Five Unintended Consequences of the War on Sexual Assault

Blog by Arun S. Maini

For the past 15 years, the Canadian government has been at war against a hidden and well-entrenched enemy: myths and stereotypes about women, and a perceived bias against sexual assault victims.

As often happens when a government goes to war, the weapons they use can cause a great deal of collateral damage, and well-meaning efforts can lead to unintended consequences.

So it is with sexual assault.

For a long time in Canadian law and policing, sexual assault complainants were not always believed: they had to provide supporting evidence, which is often unavailable, especially when the issue was consent, or when the sexual activity had occurred in the past. And when cases were brought to trial, the search for truth was often distorted by stereotypes about women and about how they should react in such situations. Trials often became sideshows where irrelevant evidence was admitted and the alleged victim herself was put on trial.

A series of events, including the #MeToo movement and investigative journalism, changed all that, by causing the government to implement laws and policies designed to fight against those prejudices and to increase the rate of sexual assault convictions.

The key changes that have changed the landscape of sexual assault law are:

• The requirement that the defence reveal the evidence in its possession and seek permission to ask questions or introduce that evidence at trial. The law has made very difficult to introduce that evidence by severely restricting what evidence or questions will be permitted;
• The elimination of preliminary inquiries in almost all sexual assault cases;
• The elimination of peremptory challenges in jury selection.

Those changes have indeed focused attention on the problems of bias and stereotypes, and have increased the rate of sexual assault convictions. However, the weapons that have been deployed in this battle have also resulted in unintended consequences that undermine basic notions of fairness and justice, including the presumption of innocence, and the right to a lawyer.

Here are five of them.

1. Delay

The government implemented laws that require the defence to file pre-motions in which they have to reveal their evidence and their trial strategy, and seek permission to use that evidence. The alleged victim is provided with a lawyer appointed and paid for by the state, to challenge that evidence. The defence is then required to prepare, present and argue the motions in two stages.

If the defence is not in possession of the evidence it believes will help the client, then they have to prepare, file and argue a separate, two-stage series of motions to seek access to that evidence, followed by the additional two stages necessary to use that evidence if they are successful in obtaining it.

As a result, there are between two and four separate evidentiary hearings required before trial, to determine whether the evidence can be used at trial.

To make scheduling even more complicated, the judge who will be presiding at the trial is the judge who normally decides these motions.

Imagine trying to schedule four separate hearings involving at least two, and often three busy lawyers (Crown, defence, complainant’s lawyer) as well as the judge. Each of these hearings has to be staggered because the result of one hearing is needed to decide the next.

These legal requirements have devastated court schedules and have made it almost impossible to coordinate dates. The result is delay, which impacts all the players in the system and contributes to the undermining of public confidence in the system.

2. Cost

The legal requirement for all these complex motions before a trial even starts, has made these cases more time-consuming to prepare, and far more complicated. This has resulted in an increase in legal fees, because the time and expertise required of the lawyer to properly prepare has increased very significantly.

Saving up to pay for a trial, which used to be very difficult for a defendant who faces all of the other costs of living, has now become impossible for many people. And the government’s legal aid budget is so stretched that it will rarely cover a defendant except in the most dire of financial circumstances.

As a result, more and more defendants charged with sexual assault are being forced to represent themselves at trial, or hire inexperienced lawyers or paralegals that they can afford. In either instance, those defendants are up against serious odds when it comes to obtaining permission to use the evidence that they believe will help them to defend their case. And if you cannot use the evidence that you believe will exonerate you, then you will most likely be found guilty.

That is what is starting to happen, as more and more defendants cannot afford the expensive legal fees that these kinds of complex, time-consuming cases require.

3. Truth Distortion

The result of laws that do not permit the defendant to introduce the evidence in his possession at trial can lead to a distortion of truth. Instead of a judge or jury deciding the case based on all the facts, they must judge the guilt or innocence of another human being on the evidence that they are permitted to hear. And sometimes what remains of the evidence after going through the severe and complex motions process is a distortion of what actually happened, or the nature of the relationship between the parties.

The risk, particularly when the defendant cannot afford to pay the full fees of an experienced lawyer, is that the case will be decided on a version of facts that is sanitized, that takes greater account of the complainant’s concerns than the interests of the defendant on trial.

When trials are decided on the basis of a version of facts that distorts the truth, then wrongful convictions can occur. That is not what the government intended when they passed these laws, but that is one of the many consequences that can result from them.

4. More Trials

The elimination of preliminary inquiries, at which the defence was once able to question the accuser before trial, has resulted in more cases going all the way to trial. The irony of that is that one of the government’s stated reasons for eliminating preliminary hearings was to save court time and streamline proceedings.

Preventing the parties from hearing the evidence of the main witness before trial means that weaknesses and strengths in the Crown’s case cannot be identified in advance. It means that cases which might otherwise be resolved through negotiation once those strengths and weaknesses are identified, are no longer resolved and get sent to trial, further causing delays and increasing costs.

5. Unrepresentative juries

For centuries, a criminal defendant has been given a certain number of “peremptory challenges” which they could use to take a pass on a potential juror who would be deciding their fate. By having a limited number of such challenges, the defence (and the Crown), could seek to smooth out the vagaries of chance and try to assemble a jury that represented a cross-section of the community, a representative group.

By eliminating this option, the government has made it so that the first 12 people who are selected at random to decide the case are the ones who will comprise the jury. As a result, defendants, particularly those from minority communities, lose the chance to try to obtain a potential juror who may be in line to be selected, after a challenge or two has been used. If you are a black defendant in a predominantly white community for example, having a chance to have at least one black juror, could be critical to your sense that the jury that will decide your fate is a representative one. Removing any chance to have a say adds to a feeling of unfairness and exclusion from the process, which is already alienating and frightening to most defendants.

What is to be done about these consequences?

Sadly, very little can be done to fix these problems. The laws that create them will not be changed, because they were designed to fix other unfairness in the system and because they have increased the number of convictions, which was one of the government’s stated goals.

Unless governments start supplying greater resources to the court system to reduce delays, or increase legal aid budgets so that every defendant can have a fair shot at defending themselves, the cost and risk and perceived unfairness of the new system will continue to result in more wrongful convictions, and undermine public confidence in the system’s balance, fairness and impartiality.

Arun S. Maini at the Defence Group has over 25 years of experience. If you or a loved one are facing criminal charges and need the advice of an experienced and skilled lawyer to help you through the legal process, call The Defence Group for a free consultation at 877-295-2830 or email us through the Contact Us link throughout our website.

Arun S. Maini has been a criminal lawyer for over 25 years.