Canadian Lawyer

16 F E B R U A R Y 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m David Tanovich of the University of Windsor Faculty of Law succinct- ly expresses the new view in a series of rhetorical questions in "Whack No More: Infusing Equality into the Ethics of Defence Lawyering in Sexual Assault Cases" in a recent issue of the Ottawa Law Review: "The fundamental ques- tions all defence counsel should ask in sexual assault cases include whether their conduct . . . is grounded in stereo- types about sexual assault and gender, sexual orientation, race, or disability? Will their tactics in cases of truthful complainants cause irreparable harm? Will it perpetuate disadvantage such as dissuading other complainants from seeking justice in the criminal justice system? Will it bring the administration of justice into disrepute?" Tanovich believes any conduct by a defence lawyer that promotes or exploits stereotypes violates his ethical duty not to act in a discriminatory fashion. "This would include cross-examination on what the complainant was wear- ing, whether she immediately reported the incident, whether she spoke to a psychiatrist, her socio-economic status, drug or alcohol use, lifestyle, or marital status." Tanovich's ideas are representative of the views of most members of the con- temporary professoriat who bother with the issue. But what do so-called sexual assault lawyers, the people on the front lines, think? Professor Elaine Craig of Dalhousie University's law school has looked into the matter. She conducted 20 "semi-structured interviews" with experienced criminal lawyers in four Canadian provinces (British Columbia, Ontario, Nova Scotia, and Newfound- land). Her findings appear in a paper entitled "The Ethical Identity of Sexual Assault Lawyers," soon to be published in the Ottawa Law Review. What Craig discovered was a state of bewilderment. Defence lawyers who do sexual assault cases don't seem to know what to think about the relationship between professional obligations and ethical duties. Craig writes: "Members of the criminal defence bar have been rightly criticized for perpetuating a 'whack the complainant strategy' that discourages victims of sexual violence from coming forward, and traumatizes those that do report sexual offences." But she finds, based admittedly on a small sample, that not all defence lawyers feel this way. None of her interviewees explicitly invoked the hired gun metaphor. Their hat are the ethical boundaries for a lawyer defending someone accused of a sex crime? Is he a hired gun, expected to do every- thing legally possible to win the case, concerned only about the fate of his client, free to attack the complainant unreservedly in cross- examination, dedicated — as it is sometimes put — to proof, not truth? That, I think, was the old idea, unchallenged for many years. Or does the defence lawyer have broader social obligations that mitigate his or her responsibility to the accused, obligations that include not embracing myths and stereotypes about women and sex and giving special consideration to the complainant? That is more modern think- ing, let's call it the "new view," born of high-minded concern for the well-being and rights of those alleging sexual assault, and promoted by a new generation of academics and ethicists. L E G A L E T H I C S O P I N I O N @philipslayton SCOTT PAGE Is there a new view on defence ethics? Criminal defence lawyers are pulled between political correctness and their natural instincts to do everything possible to win a case. By Philip Slayton W

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