I write often — and critically — about the criminal law response to sexual assault. Believe me, I’d be happy to stop writing negative pieces about the criminal system in favour of having something positive to say, but that day is not today.
Here are just two cases, both unfolding in the community where I live, that have burrowed their way under my skin.
How long is too long?
Last May – that’s 11 months ago – a huge sexual assault trial got underway in Kingston. Mark Haaima is facing 98 charges involving 28 victims, for events alleged to have taken place between 2007 and 2022. Forty of those charges are for sexual assault, but there are myriad others including sexual assault with a weapon and causing bodily harm, sexual interference with a minor, assault with a weapon, forcible confinement, possession of child pornography, choking, trafficking and more. It took the Crown 40 minutes just to read through them and hear Haaima’s not guilty pleas to all but two.
I’ll bet most of you had not heard of this case until now. While Kingston’s small online newspaper – Kingstonist – reports on it regularly and well, it’s not widely read even in Kingston, let alone in other parts of the province and country, and mainstream media have paid the story little more than occasional lip service.
This is a case that should be in the public eye: the sheer volume of such serious charges and the number of complainants make it an important story. But, the accused is not a professional hockey player or high-profile businessman, so it hasn’t caught the eye of the media. That’s a problem.
The case has run for almost a year, and the Crown has yet to finish presenting its case. There have been frequent delays and adjournments; mainly at the request of the defence. Most recently, the trial was adjourned in January — the defence lawyer has another lengthy trial to attend to — and is not scheduled to resume until May. No one is making bets any more on when it might end, but it will obviously be well over a year from the starting date before there is a verdict. And, of course, depending on the outcome, either the Crown or the defence might appeal.
A trial of this length has an enormous psychological impact on complainants already dealing with trauma. It’s not easy dredging up these kinds of memories, some of which come from events that took place close to 20 years ago. In some cases, women have prepared themselves emotionally to testify, made arrangements to be away from work and to have children cared for, only to be told at the last minute that their appearance has been moved by a day, a week, a month or even more. Some have also suffered significant financial hardships because of taking time off work repeatedly and travelling, unnecessarily, to appear in court.
A dragged-out trial like this one also affects the community-based services supporting the survivors, which are not funded to provide this kind of intense support to multiple complainants over such a long period of time.
How is this kind of process helpful in achieving a just outcome? In encouraging future survivors to report to the police and participate in the process? In finding any kind of meaningful truth?
How old is too old?
Still in Kingston, another case is raising some important questions. A woman (the complainant) gave a statement to the police in 1994 about being sexually assaulted. Not unusually when it comes to sexual assault, she was the only direct witness to the events she reported. In other words, there is little to no evidence other than her statement. Some 30 years later, new forensic evidence techniques led the police to Lawrence Serson, who was arrested and charged with sexual assault causing bodily harm and a number of other offences related to the same incident.
Serson was 80 years old when he was charged, is now 83 and has been incarcerated since he was charged. Somewhere in those 30+ years, the complainant died, so the only evidence for the prosecution is the statement she gave in 1994.
Because the complainant is not available to be cross-examined, her long-ago police statement is considered hearsay. This means the Crown had to seek permission from the court to introduce the statement as evidence. After hearing submissions from both the Crown and defence, the judge found the statements “lacked the safeguards required to ensure their reliability;” in particular because they were recorded in writing by the officer taking the statement rather than being audio- or video-recorded and were not made under oath. The statement will not be admitted.
The Crown now has to decide whether or not to proceed with this case, with no complainant, her police statement deemed inadmissible and little other evidence.
An alternative approach
Both of these cases fill me with rage. The problem, of course, is not one particular fact situation, police officer, Crown Attorney or judge. There are lots of good fact situations, police officers, Crown Attorneys and judges. There are some defence lawyers who understand the unique nuances of sexual assault and, while honouring their professional commitment to representing their client – the accused – find a way to do so that does not completely destroy the survivor; although this is hard to do given the way the law is built.
Finding a better way to handle these kinds of cases is not an easy task, but I think a starting point is to acknowledge that the structure of the criminal law – the laws, the procedures, the rules – was not designed to handle cases like these two and so many others.
We need a system in which survivors feel heard and are not retraumatized, that offers those who are charged a fair process in which their innocence is presumed until evidence establishes otherwise, that allows those who have caused harm an opportunity to be meaningfully accountable and to access services to help them learn new behaviours, and that does not drag on for years and decades.
That’s the only way we can hope to build a world that is safe for everyone.