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opinion

David Butt is a Toronto-based criminal lawyer who routinely acts for complainants in sexual-assault cases.

Change is in the air. Sexual assault survivors have, for months, been vocal about their dissatisfaction with the criminal justice system. Their voices have given fresh vigour to the cliché "we're mad as hell and not going to take it any more." Outstanding journalism, including from this paper, has amplified the resonant drumbeat for reform. And now it seems, those able to effect change are listening.

Earlier this week, the federal government introduced a bill giving sexual assault survivors increased rights of participation in court proceedings about use of their private records and their prior sexual history. The bill will also increase protections for those vulnerable to sexual assault when intoxicated.

These changes are commendable, but they are baby steps. They will not cure the deep malaise in which the criminal justice system resides, where only three out of every 1,000 sexual assaults result in conviction. So we might wisely ask why we welcome small change, when big reform is needed. The answer takes us back to just before Confederation, more than 150 years ago.

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When colonial politicians gathered to build Canada's constitution in the 1860s, the Civil War raged south of the border. Our constitution builders looked south to see various states of the then not-so-United States, who, having been given the power by the U.S. Constitution to both make and administer criminal justice, were abusing that power to prop up appalling alcoves of slavery. The Canadian builders were determined to prevent such patchworks of despotism from springing up here, so they split the criminal law power into two parts. The feds alone would create all criminal legislation, to ensure uniform standards country-wide. And the provinces would administer and pay for most front-line administration and enforcement of that legislation, to ensure the laws were applied with sensitivity to local conditions.

All in, a fair compromise. We don't have to worry about being criminally prosecuted in Ontario for something perfectly legal in Manitoba. But the cost of this compromise is complexity, which inhibits change. Before any new and important idea can become criminal law, provincial, territorial and federal representatives have to hash out the fine points, the practical impact, and the costs. This makes agreement complicated, hard to achieve, and slow. Often what gets done are only things blindingly obvious, inconsequential, or inexpensive.

What further complicates meaningful reform is that our busy contemporary justice system is a bit like an aircraft carrier in the midst of battle. It is all-hands-on-deck, all the time. Ceasing operations and going back to dry-dock for a multiyear overhaul is not an option. Thus the change that happens tends to be only the type of tinkering that can be MccGyvered at sea. So those reasonably insisting on deep reform of a criminal justice system currently failing widely to serve the needs of sexual assault survivors are best advised to formulate goals and measure expectations in baby steps. Welcome small improvements, take a breath, and press on to the next one.

But even such desirable incremental change as is presently on the horizon is only structural. It will not deliver practical results unless accompanied by attitudinal change by the professionals who run criminal courts. For example, the Supreme Court has been preaching for years that sexual assault survivors should not be re-traumatized in court. Just ask any survivor who has endured vigorous adversarial cross-examination how well that is working out. Without attitudinal adjustments, new rules can be just impotent ethical decoration.

Similarly, the federal government's bill to tighten laws to better protect potential victims vulnerable to sexual assault while intoxicated will achieve its purpose only if attitudinal changes accompany structural changes.

For example, if we see an unconscious person with a gash on their forehead and a man standing over the victim with a baseball bat in his hand, we all know very well what happened and would readily convict the baseball bat wielder even though no one witnessed the swing of the bat. But shockingly, as happened in Nova Scotia recently, when a taxi driver was found leaning over an unconscious woman naked from the waist down and doing up his pants, the taxi driver was acquitted because no one saw a sexual assault.

What is the difference between these two scenarios? Nothing, except our willingness to buy into degrading myths about consent and female sexuality to create so-called reasonable doubt that is far from reasonable. Again, without accompanying attitudinal adjustment, structural change does little.

We should welcome the small changes that are in the air, gather our breath for the next small step, and be vigilant, insisting that the proposed changes are taken to heart by those who actually make criminal courts tick.

The justice minister has introduced legislation to “update and strengthen” Canada’s sexual assault law. Jody Wilson-Raybould says the proposed changes would clarify what constitutes consent and the admissibility of certain evidence.

The Canadian Press