Illegal strip-searching of women, particularly by male police officers, remains a persistent prob... more Illegal strip-searching of women, particularly by male police officers, remains a persistent problem in Canada, in spite of strong legal rulings that condemn this practice. The strip-searching of female detainees in the Prison for Women by male officers made national news in 1995. The Arbour Inquiry called these strip searches “cruel, inhumane and degrading” and determined that they violated the women’s Charter rights. Strip-searching re-emerged as a major law and policy issue in 2001, when the Supreme Court of Canada in R v Golden ruled that strip searches must not be carried out as routine policy, and specified a legal standard that must be met before a strip search can be undertaken, as well as 11 safeguards to which police must adhere to execute a lawful strip search. Yet in 2008, more than a decade after the Arbour Inquiry and seven years after Golden, another strip search of a woman detainee (SB) by male officers took place, making national news in 2010 when a court ordered release of the videotapes of the strip search and granted a stay of proceedings in consequence of the Charter violations. This article surveys the case law post-Golden in which women allege illegal strip-searching has occurred in order to assess the size of the problem, the forms that these Charter violations take, judicial responses to women’s claims, and whether and what remedies are provided. The authors argue that illegal strip-searching of women continues to occur in part because judges have failed to consistently and strongly condemn this form of police abuse, but also due to police resistance and their failure to meaningfully address police accountability through strong civilian complaints and police disciplinary processes. The authors conclude that it would be deeply disruptive of unauthorized police strip-searching of women if this practice were to be named sexual or criminal assault by judges.
Sexual Assault in Canada is the first English-language book in almost two decades to assess the s... more Sexual Assault in Canada is the first English-language book in almost two decades to assess the state of sexual assault law and legal practice in Canada. Gathering together feminist scholars, lawyers, activists and policy-makers, it presents a picture of the difficult issues that Canadian women face when reporting and prosecuting sexual violence. The volume addresses many themes including the systematic undermining of women who have been sexually assaulted, the experiences of marginalized women, and the role of women’s activism. It explores sexual assault in various contexts, including professional sports, the doctor–patient relationship, and residential schools. And it highlights the influence of certain players in the reporting and litigation of sexual violence, including health care providers, social workers, police, lawyers and judges. Sexual Assault in Canada provides both a multi-faceted assessment of the progress of feminist reforms to Canadian sexual assault law and practice, and articulates a myriad of new ideas, proposed changes to law, and inspired activist strategies. This book was created to celebrate the tenth anniversary of Jane Doe’s remarkable legal victory against the Toronto police for sex discrimination in the policing of rape and for negligence in failing to warn her of a serial rapist. The case made legal history and motivated a new generation of feminist activists. This book honours her pioneering work by reflecting on how law, legal practice and activism have evolved over the past decade and where feminist research and reform should lead in the years to come.The PDF file does not include the full text.
Justice Claire L’Heureux-Dube’s sexual assault judgments make a remarkable contribution to the re... more Justice Claire L’Heureux-Dube’s sexual assault judgments make a remarkable contribution to the reform of Canadian rape law. Her analyses, even when written in dissent, have ultimately reshaped the common law and instigated new legislation. L’Heureux-Dube J.’s judgments sustain the feminist project of realizing women’s equality by resisting the privatization of sexual assault through her linguistic choices, legal methodology, fact determinations, and doctrinal shifts.Sexual assault is privatized when it is governed by legal doctrines that decriminalize predatory and injurious male sexual behaviour, treat the crime as an individual and gender-neutral deviation that carries no social consequences for the structuring of our society, and impose unconscionable burdens upon women who report male sexual violence to the criminal justice system. In contrast, Justice L’Heureux-Dube’s judgments recognize that, while sexual assault is perpetrated by individual men, it is carried out by men as a group, against women as a group, with our permission as a society, signaled in part through legal rules that define the range of behaviours labeled as criminal. Her decisions frame women who report rape as citizens assuming a grave and onerous public responsibility as witnesses to violent crime, and not as vindictive females with an axe to grind. Her opinions recognize the gross under-reporting of rape and its implications for the full public participation of women.The legal regime proposed through L’Heureux-Dube J.’s judgments treats women who report sexual assault as members of society whose health, well-being, and survival have been compromised by a brutalizing experience. She endorses legal definitions and rules of culpability for sexual assault that do not force women to abandon the public sphere or active social and sexual lives and to assume responsibility for their own safety as against predatory men. Furthermore, Justice L’Heureux-Dube’s legal understanding of sexual assault would not leave individual women to bear alone the social and economic costs of their rapes, unassisted even by the knowledge that the crime against them was condemned.L’Heureux-Dube J.’s dissent in R v Seaboyer perhaps best illustrates how her decisions provide a blueprint for resisting the privatization of sexual assault. The scope of the mistake of fact defence was at issue in that case, and in particular, the use of a woman’s sexual history to give an “air of reality” to an accused’s alleged mistaken belief in consent. The defence challenged the Criminal Code’s strict rules around the use of women’s past sexual history as evidence on the basis of s.7 of the Charter. First, L’Heureux-Dube J.’s judgment recognized that language matters. She thus began by defining her linguistic terrain in a manner respectful of women and attentive to the public nature of the wrong committed. Her dissent eschewed the use of the term “prosecutrix” because sexual assault is no longer a private matter but is rather a crime against the public order that is prosecuted by the Crown. L’Heureux-Dube J. also rejected the term “alleged victim” because it is over-inclusive and presumes that the woman has nothing to complain of. She settled for the term “complainant” because it was the least infirm term available, but acknowledged that it is also a harsh term. Justice L’Heureux-Dube recognized that a woman who has been sexually assaulted but whose assailant has been acquitted by virtue of the honest mistake defence nonetheless has been injured. She refused to adopt the phrase “rape shield law” a short form often used to describe legislation that limits the cross-examination of women as to their sexual histories, on the basis that the term “rape shield” suggests that the sole or primary purpose of such legislation is to protect women from the rigours of cross-examination. Instead, she argued, several equally significant societal interests are served by the exclusion of such evidence, including truth-seeking and public confidence in the criminal justice system. Second, L’Heureux-Dube J.’s methodology in her Seaboyer dissent is characterized by attention to the rights of the collectivity, including the rights of women, children, the broader society and of men accused of the crime. She consistently relied upon equality rights as an implicit if not explicit interpretive framework informing the law of sexual assault. Her approach was definitively contextual: her analysis of the constitutional challenge was grounded in the legal history of the provision in question, the social science evidence situating sexual assault as a gendered crime that is rarely reported and whose legal treatment has been rife with discriminatory practices and doctrines, and the distorting effects that sexual history evidence has upon the trial process and a principled search for truth. This judgment thus reflects a move away from reliance upon abstract doctrine, unstated and untested assumptions and beliefs,…
The keynote address takes the conference title and theme, "Legalising Justice for All Women&... more The keynote address takes the conference title and theme, "Legalising Justice for All Women", and considers it in the context of the Canadian women's movement's efforts to draft and to defend a rape law that will serve the interests of all women. Two specific examples are used: the work of feminist activists in shaping a new rape law, Bill C-49, in 1991-92 after the Supreme Court of Canada declared important protections in the law for rape survivors as void for violating men's constitutional rights; and the more recent efforts of feminists to ward off a new defence strategy of requesting access to women's counselling and other records in order to suggest "false memory", "motive to fabricate", "consent" or grounds for "mistake" regarding consent.Both of these efforts to create a just law of sexual assault have been founded on feminist understandings of equality as profoundly shaped by context, thus requiring an analysis of racism, sexism, disability-ism and heterosexism. Sexual assault cannot be responded to using "general principles of general application" in law: it is gendered, raced, heterosexist and exploitative of women with disabilities through and through and requires specific principles in response. The women's movement's claims to social justice have been buttressed by a legal analysis of rights to equality and to security of the person in SS 7 and 15 of the Canadian Charter of Rights and Freedoms [hereafter Charter].Both of these efforts also signify that feminist commitment to democratic process and values is not only richly productive of creative and potentially transformative new law, but is also deeply resisted by the judiciary. As the potential of Bill C-49 has been avoided by the new defense strategy of seeking women's personal records, with the assistance of the Canadian judiciary, it is clear that rape law reform is a long-term political struggle to change the status and social power of women: our legal reforms serve to shift the location, the degree of explicitness, and the identity of the players in this fight. Whatever we have achieved through the political process has been subjected to vigorous attack in the courts, and the judiciary has frequently used its powers under the Charter to roll back women's gains, thereby preserving judicial discretion and men's sexual prerogatives. As Andree Cote has observed, if the result of women's refusal to co-operate with disclosure requests is that women who prosecute and women who counsel are criminalized by contempt prosecutions:This scenario would force us to conclude that the State, acting through its judicial system, is deliberately becoming a party to the legal and political subordination of women to the interests of men ... [W]e shall lose another of our illusions about the promises made by democracy in Canada.The remainder of my address is divided into three parts: I will first give the background legal information regarding Canada's sexual assault laws; I will second describe Bill C-49 and highlight the ways in which feminist activists tried to craft a rape law that would serve all women, the legislation that resulted from the law reform process, and the impact of the reforms as evidenced in current practices. I will third describe the latest crisis in sexual assault law — the defense effort to gain access to women's records — specifying the reasons why this strategy is successful and analyzing it from the point of view of women's resistance.
... wish to acknowledge, with thanks, research and promotional assistance provided by Alan Fleich... more ... wish to acknowledge, with thanks, research and promotional assistance provided by Alan Fleichman and organizational assistance provided by Susan Lecorre, both of the Human Rights Research and Education Centre, and by Bernadee Blanchard and Danielle Latreille of the ...
This paper sets out and assesses, from a feminist perspective, Department of Justice proposals, i... more This paper sets out and assesses, from a feminist perspective, Department of Justice proposals, in Do We Still Need Preliminary Inquiries?, to abolish or substantially alter the preliminary inquiry for criminal offences.The preliminary inquiry is a judicial process whose historical and legislated purpose is to ensure that there is sufficient evidence of an accused’s guilt with respect to an offence charged to justify sending the case on for trial. It is available only for specific, more serious criminal offences, and requires the Crown Attorney to establish a prima facie case, through the testimony of witnesses and other evidence, before the accused will be sent on for trial. The defence is entitled to cross-examine those witnesses, and to call their own witnesses as well. The Department of Justice is interested in reforming this process in order tor reduce court delays and conserve resources.This paper addresses the reasons given by the Department of Justice for the law reform effort from a feminist perspective, and concludes that women have an interest in this reform process: Women who have survived rape and/or wife assault and who are willing to act as primary witnesses in the criminal trials of their assailants will have an interest in changes to the preliminary inquiry that: reduce the number of times that cross-examination must be undergone; restrict the scope of cross-examination; hasten the ultimate resolution of the charges; put absolute limits on the defence’s access to mental health and counselling records; restrict contact with the offender; involve the primary witness in Crown decisions and plea negotiations arising from the preliminary; and increase the chances of ultimately securing a conviction at trial.Women who are charged with offenses that include a preliminary inquiry as part of the trial process span a broad spectrum, since these offenses include such disparate offenses as theft involving property valued at more then one thousand dollars, many drug related offences, and manslaughter and murder. The interests of such women as they relate to preliminary inquires will be: ensuring that they are not put on trial when the evidence against them is inadequate, thus sparing the anxiety and cost of a criminal trial; ensuring that women are not tried when it is unjust to prosecute in light of all the circumstances surrounding the offence; using the preliminary inquiry to gain more information about the Crown’s case so as to prepare a defence; using the opportunity to cross-examine witnesses at the preliminary to discover weaknesses in the Crown’s case; hastening the ultimate resolution of the charges; and exploring the possibility of plea negotiations arising out of the preliminary inquiry.The paper describes the five proposals set out by the Department of Justice and sets out the advantages and disadvantages of each. For some of the more favourable proposals, the paper recommends changes that would improve the proposal for women.Specifically, the paper: Recommends against retaining the preliminary inquiry in its current form (option 1); Recommends that the best option available to women, among those forwarded by the Department of Justice, would be the institution of a paper committal process, combined with legally enforceable disclosure, which would require a justice to evaluate and provide written reasons as to the sufficiency of the evidence for trial (option 2(ii). This option would be more favourable to women accused if it were confined to sexual and wife assault cases, so that for all other offenses, the preliminary inquiry would be retained; Recommends against retaining the preliminary inquiry only to screen charges through a foreshortened preliminary process (option 2 i)) or when the accused can show special reasons to hold a full preliminary (option 2(iii)); Recommends against raising the standard for committal for trial at the preliminary inquiry, which would screen out more cases from the trial process (option 3); Recommends against retaining the preliminary inquiry only for treason and murder (option 4(i)); Recommends against re-classifying specific complex or minor offenses so that the Crown can proceed summarily and avoid the preliminary inquiry unless, in the case of offenses of violence against women, the maximum penalty for these offenses prosecuted summarily were raised from six months to just under five years imprisonment and mandatory, enforceable prosecutorial guidelines were enacted (option 4 (ii)); Recommends against implementing informal procedures for witness examination and cross-examination prior to trial to replace the preliminary, (option 5 (vi)) unless sexual and wife assault causes were specifically excluded from this process or other protective mechanisms were put in place; Recommends against abolition of the preliminary inquiry (option 6); Recommends that if any option pursued, that in the case of sexual and wife assault, one of the following options should be…
Our starting point is that universities should provide avenues of redress for women who experienc... more Our starting point is that universities should provide avenues of redress for women who experience sexual violence and that these cannot simply be absorbed into pre-existing disciplinary codes and sexual harassment policies. Canadian governments have the power to impose uniform reporting and disciplinary procedures on universities, but in the absence of national or provincial standards, best practices should be identified for such policies. We first turn to a brief discussion of the legal context in which Canadian post-secondary institutions operate, particularly federalism, provincial human rights codes, the Charter of Rights and Freedoms, and tort law. Second we describe the legal context in which US universities and colleges sit: Title IX, the Clery Act, the Obama Task Force and its 2014 Report, and the ongoing investigations and litigation arising from federal regulation. Third we look at what Canadian institutions might learn from the US experience specifically on the issues around reporting obligations, disciplinary measures, and protections for women who report sexual violence.
This paper constitutes a response to the Department of Justice’s proposal appears as s. 37 of the... more This paper constitutes a response to the Department of Justice’s proposal appears as s. 37 of the White Paper, and is briefly examined in both the Consultation Paper and the Technical Paper. Other quite analogous proposals are contained in recommendations made by the Law Reform Commission of Canada, the Canadian Bar Association Task Force, and a paper by Tim Quigley, commissioned by the Department of Justice. It is shocking to discover that the reforms proposed by all of these authors make no links to the vast amount of feminist legal literature on the subject of self-defence, to the campaigns in Canada, England, the United States and Australia mounted by feminist activists to secure the release from prison of women unjustly denied access to this defence, or to the fact that the leading cases on the subject arise out of women and children’s claims to have defended themselves. The proposals fail to discuss the cases decided since the landmark decision of R v Lavallee, which also undermines their legal basis. The reform proposals also omit discussion of another area in which self-defence constitutes a significant public issues, that is, cases where police officers have killed unarmed racialized women and men. Given that numerous such killings have occurred in cities across Canada in the past ten years, and that the ensuring acquittals have generated anger and fear in many communities, it is also surprising that this specific context has not been considered in the present proposals. It is plain that the result of such a narrow and unfocused inquiry is bound to miss the mark on many accounts. This paper argues that, in light of the fact that both the situations giving rise to resort to self-defence and the legal rules governing the successful invocation of self-defence raises serious issues of sexism and racism, these are the concerns that ought to drive any effort at law reform. Part II of this paper will describe the current law of self-defence, with specific reference to Lavallee and its implications, including the feminist critique of reliance on BWS evidence. Part III will then assess the cases decided since Lavallee, in order to discern whether in fact problems are occurring, as predicted by feminists, that ought to be corrected in any reform. Part IV will set out the proposed reform from the White Paper. Part V provided a detailed analysis of the proposed s. 37 from the perspective of women as accused and as victims of violence, and of racialized women and men who are vulnerable to police violence. Specifically, Part V will address the following aspects of s. 37: the purpose behind the proposal; the subjectivizing of the defence; the requirements that defensive action be “necessary”, “reasonable” and “proportionate”; the possibility that a jury may convict of manslaughter rather then outright acquitting the accused; the failure to address the limits of Lavallee, particularly by reference to Aboriginal women; and the failure to consider broadening the defence to include, for example, women who are parties to their partners death, and those women, who contract someone else to kill the abuser. Finally, Part VI will set out a possible new defence, that of “self-preservation”, and “protection of others”.
In the last chapter, Teressa Nahanee concluded that lenient sentences imposed on men who are conv... more In the last chapter, Teressa Nahanee concluded that lenient sentences imposed on men who are convicted of sexually assaulting Inuit women can no longer be tolerated. Implicit in this conclusion is her concern for a recognition on the part of judges that sexual assault is one of the most serious harms that any woman could ever suffer. The sentence imposed in a criminal court is an important symbolic recognition on the part of the state of the serious nature of the harm suffered by the individual victim. However, as earlier chapters in this book illustrated, the criminal trial and sentencing hearing is the exception rather than the rule in cases of sexual assault. As reporting statistics reveal, few sexual assault victims choose to initiate the criminal process. In this chapter, Elizabeth Sheehy describes two other routes of redress for women who are raped. Unlike the outcome of the criminal trial process where the focus is on the punishment of the offender rather than compensation for the victim, these two routes offer individual rape victims financial redress. For these women, tort and criminal injuries compensation offer the possibility of the recovery of financial losses and of some degree of recognition of the seriousness of the wrong that has been done. After describing the trends in the awards and the specific barriers to claims, the author addresses the challenging question of whether these forms of compensation can be conceptualized as progressive for all women.
Illegal strip-searching of women, particularly by male police officers, remains a persistent prob... more Illegal strip-searching of women, particularly by male police officers, remains a persistent problem in Canada, in spite of strong legal rulings that condemn this practice. The strip-searching of female detainees in the Prison for Women by male officers made national news in 1995. The Arbour Inquiry called these strip searches “cruel, inhumane and degrading” and determined that they violated the women’s Charter rights. Strip-searching re-emerged as a major law and policy issue in 2001, when the Supreme Court of Canada in R v Golden ruled that strip searches must not be carried out as routine policy, and specified a legal standard that must be met before a strip search can be undertaken, as well as 11 safeguards to which police must adhere to execute a lawful strip search. Yet in 2008, more than a decade after the Arbour Inquiry and seven years after Golden, another strip search of a woman detainee (SB) by male officers took place, making national news in 2010 when a court ordered release of the videotapes of the strip search and granted a stay of proceedings in consequence of the Charter violations. This article surveys the case law post-Golden in which women allege illegal strip-searching has occurred in order to assess the size of the problem, the forms that these Charter violations take, judicial responses to women’s claims, and whether and what remedies are provided. The authors argue that illegal strip-searching of women continues to occur in part because judges have failed to consistently and strongly condemn this form of police abuse, but also due to police resistance and their failure to meaningfully address police accountability through strong civilian complaints and police disciplinary processes. The authors conclude that it would be deeply disruptive of unauthorized police strip-searching of women if this practice were to be named sexual or criminal assault by judges.
Sexual Assault in Canada is the first English-language book in almost two decades to assess the s... more Sexual Assault in Canada is the first English-language book in almost two decades to assess the state of sexual assault law and legal practice in Canada. Gathering together feminist scholars, lawyers, activists and policy-makers, it presents a picture of the difficult issues that Canadian women face when reporting and prosecuting sexual violence. The volume addresses many themes including the systematic undermining of women who have been sexually assaulted, the experiences of marginalized women, and the role of women’s activism. It explores sexual assault in various contexts, including professional sports, the doctor–patient relationship, and residential schools. And it highlights the influence of certain players in the reporting and litigation of sexual violence, including health care providers, social workers, police, lawyers and judges. Sexual Assault in Canada provides both a multi-faceted assessment of the progress of feminist reforms to Canadian sexual assault law and practice, and articulates a myriad of new ideas, proposed changes to law, and inspired activist strategies. This book was created to celebrate the tenth anniversary of Jane Doe’s remarkable legal victory against the Toronto police for sex discrimination in the policing of rape and for negligence in failing to warn her of a serial rapist. The case made legal history and motivated a new generation of feminist activists. This book honours her pioneering work by reflecting on how law, legal practice and activism have evolved over the past decade and where feminist research and reform should lead in the years to come.The PDF file does not include the full text.
Justice Claire L’Heureux-Dube’s sexual assault judgments make a remarkable contribution to the re... more Justice Claire L’Heureux-Dube’s sexual assault judgments make a remarkable contribution to the reform of Canadian rape law. Her analyses, even when written in dissent, have ultimately reshaped the common law and instigated new legislation. L’Heureux-Dube J.’s judgments sustain the feminist project of realizing women’s equality by resisting the privatization of sexual assault through her linguistic choices, legal methodology, fact determinations, and doctrinal shifts.Sexual assault is privatized when it is governed by legal doctrines that decriminalize predatory and injurious male sexual behaviour, treat the crime as an individual and gender-neutral deviation that carries no social consequences for the structuring of our society, and impose unconscionable burdens upon women who report male sexual violence to the criminal justice system. In contrast, Justice L’Heureux-Dube’s judgments recognize that, while sexual assault is perpetrated by individual men, it is carried out by men as a group, against women as a group, with our permission as a society, signaled in part through legal rules that define the range of behaviours labeled as criminal. Her decisions frame women who report rape as citizens assuming a grave and onerous public responsibility as witnesses to violent crime, and not as vindictive females with an axe to grind. Her opinions recognize the gross under-reporting of rape and its implications for the full public participation of women.The legal regime proposed through L’Heureux-Dube J.’s judgments treats women who report sexual assault as members of society whose health, well-being, and survival have been compromised by a brutalizing experience. She endorses legal definitions and rules of culpability for sexual assault that do not force women to abandon the public sphere or active social and sexual lives and to assume responsibility for their own safety as against predatory men. Furthermore, Justice L’Heureux-Dube’s legal understanding of sexual assault would not leave individual women to bear alone the social and economic costs of their rapes, unassisted even by the knowledge that the crime against them was condemned.L’Heureux-Dube J.’s dissent in R v Seaboyer perhaps best illustrates how her decisions provide a blueprint for resisting the privatization of sexual assault. The scope of the mistake of fact defence was at issue in that case, and in particular, the use of a woman’s sexual history to give an “air of reality” to an accused’s alleged mistaken belief in consent. The defence challenged the Criminal Code’s strict rules around the use of women’s past sexual history as evidence on the basis of s.7 of the Charter. First, L’Heureux-Dube J.’s judgment recognized that language matters. She thus began by defining her linguistic terrain in a manner respectful of women and attentive to the public nature of the wrong committed. Her dissent eschewed the use of the term “prosecutrix” because sexual assault is no longer a private matter but is rather a crime against the public order that is prosecuted by the Crown. L’Heureux-Dube J. also rejected the term “alleged victim” because it is over-inclusive and presumes that the woman has nothing to complain of. She settled for the term “complainant” because it was the least infirm term available, but acknowledged that it is also a harsh term. Justice L’Heureux-Dube recognized that a woman who has been sexually assaulted but whose assailant has been acquitted by virtue of the honest mistake defence nonetheless has been injured. She refused to adopt the phrase “rape shield law” a short form often used to describe legislation that limits the cross-examination of women as to their sexual histories, on the basis that the term “rape shield” suggests that the sole or primary purpose of such legislation is to protect women from the rigours of cross-examination. Instead, she argued, several equally significant societal interests are served by the exclusion of such evidence, including truth-seeking and public confidence in the criminal justice system. Second, L’Heureux-Dube J.’s methodology in her Seaboyer dissent is characterized by attention to the rights of the collectivity, including the rights of women, children, the broader society and of men accused of the crime. She consistently relied upon equality rights as an implicit if not explicit interpretive framework informing the law of sexual assault. Her approach was definitively contextual: her analysis of the constitutional challenge was grounded in the legal history of the provision in question, the social science evidence situating sexual assault as a gendered crime that is rarely reported and whose legal treatment has been rife with discriminatory practices and doctrines, and the distorting effects that sexual history evidence has upon the trial process and a principled search for truth. This judgment thus reflects a move away from reliance upon abstract doctrine, unstated and untested assumptions and beliefs,…
The keynote address takes the conference title and theme, "Legalising Justice for All Women&... more The keynote address takes the conference title and theme, "Legalising Justice for All Women", and considers it in the context of the Canadian women's movement's efforts to draft and to defend a rape law that will serve the interests of all women. Two specific examples are used: the work of feminist activists in shaping a new rape law, Bill C-49, in 1991-92 after the Supreme Court of Canada declared important protections in the law for rape survivors as void for violating men's constitutional rights; and the more recent efforts of feminists to ward off a new defence strategy of requesting access to women's counselling and other records in order to suggest "false memory", "motive to fabricate", "consent" or grounds for "mistake" regarding consent.Both of these efforts to create a just law of sexual assault have been founded on feminist understandings of equality as profoundly shaped by context, thus requiring an analysis of racism, sexism, disability-ism and heterosexism. Sexual assault cannot be responded to using "general principles of general application" in law: it is gendered, raced, heterosexist and exploitative of women with disabilities through and through and requires specific principles in response. The women's movement's claims to social justice have been buttressed by a legal analysis of rights to equality and to security of the person in SS 7 and 15 of the Canadian Charter of Rights and Freedoms [hereafter Charter].Both of these efforts also signify that feminist commitment to democratic process and values is not only richly productive of creative and potentially transformative new law, but is also deeply resisted by the judiciary. As the potential of Bill C-49 has been avoided by the new defense strategy of seeking women's personal records, with the assistance of the Canadian judiciary, it is clear that rape law reform is a long-term political struggle to change the status and social power of women: our legal reforms serve to shift the location, the degree of explicitness, and the identity of the players in this fight. Whatever we have achieved through the political process has been subjected to vigorous attack in the courts, and the judiciary has frequently used its powers under the Charter to roll back women's gains, thereby preserving judicial discretion and men's sexual prerogatives. As Andree Cote has observed, if the result of women's refusal to co-operate with disclosure requests is that women who prosecute and women who counsel are criminalized by contempt prosecutions:This scenario would force us to conclude that the State, acting through its judicial system, is deliberately becoming a party to the legal and political subordination of women to the interests of men ... [W]e shall lose another of our illusions about the promises made by democracy in Canada.The remainder of my address is divided into three parts: I will first give the background legal information regarding Canada's sexual assault laws; I will second describe Bill C-49 and highlight the ways in which feminist activists tried to craft a rape law that would serve all women, the legislation that resulted from the law reform process, and the impact of the reforms as evidenced in current practices. I will third describe the latest crisis in sexual assault law — the defense effort to gain access to women's records — specifying the reasons why this strategy is successful and analyzing it from the point of view of women's resistance.
... wish to acknowledge, with thanks, research and promotional assistance provided by Alan Fleich... more ... wish to acknowledge, with thanks, research and promotional assistance provided by Alan Fleichman and organizational assistance provided by Susan Lecorre, both of the Human Rights Research and Education Centre, and by Bernadee Blanchard and Danielle Latreille of the ...
This paper sets out and assesses, from a feminist perspective, Department of Justice proposals, i... more This paper sets out and assesses, from a feminist perspective, Department of Justice proposals, in Do We Still Need Preliminary Inquiries?, to abolish or substantially alter the preliminary inquiry for criminal offences.The preliminary inquiry is a judicial process whose historical and legislated purpose is to ensure that there is sufficient evidence of an accused’s guilt with respect to an offence charged to justify sending the case on for trial. It is available only for specific, more serious criminal offences, and requires the Crown Attorney to establish a prima facie case, through the testimony of witnesses and other evidence, before the accused will be sent on for trial. The defence is entitled to cross-examine those witnesses, and to call their own witnesses as well. The Department of Justice is interested in reforming this process in order tor reduce court delays and conserve resources.This paper addresses the reasons given by the Department of Justice for the law reform effort from a feminist perspective, and concludes that women have an interest in this reform process: Women who have survived rape and/or wife assault and who are willing to act as primary witnesses in the criminal trials of their assailants will have an interest in changes to the preliminary inquiry that: reduce the number of times that cross-examination must be undergone; restrict the scope of cross-examination; hasten the ultimate resolution of the charges; put absolute limits on the defence’s access to mental health and counselling records; restrict contact with the offender; involve the primary witness in Crown decisions and plea negotiations arising from the preliminary; and increase the chances of ultimately securing a conviction at trial.Women who are charged with offenses that include a preliminary inquiry as part of the trial process span a broad spectrum, since these offenses include such disparate offenses as theft involving property valued at more then one thousand dollars, many drug related offences, and manslaughter and murder. The interests of such women as they relate to preliminary inquires will be: ensuring that they are not put on trial when the evidence against them is inadequate, thus sparing the anxiety and cost of a criminal trial; ensuring that women are not tried when it is unjust to prosecute in light of all the circumstances surrounding the offence; using the preliminary inquiry to gain more information about the Crown’s case so as to prepare a defence; using the opportunity to cross-examine witnesses at the preliminary to discover weaknesses in the Crown’s case; hastening the ultimate resolution of the charges; and exploring the possibility of plea negotiations arising out of the preliminary inquiry.The paper describes the five proposals set out by the Department of Justice and sets out the advantages and disadvantages of each. For some of the more favourable proposals, the paper recommends changes that would improve the proposal for women.Specifically, the paper: Recommends against retaining the preliminary inquiry in its current form (option 1); Recommends that the best option available to women, among those forwarded by the Department of Justice, would be the institution of a paper committal process, combined with legally enforceable disclosure, which would require a justice to evaluate and provide written reasons as to the sufficiency of the evidence for trial (option 2(ii). This option would be more favourable to women accused if it were confined to sexual and wife assault cases, so that for all other offenses, the preliminary inquiry would be retained; Recommends against retaining the preliminary inquiry only to screen charges through a foreshortened preliminary process (option 2 i)) or when the accused can show special reasons to hold a full preliminary (option 2(iii)); Recommends against raising the standard for committal for trial at the preliminary inquiry, which would screen out more cases from the trial process (option 3); Recommends against retaining the preliminary inquiry only for treason and murder (option 4(i)); Recommends against re-classifying specific complex or minor offenses so that the Crown can proceed summarily and avoid the preliminary inquiry unless, in the case of offenses of violence against women, the maximum penalty for these offenses prosecuted summarily were raised from six months to just under five years imprisonment and mandatory, enforceable prosecutorial guidelines were enacted (option 4 (ii)); Recommends against implementing informal procedures for witness examination and cross-examination prior to trial to replace the preliminary, (option 5 (vi)) unless sexual and wife assault causes were specifically excluded from this process or other protective mechanisms were put in place; Recommends against abolition of the preliminary inquiry (option 6); Recommends that if any option pursued, that in the case of sexual and wife assault, one of the following options should be…
Our starting point is that universities should provide avenues of redress for women who experienc... more Our starting point is that universities should provide avenues of redress for women who experience sexual violence and that these cannot simply be absorbed into pre-existing disciplinary codes and sexual harassment policies. Canadian governments have the power to impose uniform reporting and disciplinary procedures on universities, but in the absence of national or provincial standards, best practices should be identified for such policies. We first turn to a brief discussion of the legal context in which Canadian post-secondary institutions operate, particularly federalism, provincial human rights codes, the Charter of Rights and Freedoms, and tort law. Second we describe the legal context in which US universities and colleges sit: Title IX, the Clery Act, the Obama Task Force and its 2014 Report, and the ongoing investigations and litigation arising from federal regulation. Third we look at what Canadian institutions might learn from the US experience specifically on the issues around reporting obligations, disciplinary measures, and protections for women who report sexual violence.
This paper constitutes a response to the Department of Justice’s proposal appears as s. 37 of the... more This paper constitutes a response to the Department of Justice’s proposal appears as s. 37 of the White Paper, and is briefly examined in both the Consultation Paper and the Technical Paper. Other quite analogous proposals are contained in recommendations made by the Law Reform Commission of Canada, the Canadian Bar Association Task Force, and a paper by Tim Quigley, commissioned by the Department of Justice. It is shocking to discover that the reforms proposed by all of these authors make no links to the vast amount of feminist legal literature on the subject of self-defence, to the campaigns in Canada, England, the United States and Australia mounted by feminist activists to secure the release from prison of women unjustly denied access to this defence, or to the fact that the leading cases on the subject arise out of women and children’s claims to have defended themselves. The proposals fail to discuss the cases decided since the landmark decision of R v Lavallee, which also undermines their legal basis. The reform proposals also omit discussion of another area in which self-defence constitutes a significant public issues, that is, cases where police officers have killed unarmed racialized women and men. Given that numerous such killings have occurred in cities across Canada in the past ten years, and that the ensuring acquittals have generated anger and fear in many communities, it is also surprising that this specific context has not been considered in the present proposals. It is plain that the result of such a narrow and unfocused inquiry is bound to miss the mark on many accounts. This paper argues that, in light of the fact that both the situations giving rise to resort to self-defence and the legal rules governing the successful invocation of self-defence raises serious issues of sexism and racism, these are the concerns that ought to drive any effort at law reform. Part II of this paper will describe the current law of self-defence, with specific reference to Lavallee and its implications, including the feminist critique of reliance on BWS evidence. Part III will then assess the cases decided since Lavallee, in order to discern whether in fact problems are occurring, as predicted by feminists, that ought to be corrected in any reform. Part IV will set out the proposed reform from the White Paper. Part V provided a detailed analysis of the proposed s. 37 from the perspective of women as accused and as victims of violence, and of racialized women and men who are vulnerable to police violence. Specifically, Part V will address the following aspects of s. 37: the purpose behind the proposal; the subjectivizing of the defence; the requirements that defensive action be “necessary”, “reasonable” and “proportionate”; the possibility that a jury may convict of manslaughter rather then outright acquitting the accused; the failure to address the limits of Lavallee, particularly by reference to Aboriginal women; and the failure to consider broadening the defence to include, for example, women who are parties to their partners death, and those women, who contract someone else to kill the abuser. Finally, Part VI will set out a possible new defence, that of “self-preservation”, and “protection of others”.
In the last chapter, Teressa Nahanee concluded that lenient sentences imposed on men who are conv... more In the last chapter, Teressa Nahanee concluded that lenient sentences imposed on men who are convicted of sexually assaulting Inuit women can no longer be tolerated. Implicit in this conclusion is her concern for a recognition on the part of judges that sexual assault is one of the most serious harms that any woman could ever suffer. The sentence imposed in a criminal court is an important symbolic recognition on the part of the state of the serious nature of the harm suffered by the individual victim. However, as earlier chapters in this book illustrated, the criminal trial and sentencing hearing is the exception rather than the rule in cases of sexual assault. As reporting statistics reveal, few sexual assault victims choose to initiate the criminal process. In this chapter, Elizabeth Sheehy describes two other routes of redress for women who are raped. Unlike the outcome of the criminal trial process where the focus is on the punishment of the offender rather than compensation for the victim, these two routes offer individual rape victims financial redress. For these women, tort and criminal injuries compensation offer the possibility of the recovery of financial losses and of some degree of recognition of the seriousness of the wrong that has been done. After describing the trends in the awards and the specific barriers to claims, the author addresses the challenging question of whether these forms of compensation can be conceptualized as progressive for all women.
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