Sexual assault trials in Canada have shown that our courtrooms can be unjust. In case after case, justice has been undermined by rape myths and discriminatory stereotypes, whether in former Justice Robin Camp’s comments during trial or in the failure to bring justice for Cindy Gladue. After politicking in the Senate, federal legislators have blocked a bill that would require judges to be trained in how to address these harmful myths and stereotypes. How then can we rewrite the patterns of injustice in sexual assault trials?
One answer is citizen scrutiny. In policing, the “Philadelphia model” has captured how citizen scrutiny can spotlight practices that retraumatize, marginalize and exclude sexual assault survivors in the criminal justice system. During audits that advocates have conducted at the Philadelphia Police Department since 2000, they review sex crimes cases to examine the investigations’ thoroughness and outcomes. The Women’s Law Project indicates that this ongoing review process has enhanced the quality of police work, as well as reopening some cases previously designated “unfounded” (a code that was supposed to be used where a police investigation showed no crime had occurred or been attempted). Adaptations of the Philadelphia model are now spreading to police stations in communities across Canada, including North Bay and Calgary.
Citizen scrutiny could also work in the courtroom. We’ve seen this in the UK, where Dame Vera Baird, police and crime commissioner in the county of Northumbria, recruited citizens to form a Court Observers Panel. The twelve citizen observers were trained by the Crown Prosecution Service and then observed 30 rape trials at Newcastle Crown Court in 2015-16; the panel’s subsequent report exposed the widespread use of rape stereotypes in cross-examination. After this initiative, the court observers and a local civil society organization (Soroptimist International Northern England) partnered in 2017 to observe specialist domestic violence courts. Baird, now the victims’ commissioner for England and Wales, said in an interview that she expects court observation to spread to other areas in England and Wales.
If this model were to spread to Canada, how might it help generate changes in justice?
Baird emphasized that court observation can spark both broader and local change. First, citizen scrutiny can instigate changes in organizational policy that have widespread effects on justice. In Northumbria, court observation of rape trials showed that many applications to allow questions about a complainant’s previous sexual conduct came late in a trial, so the Crown Prosecution Service has now adopted a new approach toward these applications: in the early stages of a case, prosecutors directly ask defence counsel whether they expect to apply. If the defence does then make a late application, prosecutors use the defence’s earlier response to communicate to judges whether “this breach of rules is caused by misfortune or error or is an attempt to game the system and undermine the complainant.” This is an example of how outside observers can strengthen justice by drawing officials’ attention to undetected or disregarded patterns of practices that undermine justice for survivors.
Second, citizen scrutiny can enable judges, lawyers and court officials to see the part they play in these patterns. As Baird pointed out in the interview, judges don’t see each other’s practices. The Northumbria panel’s report on rape trials highlighted differences in how judges use model directions that aim to dispel rape myths and stereotypes among the jury. Some judges discussed rape stereotypes at the outset while others addressed stereotypes in their summing up, in contrast to the position of court observers and the director of public prosecutions at the time that judges should make these statements at the start of trial. By creating a point of comparison and underlining best practices so that individuals can adjust their own conduct, court observation can help rewrite local patterns of unjust practices.
The translation of courtroom observation into courtroom change may not be automatic. Making citizen scrutiny effective in Canada would require both resource and organizational commitments. This means we have to ask who in Canada’s criminal justice or political system is positioned and willing to take the lead. The failure to pass Bill C-337 on judicial training underlines the reluctance of many elected officials to lead on this crucial issue. Provincial attorneys general seem to be a logical choice for the role, but perhaps we should look to civil society organizations if local, provincial and federal governments continue stalling.
Hopefully judicial training has hit only a temporary pause. After the October federal election, legislators may again take up this key measure. But while judicial training could foster a more conscientious response to violence against women and girls, we can’t assume that training alone will have the intended effect. There’s a long history of damaging gaps between the law and courtroom practice in sexual assault trials. We also know that anti-sexual-harassment training programs can generate backlash and other adverse effects. What we don’t know is the true scale and distribution of rulings that rely on stereotypes because, as Elaine Craig highlights in her study of sexual assault trials in Canada, many court decisions are never reported. Citizen scrutiny could offer a strategy to help address these challenges, supporting crucial judicial training by monitoring whether training translates into concrete changes in sexual assault trials.
Citizen scrutiny can counteract the opacity of the courtroom and support judicial training. At the same time, we cannot lose sight of the need for cultural change to prevent violence against women and girls from happening in the first place. Many in this field, like the members of the network behind the Blueprint for Canada’s National Action Plan on Violence Against Women and Girls, have emphasized that public education is key in prevention. We can’t stop at training judges; by also informing the broader public, citizen scrutiny can help us rewrite unjust patterns in society.
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