Seeking more satisfactory justice

It's no secret that victims of sexual and domestic violence have little faith in the justice system. An overwhelming majority of victims are dissuaded from turning to the courts to seek justice because of how complaints are received, investigated and prosecuted. Few hold out much hope they will be heard and respected. The figures speak for themselves. Sexual assault is the most underreported offence in the country, with only one in twenty turning to law enforcement. According to Statistics Canada, fewer than one in five victims abused by their spouse report incidents to police.

It's why Quebec, also spurred by the #MeToo movement and sexual assault allegations made against public figures, is contemplating a move away from the traditional criminal justice framework to improve access to justice for gender-based violence. The Quebec Ministry of Justice recently mandated a working group to examine the feasibility of establishing a dedicated divisional court for both sexual offences and domestic violence.

The specialized tribunal would take a different approach to its caseload. Judicial institutions, such as specialized police units and specially trained teams of jurists, would work in tandem with social and community services to foster a victim-centered approach, without compromising the tenets of fundamental justice, explains Élizabeth Corte, former Court of Quebec Chief Justice.

"Victims must be helped, informed, and supported by an organization that incorporates services, provided by a team focused on the victim, and that will help them when they go before the court," says Corte, who along with Université Laval law professor Julie Desrosiers, co-chaired a panel of experts that examined legal issues faced by victims of sexual and domestic violence.

In December 2020, the working group issued 190 recommendations. In addition to the creation of the specialized tribunal, with designated courtrooms, it recommended that all victims be given four hours of free legal advice. It also called for the use of testimonial aids, allowing victims to testify through closed-circuit television, behind a screen, or sanctioning a support person to be present while the victim testifies. That is already allowed under s. 486.1 and 486.2 of the Criminal Code, but rarely happens, asserts the panel.

Specialized courts are not unheard of. Dedicated domestic violence courts have become more common in Canada since first launched in Winnipeg in 1991. But dedicated sexual offence courts are a rarity. While New Zealand launched a pilot program in two cities in 2016, Quebec seems to be drawing its lessons from South Africa, which introduced them in 1993. In that country, two UNICEF-funded victim satisfaction surveys found higher levels of satisfaction with the infrastructure, personnel and services at sexual offences courts than at regional courts.

A 2013 report by a South African ministerial advisory task team also revealed that the specialized courts led to higher conviction rates. That fulfilled one of the objectives of setting up the court, but it also prompted questions about bias against perpetrators and the perception that sexual offense courts compromise the rights of accused persons by focusing on achieving conviction rates. Corte is adamant that it is not the purpose behind the push in Quebec. "We must move away from that objective," Corte said. "The panel did not feel that conviction rates are problematic. The objective must be to bring a sense of justice to victims because that is not being met."

Even though it makes logistical sense to hear sexual and intimate partner violence cases under the same specialized tribunal, it will be challenging, remarked Rachel Chagnon, a law professor at the Université du Québec à Montréal (UQAM). The dynamics, while similar, are different. Sexual offences are covered by specific provisions in the Criminal Code while domestic violence is not. Domestic violence cases are complex. Frequently families mired in domestic violence are in multiple court proceedings simultaneously, be it criminal, family and youth courts. The overlaps increase the odds of multiple and sometimes conflicting orders.

But sexual and domestic violence share similarities. Both tend to be gendered crimes. Men commit nearly all sexual assaults (94%) and 87% of victims are women. The same nearly holds true for intimate partner violence, with women accounting for 79% of victims, according to Statistics Canada. "The dynamics may be different, but it is not illogical to regroup both because the training is somewhat similar and social and community organizations that work with sexual assault victims work very closely with those that assist domestic violence victims," Chagnon said. Finally, for such a tribunal to be operationally feasible, there must be a volume of cases that can justify the "monopolization" of courtrooms for "specific issues."

But there are concerns the Quebec government won't dedicate enough resources to the undertaking. "Whether a specialized assault court will be effective in reducing the trauma of the trial experience for sexual assault complainants depends on how well it is resourced," says Elaine Craig, a law professor at Dalhousie University and author of "Putting Trials on Trial: Sexual Assault and the Failure of the Legal System."

Success also hinges on specialized knowledge and training. It is critical that prosecutors, defence lawyers and judges all have the necessary skills and knowledge regarding not only the law of sexual assault and its particular evidentiary rules, as well as "an understanding of how problematic social assumptions continue to infect the legal process," Craig said.

Another challenge is ensuring that expertise will be uniform across the province, and not just in the urban centers, says Sophie Gagnon, the executive director of Juripop, a Montreal non-profit organization that offers accessible legal services. In March 2020, Juripop launched a legal hotline, with the help of a $2.6 million contribution by the Quebec government, aimed at helping victims of domestic violence. This past winter, it offered training to some 450 family lawyers on domestic violence. "People living in outlying regions must benefit from the same quality of services," Gagnon said. "On the other hand, there are regional differences. So while ensuring that there is a standardization of services, regional realities must also be respected."

Above all, Ottawa will have to conduct a serious review of the rules that govern substantive law, added Gagnon. Despite legislative and judicial developments, rape myths continue to plague the courtrooms, with cross-examinations being a major culprit. "It would be an error in law for a judge to base his decision on myths and stereotypes, and yet they are still being argued," Gagnon said. "Clearly there is a lot of work to be done to completely eradicate them from the court."

In the meantime, Corte is optimistic that the dedicated court for sexual and domestic violence will see the light of day. But she offers a cautionary reminder that a specialized court must offer more than procedural equity. A victim-centered approach is "is about providing information, support, and empathy," Corte said. "That is what nourishes the sense of justice. We must work on that."