Navigating the Canadian Legal System
Some legal experts have commented on how Canada has very strong laws on sexual assault, but incorrectly trained prosecutors and judges fail to apply the law correctly. One example of a case that was appealed to the Supreme Court is R. v. Ewanchuk. The ruling notes that the “trial judge erred in his understanding of consent in sexual assault and…his conclusion that the defence of ‘implied consent’ exists in Canadian law.” The Supreme Court entered a conviction and the case was sent back to the trial judge for sentencing.
The failure by the trial judge in this case shows that the lower courts are filled with mistaken beliefs about sexual assault and that these myths need to be addressed to bring prosecution in line with our laws.
It is important for victims to educate themselves about the law so that they know their rights and can hold the justice system accountable to enforcing our laws. “The Ethical Obligations of Defence Counsel in Sexual Assault Cases” discusses three cases that are significant in sexual assault cases:
Distrusting the Unchaste Woman—Rejected by Section 276
Failure to Raise a Hue and Cry Suggests Fabrication—Rejected in R v DD
Failure to Fight Back Demonstrates Consent—Rejected by Section 273 and R v Ewanchuk
Victims also have the right to be represented by an attorney. The crown represents the state and will not inform victims of their rights. If you cannot afford a lawyer many law firms provide free legal consultations which can provide victims with beneficial knowledge about their case. It is best to do research beforehand so that consultation with a lawyer focuses on information that applies directly to the victim’s case instead of general information that can be found online.
Many people question victims about why they would want to go through the difficulty of being questioned in the legal system, especially when detectives, prosecutors, and judges often have strong myth based biases against victims. It is ignored that victims can experience healing by confronting their abusers through the legal system. Fear of how the legal system will respond to a complaint should not prevent a complainant from coming forward. When the system fails it is important for communities to support survivors in making appeals.
If you would like to have more information regarding this topic please contact us.