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Sexual Assault in Canada

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Elizabeth A. Sheehy

Part I

Introduction

Elizabeth A Sheehy

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  • 1 Jane Doe v Metropolitan Toronto (Municipality) Commissioners of Police (1998), 39 OR (3d) 487 (Ont (...)

1This edited collection assesses sexual assault law, legal practice, and activism in Canada as of 2009. It represents both a celebration and a review of where Jane Doe’s brave advocacy has taken us in the more than ten years that have passed since she won her case against the Toronto Police in 1998 in her litigation, Jane Doe v Metropolitan Toronto (Municipality) Commissioners of Police.1

  • 2 An Act to Amend the Criminal Code (sexual offences), SC 1980-81-82-83 C 125, s 6.
  • 3 An Act to Amend the Criminal Code (sexual assault), SC 1992 C 38, s 2.
  • 4 Sheila McIntyre, “Redefining Reformism: The Consultations That Shaped Bill C-49” in Julian M Rober (...)
  • 5 An Act to Amend the Criminal Code (self-induced intoxication), SC 1995, C 32, s 1.
  • 6 R v Daviault, [1994] 3 SCR 63.
  • 7 An Act to Amend the Criminal Code (production and disclosure of personal records), SC 1997, C 30, s (...)

2Jane Doe initiated her legal action after the first wave of feminist-inspired reform to the law of rape, which took place in 1981-82-83.2 Before her case went to trial, Canadian criminal law governing sexual assault underwent another wholesale reform in 1992,3 again led by women’s activism and informed by feminist thought.4 Additional, narrower reforms were enacted in 19955 in response to public outcry about the “extreme intoxication” defence used to exculpate a man who brutally raped a woman in a wheelchair,6 and in 19977 as a result of the widespread disclosure of women’s personal records to defence lawyers in rape trials. While Jane Doe’s legal arguments and the judgments rendered in her case show the impact of feminist intervention in the law governing sexual assault, they also reveal starkly that the law in practice — as implemented by police, prosecutors, and defence counsel — has quite successfully resisted women’s just demands for equal protection of the law.

  • 8 Roberts & Mohr, supra note 4. See Constance Backhouse’s book on the legal history of sexual assaul (...)
  • 9 Jane Doe, supra note 1.

3As the first English-language book since 1994 to assess the current state of rape law and practice in Canada,8 this collection aspires to present a picture of the many difficult issues that continue to plague Canadian women who attempt to report and prosecute sexual violence committed against them, even after successive waves of law reform and the ground-breaking victory achieved by Jane Doe.9 The chapters in this book emerged from a major conference at the University of Ottawa, Faculty of Law, where I have taught law since 1984 and where Jane Doe has lectured regularly to law students since 1988. Together we convened, raised funds, and organized a highly successful event to celebrate International Women’s Day, on March 6th and 7th 2009, titled “Sexual Assault Law, Practice and Activism in a Post Jane Doe Era.” To do so, we established an Organizing Committee composed of ourselves and Professors Beverly Bain, Natasha Bakht, Pascale Fournier, Tracey Lindberg, and Rakhi Ruparelia. The committee reviewed proposals submitted in response to our call for papers and invited seventy speakers to present their work over the two-day event.

4The presenters themselves were LLB and Masters candidates from many disciplines; researchers and professors from Law, Women’s Studies, Criminology, Legal and Justice Studies, Counselling Psychology, World Indigenous Knowledge and Research, Sociology, Political Studies, Politics, and Political Science; and community-based activists from the Violence Against Women sector. These activists, students, and academics were joined by an internationally acclaimed young artist, a celebrated author, a national journalist, and two lawyers — one who represents the Native Women’s Association of Canada, and another who was one of Jane Doe’s lawyers. The Canadian focus of the conference was exemplified by speakers from Alberta, British Columbia, Manitoba, New Brunswick, Nova Scotia, Ontario, Saskatchewan, and Quebec, and by attendance from all these provinces as well as Newfoundland and Nunavut. This national concentration was expanded by speakers from South Africa, Israel, the United States, New Zealand, and Ghana.

  • 10 See, for example, Elizabeth Sheehy & Christine Boyle, “Justice Claire L’Heureux-Dubé and Canadian (...)

5These seventy presenters — sixty-six women and four men — delivered papers to a standing-room only audience of over 350 students, community activists, researchers, lawyers, and academics. The conference was opened by the inspiring words of The Honourable Claire L’Heureux-Dubé, whose contributions to the development of sexual assault jurisprudence consistent with women’s equality rights have been widely acknowledged and justly celebrated.10 Conference speakers received at least five standing ovations and the organizers were overwhelmed by repeated calls for a biannual conference on sexual assault.

6Many organizations were represented, including Springtide Re-sources (Women with Disabilities and Deaf Women’s Program), Parkdale Community Legal Services, Kenora Sexual Assault Centre, University of Saskatchewan Students’ Union (Victim Advocate), Native Youth Sexual Health Network, Mouvement Contre le Viol et l’Inceste (Montreal), Sexual Assault Support Centre of Ottawa, Assaulted Women’s and Children’s Counsellor Advocate Program (George Brown College), Vancouver Rape Relief and Women’s Shelter, African and Canadian Women’s Human Rights Project, Women’s Sexual Assault Centre of Renfrew County, Canadian HIV/AIDS Legal Network, and the Ontario Coalition of Rape Crisis Centres.

  • 11 See Special Issue, Women Resisting Rape: Feminist Law, Practice, Activism (2009–2010) 28:1 Can Wom (...)
  • 12 See Special Issue, The State of Rape: Ten Years After Jane Doe (2010) 22:2 CJWL (Guest Editor Eliz (...)

7The event was funded by the Law Foundation of Ontario, the Ontario Women’s Directorate, the Social Sciences and Humanities Research Council, the Department of Justice Victims’ Fund, the Shirley Greenberg Chair for Women and the Legal Profession, the University of Ottawa (including the Common Law and Droit civil sections), the National Association of Women and the Law, Sack, Goldblatt, and the Social Justice Fund (University of Ottawa). A number of law student volunteers, including Kerry McVey and Miriam Yosovic, among others, worked tirelessly with us to guarantee a successful and celebratory event but also to welcome law students from other law schools and create space for their contributions. Not all of the excellent essays that resulted could be squeezed into this collection; special issues of Canadian Woman Studies11 and the Canadian Journal of Women and the Law12 take over where this collection signs off.

PART I

8The scope of this book is wide. Part I ranges from an examination of sexual assault committed by coaches and players in the context of the “total institution” of hockey; to police practices of unfounding women’s rape reports; to the role of racism and colonization in the perpetuation of crimes against Aboriginal women and girls; to the part played by “social handicapping” in our abandonment of disabled women who experience sexual assault; to the state-initiated pressures on women’s grassroots rape crisis and sexual assault centres to eschew feminist politics; to a reinvigorated feminist response to rape as realized by the Garneau Sisterhood; and finally to forward-looking practices of feminist art and narrative that enable us to move past the stalemates so often presented by law.

9The first section of Part I attempts to capture both the enormous potential of law to respond to sexual assault when feminists shape the arguments, as well as the heavy burden placed on the individual women whose rapes are the subject of litigation. This section opens with my chapter, “The Victories of Jane Doe.” I provide an account of three legal landmarks achieved by Jane Doe’s engagement with the Canadian legal system, but more importantly, I suggest that the value of Jane Doe’s work extends beyond these precedents that open up new legal avenues for women, to include her insistence on feminist practice, language, and accountability as part of any legal strategy.

  • 13 See Jane Doe, The Story of Jane Doe: A Book About Rape (Toronto: Random House, 2003) at 257.

10Reflections by Sean Dewart, Jane Doe’s lead counsel for her lawsuit against the police, constitute the next paper in this section. Sean’s expertise was in negligence law, one aspect of Jane Doe’s case that secured her legal win. Sean also brought to the trial his manifest enthusiasm for suing major institutions, especially the police. His chapter describes what the case has meant to law by opening up a new cause of action in tort law that speaks to police accountability for how they do their job. While both of these chapters are celebratory of all that the case accomplished, Jane Doe the woman paid a heavy price for her bravery, including disclosure of her personal health and counselling records to the police, the court, and the public.13

11“New Zealand’s Jane Doe,” by Julia Tolmie, tells a far less celebratory tale in terms of the perils of turning to law. She recounts the story of Louise Nicholas, a courageous woman who, like our Jane Doe, took on the powerful institution of police, this time by prosecuting several NZ police and alleging that they repeatedly raped her when she was a young woman. Julia describes the resilience of Louise Nicholas, who went through three criminal trials, none of which resulted in a conviction. Julia uses her three trials to show the resistance of NZ lawyers, judges, and media to women’s accounts of rape, but also to acknowledge the positive outcomes from Louise Nicholas’s bravery, which included several public inquiries and research projects aimed at reforming NZ law and practice around the response to sexual violence.

12Our national sport is indicted by Laura Robinson’s paper in this section, in her chapter “Hockey Night in Canada.” Hockey is a “total institution,” as captured in the concept used by Erving Goffman, in which coaches and their players enact their masculinity through sexual assault and abuse of young female girlfriends and fans. Laura’s chapter focuses on the trial of former coach and NHL agent David Frost for sexual assault, wherein all charges involving his assaults against two young women were abandoned by the prosecutor and the remaining charge of sexual assault against a male player was dismissed by the court. She paints a picture of a hyper-masculine courtroom atmosphere that mirrors the sexist world of junior hockey, and shows how the young women who testified against David Frost were discarded by the legal system.

13The second section of Part I addresses the sexual assault of Aboriginal women and children as an extension of colonization. In this section, the authors describe a legal response to the catastrophic rate of male violence against Aboriginal women and children that is, at best, indifferent and, at worst, complicit. First in this section is a collaborative piece by Tracey Lindberg, Priscilla Campeau and Maria Campbell, “Indigenous Women and Sexual Assault in Canada.” Their work tells the story of Aboriginal women’s lives through the seasons of Spring — the girl, Summer — the young woman, Fall — the mature woman, and Winter — the older woman. For every season, each author speaks in a different voice, describing sexual attacks on Aboriginal women and girls from a different perspective. Priscilla outlines the facts and outcomes of these crimes from her position as an Indigenous woman; Tracey speaks to the legal processing of these crimes, separating the “relevant” information from that which is “not relevant,” and providing a critical Indigenous analysis of each; and Elder Campbell completes each telling by addressing the stories in terms of Cree laws as they protect and honour Indigenous women and girls. Their work reveals the terrible gap between law’s treatment of these crimes against women and girls and how they affect and are understood by Indigenous women and Indigenous laws.

14Lucinda Vandervort’s contribution to this section is a detailed analysis of a disastrously failed prosecution of three non-Aboriginal men charged with the sexual assault of a twelve-year-old Aboriginal girl in Saskatchewan. In “Legal Subversion of the Criminal Justice Process? Judicial, Prosecutorial, and Police Discretion in R v Edmondson, Kindrat and Brown,” the author recounts legal and procedural errors committed by police, prosecutors, and judges that infected the investigation, two trials, appeals, and two retrials, all of which inured to the benefit of the accused men. Lucinda makes the compelling argument for adherence to national legal standards for the prosecution of sexual assault, identifying confusion about the relevant law, failure to apply criminal law principles designed to eschew sex discriminatory beliefs, and erroneous reliance on law rejected or reformed by Parliament, as instrumental in the botched prosecution. She highlights the role played by racism and sexism in this case, using this analysis to generate three significant recommendations for federal reform, including a proposal to ensure legal representation for all sexual assault complainants.

  • 14 [2005] 3 SCR 45.

15The last chapter in this section is Sheila McIntyre’s piece, “The Supreme Court of Canada’s Betrayal of Residential School Survivors: Ignorance is No Excuse,” a searing indictment of the Supreme Court’s response to compensation claims by Aboriginal men and women who were sexually abused as children. Using as backdrop nine civil suits decided by the court from 1999 to 2005, she focuses on the last decision, EB v Oblates of Mary Immaculate in the Province of BC,14 to illustrate the central failure of the Court in all of these decisions — the refusal to address what she describes as the “obvious, compound, structural and situational inequalities” that produced the harms to these survivors: “racism, colonialism, poverty, misogyny, and cultural supremacism.” Sheila shows how the Court has overwhelmingly ignored the extensive research on residential school abuse in its decisions and rejected the opportunity to develop a new jurisprudence equal to the task of responding to such large-scale neglect and violence. It has instead decided these cases using narrow and formalistic reasoning that obliterates the social, political, and historical context of these claims, treating these survivors the way they were treated as children — as invisible and irrelevant.

16The third section of Part I examines women’s credibility problems with the police, our knowledge gap around women’s experiences of sexual assault and the services women need, as well as strategies and mechanisms of accountability. It starts with Fran Odette’s paper, “Sexual Assault and Disabled Women Ten Years after Jane Doe.” Fran focuses on the invisibility of disabled women in the research, policy-making, and service delivery around sexual assault. In spite of the fact that disabled women experience the highest rate of sexual assault among women, research tends to exclude their specific experience of sexual assault, which often involves, for example, caregivers as opposed to strangers or intimate partners. Fran delineates the many barriers presented to disabled women who wish to use the legal system, as well as those who attempt to engage the support of women’s centres. She calls for meaningful dialogue among women in the Violence Against Women movement around these issues.

17This section then turns to Teresa DuBois’s chapter, which demonstrates that the wrongful unfounding of women’s reports of rape is a widespread, systemic, and harmful practice of police in many countries. Moreover, Canadian cities experience some of the highest rates among the countries surveyed, with a range of up to 28 percent of women’s rape reports being dismissed by police. These rates can be attributed to police adherence to rape myths as well as police reliance on simplistic and unverifiable “investigative” techniques such as “statement analysis” and “behavioural analysis,” as set out in investigatory handbooks. Particularly troubling is the fact that police continue, even after successful lawsuits like Jane Doe and after decades of reforms, to start from the assumption that women are lying about rape. The collection of national data on police unfounding and the development of uniform practices for recording police decisions is a necessary first step in stemming these discriminatory practices.

  • 15 [2007] 3 SCR 129.

18Blair Crew’s contribution to this section, “Striking Back: The Viability of a Civil Action Against the Police for the ‘Wrongful Unfounding’ of Reported Rapes,” surveys the legal remedies for women whose rapes have been “unfounded” by police. He examines the availability of a newly recognized wrong in Canadian negligence law — that of “negligent investigation” — as delineated by the Supreme Court of Canada in R v Hill.15 Blair reviews the data on police unfounding of rape reports, noting that while the practice is widespread and discriminatory, with serious effects for women, there is no strong demand for law reform, leaving litigation as the only option to provoke change in the police. After looking at the proof requirements for “negligent investigation” and identifying the serious hurdles for women, he concludes that the legal theories pursued by Jane Doe, those of unconstitutional sex discrimination and negligence for failure to warn, remain more fruitful avenues for redress. Blair shows, in a step by step analysis, how a s 15 Charter claim for wrongful unfounding or a negligent failure to warn case could be constructed on behalf of a woman whose rape report has been rejected by police.

19The fourth section of Part I speaks to the contributions and challenges faced by activist women who work with and for women who have been raped. Lise Gotell interrogates the police response to a series of rapes committed in Edmonton, in the Garneau neighbourhood in 2008. She offers a critique of a policing style she describes as “risk management,” aimed at making women responsible for their own safety. In “Third-Wave Anti-rape Activism on Neoliberal Terrain: The Garneau Sisterhood,” Lise exposes the gendered regime of “risk management” through police warnings and media coverage of the Garneau rapes. Against this regime she counter-poses the strategy of postering the neighbourhood with feminist messages, an action engaged in by anonymous members of the Garneau Sisterhood. She applauds their subversive messages that challenged woman-blaming, condemned rape culture, and allocated responsibility to men, individually and collectively, to prevent rape, arguing that direct action may be a most significant tactic in our arsenal.

20Meagan Johnston’s paper also celebrates women’s activism by demonstrating how much more powerful and radical the alternative analysis of the Garneau Sisterhood is compared to the “solutions” offered by the criminal justice system. In her chapter, “Sisterhood Will Get Ya: Anti-Rape Activism and the Criminal Justice System,” she contrasts the legal order offered by the criminal law versus that of the Sisterhood. On every front examined, from the substantive and procedural rules for defining rape and determining when rape has occurred, through to the fundamental principles that underpin these two orders, she demonstrates how little the law can offer women and how much more vibrant and empowering is the model the Sisterhood imagined for the community affected by rape.

21In “Where Has All the Anger Gone?” Diana Yaros reviews thirtyfive years of grassroots work in the Violence Against Women movement, describing the shifts towards government funding and government “partnership,” and the ensuing de-politicization of the women’s movement. She laments our loss of vision, courage, and anger occasioned through this process of collaboration, but secures hope in her centre’s work to include and serve the needs of racialized and immigrant women, and to return the focus of their work from service provision to advocacy.

  • 16 The Story of Jane Doe, supra note 13.

22In the final section of Part I, the authors explore other strategies to pursue social change, using art and narrative forms to communicate and educate. Shary Boyle, in “Vitreous Fragility: Re-imagining Women through Art,” traces her path as a feminist artist, including her work as illustrator for Jane Doe’s book, The Story of Jane Doe.16 She describes her work re-interpreting Greek myths in porcelain as feminist tales where women are active, as opposed to acted upon. Shary’s photographs of her work enrich our understanding of her vision and of art’s possibilities for forging new understandings of women’s agency and resistance.

23Gillian Calder and Rebecca Johnson’s final chapter in Part I is an unabashed tribute to the book, The Story of Jane Doe. The title of their paper, “The Jane Doe Coffee Table Book about Rape: Reflections on Rebellious Writing and Teaching,” refers to Jane Doe’s original title for her manuscript, which was rejected by her publishers. The subversive intent behind Jane Doe’s preferred title remains evident, however, throughout her book, as she uses unconventional means — art, doodles, journaling, fictionalization — to tell the story of her fight to hold police accountable for sex discrimination in the investigation of sexual assault. Gillian and Rebecca’s paper is sprinkled with photographs of the book, lovingly captured by the conference participants, in many hands and in many places. Their message, backed by their dialogue, is that this book is a powerful piece of feminist law-making.

24The papers in Part I both describe our current realities and offer feminist visions of new social and legal orders. Without the experiences of all women assembled in Part I — Aboriginal, racialized, young, disabled, artist, activist, and academic — we cannot find a common ground from which to advocate together or separately for change. These papers are intended to comfort and inform, agitate and inspire the next generation of feminists determined to challenge male violence against women.

PART II

25Part II of this book has a decidedly more legal focus than Part I. The themes here explored move from issues in the prosecution of sexual assault, such as the challenges posed for niqab-wearing women who testify as complainants; to problems in the adjudication of rape, where the linguistic practices of rape trials encode rape myths; to the sentencing of men convicted of rape; and to questions surrounding compensation for women.

26The first section of Part II investigates the role of social workers, health care providers, police, prosecutors, defence lawyers, and judges in creating a hostile environment for women and girls who must testify in rape trials. Jane Doe’s paper, “Who Benefits From the Sexual Assault Evidence Kit?” is based on interviews with women who have undergone the Sexual Assault Evidence Kit [SAEK], as well as with feminists who work in community-based rape and sexual assault crisis centres, nurses who administer the SAEK, and hospital-based counsellors. She shows that the relocation of feminist-based services for raped women to hospitals has shored up the medicalization of rape as “illness” and increased medical authority such that women’s “consent” to the SAEK is more illusory than real. The lack of consistent practices for its collection and its dubious legal utility mean that the SAEK’s terrorizing effects on women are not outweighed by any concrete gains for women. Jane Doe’s paper concludes with women’s understandings of the benefits that accrue to players in the medical-legal system who derive authority and control through the SAEK.

27Susan Ehrlich uses linguistic analysis to demonstrate the distorting effects of trial discourse premised upon rape myths. Her paper, “Perpetuating — and Resisting — Rape Myths in Trial Discourse,” sets out to expose one reason why progressive law reforms have failed to achieve significant change in sexual assault prosecutions. She illustrates how different forms of questioning devices — those that demand a yes/no answer, and those premised upon presuppositions that the witness cannot refute if she answers the question — allow lawyers to control the information that emanates from the complainant and to subtly exploit prevailing cultural myths about women and rape. At the same time as she traces these devices through trial transcripts, Susan also takes care to point the way to outcomes that do justice to women’s experiences of rape, by showing how prosecutors can anticipate and pre-empt defence lawyers’ invocations of rape myths, and how some complainants assert their agency by resisting victim-blaming presuppositions.

28Sunny Marriner’s paper, “Questioning ‘Expert’ Knowledges,” takes up a related theme — that of the credentializing of expertise around male violence against women and its impact on grassroots women who work to support women who have been raped and to challenge the legal system. She recounts how expertise is assessed in courtrooms, the male biases that permeate psychiatry and psychology, and the implications in terms of the distortion of women’s experiences through the psy-disciplines. Identifying the junctures in the criminal process at which the “experts” enter, Sunny demonstrates the ways in which the legal and psy-disciplines reinforce each other’s power over women. Grassroots women have been co-opted in this process, she argues, vying for authority and playing a role in referrals. She calls for activist women to challenge psy-expertise and to instead defend the expert knowledge of feminist political practice.

  • 17 SO 1991, C 18, as am by SO 1993, C 37.
  • 18 (Toronto: College of Physicians and Surgeons, 1991).

29Another way of thinking about the prosecution and proof of rape is presented in Sanda Rodger’s contribution to this section, “Zero Tolerance Some of the Time? Doctors and Sexual Abuse in Ontario.” Her paper looks at the implementation of the Regulated Health Professions Act,17 ratified in response to The Final Report of the Task Force on Sexual Abuse of Patients.18 While this legislation was intended to enact a zero tolerance approach to sexual assault committed by doctors, with mandatory license revocation as the most serious penalty, Sanda’s research shows that a small percentage — 5.53 percent of women’s allegations — ever reach the stage of adjudication and that the same doctrines that make criminal prosecution so problematic also infect the disciplinary policing of doctors. These features include the doctrine of corroboration, reliance upon discriminatory myths about confused and vindictive women, invocation of a quasi-criminal burden of proof, and the use of women’s confidential records to discourage and discredit them. She urges the College of Physicians and Surgeons to address these barriers to “zero tolerance,” in keeping with its original mandate.

30In the second section of Part II, the authors unpack specific legal doctrines that obscure or excuse male violence. They also advance recommendations that would ameliorate the gap between the promise of criminal law and its adjudicated reality. In my paper, “Judges and the Reasonable Steps Requirement: The Judicial Stance on Perpetration Against Unconscious Women,” I review decisions from the appellate and superior courts to evaluate how judges are interpreting the reformed “mistake of fact” defence available to men who have proceeded to have sexual intercourse with sleeping or passed-out women. While the criminal law now requires that men take “reasonable steps to ascertain consent” before they are entitled to the defence that they mistakenly believed the woman consented, some judges simply fail to apply the proviso, or they interpret “reasonable steps” to extend to touching — even sexual touching. In many cases, defence lawyers are able to raise doubts before the judges who hear these cases — doubts about whether the women really were asleep, doubts about whether men believed the complainants were conscious, and doubts about whether the men were mislead by the bodily movements of sleeping women. I outline the principles that judges ought to respect as they assess men’s culpability, wherein serious attention to women’s entitlement to dignity, equality, and security of the person should easily outweigh men’s interest in sexual contact with women who neither know nor desire them.

  • 19 [2002] 2 SCR 908.

31David Tanovich critiques the evidentiary rule that works to bar evidence of an accused’s prior sexual misconduct from sexual assault trials in his paper, “An Equality-Oriented Approach to the Admissibility of Similar Fact Evidence in Sexual Assault Prosecutions.” He uses the Supreme Court’s decision in R v Handy19 to make the compelling argument that this form of “similar fact” evidence should be presumptively admissible in sexual assault prosecutions because it shows a specific form of propensity to engage in non-consensual sexual contact. David demonstrates the pervasive influence of gender bias in rulings that have excluded sexual misconduct from rape trials, even where there is corroborative evidence shoring up the reliability of the evidence. He also exposes the language of these judgments, which conveys deep suspicion of the motives and reliability of complainants. Highlighting the unique nature of sexual assault prosecutions, where identity of the perpetrator is seldom an issue and where the credibility of the complainant becomes the central focus of the defence attack, David argues that fairness, truth-seeking, and equality would all be advanced were his proposed rule of presumptive admissibility to be adopted by either legislation or common law.

32Julie Desrosier’s paper, “Raising the Age of Sexual Consent: The Renewing of Legalistic Moralism?” analyzes the 2008 reforms that raised the age of consent for sexual contact from fourteen to sixteen years of age. Julie situates this reform in its historical context as well as in liberal, conservative, and feminist political theory in order to argue that the real impetus behind this reform is not the protection of young women from sexual aggression, but rather the perpetuation of legal moralism aimed at curtailing adolescent sexuality. She cautions that these reforms were never intended to protect young women against sexual aggression, which has always been criminalized, and that they have been enacted without any consultation with young women as experts in their own lives, a foundational principle of feminist practice.

  • 20 [2009] OJ No 1766 (Ct J).

33In “What’s in a Face? Demeanour Evidence in the Sexual Assault Context,” Muslim women who wear the niqab are centred in the analysis. Acknowledging that this group of women is small numerically, Natasha Bakht argues that the convergence of racism and misogyny that occurs when rights to religion and culture are claimed by women imperils the equality rights of all. Natasha situates the case of R v NS,20 wherein the complainant fought to wear her niqab while testifying, in the context of the jurisprudence that questions the utility of “demeanour” evidence to the assessment of credibility and the other cases where women’s rights to wear the niqab have been challenged. She lays out the legal arguments in support of Muslim women’s claims, relying on an intersectional analysis that exposes the demand for Muslim women to undress in order to testify as yet another defence strategy aimed at obscuring, not pursuing, truth.

34Section three of Part II opens with Holly Johnson’s chapter, “Limits of a Criminal Justice Response: Trends in Police and Court Processing of Sexual Assault.” She presents an overview of official knowledge about sexual assault in Canada and demonstrates how very marginal the criminal law response to sexual assault really is. Her chapter draws upon statistics from victimization surveys, police recording practices, studies of public attitudes towards sexual assault, and data regarding attrition of rape cases as they proceed through the criminal justice system. Holly concludes that law reforms cannot stem the effect that rape myths held by criminal justice personnel have on the discounting of women’s experiences of sexual violence.

  • 21 [1998] 2 SCR 371.

35In “HIV Exposure as Assault: Progressive Development or Misplaced Focus?” Alison Symington reflects on the implications of the Supreme Court’s 1998 decision in R v Cuerrier21 for the criminalization of persons living with HIV/AIDS. She argues that the increased rate at which police are laying charges of aggravated and sexual assault against persons with HIV/AIDS demonstrates problems in terms of assessing culpable knowledge on the part of the accused regarding their health status, and exposes legal uncertainty as to whether use of a condom will suffice to avoid criminal liability. Both problems, she argues, suggest that the criminalization strategy is fraught with unfairness. She questions whether women’s health and autonomy can truly be advanced by the Cuerrier decision, and argues that disclosure of HIV/AIDS by sexual partners is unlikely to be the outcome of a one-sided obligation with criminal implications.

36Rakhi Ruparelia’s contribution, “All That Glitters Is Not Gold: The False Promise of Victim Impact Statements” uses a feminist and critical race theory lens to examine the use of “victim impact statements” as a means for victims of crime to communicate to the sentencing court the impact of the offence upon their lives. She argues that only a narrow category of “ideal victims” can possibly gain from the opportunity to submit a statement, and further that racialized and Aboriginal women actually have much to lose should they participate in this process: they can easily be discounted as non-ideal victims, and negative stereotypes of racialized women can be thereby reinforced. Rakhi uses Canadian cases and data from the US and Canada that show how racism shapes our understanding of who is a “victim.” She concludes that the greatest beneficiary of victim impact statements is the criminal justice system itself, which gains the co-operation of women by appearing to address the harms caused by sexual assault and by the sexual assault trial.

37In “Confronting Restorative Justice in Neo-Liberal Times: Legal and Rape Narratives in Conditional Sentencing,” Gillian Balfour and Janice Du Mont study the use of conditional imprisonment — “house arrest” — a restorative justice sentencing option, for sexual assault offenders. Starting from the Statistics Canada report in 2006 that this sentence is more likely to be imposed for sexual assault than for any other crime, Gillian and Janice analyze thirteen such sentences imposed between 1993 and 2001 for rapes with serious aggravating factors. They examine the legal and rape narratives in these decisions, focusing on the invisibility of the woman in the judgments, the ways in which responsibility is assigned to her for her own rape, the minimization of the harm caused by the perpetrator, and the exaggeration of the effects of “embarrassment” on the offender, obviating the need for more denunciatory punishment. While lauding house arrest as a progressive sentencing option, the authors urge feminist engagement with conditional sentencing in light of its enmeshment with rape mythologies.

  • 22 (1976), 26 CCC (2d) 474 (Ont H Ct).

38Finally, Constance Backhouse explores avenues other than criminal law for redressing the harm of sexual assault. In “A Feminist Remedy for Sexual Assault: A Quest for Answers” she revisits a decision from 1974, R v Angione,22 in which the sentencing judge accepted a guilty plea from the accused for indecently assaulting a female employee and ordered him to forfeit $1,000 payable as compensation to the complainant. She commends the judge in Angione for his recognition that jail is inappropriate — often counter-productive to the goal of eliminating sexual violence — and she uses the case as a discussion point for thinking, from a feminist perspective, about what remedy is appropriate for sexually violent men. Constance considers the various goals of sentencing, the real need for financial support for women who have been raped, and the eradication of the stigma of rape, all in the service of asking, if not answering, questions feminists would pose in the search for remedies.

39The collected works in this book, while often providing negative assessments of the progress of feminist reforms to the law and practice surrounding sexual assault, are nonetheless full of new ideas, proposed changes to law, and concrete and practical strategies for women, activists, legislators, lawyers, and judges. This book also identifies numerous gaps in research that await the next generation of feminist activists, and posits some of the questions we need to begin to ask. I hope that this book will be followed by many more on the law and practice around the crime of sexual assault, for Canadian women deserve no less in our ongoing struggle to realize women’s just demands for equality.

Notes

1 Jane Doe v Metropolitan Toronto (Municipality) Commissioners of Police (1998), 39 OR (3d) 487 (Ont Ct (Gen Div)) [Jane Doe].

2 An Act to Amend the Criminal Code (sexual offences), SC 1980-81-82-83 C 125, s 6.

3 An Act to Amend the Criminal Code (sexual assault), SC 1992 C 38, s 2.

4 Sheila McIntyre, “Redefining Reformism: The Consultations That Shaped Bill C-49” in Julian M Roberts & Renate V Mohr, eds, Confronting Sexual Assault: A Decade of Legal and Social Change (Toronto: University of Toronto Press, 1994) 293 [Roberts & Mohr].

5 An Act to Amend the Criminal Code (self-induced intoxication), SC 1995, C 32, s 1.

6 R v Daviault, [1994] 3 SCR 63.

7 An Act to Amend the Criminal Code (production and disclosure of personal records), SC 1997, C 30, s 1.

8 Roberts & Mohr, supra note 4. See Constance Backhouse’s book on the legal history of sexual assault in Canada, Carnal Crimes: Sexual Assault Law in Canada, 1900-1975 (Toronto: The Osgoode Society for Canadian Legal History, 2008); and Julie Desrosiers, L’aggression sexuelle en droit canadien (Cowansville, Qué: Éditions Yvon Blais, 2009).

9 Jane Doe, supra note 1.

10 See, for example, Elizabeth Sheehy & Christine Boyle, “Justice Claire L’Heureux-Dubé and Canadian Sexual Assault Law: Resisting the Privatization of Rape” in Elizabeth Sheehy, ed, Adding Feminism to Law: The Contributions of Justice Claire L’Heureux-Dubé (Toronto: Irwin Law, 2004) 247.

11 See Special Issue, Women Resisting Rape: Feminist Law, Practice, Activism (2009–2010) 28:1 Can Woman Stud (Guest Editors Jane Doe, Carol Latchford, Rakhi Ruparelia & Elizabeth Sheehy).

12 See Special Issue, The State of Rape: Ten Years After Jane Doe (2010) 22:2 CJWL (Guest Editor Elizabeth Sheehy).

13 See Jane Doe, The Story of Jane Doe: A Book About Rape (Toronto: Random House, 2003) at 257.

14 [2005] 3 SCR 45.

15 [2007] 3 SCR 129.

16 The Story of Jane Doe, supra note 13.

17 SO 1991, C 18, as am by SO 1993, C 37.

18 (Toronto: College of Physicians and Surgeons, 1991).

19 [2002] 2 SCR 908.

20 [2009] OJ No 1766 (Ct J).

21 [1998] 2 SCR 371.

22 (1976), 26 CCC (2d) 474 (Ont H Ct).

Auteur

LLB (Osgoode), LLM (Columbia), LLD (Honoris causa LSUC), has been a very happy member of the feminist community in the Faculty of Law at the University of Ottawa since 1984. She has always taught criminal law and procedure as well as “women’s law” courses, such as Women and the Law, Women and the Legal Profession, Sexual Assault Law, and Defending Battered Women on Trial. She has edited several books, including Adding Feminism to Law: The Contributions of Justice Claire L’Heuerux-Dubé and Calling for Change: Women, Law and the Legal Profession (with Sheila McIntyre). She has researched and published in the area of sexual assault law and counts as proud moments her involvement in Jane Doe’s successful suit against the Toronto Police and being cited by Justice Claire L’Heureux-Dubé in her exquisite dissent in the Seaboyer case. She credits her students in the Faculty of Law, as well as Jane Doe, with supplying the heart and soul needed to launch the March 2009 conference on sexual assault law, practice, and activism. This book is the third collection of essays arising from the conference that Elizabeth has edited. The first two were Ten Years After Jane Doe: Reflections on the State of Rape (2010) 22:2 CJWL 301–568 and Women Resisting Rape: Feminist Law, Practice, Activism (2010) 28:1 Can Woman Stud 3–161

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