Hi, my name is Mandi Gray. I work for “WomenatthecentrE”. I'm a Ph.D. student, and I have also barely survived a rape trial.
It's important to note that Canada has among the most progressive affirmative consent laws and privacy protection for complainants in the world. The problem is that judges are struggling to apply the law. This is especially true when the sexual assault does not fit into the idealized archetype—the young, white, sober, female victim violently attacked by a racialized male stranger in a public place.
I'm going to focus on two major concerns that I've identified in Canadian courtrooms that may assist in correcting some of the discriminatory attitudes. The first is the need for education on provisions in the Criminal Code that already exist, and the second is education on cases involving alcohol.
There is a need for judicial education of section 276, which refers to sexual history, and section 278, the third party records, of the Criminal Code. These sections are colloquially referred to as rape shield laws.
In theory, an application must be made to cross-examine a complainant about his or her previous sexual activity or access their third party records, most often, therapy records or other medical records. The judge's decision to enter either of these into evidence may have serious implications for the complainant, and it's imperative that the judge makes an educated decision.
At the third party records application hearing, the complainant is actually entitled to legal representation paid for by legal aid. In contrast, the complainant is not entitled to representation at a sexual history application, and even if the complainant is willing to pay for representation, they are barred from attending.
Since the courts have the power to enter the most private details into public record, it is of utmost importance that the judge be aware of the very narrow grounds in which sexual history is even relevant to a sexual assault trial. Of course, the judge must ensure that the accused has the right to a fair trial, but similarly cannot allow for a discriminatory defence. In theory this seems like a simple task, but in practice has proven to be difficult. Even when both applications are not made by counsel or are denied by a trial judge, defence counsel pursue prohibitive lines of questioning, anticipating that neither the crown nor the judge will ever interfere, even if they are in violation. With proper education, judges can feel confident in their ruling and feel more confident in their decision-making.
It's also important to note that any education must include the role of alcohol. This risk is especially increased if she's attending post-secondary education. Many of these cases involve alcohol. There is no clearly defined threshold for intoxication for a sexual assault case, which may be difficult for a judge with little expertise in the area, and may partially explain why cases involving alcohol almost never result in conviction.
There are significant resources being allocated to social campaigns about consent and alcohol, but these attitudes are not reflected in Canadian courtrooms. As it stands, alcohol is the perfect alibi in a sexual assault case. There are two ways to change this, either by providing complainants with legal representation or by educating the courtroom actors to act in compliance with Canada's laws.