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Sexual Assault in Canada

Sexual Assault in Canada: Law, Legal Practice and Women’s Activism

Elizabeth A Sheehy editor
Copyright Date: 2012
Pages: 836
  • Book Info
    Sexual Assault in Canada
    Book Description:

    Sexual Assault in Canadais the first English-language book in almost two decades to assess the state of sexual assault law and legal practice in Canada. Gathering together feminist scholars, lawyers, activists and policy-makers, it presents a picture of the difficult issues that Canadian women face when reporting and prosecuting sexual violence. The volume addresses many themes including the systematic undermining of women who have been sexually assaulted, the experiences of marginalized women, and the role of women's activism. It explores sexual assault in various contexts, including professional sports, the doctor-patient relationship, and residential schools. And it highlights the influence of certain players in the reporting and litigation of sexual violence, including health care providers, social workers, police, lawyers and judges.Sexual Assault in Canadaprovides both a multi-faceted assessment of the progress of feminist reforms to Canadian sexual assault law and practice, and articulates a myriad of new ideas, proposed changes to law, and inspired activist strategies.This book was created to celebrate the tenth anniversary of Jane Doe's remarkable legal victory against the Toronto police for sex discrimination in the policing of rape and for negligence in failing to warn her of a serial rapist. The case made legal history and motivated a new generation of feminist activists. This book honours her pioneering work by reflecting on how law, legal practice and activism have evolved over the past decade and where feminist research and reform should lead in the years to come.

    eISBN: 978-0-7766-1977-4
    Subjects: Law, Sociology

Table of Contents

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  1. Front Matter
    (pp. [i]-[v])
  2. Table of Contents
    (pp. [vi]-[xi])
  3. Part I

    • FOREWORD Still Punished for Being Female
      (pp. 1-6)
      Claire L’Heureux-Dubé

      International Women’s Day is a time to remember past struggles, contemplate present realizations, and envision a path to a better future. I could not imagine a better day than March 9th, International Women’s Day, to hold the “Sexual Assault Law: Practice and Activism in a Post-Jane DoeEra” conference at the University of Ottawa in 2009. I was very grateful to participate in this conference, graciously organized by Elizabeth Sheehy, a professor in the Faculty of Law at the University of Ottawa and a dedicated, long-time advocate for women’s rights. The conference was exceptional: I had previously never seen so...

    • Introduction
      (pp. 7-22)
      Elizabeth A Sheehy

      This edited collection assesses sexual assault law, legal practice, and activism in Canada as of 2009. It represents both a celebration and a review of where Jane Doe’s brave advocacy has taken us in the more than ten years that have passed since she won her case against the Toronto Police in 1998 in her litigation,Jane Doe v Metropolitan Toronto (Municipality) Commissioners of Police

      Jane Doe initiated her legal action after the first wave of feminist-inspired reform to the law of rape, which took place in 1981-82-83.² Before her case went to trial, Canadian criminal law governing sexual assault...

    • 1. The Victories of Jane Doe
      (pp. 23-46)
      Elizabeth A Sheehy

      In 1986, an audacious woman known only as “Jane Doe” initiated a chain of radical actions against the Toronto Police on both political and legal fronts. In August of 1986 she had been raped in her bed in the middle of the night by a man armed with a knife. When she reported the crime to Toronto Police, they informed her that his modus operandi fit the pattern of a man they had dubbed the “Balcony Rapist” for his use of apartment balconies as his entry point to women’s homes. Outraged that her rapist was...

    • 2. Jane Doe v Toronto Commissioners of Police: A View from the Bar
      (pp. 47-52)
      Sean Dewart

      “DidJane Doe(the case, not the person) make any difference?”

      “Was it worth it?”

      “Did it achieve anything?”

      To answer these questions, one must reflect on the context in which theJane Doetrial was conducted.

      I kept a scrapbook during the trial and dusted it off to prepare this paper. TheJane Doetrial lasted eight or nine weeks in the fall of 1997 and received saturation coverage, largely due to Jane Doe’s media savvy. TheToronto Star,which at the time was the largest circulation paper in Canada, had a reporter there and ran stories every day...

    • 3. New Zealand’s Jane Doe
      (pp. 53-72)
      Julia Tolmie

      Jane Doe’s protracted legal battle took place in Toronto, Canada, in the late 1980s to the late 1990s. On the other side of the world in the 2000s, New Zealand had its own Jane Doe. By briefly describing her journey and some of its outcomes, I also take the opportunity to honour those women whose costly stands for justice with respect to sexual violence make the law more habitable for all women. The woman I have dubbed “New Zealand’s Jane Doe” is called Louise Nicholas¹ and her cases were not tort cases but criminal prosecutions against the police who were,...

    • 4. Hockey Night in Canada
      (pp. 73-86)
      Laura Robinson

      This is an excerpt from an email sent on 12 August 1998 by one of three female witnesses in the trial of former hockey coach and NHL player agent David Frost, who was tried and acquitted on four counts of touching for a sexual purpose. The trial was the latest chapter in a litany of chapters detailing the rape culture of Canadian hockey. The complicated details of this case can be found in the coverage by theToronto Sun’s Steve Simmons, theToronto Star’s Rosie DiMano, andThe Globe and Mail’s Christie Blatchford, or my coverage at www.playthegame. org.


    • 5. Indigenous Women and Sexual Assault in Canada
      (pp. 87-110)
      Tracey Lindberg, Priscilla Campeau and Maria Campbell

      We would like, first, to thank the Algonquin people for allowing us onto their territory. We would also like to thank the Indigenous women who have taken their cases to court, the families who support them, and the communities who continue to build and re-build safe nations and communities so that Indigenous women and children may be provided with the confidence that they are living in communities where their safety and the integrity of the person is valued.

      This is a hard thing to talk about. Talking about it, however, provides us with possibility. The possibility of seeing our struggle...

    • 6. Lawful Subversion of the Criminal Justice Process? Judicial, Prosecutorial, and Police Discretion in Edmondson, Kindrat, and Brown
      (pp. 111-150)
      Lucinda Vandervort

      R v Edmondson,R v Kindrat, andR v Brown¹ (2001 2008) provide disconcerting evidence that patterns of practice in sexual assault cases continue to be largely resistant to meaningful change at the grassroots level, at least in the province of Saskatchewan. Misunderstanding and confusion about the applicable substantive law appear to have shaped crucial decisions in handling these cases at key points throughout the proceedings, in both the trial and pretrial phases, and in the Court of Appeal. Police failed to use the tools available to record and preserve testimonial evidence by children and other fragile witnesses for subsequent...

    • 7. The Supreme Court of Canada’s Betrayal of Residential School Survivors: Ignorance is No Excuse
      (pp. 151-172)
      Sheila McIntyre

      Between 1999 and 2005, the Supreme Court of Canada decided nine civil lawsuits brought by adult survivors of child sexual abuse against those who created and operated institutions in which such abuse was enabled, licensed, ignored, and covered up.¹ Elsewhere I have analyzed in detail the court’s deeply disappointing record in adjudicating four distinct areas of tort law engaged by those nine claims.² In this chapter, I focus on the last of the nine decisions,EB v Oblates of Mary Immaculate in the Province of BC[Oblates]³ as an illustration of the court’s refusal to engage the realities of systemic inequality in institutional child abuse decisions. I argue that this...

    • 8. Sexual Assault and Disabled Women Ten Years after Jane Doe
      (pp. 173-190)
      Fran Odette

      Ten years after the Jane Doe legal victory,¹ and decades since the crime of sexual assault was reconceptualized in theCriminal Code,² the specificity of the sexual assault of disabled women remains largely unaddressed and meaningfully chronicled. The manner in which this ongoing failure plays out in feminist legal and academic research and theory, and in our communities, is the subject of this article.

      In Canada, women with physical impairments and differences — similar to Aboriginal, racialized, and other women facing discrimination and oppression — experience the crime of sexual violence at rates of two to three times that of women who...

    • 9. Police Investigation of Sexual Assault Complaints: How Far Have We Come Since Jane Doe?
      (pp. 191-210)
      Teresa DuBois

      Jane Doe’s victory against the Toronto Commissioners of Police¹ was expected to mark the beginning of significant reform in police forces across Canada. It was assumed that Jane Doe’s exposure and Madam Justice MacFarland’s condemnation of reliance on rape myths and stereotypes by the Toronto Police Service would result in a new approach to the investigation of sexual assault. Joan Grant Cummings, then president of the National Action Committee, stated that the decision “propel[ ed] us miles in dealing with state accountability where women’s security issues and the violation of our human rights [were] concerned.”² Unfortunately, as this article will...

    • 10. Striking Back: The Viability of a Civil Action Against the Police for the “Wrongful Unfounding” of Reported Rapes
      (pp. 211-242)
      A Blair Crew

      I came to my pro-feminist views on the investigation of sexual assaults quite by accident. As the only associate working for a lawyer who represented individuals suing the police, I was frequently contacted by women who had been raped who wished to sue, not their attacker, but the local Police Services Board because of their refusal to investigate the complaint. Never mind that there was sometimes proof of a violent assault, or an indication that the woman had been drugged, or a DNA sample that had now been entered into the DNA registry: each woman had been told by the...

    • 11. Third-Wave Anti-rape Activism on Neoliberal Terrain: The Garneau Sisterhood
      (pp. 243-266)
      Lise Gotell

      The victory inJane Doe v Metropolitan Toronto Police² resulted from the “sustained collaborative work” of “feminist activists, lawyers, experts and judges.”³ Ten years later, however, the basis for such strategic collaborations has been eroded. The possibilities for strategic feminist uses of law have been undermined through the defunding of women’s movement organizations, the delegitimization of feminist knowledges, and the political erasure of gender equality.⁴ What are the specific implications of neoliberal governance for feminist campaigns against sexual violence? With the decline of national feminist organizing and the removal of state supports that had facilitated political and legal interventions, the...

    • 12. Sisterhood Will Get Ya: Anti-rape Activism and the Criminal Justice System
      (pp. 267-300)
      Meagan Johnston

      The spectre of a serial rapist invading homes is terrifying. Women who are conditioned from a young age to monitor their behaviour to protect themselves from rape react strongly when they are faced with the prospect of being attacked in their most vulnerable moments — at home, sleeping, presumptively safe. In the summer of 2008, women in my Edmonton neighbourhood, the Garneau, were being attacked by a serial rapist. Newspaper headlines announced “Southside Sex Attack Makes Four,”¹ “New Crime Target,”² and “Neighbours on Alert after Sexual Assault.”³ These messages were manifestations of the fear many women in the largely student neighbourhood...

    • 13. Where Has All The Anger Gone?
      (pp. 301-312)
      Diana Yaros

      Thirty-five years ago, we gathered in kitchens, in living rooms, and in greasy spoons, to connect with other women over our outrage at the appalling injustice following our experiences of rape, incest, and other forms of sexual violence. We began to speak out and to organize ourselves into groups that could take action against the many forms of sexist violence.

      We were going to educate, demand law reform, and insist on respectful police response to our complaints. In Montreal we organized the first “Take Back the Night” in August of 1980: hundreds of women came. The next year thousands of...

    • 14. Vitreous Fragility: Reimagining Women Through Art
      (pp. 313-330)
      Shary Boyle

      As a visual artist, I draw inspiration from a rich history of incredible women in my field who have tenaciously battled to express their personal truths. The world of historical and contemporary art has been and remains steeped in gender inequality. The art I make comes out of a long tradition of subversive, powerful female artists who have paved the way for the next generation to carry on. I would like to introduce the audience to some of the work I have created in the spirit of feminist expression and social change.

      I graduated from the Ontario College of Art...

    • 15. The Jane Doe Coffee-Table Book About Rape: Reflections on Rebellious Writing and Teaching
      (pp. 331-354)
      Gillian Calder and Rebecca Johnson

      Rebecca: I hope people who wanted them got copies of Jane’s book —The Story of Jane Doe: A Book About Rape.³ Did you know that some of my students this year couldn’t get copies? They were told it was out of print.

      Gillian: Get out! I don’t believe you.

      Rebecca: I’m not kidding. Seems unbelievable, eh? At first, I thought maybe the students were trying to get out of doing the assignment. But then, when I tried to find the book online at Amazon, I was faced with a page that read: “Currently unavailable. We don’t know when or if...

  4. Part II

    • 16. Who Benefits From the Sexual Assault Evidence Kit?
      (pp. 357-388)
      Jane Doe

      Examining Canadian laws and policies as they apply to women who experience sexual assault feels like a natural progression for me. It is the next step in the body of work I began when, over twenty years ago, I became the woman in the lawsuit,Jane Doe v the Metropolitan Toronto (Municipality) Commissioners of Police

      I am interested in addressing the ways in which certain protectionist Canadian public policies in the areas of sexual assault exert control over women by limiting their choices, agency, and activities.² The degree to which the distinctively gendered and sexual nature of the violence of...

    • 17. Perpetuating — and Resisting — Rape Myths in Trial Discourse
      (pp. 389-408)
      Susan Ehrlich

      Feminist critiques of the law have often cited the rape trial as exemplifying much of what is problematic about the legal system for women. Carol Smart, for example, argues that the rape trial is illustrative of the law’sjuridogenicpotential: that is, frequently the harms produced by the so-called remedy are as negative as the original abuse.² Other legal theorists have created terms for the rape trial — “judicial rape”³ and “rape of the second kind”⁴ — in order to make visible there-victimization that women can undergo once their complaints of rape enter the legal system. What is perhaps surprising about...

    • 18. Questioning “Expert” Knowledges
      (pp. 409-450)
      Sunny Marriner

      It was a terrible trial. A victim³ of brutal sexual violence was being forced to testify against her will, despite having repeatedly asserted she could not, and the days were not going well. Defence counsel were “whacking the complainant”⁴ with everything they had and she was going in and out of flashback on the stand. That this is what was occurring was patently obvious to me, sitting in the body of the court, and yet it was not openly acknowledged or identified by anyone in the room. Instead there were many long breaks and the court’s patience was wearing thin....

    • 19. Zero Tolerance Some of the Time? Doctors and Sexual Abuse in Ontario
      (pp. 451-482)
      Sanda Rodgers

      In 1991, the College of Physicians and Surgeons of Ontario (CPSO) established a task force on the sexual exploitation of patients, and began a systematic review of doctors’ sexual abuse.¹ CPSO records revealed that the abuse of patients was well documented, and was not occasional or anomalous. However, little had been done by the CPSO to respond to the abuse and to offer protection to patients.

      The 1991 task force found that the CPSO response to patient complaints of doctors’ sexual abuse amounted to re-abuse of complainants. Penalties imposed on doctors were lenient. The doctors who staffed the discipline committees...

    • 20. Judges and the Reasonable Steps Requirement: The Judicial Stance on Perpetration Against Unconscious Women
      (pp. 483-540)
      Elizabeth A Sheehy

      The prosecution of sexual assault cases where the complainant has no memory because she was unconscious at the time of the attack presents a paradox. On the one hand, these are cases which, to the lay person, might seem dead easy: of course this is criminal conduct — the woman assaulted could not possibly consent while unconscious! For activists who work with raped women, this is a familiar form of male sexual violence, as men have always preyed upon women who are drunk, drugged, or asleep.¹

      However, to police, lawyers, and judges, these cases seem extraordinarily complicated. When a woman is...

    • 21. An Equality-Oriented Approach to the Admissibility of Similar Fact Evidence in Sexual Assault Prosecutions
      (pp. 541-568)
      David M Tanovich

      There has been very little critical and feminist commentary in Canada on the admissibility of prior sexual misconduct evidence as similar fact evidence in sexual assault cases.² Similar fact evidence is a specific type of bad character or conduct evidence.³ It is distinguished from more general bad character evidence because it shares similar features with the offence charged. So, for example, evidence that the accused sexually assaulted person(s) other than the complainant could be an example of similar fact evidence in sexual assault prosecutions assuming satisfaction of the threshold legal test. Similar fact evidence is a narrow exception to the...

    • 22. Raising the Age of Sexual Consent: Renewing Legal Moralism?
      (pp. 569-590)
      Julie Desrosiers

      Toward the end of the eighteenth century, Blackstone stated that any use of force, however minimal, could constitute an assault.¹ This principle acquires its full meaning within the context of sexual aggression where either a caress or a beating can sustain charges of sexual assault.² Charges of sexual assault do not depend on the extent of violence employed, but rather on the absence of consent in so far as a person — female or male — does not consent to being touched and is entitled to the protection of their physical integrity.³ Obviously, women have had to fight to challenge sexist prejudice...

    • 23. What’s in a Face? Demeanour Evidence in the Sexual Assault Context
      (pp. 591-612)
      Natasha Bakht

      Women’s bodies are too often the sites of cultural conflicts. In the context of sexual violence, the criminal law has forced women to fit into rigid characterizations of the ideal rape victim. This ideal rape victim has been described not only as morally and sexually virtuous (read white), but also as cautious, unprovocative, and consistent.¹ Classist and sexist stereotypes pervade the law’s understanding of victims of sexual violence.² Racialized women and Aboriginal women are similarly caught between a rock and a hard place³ as they negotiate their positions in a world that conveniently erases colonial and racial aggression in its...

    • 24. Limits of a Criminal Justice Response: Trends in Police and Court Processing of Sexual Assault
      (pp. 613-634)
      Holly Johnson

      Sexual assault is the most gendered of crimes. Only 3 percent of those charged by police with sexual assault offences in Canada in 2007 were women, yet 86 percent of those victimized were women and girls.¹ It is no coincidence that the most gendered crime is also the most underreported. According to Statistics Canada’s crime victimization survey, which interviews women anonymously, an estimated 460,000 Canadian women were victims of sexual assault in 2004 and just 8 percent reported the crime to the police.²

      Rape laws underwent major reform in Canada in 1983, in part to improve the dismal rate of...

    • 25. HIV Exposure as Assault: Progressive Development or Misplaced Focus?
      (pp. 635-664)
      Alison Symington

      In 1998, the development of the law of assault in Canada took an intriguing turn. In this year, the Supreme Court of Canada ruled that disclosure of HIV-positive status is required by the criminal law before a person living with HIV/AIDS (hereinafter “PHA”) engages in sexual activity that poses a “significant risk” of transmitting HIV.² With this decision,otherwise consensualsexual encounters between PHAs and those who were not aware of the person’s HIV-positive status becamecriminal assaults.

      While every HIV infection is regrettable, and it is always desirable to avoid exposing others to the risk of HIV infection if...

    • 26. All That Glitters Is Not Gold: The False Promise of Victim Impact Statements
      (pp. 665-700)
      Rakhi Ruparelia

      The last few decades have brought increasing attention to the experiences of victims in the Canadian criminal justice system. Such experiences have been commonly referred to as a “second victimization” given the insensitive treatment often suffered by victims of crime. Growing awareness of secondary victimization and the backlash against what is perceived as an expansion of the rights of the accused have catalyzed political momentum for the victims’ rights movement.

      The “plight” of the victim has become a popular cause for interests across the political spectrum. It appeals as equally to the liberal call for increased sensitivity to the needs...

    • 27. Confronting Restorative Justice in Neo-Liberal Times: Legal and Rape Narratives in Conditional Sentencing
      (pp. 701-724)
      Gillian Balfour and Janice Du Mont

      In the sentencing decision ofR v Tulk,¹ a sixty-year-old white male was convicted of a serious sexual assault of a female acquaintance who was in a comatose state due to diabetic shock. He received a conditional sentence of two years less a day as part of a restorative justice sentencing practice that allows offenders to serve their prison sentences in the community subject to various conditions. Although we glean little from this sentencing decision as to the impact of the “highly intrusive assault”² upon the victim, we are told that the perpetrator was divorced, had four children, lived with...

    • 28. A Feminist Remedy for Sexual Assault: A Quest for Answers
      (pp. 725-740)
      Constance Backhouse

      “Imprisonment would be of no assistance to the accused.” The sentence leaped out at me as I waded through the 1,202 reported and unreported sexual assault judgments I had assembled for research I was doing into Canadian legal history.² It was a statement from a judgment in the case ofAngione v R, issued by the Hon Justice Edson Livingston Haines and delivered in a courthouse in Windsor, Ontario, in 1974.³ It was pronounced in an era when feminists, including myself, were likely to be demanding more and longer prison sentences for rapists. However, by the first decade of the...

  5. Afterword
    (pp. 741-742)
    Jane Doe

    This book represents a transformation. A conscious, lovingly-crafted collection of thought, theory, and research, born of a feminist conference in 2009. There, for the first time any of us could remember, women who are experts on rape came together to dialogue proactively — and not in response to a current legal atrocity or funding cut, or in competition or crisis. It was as if by magic.

    Okay, not magic at all, but hard work, and then, something thrilling that captured us on those two winter days, warmed us, reminded us of community, its power and comfort, the exhilaration it can produce....

  6. Contributors
    (pp. 743-754)
  7. Index
    (pp. 755-820)