Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m J U L Y 2 0 1 6 13 \ AT L A N T I C \ C E N T R A L \ P R A I R I E S \ W E S T REGIONAL WRAP-UP S pecialized courts dealing with sexual assault cases are needed to restore public confidence in the judicial system, especially after the high-profile Jian Ghomeshi trial in Ontario made public many of the shortcomings in the judicial system, a B.C. lawyer is advocating. "It isn't just the public who lack faith in sexual assault prosecutions. I think one of the interesting things about the Ghomeshi coverage was how many lawyers spoke up about their own lack of faith in this area of the law," says Tofino, B.C. lawyer Clodagh O'Connell, a University of Victoria Law School graduate who worked as a jour- nalist on newspapers in Canada, Dub- lin, and London and has freelanced for outlets across North America. She has been involved in organizations such as the Committee to End Homeless- ness Victoria, Westcoast Resources Society, Access Pro Bono, and Street Legal Nanaimo, where she served as executive director for two years. "Indi- viduals are not going to participate in this part of the justice system. They won't report. They won't engage as wit- nesses. The effect on the ground is that the majority of people who commit sexual assault are never charged, so a system of impunity becomes one of the results." Statistics Canada figures indi- cate that women don't report sexual assaults. According to self-reported survey information collected, the large majority (91 per cent) of these crimes are not reported to police. The rea- sons, according to StatsCan, vary from dealing with the matter in other ways to feeling the police will not take any action. O'Connell acknowledges that sexual assault courts would not be a complete answer to many of the difficulties now associated with the prosecution of individuals charged with sexual assault or the difficulties in getting victims to come forward and report such crimes, but they would be a start and provide judges and prosecutors who were bet- ter prepared to deal with issues sur- rounding a case. "Jurisprudence is the Ground Zero of reform, so the better equipped the Crown is to argue these cases and create new case law, the more effectively the system will change," she said. "A Crown prosecutor working in the area who has particular and specialized knowledge is likely to be more tuned in to rape myths and s. 276 [of the Crimi- nal Code] applications, for example. They are also more likely to do a good job preparing complainants. I think we saw in Ghomeshi what looked like some surprising gaps on the Crown's part," she said. Section 276, the rape shield law, limits the defence's ability to use the complainant's sexual history. But O'Connell points out the Ghomeshi trial showed this section was not all encompassing. While questions relat- ing to the complainant's sexual history may be forbidden, the actions before and after the alleged sexual assault may be used to determine behaviour that is consistent with a consent or non- consent in a sexual act. "Advocates of sexual-assault trial reform take issue with this and point out that the current system is not equipped to take into account the common behaviours and reactions by victims of sexual assault," O'Connell wrote in an article published in The Georgia Straight. Commenting, she said: "Without specialized psychological knowledge, cultural stereotypes, historical myths, biases, all of these things are more like- ly to come into play," she said as sexual assault trials place "enormous respon- sibility" on the judge or jury to assess credibility based on what is a he-said- she-said scenario. "The fact that biases and stereotypes about complainant behaviour before and after the alleged assaults show up all over a decision which is this carefully and cautiously written [as the Ghomeshi decision] is indicative of how deeply engrained they are and how much work there is to do," says O'Connell. She says one proposal included in the sexual assault court model is that, when a complainant comes forward, that person should be appointed a lawyer prior to being interviewed by police. The lawyer would ensure the complainant — before making a police statement — understood how evidence provided could or could not be used in court, how lack of disclosure could affect a case, and what to expect from a trial. O'Connell says the Ghomeshi case "brought to the forefront the enormous amount of public outrage about a sys- tem seen as weighted unfairly in favour of the accused and abusive to the com- plainant" and underscored the need for change. "As lawyers, we believe in the legal system, but our belief in the sys- tem should not be confused with the idea that it is currently doing the best job it can," she said. — JEAN SORENSEN jean_sorensen@telus.net Sexual assault courts could restore public confi dence B.C. lawyer Clodagh O'Connell

• Cover