believed. In addition, some indicated that they were treated as if they were to blame. Consequently, many participants indicated that they believed professionals within the criminal justice system would benefit from training on working with survivors of sexual violence, including sensitivity training. The participants in the male sample also stressed the importance of raising awareness, for example through awareness campaigns, about sexual violence against men, including its nature and its prevalence, in order to address the myths and stigma associated with male sexual abuse.Footnote 102
The participants also suggested that support in all forms needs to be provided to victims throughout the entire criminal justice process, i.e., from the time the incident occurs through the court process and after the trial has ended. One way of achieving this would be to provide a support or advocacy person to work with the victim throughout the process, use basic language to explain legal terms, and provide translation to those who need it.Footnote 103 Many also indicated that victims need to be kept up-to-date on their case and that information needs to be provided in a timely manner throughout the entire process.
In certain instances there may not be enough evidence to proceed with a criminal charge. However, if reasonable grounds exist to fear for the safety of a person, a peace bond can be applied for under section 810 of the Criminal Code. Currently the Criminal Code does not specify that the testimonial aids provisions (sections 486 – 486.3) apply to peace bond proceedings. Although they have been applied by some judges, the practice is not consistent across Canada. Ensuring that sexual assault victims can access these accommodations would enhance their access to justice.
Where charges are laid and police release the accused with no-contact conditions, victims may also need to be assured that the accused will not come within a specified geographic area or not possess certain weapons. The expansion of the police release provisions to fill these gaps would also enhance sexual assault victims’ access to justice.
The trauma associated with repeatedly recounting the assault – including to the Sexual Assault Nurse Examiner, the victim services worker, the police, the Crown and the court – poses particular challenges to sexual assault victims and survivors. Research suggests that applying a victim-centered perspective when establishing justice programs is a valuable practice. A victim-centered perspective or a trauma-informed practice is one that recognizes and prioritizes the needs and rights of victims (wherever possible), and offers victims the opportunity to exercise agency.Footnote 104
Understanding the impact of trauma upon victims of crime is critical in providing a response that accounts for victims’ trauma and does not inadvertently add to it. Victim-centered interactions emphasize the victim’s specific needs and concerns to ensure the non-judgmental, compassionate, individualized, needs-based and sensitive delivery of services. Trauma-informed practice requires criminal justice system partners to:
Using an approach that is victim-centred, trauma-informed, strength-based and culturally safe not only assists the victim’s healing, but also keeps victims engaged in the criminal justice process.Footnote 105
The inconsistent availability of coordinated services for victims and trauma-informed responses to sexual assault can act as a barrier for victims to access justice. Improvements in this area would require strong partnerships with the health sector, both at the policy level and the regional service delivery level. The health sector is responsible for most counselling and mental health programs used by victims of sexual assault, and immediate and prolonged access to trauma counselling improves victims’ experiences through the justice process.
RECOMMENDATION #6: The Working Group supports the underlying objectives of: Bill C-75’s amendments intended to strengthen the criminal justice system’s response to intimate partner violence and to improve the experience of victims in the criminal justice system, including victims of sexual assault; and, Bill C-59’s amendments intended to facilitate the testimony of persons applying for peace bonds by specifying that testimonial aids may be ordered in such hearings.
RECOMMENDATION #7: The Working Group recommends consideration be given to promoting the adoption of trauma-informed practices among criminal justice system professionals.
Sexual assault is a gendered crime where the preponderance of victims are women (87% according to the 2014 GSS) and the vast majority of offenders are men (94%).Footnote 106 While anyone can be a victim of sexual assault, research suggests that there are a number of social characteristics and factors that may place an individual at higher risk. These include: being young, female, Indigenous, single, homosexual or bisexual; having poor mental health; participating in more evening activities outside the home; having a history of homelessness; or, having been abused during childhood.Footnote 107 People with disabilities are also at greater risk of sexual victimization and are even less likely to successfully engage in the criminal justice system.Footnote 108
According to the 2014 GSS, Canadians who identified as belonging to a visible minority group were as likely to report having been sexually assaulted as those who did not identify as a visible minority, however, they were less likely than non-visible minorities to think that police were doing a good job at being approachable and treating people fairly.Footnote 109 The Working Group is aware of anecdotal evidence suggesting that marginalized people, such as visible minorities and new Canadians, may be reluctant to report sexual assaults because of their lack of trust in the system and their experience with racism. Currently, there is a lack of social science research documenting experiences of racism and reporting of sexual assault. The Working Group acknowledges this data gap and the need for further study of this issue in Canada.
Unlike children, an adult victim who is intellectually challenged is not presumed in law to lack the capacity to consent to sexual activity. However, depending on the nature and extent of the intellectual disability, the question of capacity to consent may be raised. Section 153.1 of the Criminal Code is a hybrid offence specifically related to the sexual exploitation of a person with a disability. Cases under this section involve particular additional evidentiary and legal issues in terms of the victim’s capacity to consent, caregivers being in a position of trust, and the victim’s ability to recall and communicate testimony. In addition, where the Crown proceeds by indictment, the maximum sentence under section 153.1 is 5 years as opposed to the 10 year maximum sentence for sexual assault.Footnote 110 Moreover, a dangerous offender application is not available for an offence that has a maximum penalty of less than 10 years.
RECOMMENDATION #8: The Working Group recommends consideration be given to:
According to the 2014 GSS, Indigenous peoples are approximately three times more likely to be a victim of sexual assault than their non-Indigenous counterpartsFootnote 11. Furthermore, more than one in five or 22% of young Indigenous women (aged 15 to 24) reported to the GSS that they had been sexually assaulted in the previous 12 monthsFootnote 112. The territories, where there is a large population of Indigenous peoplesFootnote 113, have high rates of sexual victimization as compared to the rest of the countryFootnote 114. The reasons for this are myriad and complex and beyond the scope of this report; however, it is generally recognized that the significant rate of violence in many Indigenous communities is linked to the legacy of colonization and colonial polices, including residential schoolsFootnote 115.
The 2014 GSS indicates that Indigenous peoples have less confidence in the police than non-Indigenous peoplesFootnote 116. This mistrust is a significant barrier to reporting crime and engaging with the criminal justice system, beyond the many challenges that sexual violence victims already face in reporting such crimes to policeFootnote 117. A summary of a more detailed report on the challenges facing Indigenous victims of sexual assault and promising practices for moving forward can be found in Annex 5.
RECOMMENDATION #9: The Working Group recommends that consideration be given to:
The 2014 GSS contained questions designed to identify links between experiences of sexual assault and substance use. According to the survey, individuals who reported substance use—that is, drug useFootnote 118 or binge drinkingFootnote 119—in the past month experienced a rate of sexual assault that was four times higher than those who did not report substance use (71E versus 17 per 1,000 population).Footnote 120 In addition, just over half (54%) of sexual assault victims believed that the incident was related to the offender’s alcohol or drug use.Footnote 121
Intoxication, whether by drugs or alcohol, may undermine the reliability of the victim’s memory and impact the evidence that the victim is able to provide – at the forensic interview and at trial – thus making the case more difficult to prove.
Alcohol consumption or intoxication may make the victim more likely to be targeted by an offender who wishes to avoid detection. Intoxicants may increase levels of trust and reduce the victim’s ability to detect danger. Like alcohol, many drugs facilitate sexual assault by making it easier to overcome resistance and to reduce the victim’s ability to provide a detailed account of the events. Drugged victims are less likely to be able to detect a threat and weigh options as to how to respond or verbally negotiate their way out, stall or attempt escape. The perpetrator may be viewed by others as helping a very intoxicated woman, instead of ensuring her isolation from others. Those attacked while incapacitated often experience a profound sense of powerlessness, the terrible feeling of not knowing the extent of what was done to them, and anxiety as to whether the assault was documented in some form.Footnote 122
Expert evidence from a toxicologist can assist in these cases, particularly where forensic evidence was available to indicate the level of intoxication of the victim. Similarly, investigators and prosecutors need knowledge of the types of drugs that may have been used to facilitate sexual assault in order to ask the right questions about ingestion and the symptoms the victim might have experienced to help to narrow the list of potential drugs that may have been used.Footnote 123
RECOMMENDATION #10: The Working Group recommends consideration be given to:
Sexual assault is most often perpetrated by a young to middle-aged man who acted alone and who knew the victim. According to self-reported sexual assault data, the offender: was a male 94% of the time, was between 18 and 34 years old over half (58%) of the time, and acted alone most (79%) of the time.Footnote 124 Over half (56%) of sexual assaults self-reported by Canadians to the GSS occurred at the hands of someone known to the victim.Footnote 125 This proportion is notably lower than that found among incidents of sexual assault reported to police, where the majority (81%) involved victimization by someone they knew.Footnote 126 Among sexual assault charges laid by police, the perpetrator was most commonly a casual acquaintance (26%), a family member other than a spouse (24%), or an intimate partner (19%).Footnote 127 This data clearly undermines the myth that sexual assaults are perpetrated by strangers.
In many adult sexual assault cases the victim’s testimony will be the sole evidence and, as such, the police need to establish whether that evidence is sufficiently credible to meet the test for laying charges. Although the policies for charging vary across Canada, charges will generally be laid by police in the exercise of their discretion if they conclude there are reasonable grounds to believe an offence has been committed. Some provinces – British Columbia (BC), Quebec and New Brunswick (NB) – pre-charge screen the files, which means that before the charges are laid, the Crown applies its charging standard. It is only after Crown approval in those three provinces that a charge is then laid. All other provinces and territories conduct some form of charge screening following receipt of the report from the police, and use the standard of reasonable likelihood of conviction or words to that effect. Public interest factors in proceeding with charges are also considered.
An incident is classified as unfounded if the police investigation determined that the offence did not occur or was not attempted, which is not the same as finding that an offence may have been committed but there is insufficient evidence to proceed with charges. Information on unfounded incidents has not been published by Statistics Canada through the UCR Survey since 2006.
In February 2017, the Globe and Mail began publishing a series of articles entitled the “unfounded series”.Footnote 128 This series had a significant impact on police across Canada, prompting many agencies to review their classification policies and interview practices (see Chapter 5).
In April 2017, the Police Information and Statistical Committee (POLIS) of the Canadian Association of Chiefs of Police (CACP) recommended resuming the collection, analysis and dissemination of unfounded incidents, including in relation to sexual assault, by Statistics Canada.Footnote 129 POLIS, which is co-chaired by a police service and the Canadian Centre for Justice Statistics (CCJS), Statistics Canada, and is responsible for addressing data quality and comparability issues for the UCR survey,Footnote 130 further recommended the adoption of a common approach to be taken by police services for the classification and reporting of unfounded incidents.Footnote 131 Following these recommendations, Statistics Canada announced it will provide standards and guidelines to police services to ensure standardized reporting of unfounded incidents to the UCR.
Statistics Canada has been working with the CACP, POLIS, other police services, as well as non-police experts to develop a common approach for the classification and reporting of founded and unfounded incidents, including sexual assaults, within the UCR Survey. A central piece to the amendments to the Survey is the new definition of a founded incident:
An incident is “founded” if, after police investigation it has been determined that the reported offence did occur or was attempted (even if the charged/suspect chargeable (CSC) is unknown) or there is no credible evidence to confirm that the reported incident did not take place. This includes third party reports that fit these criteria.
As well, new categories on the clearance status of founded incidents were added to assist police in coding uniformly and to provide more information on why a founded incident may be cleared or not. Training on these new classifications was developed by Statistics Canada in collaboration with police and took place in early 2018. In addition, an online training course was developed and offered free of charge to all police services in the spring of 2018. In July 2018, Statistics Canada published the first set of results on unfounded incidents in police-reported crime data from 2017, including in relation to sexual assault.Footnote 132 Moving forward, it is anticipated that these new definitions and classifications, coupled with coding training for police officers across the country, will result in more accurate data regarding the outcomes of sexual assault investigations.
As noted in the introduction, most sexual assaults are not reported to police and, even when they are, these cases do not often result in criminal convictions. A special study of police and court records of sexual assaults substantiated as a crime by police between 2009 and 2014 found that only half (49%) of sexual assaults that were charged or recommended for charge by police had been concluded in court (whether withdrawn, dismissed, found guilty, acquitted, etc.) during the six-year period of study.Footnote 133 Of those cases that were concluded in court, just over half (55%) resulted in a finding of guilt.Footnote 134 There are a number of possible procedural and methodological reasons for why a sexual assault case charged by police may not have linked to the completed court case data. This study excluded data from Quebec and Prince Edward Island (PEI).
Understanding the reasons as to why the 51% of sexual assaults charged by police did not link to a completed court case were outside the scope of the data available for this study, which looked solely at the statistical linkage element of police to court records for both sexual and physical assault incidents. It should be noted that the attrition rate from police charge to concluded court case for sexual assaults (51%) is twice that of physical assaults (25%).
More research on the possible pathways of sexual assault cases is required to further advance an understanding of attrition of sexual assault cases in the justice system. Moving forward, police services will be using new clearance categories which will help determine the number of incidents that were recommended to Crown to pursue but which were subsequently declined.
RECOMMENDATION #11: The Working Group recommends consideration be given to conducting additional comparative studies on the justice system outcomes of sexual and physical assault in the coming years to:
Sexual assaults are typically more common in rural areas and in the territories. Between 2009 and 2014, the police-reported sexual assault rate was higher outside of larger cities than within census metropolitan areasFootnote 135 (83.0 versus 53.1 incidents per 100,000 population). Sexual assault rates were highest in Nunavut (567.4), followed by the Northwest Territories (404.3) and Yukon (204.8). These findings may in part be driven by the higher sexual assault rates seen among Indigenous people,Footnote 136 who comprise a large proportion of the population in the North.Footnote 137
Nearly two in three (62%) incidents of sexual assault reported to police between 2009 and 2014 took place on private property.Footnote 138 This includes in a single home (41%) or a dwelling unit or private property structure (21%). However, an incident taking place on private property does not imply that the victim and the assailant were alone.Footnote 139 A greater proportion of sexual assaults took place on private property than did physical assaults (62% versus 56%). Conversely, physical assaults were more likely to occur in open areas than sexual assaults (22% versus 16%).Footnote 140
In rural and remote communities there are particular challenges to reporting a sexual assault. In some of these communities, there is no local police detachment; to report the incident, a victim must travel to a different community. In those communities where a detachment exists, it may only be staffed by one or two officers, who may be members of the community. In these circumstances, the privacy and safety of the victims is of concern, especially if the accused is a member of the community and, even more so, if the accused holds a position of status or power within the community.
In addition to these concerns, small, remote or northern communities may lack services for victims of sexual assault, which can impact whether a victim reports to police. Victim-serving organizations, such as rape crisis centres or women’s centres, provide support and information to victims of sexual assault about their options following their victimization. A lack of such services acts as a barrier for victims to seek help.
Almost all (98%) incidents of sexual assaults reported by police between 2009 and 2014 were classified as level 1 offences,Footnote 141 which represents the least serious of three levels of sexual assault and generally involves violations of a sexual nature without a weapon or evidence of bodily harm.Footnote 142 Most sexual assaults do not involve a weapon other than physical force imposed by the offender. Nearly 9 in 10 (86%) self-reported sexual assaults did not involve a weapon,Footnote 143 while close to all (96%) of sexual assault police-reported incidents did not.Footnote 144
Unlike physical assaults, most sexual assaults do not result in physical injury to the victim. According to the 2014 GSS, most (93%) victims did not experience a physical injury as a result of the sexual assault. However, sexual assault can be a profound violation of the victim’s physical and emotional integrity with lasting psychological impacts including self-harm and suicide.Footnote 145
Many sexual assaults are not reported in the immediate aftermath of the crime.Footnote 146 This issue was recently analyzed in detail by CCJS, using police-reported records on the delay in reporting of the crime to police.Footnote 147 The study noted that while the vast majority (88%) of physical assaults were reported to police on the same day that the crime took place, only half (52%) of sexual assaults were. Of crimes not reported on the same day, the median delay in reporting to police was 12 times longer for sexual assaults than for physical assaults. Delayed reports of sexual assault had higher instances of missing or unknown information in the police file compared with those that were reported on the same day, which indicates the diminishing availability of evidence and information about the crime as time passes.
Some victims may wait months or even years to report, due to factors such as shame, trauma or fear of reprisals. The delayed disclosure of a sexual assault often means that physical evidence is minimal or no longer exists. After years of Canadian courts hearing expert evidence in domestic violence and child abuse cases, the SCC recognized that delayed and incremental disclosure is a common behavior in sexual assault cases as well and, as a result, a standard jury instruction on that issue was developed.Footnote 148
While delayed disclosure has the greatest impact on the investigation – namely, the availability of evidence and locating witnesses – it also can impact the process of the prosecution. Sexual assault is a hybrid offence, which means that it can be prosecuted either summarily or by indictment, depending on the severity of the crime and the potential sentence sought. If the Crown wishes to proceed summarily for a particular offence (which would generally be the case for less intrusive sexual assaults short of penetration), the offence must be charged within six months of the offence. Otherwise, absent consent by the accused, the Crown would have to proceed by indictment. This can result in a much lengthier process given the accused’s right to a preliminary inquiry in indictable matters (unless the limitations on preliminary inquiries on C-75 are enacted), and a more formal process including a jury trial. Extending the limitation period for summary matters would allow more cases where there is a delay in reporting to proceed by way of summary conviction.Footnote 149
RECOMMENDATION #12: The Working Group supports the objective of Bill C-75’s amendment that extends the limitation period for summary conviction offences from 6 to 12 months.
For those victims that do engage the criminal justice system, studies show many indicate that the process was long and difficult.Footnote 150 Many victims cite the fear of testifying and not being believed as their primary concern with the process.Footnote 151 In addition, victims often expressed frustration with the perceived unfairness in the way the victim is treated compared to the accused. Studies show that there is a perception among some victims of sexual assault that the accused is not punished, or any punishment imposed does not reflect the gravity of the crime given the devastating impacts of sexual violence on victims.Footnote 152 While many of these frustrations are experienced by victims of a variety of crimes, the personal nature of sexual assault and the negative impact of rape myths can add additional challenges for sexual assault victims.
Many of the reasons for the attrition rates at the prosecution stage parallel the challenges at the investigation stage. However, there are additional challenges for victims that are specific to the adversarial trial process.Footnote 153 Testifying and being cross-examined before an open court are extremely difficult for many sexual assault victims and can result in their re-victimization as they are forced to relive their experiences, often repeatedly, during trial. While cross-examination is an essential component of the adversarial system and required to ensure the fair trial rights of the accused, having to testify both at the preliminary inquiry and again at trial, sometimes years after the offence took place, is particularly difficult for victims of sexual assault. A preliminary inquiry will be required if the Crown proceeds by indictment in the sexual assault case and the accused elects a preliminary inquiry with the trial to be held later.
In preliminary inquiries for sexual assault cases, victims are cross examined for often lengthy periods of time by defence counsel to test their reliability and credibility. It is very difficult for victims to go through cross examination a second time at trial and be cross examined additionally on the transcript of their testimony from the preliminary inquiry.
RECOMMENDATION #13: The Working Group supports the effect of the amendments in Bill C-75 that would restrict the availability of preliminary inquiries in sexual assault cases.
Victim surveys also indicate that an early resolution and acknowledgement of responsibility by the accused is one of the primary desired outcomes for victims. The data cited above show that sexual assault cases rarely result in a guilty plea, although plea bargains are widely believed to be a useful tool in the effort to enhance justice efficiencies, promote a sense of responsibility in the offender, acknowledge the harms done, and begin aiding in the offender’s rehabilitation. As the consequences of a conviction for a sexual assault are significant - including the mandatory minimum penalties imposed on certain sexual assault offences, the mandatory registration of the offender in the Sex Offender Information Registry, and the public stigma of conviction – the accused may have more reason to exercise his right to have a trial. Prosecutorial discretion to apply for a SOIRA order and judicial discretion to refuse to make the order under certain circumstances was removed in 2011.Footnote 154 A complete lack of judicial discretion even for remorseful first-time offenders of minor offences can pose challenges for early resolution of some offences and some academics suggest may not always be justified, given that recidivism rates for sex offenders are no different than for offenders of other violent crimes.Footnote 155
In addition, community-based sentences are not available for sexual assault cases prosecuted under section 271 by way of indictment or where the offence charged carries a mandatory minimum penalty (section 742.1). However, in some cases, some experts suggest, community-based sentences may be appropriate (e.g., for a first-time offender, an Indigenous or otherwise marginalized and vulnerable offender who could benefit more from community/social services as opposed to incarceration).Footnote 156
Some victims have indicated a desire for the availability of non-criminal or alternative responses to offending.Footnote 157 While only an estimated 5% of sexual assault victims in Canada report the crime to police, the 2014 GSS found that as many as 25% of victims of sexual assault are interested in restorative justice and that percent likely increases as time passes after the offence.Footnote 158 The use of restorative justice in adult sexual assault cases is discussed in more detail in Chapter 5.
The Working Group examined various criminal justice system responses to sexual assault against adults both from across Canada and from other common law jurisdictions. The practices highlighted in this chapter serve to illustrate the wide range of promising and emerging practices that some Canadian jurisdictions have already adopted or may consider adopting.
Although Canada has legal traditions that originate in the French civil law, the English common law and, increasingly, Indigenous legal traditions, the Canadian criminal justice system is founded on the common law tradition and is adversarial in nature (e.g., as opposed to the inquisitorial system of criminal justice in many European civil law countries). As a result, the Working Group focused on promising and emerging practices from other common law jurisdictions in an effort to identify potentially transferrable practices.
Defining promising or emerging practices
The Working Group considers a practice to be “promising” where there is some evidence that the practice is effective at achieving the goals and objectives of the activity, program or policy. This is usually assessed through an evaluation that has been conducted of the practice, which can be relied upon to indicate that the practice holds promise for others who may be considering adopting a similar approach. The Working Group also identified many practices that have not yet benefitted from an evaluation, but are nonetheless innovative and hold promise based on their novel approach. As there is a lack of evidence of effectiveness of these newer practices, the Working Group describes them as “emerging practices” that are worthy of further consideration and research. The Working Group did not conduct primary research but focused its assessment on existing evaluations and survey results with an emphasis on the views of victims.
The promising or emerging practices identified in this chapter have been grouped into the following categories: (1) horizontal strategies and public awareness campaigns; (2) multi-sectoral, victim-centered and trauma-informed responses; (3) practices to enhance reporting and investigations; (4) practices to enhance prosecutions; and (5) alternative approaches.
While all provinces and territories have action plans or strategies to address violence, family violence or violence against women, within which sexual violence is addressed, a number of provinces have created specific strategies related to sexual offences. Public awareness campaigns often form part of a larger government-led strategy although they may also originate from community-based organizations.
A number of provinces and territories have specific sexual violence strategies or actions plans and at least two have dedicated resources identified for these initiatives. For instance, in 2015 Ontario established It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment (INO), a multi-pronged effort by the Ontario government which saw an investment of $41 million over three years.
Similarly, the Quebec Government Strategy to Prevent and Counter Sexual Violence 2016-2021, put forward 55 concrete actions involving 12 government departments and agencies with an investment of $200 million over five years, including $44 million to be used to implement the 55 new commitments set out in the strategy. In addition, this reflected the third sexual violence action plan for Quebec. The 2008-2013 action plan was the subject of a report published in 2014, which sets out details on the implementation of each of the action plan’s measures, including the exact investments made and the results of measurable objectives. This serves as an example of a promising practice that demonstrates transparency and accountability. It also served as the basis for the subsequent strategy. In addition, Quebec has an Intervention Strategy for Preventing and Countering Sexual Violence in Higher Education for 2017-2022.
There are a multitude of examples of promising practices in relation to outreach and public awareness efforts from across Canada. While many of these are not directly linked to the criminal justice system, they can play a critical role in raising awareness of what constitutes criminal behavior and what victims can do in the event of sexual victimization. There are a number of campaigns that have subsequently been adopted by other jurisdictions within Canada. For example, the Don’t Be That Guy campaign that clarified that sex without consent is sexual assault, which was initiated by Crime Prevention Ottawa, was adopted in Vancouver and credited by the Vancouver Police for having contributed to a 10% decline in sexual assaults in 2011.Footnote 159 Likewise, Alberta’s 2015 #ibelieveyou campaign has been correlated to marked increases (13-23%) in police and SART reporting rates in Edmonton and CalgaryFootnote 160 as well as a 53% increase in new counselling clients to sexual assault centresFootnote 161. The campaign has gained wide support from post-secondary campuses in Alberta. Similarly, Saskatchewan adapted the 2015 Ontario social media campaign, Who will you help, which features videos depicting situations where vulnerable and intoxicated young women are targeted in public spaces.Footnote 162 In early 2018 the Toronto Police launched an interactive website called YourChoice.TO which helps survivors of sexual assault navigate the criminal justice process.
Specific sexual assault strategies or action plans have the advantage of signaling political commitment to addressing the pervasive issue of sexual assault. They can also frame the criminal justice system response to sexual assaults within the broader context and promote a wide range of actions from primary prevention to intervention and treatment programs. Many of the promising or emerging practices that are featured in the following subsections form part of strategies and action plans.
RECOMMENDATION #14: The Working Group recommends consideration be given to developing and disseminating legally-accurate and accessible public legal education and awareness material on sexual assault and consent.
A number of Canadian jurisdictions have multi-sectoral and collaborative responses for victims of sexual assault (also described as multi-agency or multi-disciplinary responses). Many of these responses involve interagency protocols to facilitate victim referrals and some adopt a hub modelFootnote 163 whereby victims can attend one principal location to receive a range of health, social and criminal justice system responses. An example of this emerging practice is the PEI Sexual Assault Response Committee, which is made up of representatives of the Island's two major hospital Emergency Departments, all of PEI's police agencies including RCMP, the office of the Crown, and other government and victim serving community organizations.
South Africa uses a system of response centres, called Thuthuzela Care Centres (TCCs), which are located in hospitals and staffed by specialized medical professionals, social workers, and police. Victim assistance officers are also on hand to explain procedures and to assist victims through medical examinations and in reporting to police. TCCs could be qualified as hub models which provide a number of services for victims of sexual violence, including immediate and short-term counselling, nurse facilities to arrange follow-up and refer victims to long-term counselling, transportation services to remove victims from dangerous environments, and safe spaces for children and victims. Along with victim assistance officers, meetings with prosecutors, police, and investigators are also made through TCCs. Centres are governed by the South African National Prosecuting Authority’s Sexual Offences and Community Affairs Unit, but rely on a partnership model between community-based service providers and implicated government departments. The Centres are closely connected with South Africa’s system of specialist sexual offences courts, discussed below. Similar hub models exist in Canada in the form of Child Advocacy Centers, however, they do not provide services to victims of adult sexual assault.
Sexual Assault Nurse Examiners (SANEs) provide emergency response for victims immediately following a sexual assault. With the victim’s consent, SANEs provide comprehensive medical, forensic, and emotional care with appropriate follow-up care. SANE services are administered either through a community-based organization or a hospital-based centre and services are delivered in partnership with local hospital emergency departments and other community-based health centres. SANE programs are trauma-informed, client-centred care models, where the victim directs all aspects of care. Services can include support and crisis intervention; discussion of medical, legal and follow-up options; a physical assessment; the option of a forensic examination; and, information about and links to community resources. Follow-up supports may be available and SANEs may provide testimony if the case proceeds to court. There are many studies that have pointed to the positive impact of SANEs in making the linkage between the heath care and legal responses and in improving victim’s experiences in seeking assistance following an assault.Footnote 164
Currently, SANEs are present in Newfoundland and Labrador (NL), Nova Scotia (NS), NB, Ontario, Manitoba, Alberta and BC. Nova Scotia’s SANE program provides two SANEs on-call, 24 hours a day, while Ontario’s SANEs operate as part of 35 hospital-based Sexual Assault/Domestic Violence Treatment Centres and are linked to the provinces “enhanced prosecution model” which employs interdisciplinary consultations between prosecutions and SANEs, victim-witness assistance, sexual assault centres, and other public resources.
Nova Scotia’s SANE program has, in particular, been identified as a promising practice. Its program is community-based, a model of service provision that has been evaluated as an effective mechanism for service delivery, that is independent from large institutions and whose flexibility enables effective coordination so that issues can be addressed quickly and effectively. Since it is based in the community, the SANE is able to provide educational sessions to medical groups, hospital staff, police and community groups.Footnote 165
The Sexual Assault Response Team (SART) model typically focuses on coordinating the immediate interventions of law enforcement agencies, advocacy/victim service organizations, and health care providers in response to disclosures of sexual assault. Existing models of victim-centred, trauma-informed, coordinated, cross-sector responses to sexual assault, such as SARTs in the United States (US) and Sexual Assault Referral Centres (SARCs) in the United Kingdom (UK), have been identified as promising or even best practices.Footnote 166 SARTs aim to improve both the community response to sexual assault victims and the processing of sexual assault cases through the criminal justice system by providing coordinated, cross-sector response to sexual violence; reducing trauma for victims; increasing reporting rates; enhancing evidence collection and improving victim cooperation in cases.
A number of Canadian jurisdictions have SARTs in place. These include the SARTs at the Victoria Sexual Assault Centre and the Kelowna General Hospital in BC, the SART in Halifax, NS, the Waterloo Region in Ontario and SARTs in Fredericton and Saint John, NB. Also of note is BC’s Surrey Women’s Centre’s Surrey Mobile Assault Response Team (SMART) which provides 24-hour crisis response in partnership with Surrey Memorial Hospital over the phone and in-person. The SMART team provides a range of services including assisting with safety planning, hospital accompaniment, and outreach services such as assistance with accessing housing, income assistance, and legal aid. This SMART is the only sexual assault mobile response program of its kind in Canada that works across multiple police jurisdictional boundaries with several hospitals and non-governmental organizations (NGOs) in a large geographic area.
In Alberta, four cities have well-established SARTs and teams were recently created in five rural Alberta communities by the Alberta Association of Sexual Assault Services (AASAS). The objective of the SARTs is the standardization of a coordinated sexual assault crisis response to recent sexual assault. Each SART looks slightly different, although key partners are usually similar (e.g., health, policing, victim services, counselling, and sexual assault centres).
While all provinces and territories offer victim services to respond to victims of sexual assault, each jurisdiction has developed its own model for the delivery of services to victims in accordance with their victims’ legislation. There are generally four types of models for services delivery: court-based, police-based, community-based and system-based models. Court-based services are available to victims during their participation in criminal proceedings while police-based and community-based services provide support, information, referrals and assistance to victims of crime through the relevant police detachment and community agencies that are contracted to provide these services. System-based services are provided directly by the provincial government and include a range of victim services from the time of the offence through to the conclusion of court proceedings and the aftermath. While some jurisdictions follow one model of service delivery, others offer services through a combination of models.Footnote 167 In addition to victim services, community-based rape crisis centres and sexual assault services exist in all provinces. These services can be linked to the criminal justice system as in the case of the AASAS, described above.
A promising practice in relation to the provision of services to victims of sexual assault can be found in Quebec’s funding for organizations serving sexual assault victims, including sexual assault support centres (CALACS); the toll-free bilingual support, assistance and referral line for sexual assault victims, which is available province-wide, 24 hours a day, 7 days a week. Victims can also be referred to the crime victims' assistance centres (CAVACs), which offer free and confidential front-line services to all victims of crime and their immediate families and to witnesses to a crime. These services include accompaniment (e.g., support during court proceedings); information about victims’ rights and the remedies available to them; technical assistance in exercising some of these rights (e.g., filling out a victim impact statement or submitting an application for compensation or restitution); post-trauma and psychosocial intervention; and referrals to specialized services. These professional services are offered in Quebec’s 17 regions, in French, English and several other languages, including Indigenous languages such as Inuktitut, Cree, Innu and Atikamekw. It should be noted that these services are available in 167 service points, including all Quebec courthouses. Each CAVAC prepares annual reports which can include client survey evaluation results.
Some of the challenges to multi-sectoral collaboration can include barriers to information sharing (due to privacy laws and concerns related to disclosure), differing mandates of the various agencies involved, and the lack of sustainable funding.Footnote 168 However, with the requisite information-sharing protocols, joint training on trauma-informed approaches and on the relevant law, as well as mutual respect for each agency’s mandate, these collaborative models can prove to enhance access to justice for adult victims of sexual assault.Footnote 169
RECOMMENDATION #15: The Working Group recommends consideration be given to:
While many of the responses noted above are also designed to encourage reporting of sexual assaults and the multi-disciplinary responses are also crafted to enhance investigations, a number of police-focused practices have been identified by the Working Group in relation to reporting and investigations of sexual assaults.
The third party reporting option allows survivors of sexual assault who are not comfortable reporting the crime directly to police, to report the crime anonymously through a service provider. The information is sent to a police database for analysis and possible detection of sexual predatory behaviors, particularly serial predators. The service provider retains the survivors’ information and, if police want further information, they can request that the service provider contact the survivor and offer an opportunity to discuss their experience with the police to assist in the investigation. Third party reporting is currently offered in several Canadian jurisdictions including BC, Saskatchewan, Manitoba, Ontario, Quebec, NB and the Yukon.
In a similar vein, some police services have developed online reporting systems for victims of sexual assault. These online systems, such as the ones offered by the Hamilton Police ServiceFootnote 170 and the Windsor Police ServiceFootnote 171 in Ontario, replace a victim’s initial phone call or visit to the police station and allow them to make a report online, after which an investigator will contact them for additional information. In the US, some post-secondary educational institutions have also made online reporting available to their students. The most popular system, called Callisto,Footnote 172 does not send online reports directly to police. Rather it provides a victim with other options, such as creating an incident report that is time stamped to assist them if they decide to report it to police at a later time, or engaging the office on campus designated to deal with sexual assaults within the student body. As of 2017, 13 colleges in the US had subscribed to Callisto, and survivors who had visited the Callisto website were five times more likely to report to their school or police than survivors who did not.Footnote 173
The third option (also known as “kits on ice”) is used in a health care setting and allows victims to choose to collect their forensic evidence and have it stored in order to give them time to decide whether or not they wish to report their sexual assault to the police. Almost all jurisdictions offer this service in certain cities but there are still barriers such as the lack of: refrigerating units to keep the rape kits; video equipment; training; safe environments and funding. Evaluation results for the third option program in Calgary in 2012 demonstrated that victims were appreciative of the option although it did not result in an increase in reporting.Footnote 174
There are several models of police oversight, including internal oversight mechanisms (such as SARTs noted above) and external oversight mechanisms (such as the Philadelphia model discussed below). On February 10, 2017, the Canadian Association of Chiefs of Police (CACP) released a public statement recommending that all police services review practices related to sexual assault investigations. As of early 2018, over 50 police services across Canada have announced they will be conducting a review of their sexual assault investigations, either by reviewing case files or through reviewing their sexual assault investigation policies and procedures.Footnote 175
Following a national review of all Royal Canadian Mounted Police (RCMP) sexual assault investigations resulting in an “unfounded” designation in 2016, the RCMP released The Way Forward: The RCMP’s sexual assault review and victim support action planFootnote 176 in December 2017. Actions committed to by the RCMP in order to enhance the organization’s response to complaints of sexual assault include: the creation of a best practices guide for sexual assault investigations for RCMP investigators; the development of a sexual assault training curriculum available to all members; the development of a national unit to provide training, guidance and oversight for sexual assault investigations; updated policies and procedures regarding the classification of complaints as “unfounded;” and the implementation of victim-centered practices such as the establishment of safe, secure and private environments for victims to report sexual assault and the exploration of alternative reporting options for victims, such as third party reporting.
In 1999, the Philadelphia Inquirer (Philadelphia, Illinois, US) reported that one-third of rape complaints had been coded by police using non-criminal categories over the previous two decades. As a result, these complaints were barely investigated. A group of advocates, including lawyers with experience in the area of sexual assault law, asked the Police Commissioner to review and reinvestigate all sex crime complaints categorized as non-criminal spanning the previous five years. After the Department reinvestigated and found hundreds of rapes among the cases, the Commissioner extended an unprecedented invitation to the Women’s Law Project to organize advocates to review SVU cases. The Women’s Law Project accepted the invitation and the advocate case review has been conducted annually since 2000. Leadership support, a mutual goal of improving investigations, and confidentiality have led to a professional case review and the development of mutual respect and trust.
Some Ontario communities have begun to implement a police oversight model similar to that of the Philadelphia model, which is a leading practice in non-governmental organization (NGO)-police collaboration to assess and reassess sexual assault cases. As part of the Supporting Police Response to Sexual Violence and Harassment grant program, the Government of Ontario funded fifteen pilot projects that focus on a victim-centred approach to police response. Two of these projects included establishing retrospective oversight bodies that are modeled after the Philadelphia model. The two-year funding has enabled the Brantford Police Service and the Ontario Provincial Police North West Region to pilot retrospective oversight bodies to review and oversee sexual assault complaints and to review police investigation practices.Footnote 177
As another example, in May 2017, Calgary police service partnered with the Calgary Sexual Assault Response Team, the Calgary Community Against Sexual Abuse, the Sheldon Kennedy Child Advocacy Centre, the Alberta Ministry of Status of Women, and the Mount Royal University Sexual Violence Response and Awareness Coordinator in order to commit to an annual review of sexual assault cases.Footnote 178
Traditional police interviews are framed to elicit a respondents’ knowledge of factual details related to a crime. However, research into the neurobiology of trauma has highlighted why this type of interview technique may not be appropriate in cases of sexual assault. Rather than have the victim tell and retell the story, or interrupt for details, a trauma-informed interview allows the victim to piece memories and sensory details together to tell the story, which can be especially effective for interviewing victims of sexual assault.
The cognitive interview is one of the most recognized and successful trauma-informed interview techniques in the field of psychology and law.Footnote 179 This method consists of memory retrieval and communication techniques that are designed to enhance the amount of information obtained from an interviewee.Footnote 180 The cognitive interview protocol involves the interviewer establishing a relationship with the subject and emphasizes a victim-centered approach.Footnote 181 The victim is provided an opportunity to give an uninterrupted narration of the incident, after which they are guided through scenes, images, smells, tastes, and other rich sensory memory representations. Upon the completion of the interview the information is reviewed and investigators will advise victims that they will contact them again in a couple days to ask if they can remember anything else or encourage them to call if they remember anything new, which is especially important for traumatized witnesses.
In Illinois, a new set of guidelines for law enforcement’s response to sexual abuse was put in place in July 2017. These guidelines establish a framework for implementing the state’s Sexual Assault Incident Procedure ActFootnote 182 that was enacted in 2016 in response to low reporting rates for sexual offences. The guidelines seek to improve the criminal justice system’s response to victims of sexual assault and sexual abuse by taking an evidence-based, trauma-informed and victim-centered approach to responding to and investigating these crimes. They are intended to encourage more sexual assault victims to come forward and increase the successful prosecution of sexual assault crimes.
Most victims of sexual assault do not report their victimization to the police,Footnote 183 and those that do may find the investigative process to be re-traumatizing.Footnote 184 Emerging and promising practices can offer ways for victims to report an assault and assist police in identifying sexually predatory behavior while providing them with time and anonymity while they decide whether to further engage with the criminal justice system. Police forces have also acknowledged that they can do better by victims of sexual assault, and have introduced innovative ways in which to collect information from victims, to hold themselves accountable, and to incorporate trauma-informed practices. Though further research is needed on the effectiveness of some of these practices, they have the potential to reduce re-traumatization, increase the reporting rate and enhance access to justice for adult victims of sexual assault.
RECOMMENDATION #16: The Working Group recommends consideration be given to:
The Working Group has identified a number of emerging and promising practices in relation to prosecutions of sexual assaults against adults. Sexual assault law is covered to varying degrees in all training provided to Crown prosecutors as part of continuing legal education. Some jurisdictions have quite extensive training and some have introduced specialized sexual assault prosecutors. Other countries have also introduced specialized sexual assault courts. The issue of legal advice for victims was also explored.
Many prosecution services in Canada have designated Expert or Resource Counsel (for instance, in BC these exist for both domestic violence matters and prosecutions with vulnerable victims) as well as specific training initiatives and policy advice for assisting in the prosecution of sexual offences (for example, BC has conducted such training including on the use of testimonial accommodations). Other examples include the following.
Through It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment, the Ministry of the Attorney General in Ontario created a mentorship program for prosecutors of sexual violence cases that provides the opportunity to share best practices, acquire knowledge and skills, and hone abilities in all aspects of sexual violence prosecutions. The mentoring program is also designed to ensure that victims are better informed about the trial process and that they are better prepared to testify. A Sexual Violence Advisory Group (SVAG) steering committee was also created and it consists of the Chair and six designated Regional Sexual Violence Crowns. SVAG developed a best practice manual for prosecutors, both mentors and mentees, as they engage in actual sexual assault prosecutions. Between October 2015 and January 2018, the SVAG was involved in over 300 education and training events designed for Crowns, defence counsel, judges, police, community agencies, victim-witness assistance providers, nurses, probation and parole officers.
In Quebec, there is a pre-charge approval process by the prosecution and prosecutors have a directive whereby, before filing charges based on the results of the police investigation, the prosecutor must meet with the victim to assess their ability to testify and to refer them to organizations that could provide support services, as needed. Although prosecutors are not acting as counsel for the victims, they have an interest in ensuring that the victims can provide evidence that will serve justice. Also, the prosecutor demystifies the judicial process: for example, the prosecutor would describe the types of questions that may be asked in cross examination and inform victims that everything will be done to object to illegal lines of questioning. The objective of this process is to ensure that the victim has at her disposal all the pertinent information required to facilitate her participation in the criminal trial.
In Winnipeg, Manitoba, prosecutors from a specialized unit are assigned to the prosecution of domestic violence, child abuse and, more recently, sexual assaults involving adults outside of an intimate relationship. Designated leads for each of those areas provide advice to prosecutors who are conducting these prosecutions in other areas across the Province.
Studies that have evaluated specialized prosecution services in the US have shown that victims demonstrate greater satisfaction levels with specialized as opposed to non-specialized prosecution services.Footnote 185 A 2011 evaluation of the Sex Offence Unit within the prosecution service of the State of Victoria, Australia, showed that the average time to trial declined despite the increased number of cases received.Footnote 186
A number of recent judicial decisions in relation to sexual assault have raised public concerns about judicial education on the law of sexual assault.Footnote 187 In order to respect the constitutional principle of judicial independence, judicial education in Canada is led by judges. The Department of Justice Canada provides the National Judicial Institute with annual funding and announced nearly $100,000 in additional funding in 2017 to develop training for both federally and provincially appointed judges that will focus on gender-based violence, including sexual assault and domestic violence.
Unlike the provinces, where Criminal Code offences are generally prosecuted by the Attorney General of the province through the provincial Crown Attorney, in the territories, Criminal Code offences are prosecuted by federal prosecutors with the Public Prosecution Service of Canada (PPSC) on behalf of the Attorney General of Canada. As such, the federal government has responsibility for court-based victim support provided through the PPSC Crown Witness Coordinator (CWC) program. The CWC program has teams in each of the three territories and is a post-charge, court-based support service for victims and witnesses of crime. It has similar objectives to the companion provincial court-based victim programs. CWCs, who are situated in the Crown’s office, work closely with Crown prosecutors, victims, witnesses, and the community, to provide a critical link between the criminal justice system and victims of crime in the Yukon, Northwest Territories and Nunavut. There are currently 21 CWCs in the three territories. CWCs travel to remote northern communities as part of court circuits, which allows them to provide services to court-based witnesses throughout the territories. The CWC program includes individuals with Indigenous backgrounds and who speak local languages, to help bridge language and cultural barriers on behalf of the prosecution. CWCs often work closely with territorial victim services to ensure coordination and collaboration.Footnote 188
As noted in previous chapters, victims of sexual assault are often extremely fearful of the criminal trial process. While Crown prosecutors act to assist the victim as much as possible prior to and during a trial, they are not counsel for the victim, nor can they advise the victim in relation to possible civil action. Accessing independent legal advice in order to decide whether to report a sexual assault to the police and to seek advice prior to and during a criminal trial, can be of great assistance to victims.
Ontario has established an Independent Legal Advice for Survivors of Sexual Assault Pilot ProgramFootnote 189 which provides eligible survivors with up to four hours of free independent legal advice to help survivors make informed decisions about their next steps. Legal representation is not provided under this pilot program. The service is available to all eligible women, men, trans, and gender-diverse people over the age of 16; it is confidential and is available to survivors at any time after the sexual assault has occurred if it took place in Ontario. As of early 2018, it is available in the City of Toronto, the District of Thunder Bay, and the City of Ottawa.
Building on this emerging practice, in 2016 the Department of Justice Canada offered funding to interested provinces and territories to explore implementing similar projects in their jurisdiction. A pilot project was launched in Nova ScotiaFootnote 190 in 2017. Newfoundland and LabradorFootnote 191 received funding to launch a similar project and SaskatchewanFootnote 192 and Alberta launched their pilots in 2018. The models for offering independent legal advice to victims differ slightly from province to province, but all work towards the objective of providing victims with information about their options in the wake of sexual assault. Given that all provincial pilot projects are in their infancy, no evaluative information is available at this time to attest to their effectiveness.
As noted in chapter 3, victims of sexual assault are not parties to the criminal trial and are therefore not granted standing to be represented at the trial. An exception exists for representation of victims who participate at third party record application hearings pursuant to sections 278.2 to 279.9 of the Criminal Code. Legal aid is available for victims who qualify for funding for such representation in NS, PEI, and Nunavut. Ontario, Manitoba, Alberta and BC provide funding for independent legal advice and representation for all complainants in sexual offence cases where a third party records application is made, regardless of the financial status of that person.Footnote 193 Other jurisdictions, like Saskatchewan, fund legal representation for victims in third party record hearings through their Victims Fund.
There are Special Victim Counsel (SVC) available for sexual assault victims under the US military justice system. These counsel are even available for victims choosing to report the sexual assault to the civilian as opposed to the military justice system, although they can only provide legal advice and not represent the victim in civilian criminal court.Footnote 194 Surveys indicate that victim satisfaction with SVC advice and support is very high (over 90% were extremely satisfied).Footnote 195
On May 10, 2018, the Government of Canada introduced Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts,Footnote 196 which would provide victims with the right to have a Victim Liaison Officer appointed to assist them in understanding how service offences are charged, tried, and dealt with under the Code of Service Discipline.
There is some evidence from other common law jurisdictions that specialized courts may be more effective and efficient than regular criminal courts because issues specific to sexual assault are better addressed and victims who testify report greater satisfaction with the process.Footnote 197
The United Nations has singled out South Africa’s specialist sexual offences courts model as a best practice in criminal justice system response to sexual violence, and Thuthuzela Care Centres (TCCs) have been evaluated as successfully reducing the time required to complete criminal trials while contributing to high rates of conviction for offenders.Footnote 198 Sexual offences courts began with a pilot project in 1993, in the Wynberg Regional Court in Cape Town. The courts – in contrast to general courts – employ a victim-centred approach with a multi-disciplinary team, dedicated specialist prosecutors, victim-friendly waiting rooms, measures to prevent victims from coming in contact with the accused and members of the public, and support services and counselling from the moment of reporting onward. After a number of other courts were established in various locations and a series of evaluations were completed, a national Blueprint for Sexual Offences Courts was created in 2002. A National Strategy was established the following year, and in 2005 the essential requirements of a Sexual Offences Court were upgraded.
The specialist courts are, however, under intense resource pressures and over time have suffered from a number of challenges including backlogs, proximity to victims, and concerns over the unequal distribution of resources between the specialist system and general one. The specialist system was temporarily dismantled in the mid-2000s, but has since been restored with positive results despite the reduction in resources.Footnote 199
In October 2016, a sexual violence court pilot was initiated in the New Zealand (NZ) District Court with an emphasis on improving the court experience for participants through tighter pre-trial case management of jury trials and enhanced specialist education for judges. This judiciary-led pilot is not intended to adopt a non-adversarial approach as this would require fundamental legal changes, however, it is intended to employ more victim-sensitive approach than the usual process. The pilot is currently being tried in two locations and covers serious sexual violence allegations where the defendant pleads not guilty and elects a jury trial.
Specialized training for criminal justice system and related professionals on the complex law of sexual assault as well as social context and the neurobiology of trauma emerged as a recurring theme in the promising and emerging practices examined by the Working Group. While specialized prosecutors and sexual violence courts appeared promising in the evaluations, these are resource intensive and may not be deemed appropriate for all jurisdictions. Currently, specialized domestic violence court or court processes exist in most Canadian jurisdictionsFootnote 200 and these would cover intimate partner sexual assault.
RECOMMENDATION #17: The Working Group recommends consideration be given to:
While it is beyond the scope of the Working Group’s mandate to examine civil or human rights recourses to sexual assault, the Group did look at some alternative approaches, including restorative justice (RJ) processes, which have been applied in sexual assault cases. It should be noted that in 2012, the New Zealand Law Commission released an issues paper entitled, Alternative Pre-Trial and Trial Processes: Possible Reforms, which discussed whether the current adversarial model should be replaced by an inquisitorial system for the purposes of sexual offences.Footnote 201 This proposed fundamental change to the common law system raised concerns with the New Zealand Law Society and was rejected by the Government for various reasons including the fact that it would be impractical to have an inquisitorial system for sexual offences alone when many of these offences co-occur with non-sexual offences.Footnote 202
Restorative Justice (RJ) is commonly defined as an approach to justice that focuses on addressing the harm caused by crime while holding the offender responsible for their actions and by providing an opportunity for the parties directly affected by crime – victim(s), offender and community – to identify and address their needs in the aftermath of a crime. RJ encourages meaningful engagement and accountability and provides an opportunity for healing, reparation and reintegration. RJ processes operate at different stages of the criminal justice process including pre-charge, pre-conviction, pre-sentencing, and post-conviction and can occur in addition to, rather than instead of, the conventional court process in a given case. The most common types of processes are conferences, victim-offender mediation and healing circles. RJ processes can be linked to, or completely separate from, the criminal justice system. The Working Group examined those RJ processes that were linked to the criminal justice system.
RJ measures have been part of Canada’s criminal justice system for over forty years and are supported through legislation, policy and program responses. In 2017, The Department of Justice Canada developed an interactive, on-line directory of RJ programs in Canada.Footnote 203 Researchers identified more than 400 programs across the country. Out of those 400+ programs, 195 are part of the Indigenous Justice Program, serving primarily Indigenous communities. The majority of the programs were open to both adults and youth; only 19 limited their programs to youth.
The Criminal Code enables RJ processes to occur at different stages, although explicit language is not required in the Criminal Code in order for police or prosecutors to make such referrals in the exercise of their discretion. Section 717 of the Criminal Code provides that alternative measures may be used if the offender accepts responsibility for the offence. A restorative justice program can be one form of an alternative measure to which the police or the Crown can refer an offender. RJ principles are also contained in the sentencing principles of the Criminal Code at s. 718. Additionally, a reference is made to RJ in both the Canadian Victims Bill of Rights Act and the Corrections and Conditional Release Act.Footnote 204 In both Acts, victims have a right to receive information about RJ programs that are available, if they request it.
As another example, at the provincial level, in 2015 Manitoba enacted The Restorative Justice Act,Footnote 205 which created an advisory council responsible for, among other matters, monitoring the implementation of Manitoba’s Strategy for Victim-Centred Restorative Justice. The evaluation is expected to measure victim’s level of satisfaction, the number and types of cases resolved through RJ programs, the recidivism rates for offenders and the restitution payment rates.
An example of a RJ practice in Canada that is linked to the criminal justice system and covers sexual assault cases is Correctional Service of Canada’s (CSC) Restorative Opportunities (RO) program, which provides victim-offender mediation services where victims have the opportunity to communicate, either directly or indirectly, with the offender who harmed them. The program is voluntary on the part of all participants and is not intended to have any direct impact on an offender's sentence or a parole decision. In cases involving sexual offences, all requests are carefully assessed by trained mediators to determine the appropriateness of the intervention and the readiness of the participants to proceed with communication. The RO program facilitated 66 face-to-face meetings involving sexual offences between 1992 and 2017. These include offences such as sexual assault, incest, indecent assault, rape and sexual interference. They represent 27% of all RO face-to-face meetings.Footnote 206 Victims of sexual offences who participated in a RO process indicated that they were able to let go of their anger and self-blame; able to move forward from a self-described position of “being stuck”; and experienced improvements to their overall health. They also noted feeling respected, heard, understood, empowered and safe throughout the RO process.Footnote 207
A pilot project called RESTORE was undertaken in Arizona, US, from 2003 to 2007, involving a pre-conviction and therapeutic RJ model in sexual assault cases. RESTORE was a community-based, victim-focused RJ conferencing model whereby accused persons willing to take responsibility for their actions (which was not equated with a guilty plea) would be referred to structured conferencing by the prosecutor following a determination that the matter was provable at trial. The program was only available upon consent of the victim for non-repeat and non-intimate partner offenders. The accused was required to be accountable for their actions and agree to reparation, including undergoing sex offender therapy. Evaluation outcomes for the pilot were generally positive, particularly from the perspective of victims, 90% of whom were satisfied that justice was done and 95% of whom would have recommended the process to others.Footnote 208
There is a large body of research indicating that victim satisfaction with RJ processes generally far exceeds their satisfaction with the “traditional” criminal justice process.Footnote 209 With respect to restorative justice alternatives, an international meta-analytic review found that victims’ satisfaction with the handling of their cases is consistently higher for victims assigned to Restorative Justice Conferences (RJCs) than for victims whose cases were assigned to normal criminal justice processing.Footnote 210 This was the case for violent crime victims as well as property crime victims.Footnote 211 Among other matters, RJ is identified as providing victims with greater power and control over the process, standing, a voice to express the impact the crime has had on them and an opportunity to understand why the perpetrator committed the offence.While there are many evaluations of RJ processes internationally, there are very few evaluated RJ processes for sexual offences as these have been largely excluded from RJ. The application of RJ in cases involving power imbalances, particularly intimate partner violence and sexual assault, has been controversial.Footnote 212
Critics of RJ in gender-based violence cases raise concerns that the process could undermine decades of work to ensure that sexual assault and intimate partner violence are treated as the serious crimes that they are. There are concerns that victims may be coerced into participating, that their safety may be compromised, that they may be re-victimized and that perpetrators may not be motivated by genuine remorse but by the desire to avoid criminal sanctions. Ultimately, there are underlying concerns that RJ processes can lead to the “privatization” and “decriminalization” of sexual assault and erode the ability of the criminal justice system to protect the public from dangerous and repeat offenders.Footnote 213
Accused persons who would otherwise be willing to accept responsibility for their sexual crimes and apologize to their victims may be dissuaded from doing so within the criminal justice process due to the long-term impact of an order under the Sex Offender Information Registration Act and mandatory minimum penalties in some cases. Pre-conviction RJ processes, where safeguards are in place to protect the accused from self-incrimination and double jeopardy, and that preserve the presumption of innocence should the RJ process fail, can provide an incentive for the accused to accept responsibility for their action and offer restitution to the victim. These processes, which require victim consent to proceed, could also appeal to victims who can benefit from an early acknowledgement of responsibility from the accused and avoid potential trauma associated with cross-examination in open court. There is some evidence, from two studies, that some sexual assault victims may prefer an RJ process over the criminal justice process. A recent study indicates that sexual assault victims indicated strong support for being provided the option to proceed with RJ.Footnote 214 A comparative study of sexual offence proceedings against young offenders in youth court and RJ in Australia indicated that the RJ process took half the time of the court process and resulted in higher victim satisfaction rates and lower offender recidivism rates.Footnote 215 Moreover, evaluations of RJ processes in adult perpetrated sexual offences in the US and NZ have shown promising results from the perspective of victims.Footnote 216
Criminal justice system professionals in Canada are cautious about the role and timing of RJ in sexual assault cases. RJ may have some value and be desired by some sexual assault victims, but power, family and community dynamics are factors that risk placing pressure on victims to participate in an alternative process. Victims should be supported, and participate only if they make an informed choice to do so, and facilitators must be highly trained. Clearly, more pilots and evaluations are needed bearing in mind the required safeguards for both the accused/offender and the victim.
There are a wide range of emerging and promising practices to address some of the challenges facing adult victims of sexual assault as they proceed through the criminal justice system. Many of these practices fall under provincial jurisdiction and some have cost implications. The Working Group examined these and other practices and made some recommendations upon which there was consensus. However, all of the practices referenced in this chapter may serve to inspire pilot projects to help improve access to justice for victims of sexual assault.
Despite legislative changes over the past decades, the data clearly demonstrate that sexual assault continues to be one of the most underreported violent crimes and, according to self-reported surveys, the prevalence of this crime is not decreasing at a time when other violent crime is on the decline. Recent court cases have led the general public, service providers, advocates and academics to call for new approaches focused on protecting the dignity and safety of sexual violence victims during the criminal court process. Moreover, social movements, such as #MeToo and Time’s Up, have brought sexual assault and harassment issues to the forefront of public debate. These movements raise overarching issues related to gender equality, including in the workplace. They also raise questions about the ability of the criminal justice system to respond to the needs of sexual assault victims.
Sexual assault victims may avail themselves of a variety of legal options that will depend on the context of the assault. While labour-related or human rights recourses may be available in some cases, the most common options for victims are between a civil suit and making a criminal complaint to the police (although these are not mutually exclusive). The criminal law’s higher standard of proof is in direct correlation with the risk of incarceration facing accused persons. The following chart sets out some key differences between civil and criminal recourses.
Civil suit – private law
Criminal trial – public law
The Canadian Victims Bill of Rights (CVBR) came into force on July 23, 2015 and established rights for victims of crime in four areas. While the rights are available to victims of all offences, some rights, such as the right to request a testimonial aid, are particularly relevant to victims of sexual offences.
The rights set out in the CVBR must be applied in a reasonable manner so that they are not likely to interfere with investigations or prosecutions, endanger someone’s life or safety, or injure national interests such as national security (section 20).
Victims also have the right to make a complaint if they believe their rights have been breached or denied by a federal department or agency using the complaint systems in that department or agency
(section 25). Victims who are of the opinion that their rights under the CVBR have been breached or denied by a provincial or territorial department or agency may file a complaint in accordance with the laws of the province or territory (section 26).
However, the CVBR does not grant victims party status in criminal proceedings (section 27), a cause of action or a right of damages (section 28), or a right to appeal decisions made in the criminal courts (section 29).
Section 21 of the CVBR sets out how every Act of Parliament must be construed and applied in a manner that is compatible with the rights under the CVBR. It also provides in section 22(1) the primacy of the CVBR in the event where it is not possible to interpret a federal legislative provision in a manner that is consistent with the CVBR. The CVBR is subject to the Canadian Charter of Rights and Freedoms.
Self-reported sexual assault in Canada, 2014
Adam Cotter and Shana Conroy, Canadian Centre for Justice Statistics
This report uses self-reported data from the 2014 General Social Survey on Canadians' Safety (Victimization) to present information on sexual assault in Canada, including sexual attacks, unwanted sexual touching and sexual activity where the victim was unable to consent. This article examines the characteristics of sexual assault victims and their perceptions of safety, and the characteristics of sexual assault offenders and incidents. The emotional and physical consequences of sexual assault, in addition to reporting sexual assault to the police and the reasons for not reporting, are also discussed.
Police-reported sexual assaults in Canada, 2009 to 2014: A statistical profile
Cristine Rotenberg, Canadian Centre for Justice Statistics
This Juristat article presents a statistical profile of sexual assaults reported by police in Canada between 2009 and 2014. A comprehensive analysis of incident, victim and accused characteristics over a six-year period is undertaken to offer a deeper understanding of those who commit sexual assault and those who are victims of it. Factors explored include location of the sexual assault, weapon(s) used, level of physical injury to the victim, as well as the age and sex profiles of accused and victims and the relationship between them. For the first time, new analysis on the delay in reporting to police is presented. Findings are compared with physical assault where appropriate in order to provide an analytical reference point.
From arrest to conviction: Court outcomes of police-reported sexual assaults in Canada, 2009 to 2014
Cristine Rotenberg, Canadian Centre for Justice Statistics
While conviction rates and severity of sentencing outcomes are often used as measures of criminal justice, neither take into account the potentially large volume of cases that never made it to court. For the first time, this Juristat measures the ‘fall-out’ of sexual assault cases in the Canadian criminal justice system in order to provide vital context for how sexual assaults are handled in the justice system. Using linked data from police services and criminal courts, this study presents new findings on the attrition rate of sexual assaults as well as court outcomes. Attrition and conviction outcomes are also analyzed by characteristics of the sexual assault incident (e.g., location, weapon use, delay in reporting to police), the accused, the victim (e.g., age, sex, physical injury), and the relationship between them in order to provide more detail on how certain factors may be related to a higher likelihood of dropping out of the justice system. Findings are compared with physical assault outcomes where appropriate in order to provide an analytical reference point.
Revising the classification of founded and unfounded criminal incidents in the Uniform Crime Reporting Survey
Statistic Canada, Canadian Centre for Justice Statistics
This Juristat article provides information on the collection, through the Uniform Crime Reporting Survey, of unfounded criminal incidents in Canada, including sexual assaults. It will provide background on the collection of these data and an overview of the actions taken by the Canadian Centre for Justice Statistics-a division at Statistics Canada-and the Police Information and Statistics Committee of the Canadian Association of Chiefs of Police to revise the Uniform Crime Reporting Survey to address data quality and reporting issues, and to reinstate collection of information on unfounded criminal incidents.
Unfounded criminal incidents in Canada, 2017
Jacob Greenland and Adam Cotter, Canadian Centre for Justice Statistics
This Juristat article provides an overview of rates of unfounded criminal incidents for 2017, with a particular focus on sexual assaults given that several police services conducted reviews of their sexual assault cases in 2017. Following national media attention in 2017 regarding the use of 'unfounded' by police to classify sexual assaults, Statistics Canada and representatives of the policing community made recommendations to addressed data quality issues and standardization to reintroduce the publication of unfounded criminal incidents.
Sexual assault is a widespread and serious problem in our society. Yet instead of delivering justice the criminal justice system is too often a source of further distress for victims of sexual assault.
It is well known that many victims choose not to report the crimes of sexual violence committed against them. For those who choose to report and go through the trial process, sexual assault complainants have frequently experienced the criminal justice system as a place that re-traumatizes and even harms them.
Sexual assault is very often an experience of trauma. Trauma has a neurobiological impact – it affects our brains and our nervous-systems. For this reason, it is imperative that those working within the criminal justice system have a basic appreciation of the effects and impact of trauma in relation to victims of sexual assault. This will help criminal justice professionals process sexual assault cases more effectively and to receive evidence in these cases in a more fair and impartial manner.
There has been an important and significant paradigm shift in our understanding about victim reactions to traumatic events like sexual assault, including the impact of trauma on memory. This understanding has deepened knowledge and led to improved practices, both of which assist with developing more effective criminal justice system responses to sexual assault cases. Insights from the neurobiology of trauma have assisted professionals working in a wide range of fields to better understand the psychological and physiological responses of crimes such as sexual assault, and how these affect victim response. This in turn, has facilitated more trauma-informed service delivery and more appropriate and effective interventions, from first responders like police through to advocates and legal professionals in courtrooms.
The focus of this report is on outlining some of the key findings from the body of knowledge of neuroscience, and applying them to the issue of sexual assault and its impacts on victims. More specifically, we review and highlight some of the significant developments, which have emerged from the field of the neurobiology of trauma as they relate to the unique crime of sexual assault. We apply their relevance to the many challenges surrounding the criminal processing of sexual assault cases.
Victim reactions to sexual assaults are still not well understood in society and “rape myths” are still common. These misunderstandings, unfortunately, continue to persist in the justice system. In fact, they contribute to ongoing deficiencies in criminal justice system processing of sexual assault cases, leading to imperfect justice for victims and survivors. This has been described as the “justice gap” for sexual assault cases. We argue that this justice gap can, in part, be closed by moving towards a more trauma-informed criminal justice system. This will lead to more just outcomes for sexual assault complainants and also allow for the fuller realization of the impartiality and fairness that criminal trials can and should provide for all participants.
The purpose of this report is to critically engage with diverse approaches to access to justice for Indigenous adult survivors of sexual assault in the context of ongoing colonization and Indigenous-led efforts to end violence. The report seeks to bring grassroots community voices, and others outside the formal justice system, into conversation with existing literature on Indigenous peoples’ experiences of sexual assault to foster connections and inform future directions. Additionally, the report seeks to provide a framework of analysis for understanding access to justice for Indigenous adult survivors of sexual assault using a decolonial trauma-informed framework, in order to redefine ‘justice’ and ‘sexual assault’ to reflect the diverse realities of all Indigenous people, including those who are marginalized or absent in the formal literature (i.e., Two-SpiritFootnote 219 people). The objective of this report is to create a foundation for the development of approaches to improving access to justice with the ultimate aim of reducing the harms experienced by Indigenous people and communities. In addition to an introduction, the report contains 7 main sections which are discussed briefly in this executive summary: 1) historic and social context of colonization and its relationship to access to justice and sexual violence; 2) case law review and analysis; 3) barriers to justice; 4) an intersectional analysis of the needs of survivors; 5) defining access to justice within and beyond the justice system; 6) promising practices and innovative models, and; 7) gaps and areas for future research.
In order to understand the relationship between sexual violence and access to justice in the lives of Indigenous peoples, this report provides a contextual account of the historic and ongoing role of sexual violence and law in settler colonialism. Historic processes of colonization are active in shaping Indigenous peoples’ lives today. The imposition of patriarchy and racism through the Indian Act and residential schoolswas key to colonization in Canada. The Indian Act legislated Indigenous rights through a gender binary which replaced culturally-distinct understandings of gender, erasing gender diversity from legal and policy frameworks while imposing a hierarchy which devalues women and girls. The ongoing marginalization of Indigenous women resulting from governmentally legislated patriarchal models of leadership is a key factor in shaping access to justice and sexual violence today, Further, widespread abuse and family and cultural breakdown resulting from the residential school system continues to be widely understood as a root cause of sexual violence among Indigenous people today. These impacts are evident in state-run child welfare regimes into the present day.
Sexual violence is understood to be part of a continuum of colonial violence. Sexual assault is often treated as expected in the lives of Indigenous people, particularly women and girls, through stereotypes which blame survivors themselves for the violence. Due to its proliferation and naturalization, naming sexual violence as violence has been a key site of mobilization for Indigenous women. The ubiquity of this continuum of violence, together with the role of law in processes of colonization, necessitate a decolonial approach and an understanding of intergenerational trauma within justice systems and processes. Just as colonization is understood to be the key health determinant for Indigenous peoples today (Greenwood et al 2015), we understand colonization to be the key factor shaping justice today, including access to justice for Indigenous survivors of sexual violence. Possibilities of achieving justice for Indigenous survivors is and will continue to be constrained by colonial violence which is structural in nature.
A review and analysis of Canadian case law was conducted in order to attempt to determine what, if any, strategies and approaches are being utilized in legal cases prosecuting those charged with sexual offences against Indigenous adults. As most sexual assaults of Indigenous adults are against women, an analysis of how Canadian courts deal with Indigenous women was instructive in assessing the ongoing needs of Indigenous women, and, to the extent it is possible, trans and Two-Spirit, survivors of sexual assault and violence when these matters come before the courts.
In most cases, where courts considered the specific circumstances of Indigenous adult victims of sexual assault, it was revealed that ongoing and pervasive attitudes and beliefs informed by systemic colonialism, racism, and sexism negatively impact the way that Indigenous adult survivors of sexual assault are treated within the Canadian justice system. Where courts have noted the complex lived realities of Indigenous people in Canada, these observations rarely include the ways that colonization naturalizes violence against Indigenous people, families and communities. The distinct history of legal violence enacted through the imposition of Canadian law is ignored.
Canadian courts are not successfully addressing the concerns and needs of Indigenous adult survivors of sexual assault. Rather, court decisions seem to reaffirm the racist, sexist, and colonial narratives that create persistent access to justice issues for Indigenous peoples within the court system. The unfortunate reality for Indigenous adult survivors of sexual assault is that justice is very rarely accessed through the formal Canadian justice system.
While barriers to accessing justice are significant and multiple for Indigenous peoples in Canada, this report highlights the following four pervasive issues that form substantial barriers for justice for Indigenous adult survivors of sexual assault: 1) the colonial culture of the Canadian justice system; 2) racism; 3) fear and mistrust; and 4) individualized approaches to violent crime.
Our analysis of barriers to access to justice for Indigenous sexual assault survivors is informed by a critical assessment of what justice means in this context. As the case law review and analysis indicates, the formal justice system does not appear to be the place that provides the most meaningful access to justice for adult Indigenous survivors. Rather, this report determines that barriers to justice faced by Indigenous people stem from the long history and legacy of colonialism and the ongoing impacts of settler-colonial violence enshrined in Canada’s justice system. In fact, formal court systems appear to do more harm than good in perpetuating racist, sexist, and colonial stereotypes about how and why Indigenous peoples come to experience violence.
Our analysis identifies connections between the failure of the justice system to provide a meaningful space for accessing justice and the historical and ongoing failure of the Canadian government to address how settler colonial injustice directly impact the rates at which Indigenous peoples experience sexualized violence. Institutional racism within the Canadian justice system is interrelated with that of other state institutions, including the child welfare system, criminal and family justice systems, health and medical systems that shape Indigenous people’s lives.
Given their various encounters across a spectrum of life experiences with state institutions and actors, whose approach is informed by such inherent racism, Indigenous peoples develop fear and mistrust based on the ongoing discrimination they face. These individual negative experiences add to a collective historical record of everyday colonial violence experienced by Indigenous peoples, families, and communities. Even when brought to light, the lack of accountability within Canadian institutions buttresses systems that maintain the status quo. This ongoing unwillingness to address underlying racism reifies practices and policies that are racist, as well as sexist, and informs Indigenous peoples’ inability to trust state actors or institutions.
With respect to access to justice for adult Indigenous survivors of sexual assault, there cannot be justice without state accountability for the colonial violence of the past and present. This can only occur through recognition of the impact of settler colonial violence as a root cause of sexualized violence against Indigenous peoples. However, at present the Canadian justice system focuses on the individual crimes of individual offenders and treats the circumstances brought forward by every individual complainant as separate. This is not to suggest that individual accused, crimes, or complainants should not be considered as unique as per the evidence or facts of each case, but rather that the fundamental underlying root causes of over representation of Indigenous peoples in the justice system, whether as victims or offenders, must be acknowledged.
North American literature on sexual violence tends to frame the issue through a feminist lens which understands sexual violence as the gendered phenomenon of male violence against women. This lens is often replicated in literature on Indigenous women’s experiences of sexual violence, with colonialism and race seen as additional factors which put Indigenous women at greater risk or result in magnified impacts. In such frameworks, Indigenous women are often portrayed solely through their increased vulnerability to victimization. Without consideration of the foundational role of settler colonialism and systemic violence, vulnerability is naturalized as inherent to being an Indigenous woman or girl. However, Indigenous scholars and anti-violence advocates have argued for intersectional approaches which view the structural intersections in Indigenous peoples lives as a form and source of violence that cannot be separated out from individual incidents of rape, sexual assault, sexual harassment and childhood sexual abuse.
Rather than separating out sexual violence from other aspects of Indigenous peoples lives –as is often the case when prevalence of violence is documented solely through statistics of individual incidents of victimization—this report argues that sexual violence must be viewed as interrelated with other forms of violence, including interpersonal and systemic marginalization. The individual needs of survivors are, consequently, understood as inseparable from community, systemic, and historic factors.
An Indigenous intersectional approach to access to justice for Indigenous sexual assault survivors is advanced through five principles: 1) respecting sovereignty and self-determination; 2) local and global land-based knowledge; 3) holistic health within a framework that recognizes the diversity of Indigenous health; 4) agency and resistance, and; 5) approaches that are rooted within specific Indigenous nations relationships, language, land and ceremony.
Indigenous survivors face particular barriers to naming their experience and being validated due to the silencing and normalizing of sexual violence in many Indigenous communities as well as societal discrimination which delegitimizes Indigenous peoples’ experiences as valid. Shame and secrecy is also experienced by Indigenous people who are sexually assaulted during adulthood, due to shame, embarrassment, and a fear of not being believed or of suffering targeted backlash for disclosing their abuse. Within these complex conditions of silencing, Indigenous survivors need approaches in which they can tell their stories on their own terms. Telling one’s story of sexual victimization and being heard and believed is understood to be key to taking back power whether within or outside of the justice system. The role of storytelling within Indigenous cultural practices of justice and resurgence is key to an intersectional approach to access to justice, attuned to the specific needs of marginalized Indigenous people such as sex workers, people with addictions and Two-Spirit and trans people.
It has been argued that Indigenous people are represented either through their victimization or their criminalization in most Indigenous justice paradigms. These approaches close off possibilities for recognizing the fullness of survivors’ knowledge and experience and the fullness of their political subjectivity within frameworks of Indigenous self-determination. Moving beyond criminal-victim paradigms in which Indigenous people are either criminals or victims requires ideological and systemic shifts toward paradigms rooted in Indigenous self-determination. This section further discusses the importance of moving beyond state apologies to fostering accountability for systemic harms of colonization, including police abuses of power. Additionally, the report argues the necessity of an Indigenous gender analysis that considers both the gendered nature of sexual offences, which are predominantly targeted at women, and the reality that Indigenous people of all genders experience sexual violence. An Indigenous intersectional approach utilizes Indigenous gender analyses which account for the specificity of gender within Indigenous peoples’ diverse lived experiences, cultural practices and teachings. Further themes include localized approaches, health and harm reduction, and moving beyond colonially-defined justice approaches in order to imagine a world without sexual violence.
An Indigenous intersectional analysis of access to justice for Indigenous survivors of sexual violence reveals that systemic violence has been, and continues to be, a key barrier to justice for Indigenous people and communities. Within the settler colonial context of Canada, the process of redefining justice for Indigenous survivors must be understood as always delimited by the structural factors which continue to deny Indigenous peoples’ self-determination at individual and collective scales. While critics both within and outside the justice system recognize systemic gaps and failures in addressing sexual violence towards Indigenous peoples, many continue to advocate for a blended model in which justice institutions work alongside Indigenous communities. Others are rightfully wary of Canadian legal systems, defining justice as necessarily obtained beyond the judicial system, particularly when sexual violence occurs within Indigenous families. Many efforts to define access to justice for Indigenous survivors have sought to contend with the impossibility of true justice for Indigenous people whose lives are always bound up in colonial systems and ideologies. Rather, access to justice has been defined through the lens of avoiding the perpetuation of trauma through actively centering Indigenous knowledge, perspectives and voice. The report further discusses efforts to define access to justice for Indigenous adult survivors of sexual violence within these systemic and historic tensions.
This report identifies some promising practices and innovative models within and outside of the justice system that may provide some guidance for furthering access to justice for Indigenous adult survivors of sexual assault. Three areas of interest are identified: 1) community and grassroots justice and healing; 2) supportive police practices; and 3) alternative and restorative justice models.
Community and grassroots justice and healing provide significant involvement in justice processes where this is desirable or the empowered choice to not engage in or disengage from such processes as a survivor/victim wishes. With proper support and resources, grassroots initiatives that are informal justice models at this time, could be built up into formal community-led, community-specific, and culturally appropriate justice processes that have capacity to respond directly to the needs of Indigenous adult survivors. Such models, various and community-specific as they are, must also account for sexism, homophobia and transphobia if they are to be successful.
Because justice is relational, any agenda to create supportive police practices must go beyond policy to implementation. Indigenous communities’ suggestions about steps to move such implementation forward have been outlined in various reports and research. Consultations with Indigenous peoples lays out three important focuses for police forces in Canada in building supportive police practices: 1) police accountability; 2) relationship-building; and 3) Indigenous lead community policing initiatives. It is of fundamental importance that all of these initiatives be informed by decolonial anti-racism education and cultural competency training for police that leads to the implementation of trauma-informed approaches and culturally safe practices.
Restorative Justice (RJ) processes have the following broad goals: 1) making offenders accountable to both victims and the community; 2) increasing the role of victims and community in ensuring that accountability; and 3) repairing the harm and restoring relationships that have been damaged as a result of crime. The same colonial, sexist, and racist attitudes that underlie the Canadian justice system broadly do and will continue to interfere with the appropriate use of RJ mechanisms in sexual assault cases. Unless the fundamental issues of colonial, sexist, and racist attitudes that inform formal justice processes in Canada are directly addressed the use of RJ will in most cases be unlikely to accomplish its main goals. Further, RJ processes must provide for an increased and meaningful role of survivors, families, and communities in ensuring accountability of the offender or repairing the harm and restoring relationships that have been damaged as a result of a sexual assault. In many cases this may not be possible.
First Nations Courts (FNC), Gladue courts, and Indigenous courts are usually referred to as forms of problem-solving or specialized courts. These formal alternative courts operate within the Canadian justice system and only deal with sentencing Indigenous offenders who have pleaded guilty. In addition, alternative sentencing processes, such as sentencing circles, operate by way of the common law powers of judges to alter the format of the court. The use of sentencing circles in cases of domestic abuse and intimate partner violence has been researched to some extent; however, there is a lack of data on the degree to which Indigenous adult survivors of sexual assault, or their families, may find these models useful for their healing and to hold perpetrators accountable. Even if these courts or sentencing circles will deal with sexual assault, a further limitation of such alternative sentencing processes is that participation may not be in the best interests of complainants, especially if the crime is particularly violent or is a sexual assault. The options available to survivors of sexual assaults to participate in the justice process can be limited not only by the lack of formal supports in place for them, but also by community response or pressures. Although Elders or community members may participate to some degree in these processes, there is an absence of Indigenous concepts of justice or Indigenous law in these models as they are still constituted through the formal Canadian justice system.
This report identifies opportunities for innovation in the areas of education, community justice and government supported and funded research:
Education for crown, defence, judges and other legal actors about the history and ongoing impacts of settler colonial violence.
Education for crown, defence, judges and other legal actors about the history and ongoing realities of local Indigenous peoples including on the ground consultation with community which allow for the integration of their suggestions in the design and implementation of justice practices moving forward.
Growth of funding to create and support Indigenous legal clinics that are embedded in community, offering pathways to justice that are rooted in individualized, trauma-informed, culturally safe practices and that work to reduce harm to survivors of sexual violence and their families as they engage with justice processes.
Given the failures of the justice system to adequately address ubiquitous sexual violence against Indigenous people, many communities have developed informal support systems for survivors, in which local people work both individually and collectively to provide culturally safe support and/or justice services. This is particularly evident in communities with few or inadequate formal justice resources. Support should be provided to train these individuals and pay them to act in a liaison role and/or to provide culturally and personally appropriate support should the survivor not wish to pursue formal options for reporting sexual violence.
Support for culturally appropriate research on the specific access to justice needs of Two-Spirit and trans survivors, sex workers, men, elders and other under-researched groups by trusted researchers who are trained in trauma-informed approaches and rooted in diverse community and justice contexts.
Commitments to long-term investment in studies that track success of integrated and innovative approaches to access to justice for Indigenous survivors of sexual violence, and provide ongoing support for capacity building for necessary adaptations and changes to program models.
Given that jurisdictional responsibility for Indigenous people in Canada falls to the federal government, a federally implemented mechanism across jurisdictions in Canada for recording incidents of sexual violence experienced by Indigenous people regardless of action taken by police, crown and other justice representatives, including recording of non-action or inappropriate or harmful action by justice representatives and service providers in providing access to justice for survivors.
The report includes additional recommendations for addressing specific research gaps.