When a sexual assault is reported, it becomes the responsibility of police to find enough compelling evidence for a Crown prosecutor to press charges.

Canadian law states a person has committed assault when “without the consent of another person, he applies force intentionally to that other person either directly or indirectly.”

The application of that particular section of the criminal code “applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.”

Calgary Communities Against Sexual Assault (CCASA) executive director Danielle Aubry defines it more simply as “any unwanted sexual activity.”

If a person chooses to report an alleged sexual assault crime, the matter falls into the hands of the Provincial Crown prosecutor, who ultimately decides whether or not to press charges.

“If someone comes forward saying, ‘I was raped last weekend,’ police do their investigation, collect information…and put together a file that’s presented to the Crown,” says Mount Royal University justice studies professor Scharie Tavcer.

“So [the crown] decides whether or not there is a likelihood of conviction [and] whether it’s in the public’s best interest [to lay charges,]” Tavcer explains.

If charges are laid, the case goes to trial—unless there’s plea deal.

Statistics Canada data from 2006 shows the average length of time before a sexual assault case reaches trial is 321 days.

At trial, the accuser becomes known as ‘the complainant’ and is usually a key witness in the trial, although not directly represented by counsel.

Trial can represent a new set of challenges for both the complainant and the Crown, who must prove, beyond a reasonable doubt, that a sexual assault occurred.

“Sexual assault is one of the few cases where consent is the critical term,” says Dalhousie University law professor Wayne MacKay in a phone interview. “Most crimes you either commit it or you don’t. You can’t consent to be murdered or you can’t consent to be robbed… where in the sexual assault context you can consent to sexual activity.”

According to MacKay, this is one reason sexual assault can be so argumentative in court.

“The concept of consent is a highly challenged and difficult one in terms of criminal law,” he says, adding that a lack of evidence can also pose problems.

“By the nature of sexual activity, it tends to be private, so it is a ‘he said, she said’ kind of scenario in terms of proving whether or not there was consent…Most often, there are not third party witnesses,” he says.

While some cases do have evidence such as rape kits or documented evidence of physical trauma, many don’t, due either to the nature of the assault or to delayed reporting.

Witness testimony is often a key component of these trials, resulting in the “he said, she said,” scenario MacKay refers to.

In Canada, sexual assault trials were once even more challenging and traumatic for complainants when their sexual history could be admitted to the court as evidence. It wasn’t until 1982 that parliament changed the Criminal Code to include s.276 and s.277; rape shield provisions that prohibit the use of sexual history as evidence, except under incredibly specific circumstances. These provisions were upheld in 1992 and 2000 when they were challenged in the Supreme Court.

Even with the protections offered by the amended Criminal Code, the facts are this: many sexual assault cases are ending long before the court can hear them. In fact the majority of incidents aren’t even heard by police.  

In July, 2013, S.J. sits at her computer and Googles “What to wear for trial.”

She looks through her closet, worrying about outfits that might look too “provocative” or even “prudish.”

“I didn’t want to wear a bright colour because it was not a colourful time,” she says. “It was actually something that I put a lot of thought into.”

The Internet informs her that blue is a good, neutral colour for a sexual assault witness to wear to trial.

S.J. wears a dark blue shirt and khakis when she stands in the witness box the following week at the Calgary Courts Centre. In front of a courtroom that includes some of her friends and family, as well as the accused, S.J. relives the nightmare she had experienced a year and a half earlier.

On Dec. 31, 2011, S.J., her boyfriend, Nathan* (not his real name) and some friends gathered in a north Calgary community for an intimate New Year’s celebration.

S.J. was comfortable and happy, surrounded by friends in a familiar home that she spent time in frequently.

While Nathan and some other friends stayed up to drink and party, S.J. decided to turn in.

“I had gone to bed so that we could drive home in the morning,” she says. “I was being the responsible one.”

S.J. and two other friends went upstairs to sleep in the homeowner’s king-sized bed.

They closed the door to the bedroom and went to sleep.

Meanwhile, a man, allegedly friends with the homeowner and an acquaintance to S.J. and Nathan, arrived at the house, already intoxicated.  

S.J. doesn’t know how much time passed after the man arrived at the home, but she can clearly recall what happens next.

“…I woke up to somebody assaulting me.”

The bedroom was dark and at first, S.J. wasn’t sure what was going on.

“I started panicking because my boyfriend was downstairs [and] [the offender] was being really forceful, and I thought, ‘this is not like Nathan, like what’s going on? Why are you being so forward? I’ve got two of my friends sleeping in the bed with me.’”

Overcome with panic, S.J. managed to kick the offender off the bed, and the ‘thud’ when he hit the ground woke her sleeping friends.

One friend ran to turn on the light while the other moved to protect S.J.

Once everyone in the house was alerted to the situation, the offender, who S.J. says was still “out of it,” was eventually forced to leave the home.

S.J.’s friends would become crucial witnesses to winning the court case five years later.

S.J. was in a state of shock that night. But in the years to come she would realize that the ‘incident’ was only the beginning of the trauma and fear that would follow.

S.J. didn’t go to the police right away. In fact, it would be three months before she reported the assault.

“I needed that time to process what happened because I wasn’t sure how to classify [it],” she says. “I was confused for sure. I felt really gross… really, really gross, and… I think most of what I felt is pretty similar to what everybody else [would] be feeling too.”

S.J.’s friends convinced her to see a counsellor, someone who could help her deal with what had happened. But when she finally decided to get some help, S.J. ended up feeling blamed by the therapist.

During one session, she explained that she had anxiety every time she went to see her friends in the community where the assault occurred.

“She said, ‘well is there anything you can do to avoid something like this from ever happening again?’” S.J. recounts, disgusted. “I was mortified by that.”

It wasn’t until S.J. went to see a counsellor at CCASA that she began to process the assault. In the end, she knew she wanted to talk to police when she found out that she wasn’t the offender’s first victim.

A friend informed S.J. that at a Halloween party years earlier, a mutual friend was sleeping when the offender had allegedly started grabbing her.

“When I heard about that…that’s when I was like, ‘this guy’s going to keep doing this,’” S.J. says.

Armed with the knowledge that she had at least two willing and credible witnesses who had been present during the assault, S.J. decided to tell the police what had happened.

While CCASA warned her that the chances for a trial, let alone a conviction were unlikely, S.J. stuck to her decision.

“I was looking at this little tiny, tiny drop in the bucket,” she says. “And I still kept thinking, I’ve got two witnesses [and] so many people don’t [have any].”

Mount Royal University gender studies professor Kimberly Williams points out how a recent high-profile trial illustrates at least one reason victims might be hesitant to come forward.

“That judge in Alberta who said, ‘why couldn’t you just keep your legs together?’ When survivors hear that coming from a judge, why would they report their sexual assault? I sure wouldn’t,” she says.  “[Survivors] know that not all judges are like that, but that’s the face…. of the legal system.”

The Calgary case Williams is referring to garnered international media coverage when it was brought to the public’s attention a year or so ago.

Then provincial court Judge Robin Camp presided over a sexual assault case at the Calgary Courts Centre in June 2014.

Recently released court testimony shows Camp frequently used sexist myths and stereotypes to question the complainant and discredit her character.

“Why couldn’t you just keep your legs together?” he asked.

The complainant shook her head silently. “I don’t know,” she answered.

Camp’s comments illustrate a much larger issue. Despite the elimination of formal bias in the law through hard-earned rape shield provisions, there are still cases where sexist attitudes and perceptions guide legal discourse at trial.

Williams takes it a step further, explaining how “victim-blaming” starts long before cases end up in court.

“There’s all this ‘why were you walking there? Why were you doing what you were doing? Why were you drinking?’” she says. “There’s this other digital component now too… where you continue the sexual harassment, you continue the humiliation, you continue the bullying.”

Justice studies professor Scharie Tavcer echoes Williams’ thoughts.   

“We live in a society, let’s be very blunt, that blames and shames the victim for sexual assault. We don’t do that with other crimes,” Tavcer says.

According to Tavcer, Camp’s comments are an example of how this culture “finds its way into the system.”

“…If you have someone of that stature who’s supposed to be impartial, who’s supposed to be learned, who’s supposed to be fair and just under our Charter [of Rights and Freedoms] saying such bullshit, it just perpetuates all the problems our culture and society has and is yet another barrier for victims to come forward.”

But Camp’s comments didn’t go unnoticed. A group of legal academics from Dalhousie University and the University of Calgary filed a public complaint to the Canadian Judicial Council (CJC), stating they took issue with “Justice Camp’s sexist and disrespectful treatment of the complainant in the case and his disregard for the law applicable to sexual assault.”

In Sept. 2016, the CJC began an investigative review into Camp’s court conduct and ordered a suspension of his judicial duties. In November, 2016 the judicial watchdog recommended his removal from the bench.

Camp resigned in March 2017 before Parliament could make a decision on his judicial future.  

“It doesn’t encourage people and it doesn’t make people feel safe to come forward,” says CCASA director Danielle Aubry of Camp’s comments. “Because they don’t know if they’re going to get a Justice Camp or not.”

Calgary-based criminal defense attorney Susan Karpa says better training for judges might be helpful, but doesn’t think Camp is entirely at fault for his words.

“I think there are plenty of lawyers and judges who have the same issues,” she says. “This area of the law…it’s complex and counterintuitive. They might be myths but we all, at times, are guilty of thinking them…’why didn’t she do this?’ Or ‘why couldn’t she have done that?’”

“Judges are human,” Karpa adds. “[Although] they are humans held to a higher standard than you or I in terms of what they should know or ought to know.”

A 2010-2011 report from Statistics Canada shows 42 per cent of sexual assault cases in Canada that made it to court resulted in convictions.  

Stereotypes, myths and perceptions might be preventing reporting, but there’s something more palpable that might indirectly dissuade victims from coming forward: the Canadian Charter of Rights and Freedoms (CCRF.)

Section 11(d) of the Charter states “any person charged with an offense has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

As a defense attorney, Karpa understates the importance of that Charter right.

“We have a basic (rule) that we premise our law on, and that is that it’s better that 100 guilty men go free than to convict one innocent man,” she says.

According to Karpa, her job is to ensure that her clients’ rights are upheld, something she says requires balance and can be challenging.

“My job is to ensure that the crown proves their case beyond a reasonable doubt and if they don’t or if they can’t… that my client is acquitted,” she says.

Just as it applies in all criminal court cases, the Charter protects the accused from unjust conviction. But according to MacKay, this vital Charter right is part of what can make sexual assault crimes so uniquely difficult to prosecute.

While he acknowledges the importance of protecting the accused’s right to the presumption of innocence, MacKay says the victim is often “left out of the picture.”

“There are not many protections for the victim,” he says. “There’s many factors that explain the very low reporting… [and] one of them is that the chances of actually getting a conviction are low,” he adds. “And even if you get a conviction, the penalty for the perpetrator of the sexual assault tends to not be very strong.”

CBC Court reporter Meghan Grant has seen all sorts of cases at trial and says the presumption of innocence means the tie must always “go to the runner.”

“Which means the tie, any reasonable doubt, has to result in an acquittal,” she explains.

“I’ve seen so many go to acquittals,” she adds. “[They] can be obviously quite upsetting for complainants, who braved the process and reported.”

After S.J. reported the assault to the Calgary Police Service (CPS), it would be four and half years before the man who assaulted her was sentenced to prison.

S.J. says at the beginning she was “stupidly optimistic.”

“[I was] thinking, ‘wow this is going to be really fast, he’s going to be in jail by the end of the year,’” she recalls. “Little did I know, it was going to be a four and a half year process.”  

In March, 2013, S.J. was three months pregnant with her and her boyfriend’s first child. With the first trial date set that month, S.J. was so stressed, she couldn’t eat or sleep and despite the health risks, her prenatal doctors decided anti-anxiety medicine was necessary.

“The anxiety was about everything about the trial,” S.J. recalls. “Seeing him and speaking in front of everybody and… testifying for however long and not knowing what the defense was going to ask me.”

On the way to court, S.J. found out that trial was cancelled because the defense attorney was sick. The trial was rescheduled for July.

At the end of the July trial, the accused’s attorney asked to introduce a drug expert as an expert witness. It would take almost a year and a half before the judge decided not to allow the drug expert’s testimony.

A series of other issues cropped up, and it wasn’t until July 2015, two years later, that the accused was found guilty.

Those years were riddled with stress, anxiety and depression for S.J.

“I stopped paying attention to these things because it was one thing after another,” S.J. says. “Our whole lives carried on.”

Even after the guilty verdict was read on July 27, 2015, a series of delays would push the sentencing date to Oct. 17, 2016 —over five years after the assault occurred.

As a CBC court reporter, Meghan Grant has seen more than one trial delayed. She says these delays aren’t encouraging for victims trying to decide if they will report.

“Anything that sort of makes the process look daunting or like the end result might not be what they would want it to be can discourage people,” she says.

While the problems causing under-reporting are complex and deep-rooted, Dalhousie University law professor Elaine Craig says that it might be possible to improve some areas of law in relation to the issue.  

“There are ways in which this area of law is practiced that cause some harms that could be avoided without compromising the rights of the accused,” she says.

“We have lots of little things that we could do at the trial process before we get into the hard questions.”

Education

Carissima Mathen, a law professor at the University of Ottawa, says the problem isn’t the law itself, but its application. “I actually think that the law of sexual assault is pretty clear and pretty progressive,” she says.

“It’s at the human level of translating that law into actual practice that I think…we could devote some more resources to education [and] also look at creative ways to increase accountability.”

Is it possible to increase the level of sexual assault education amongst judges and lawyers? And could it change the number of survivors who choose to report?   

MacKay says educating judges “about the specific and unique aspects of sexual assault law,” is one way to move forward.

Craig says education could be game-changing. “I think we need to spend more time on education for legal professionals; both defense lawyers and Crown attorneys and judges,” she says. “We need trial judges who have the legal knowledge necessary to adjudicate these trials.”  

“Questions [or] cross-examinations that are bullying, insulting [or] infused with legally rejected gendered stereotypes should be eliminated,” she adds.

Tavcer advocates for education that starts long before the legal system.

“There’s no easy solution,” she says. “I think if we can start educating our young people on everything around consent, on everything around who has ownership of your body… we have to do it in the generations early, because those are the people [who] eventually make up our justice system.”

State-funded legal support

MacKay suggests one more progressive possibility: state-funded legal advice for victims. While he maintains that the Crown should handle the case, the complainant could have a lawyer present to “advise them,” in addition to the Crown, who represents the “state.”

“You can’t throw out things like the presumption of innocence but you can build in, I think, some mechanisms such as the right to at least consult their own [legal] counsel paid for by the state,” he says. “So that [the complainant] would know what’s going on and at least be able to make legally informed decisions.”

Craig says she has certainly seen transcripts where complainants “would have benefitted from independent legal advice.”

The province of Ontario recently activated a pilot program offering independent legal advice for sexual assault survivors.

A person who reports sexual assault in Ontario may now be eligible for up to four hours of free legal advice to help them make informed decisions throughout the trial and legal process.

Sexual-assault only courtrooms

Another, more radical approach to handling sexual assault cases is to create sexual-assault only courtrooms.

“The judges can be more sensitized to the implications and ramifications of sexual assault offenses,” explains MacKay. “[And] not fall victim to the myths that often go around this [such as] ‘oh, she was asking for it because of the way she dressed’ or ‘why couldn’t you just keep your legs together,’ as Robin Camp said.”

“These kinds of things would be much less likely if you had a somewhat more specialized sexual assault court,” he adds.

But Craig says separate courts could still have the same “pitfalls” that occur in regular trial proceedings.

“It would [depend] a lot on the kind of education and training that the legal professionals involved were given…” she says. “There are a lot of factors.”

S.J. recalls how, on the day of the accused’s sentencing, she walked to the front of the courtroom to read her victim impact statement. Her voice shook, her legs felt weak and she wondered to herself whether or not she could actually read the words aloud.

But with the determination and resolve that she had called upon for the last five years, S.J. read her statement to the court and to the man finally convicted for her assault.  

S.J. stressed how having witnesses was a key component of her decision to initially report and she wasn’t sure justice could have been served without them.

“Not many women have the fortune, for lack of a better word, of having witnesses to help speak up for you when you need it the most,” reads S.J.’s statement.

“So many women are voiceless in a system that requires so much to prove what we are saying. I knew it was the right thing to do by going to the police and making my stand against sexual assault because I had this awful luxury of having people there to stand up with me.”

“Until now, I was nervous about the outcome of going through the court process, but I took the risk, and today, I thank the judge for giving me the justice that my family and I deserve.”

Note: *Under Canadian law sexual assault victims cannot be named unless they agree and S.J. chose not to in this case. She also asked that the name of the case not be used because it could be used to identify her.

This article was adjusted to reflect a previous mistake in data entry.