Supreme Court Chief Justice Beverley McLachlin has waded into the national debate on sexual-assault trials, telling complainants that while they have a right to be treated fairly and with dignity, they also need to be realistic in their expectations of a justice system that needs to protect against wrongful convictions.
"Complainants and witnesses need to understand what is required of them in a trial and what they can realistically expect from it," she told an audience of about 200 lawyers and judges, during her acceptance of the G. Arthur Martin Medal for lifetime achievement from the Criminal Lawyers' Association in Toronto on Saturday. "No one has the right to a particular verdict but only to a fair trial on the evidence."
The Chief Justice's comments come as Canada continues to be roiled by controversy over fairness to all sides in sexual-assault trials. In some cases, judges have been the subject of disciplinary complaints over how they talked to, or about, the complainants. In others, judges have acquitted high-profile accused men while accusing complainants of trying to purposely mislead the court. On social media, public campaigns have urged that victims be believed.
Meanwhile, federal legislation on mandatory training in sexual-assault law for candidates for the federal bench, and for a redrawing of certain trial rules, is before Parliament. Allegations of sexual harassment and assault are swirling around powerful men such as Gilbert Rozon, founder of Montreal's Just for Laughs comedy festival, and U.S. film producer Harvey Weinstein. And more than 50 police forces in Canada have announced they are reopening sexual-assault cases previously deemed "unfounded," after an investigation by The Globe and Mail.
Chief Justice McLachlin, 74, who is set to retire in December, is no stranger to controversy over the law of sexual assault. In 1991, not long after joining the court, she wrote the majority ruling striking down a federal rape-shield law that, with narrow exceptions, barred questions about a complainant's past sexual behaviour. (The federal government rewrote the shield law, broadening the exceptions.)
Canada's longest-serving chief justice reminded the lawyers' group that while the system seems focused on the accused, "complainants and victims are also part of the process," and the integrity of the system demands that they be taken seriously and that their interests be reconciled with the rights of the accused.
But she also stressed the importance of protecting the accused individual's rights. "Because of the Draconian consequences, the criminal law has long demanded high standards for conviction for a crime. If convicted a person may be in prison for a very long time and lose that most precious thing without which everything else is worthless: his or her liberty. The potential for wrongful conviction always waits in the wings.
"So the law for centuries has rightly insisted on credible evidence, a vigorous defence right of cross-examination and proof beyond a reasonable doubt. There is an obvious tension between the rights that are essential to a fair criminal trial and the expectations that may sometimes arise on the part of complainants. And the criminal law must navigate this tension."
She also said that the national debate is too polarized and hostile to be productive. The justice system can achieve a "fine but crucial balance" between protecting the right of the accused and the dignity of complainants, but "we must not divide ourselves into warring camps shouting at each other over an abyss of misunderstanding. We have to talk to each other, we have to sit down with each other, we have to make our criminal-justice system for everybody."
The Globe sent a transcript of the Chief Justice's remarks to Isabel Grant, a professor at the University of British Columbia's Allard School of Law, who specializes in criminal law and violence against women. She replied that the Chief Justice appears to be setting up a false dichotomy between rights of the accused and expectations of the complainant.
"Once you set up the framework this way, it is pretty clear what the outcome will be. Rights trump expectations," she said in an e-mail. "This way of asking the question assumes complainants themselves are not rights bearers and that the right to equal protection and benefit of the law under section 15 of the Charter [the equality clause] is irrelevant to sexual-assault prosecutions."
Toronto criminal defence lawyer and vice-president of the Criminal Lawyers' Association Breese Davies, who attended the address, said she believes the Chief Justice was responding to the #Ibelievesurvivors phenomenon on social media, "which appears to want the criminal-justice system to ensure a conviction in every case by starting from the presumption that complainants are credible and reliable witnesses and the accused is guilty. Chief Justice McLachlin's comments are an important reminder that, because of the devastating consequences of a criminal conviction and the risk of wrongful convictions, an accused's right to a fair trial must not yield to social pressures."
Another lawyer who attended, Michael Edelson of Ottawa, said the Chief Justice was trying to lower expectations among complainants. "She's saying, 'Look, the criminal-justice process is a difficult one and because of the consequences, and the very high standard of proof required constitutionally, many witnesses and complainants are not going to be satisfied.' And I think she's quite correct."
Hilla Kerner, a spokeswoman for the Vancouver Rape Relief and Crisis Centre, disputed the Chief Justice's assertion that complainants' expectations are unrealistic.
"Complainants expect nothing but a fair trial, and too often they do not get it."