David Butt is a Toronto-based criminal lawyer
"The past month has seen a major shift in the conversation about violence against women. … I hope that victims' voices continue to be heard and that this is the start of a change that is so desperately needed."
These are the recent words of actress Lucy DeCoutere, a complainant in the Jian Ghomeshi prosecution. She is right that change is desperately needed, because right now every 1,000 sexual assaults in Canada lead to only three convictions. So what sort of change is needed, and how can we accomplish that change?
Our justice system is an aircraft carrier: immense, powerful, slow, and complex. Change is therefore also slow, and difficult, with so much of the system hard-wired together in intricate, interconnected ways. Furthermore, our justice system operates full-tilt daily, so decommissioning it to dry-dock for a multi-year rebuild is impossible. We are limited to change that can be done at sea.
But important change is attainable. And the necessary direction of change is clear from hundreds of thousands of women on social media, confirming what Ms. DeCoutere said so well: victims' voices must continue to be heard.
Right now paternalism permeates our criminal justice system, so with limited exceptions, victims have no independent voice. Paternalism is no surprise when prosecutions are conducted by "the Crown." A monarch is the ultimate distant authority/father figure.
The role of defence lawyer, zealously advancing the accused person's interests exclusively, is rightly sacrosanct. Accused persons need lawyers because the stakes are so high, and they have multiple rights and freedoms that need protection in court.
But the stakes are just as high for victims, known in court as complainants, who seek validation after the degradation of the sexual violence they allege. Accused persons and complainants have very different aspirations in court, but neither is more or less important than the other. And our Supreme Court has long ago said complainants, too, have multiple rights and freedoms worthy of protection, including the right to equal treatment.
So, because complainants and accused persons have equal legal status, and because criminal justice processes are equally important to complainants, they have the same rights to legal representation as accused persons, right? Wrong.
In a typical prosecution, no one represents the complainant. No one. The popular misconception is that Crown Attorneys act for the complainant. That is simply not true. Crown Attorneys are talented, dedicated public servants who sweat bullets in court pursuing justice. But Crown Attorneys themselves will be the first to say they do not represent complainants. Crown Attorneys are "impartial ministers of justice" representing no single person, but rather advancing the broadest public interest in the justice system. They are prohibited from giving complainants private legal advice. Complainants have no lawyer-client privacy when they speak to Crown Attorneys. Crown Attorneys support complainants' interests only if they paternalistically decide it is also in the public interest, and will always abandon complainants' interests if necessary to advance some abstract notion of the "higher" public interest.
Consider a current example of complainants' voices silenced in court. In sexual assault trials, complainants generally cannot be asked about their prior sexual history. But prior sexual history can be raised if the defence convinces the judge before trial it is necessary. So who participates in that pre-trial hearing to decide if a complainant's past intimacies will be splayed all over the cold courtroom floor in the harsh glare of publicity? Just the Crown and the defence. The complainant herself cannot participate in a hearing about her own sexual history. It's blatant paternalism when the most important voice is silenced.
This is not what complainants need. They need their own independent voices heard in court, whenever their rights are an issue. Lawyers call this "standing". Complainants' voices have infinite nuance and diversity. That is what must be heard. Not just well meaning, father-knows-best generalities about the public interest from a Crown Attorney who does not speak for complainants. Crown Attorneys must always perform their essential, commendable role. But the two cornered debate between the Crown and defence must become three-cornered wherever any of a complainant's many rights arises. Rights with no standing to assert them are no rights at all. And just like accused persons, complainants' voices will be heard properly only if amplified by their own independent lawyers.
We already allow complainants independent lawyers when, for example, the defence seeks access to complainants' confidential psychiatric records. Empowering complainants this way does not make trials unfair, it makes them more balanced. So there is no excuse for silencing complainants elsewhere.
Ms. DeCoutere's "change that is so desperately needed" inside the criminal justice system will come when complainants have the standing, voice and empowerment to assert their rights, that only robust legal representation can provide.