David Butt is a Toronto-based criminal lawyer
Oftentimes our greatest strengths are also our greatest weaknesses. This is no less true of our justice system than for individuals.
Police, prosecutors, defence lawyers and judges, working cases through the courts symbiotically if not always harmoniously, collectively present the face of justice to the nation. And the defining features of that face are adherence to long-cherished basic principles of fairness and a consistency in practice that refuses to be buffeted by the whims and prejudices of any noisy rabble in the street.
Yet the independence, detachment and consistency that are core virtues of the justice system are at the same time the root causes of one of the justice system's most profound failures: its dramatic inability to deliver justice to survivors of sexual violence. We in the justice system value precedent, which means we tend to stick to the same old ways for far too long; and we decline to listen deeply to constituent groups like sexual assault survivors because we convince ourselves they are ill-informed laypersons with suspicious agendas.
It is no longer debatable that we are failing the community of sexual assault survivors. With only three in 1,000 incidents of sexual assault resulting in conviction, and over 90 per cent not even reported, the status quo is neither practically, politically nor morally defensible. The real challenge, however, is making meaningful improvement around a complex form of social misconduct in the context of a complicated, far-flung, multitiered, under-funded and always fully operational justice enterprise.
So what does the blueprint for meaningful change look like? The most important feature is embodying the needs of those the system serves, not the preferences of the professionals who run it. The justice system is profoundly hierarchical (where else in Canada does one person still call another "my lord?"). But the justice system is nothing more nor less than a public service. So we would do far better to moderate our fixation with the utterances of those few wise elders in the system's upper echelons and focus more intently on the experiences of people like actual sexual assault survivors.
Then of course we must separate out the system's constituent parts for careful scrutiny. No justice stakeholder should be immune. Scuttling for cover when light shines on our work is a sure way to confirm the impression we are cockroaches. We need to know what failures to serve sexual assault survivors are attributable to police, prosecutors, defence lawyers and judges. Rigorous review is, however, crucially different from demonization. Where lapses in service delivery to sexual assault survivors arise from individual misdeeds, professional discipline is a tool for positive change. But to play the discordant tune of finger-pointing relentlessly will only drive those professionals to plug their ears and crouch in bunkers, creating the antithesis of buy-in for improvement. Instead, education and training in best practices should carry the bulk of the load.
Moving beyond the major justice players considered in isolation, we must look also for systemic problems at play that emerge only when considering justice processes as a whole. For example, based on what this newspaper has recently published, many police services seem to close an unduly high level of sexual assault investigations as "unfounded." Where inadequate investigative practices are responsible, those should of course be eradicated. But we must also ask whether police investigators judge the viability of sexual assault cases through the lens of their experience watching cases founder in court due to outmoded courtroom practices that fail to unpack the nuanced truths of sexual violence. If so, such a case is wrongly labelled unfounded because of courtroom, not police, shortcomings. This is just one of many such systemic relationships that warrant careful consideration.
Lastly, the blueprint for change should be drawn in bold strokes. We have tinkered with incremental change for decades and the statistics demonstrating widespread disservice to sexual assault survivors have not budged. Since sexual violence is experienced and processed in countless ways, survivors deserve more than a one-size-fits all systemic response. Pilot projects can help fine-tune delivery of change, but the time for tepid or timid proposals is past.