Those of us working in the field of gender-based violence have long seen the problems in the criminal law response to both intimate partner and sexual violence. Even those less intimately involved in this work saw firsthand the challenges in the criminal system during the 2016 trial of former CBC broadcaster Jian Ghomeshi and the headline-generating criminal trials in many high-profile cases since then.
Robin Parker, a former Crown Attorney who is now a criminal defence lawyer, was initially reluctant to report to the police when she was sexually assaulted in 2018. She eventually made the decision to report what had happened to her, but knew she did not want to go through a traditional criminal process. There were few alternatives available to her because, in Ontario, Crown policy forbids sexual offences from being resolved through restorative justice (RJ). In intimate partner violence cases, the policy permits the Crown to apply an alternative to a criminal prosecution only in “extraordinary” cases.
Despite the prohibition, Parker was able to convince the Crown that RJ was appropriate in her case:
Legal advice
In 2016/17, the provincial government funded a pilot project in which survivors of sexual assault were able to obtain free independent legal advice. Working with the Barbra Schlifer Commemorative Clinic in Toronto, I was one of the lawyers providing that advice. I assumed that I would advise women who were involved with various stages of the criminal process, explaining to them how the criminal system works, what the legalese means and who they would encounter on their journey. I thought I would give them advice about how to make a statement to the police and how to prepare for court appearances.
I did just that for some of the 100 or so women I saw while I was part of the project, but the vast majority of the women I served – by which I mean more than 90 percent – wanted something else; something the criminal system does not offer. They wanted the person who had sexually assaulted them to know that they had done something wrong and to apologize for it. And, they wanted to do whatever they could so that person wouldn’t hurt other women.
They wanted their voices to be heard, which it is not in the mainstream criminal system. They wanted the court to hear what had been done to them and how it had affected them. Yes, they wanted the person who had harmed them to be held accountable, but in a meaningful way that included an opportunity for that person to learn new ways of behaving so they would not continue to cause harm.
What they wanted was transformative justice (TJ), which I could not offer them.
What now?
I am a big fan of RJ and TJ for GBV offences, where that is what the survivor wants. I believe it offers those survivors a real voice and an opportunity to be part of crafting solutions that are meaningful for them. Those who have caused the harm are supported in taking responsibility for their actions and have access to programs to assist them in healing from harms done to them while also learning new, non-violent ways of being in the world. Communities, too, can heal and make themselves safer for everyone.
Making substantial changes to the criminal system is not something that can happen overnight. Here’s what I think we need to do.
First, we need to bring everyone who is affected by GBV to the table, including the people we disagree with and the people who cause the harm we are seeking to address. If we don’t hear from as many perspectives as possible, we won’t come up with an approach that works.
Second, we need to learn from what has already been done. RJ and TJ models exist around the world. We need to study them to identify what aspects of them could work here, in Canada, as a response to GBV.
Third, we need to draw from recommendations that already exist: from the CKW Inquest, the Nova Scotia Mass Casualty Commission and the Roadmap for a National Action Plan on Violence Against Women and Gender-Based Violence. We should review the reports from domestic violence death review committees across the country and study the report prepared by WomenatthecentrE that explores alternative models of justice for survivors of sexual violence.
RJ and TJ have the potential to both respond to acts of intimate partner violence with compassion for all those affected by it and to create an environment in which that violence no longer finds a home. Isn’t that worthy of serious exploration?