The criminal justice system keeps failing sexual-assault survivors. There has to be a better way

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Deepa Mattoo is the executive director of the Barbra Schlifer Commemorative Clinic. Pam Hrick is the executive director and general counsel of the Women’s Legal Education and Action Fund (LEAF).

“Why don’t women report?”

To the extent that people still ask this question of sexual-assault survivors, the Hockey Canada trial provides a resounding answer.

As lawyers who have spent much of our careers serving and advocating for survivors of sexual violence, we have seen how the criminal system can re-traumatize them. When a survivor reports a sexual assault to the police, this can kick off a highly formalized investigation and prosecution process. This process requires police to take statements, which are then disclosed to defendants and used to test a complainant’s credibility and reliability if the case proceeds to trial. While the complainant’s cross-examination in the Hockey Canada prosecution was abnormally lengthy, the pointed and invasive questioning by defence lawyers that was reflected in media reports is sadly par for the course.

Key moments in the Hockey Canada trial

The criminal system is fundamentally flawed as a vehicle for justice for survivors to most forms of sexual violence. The process is not survivor-centred, in large part because it must respect the constitutionally protected presumption of innocence. The system itself also often seems to be on the brink of collapsing under its own weight; there have been myriad reports of prosecutions being thrown out for failing to proceed in a timely way, violating the Charter right of accused persons to be tried within a reasonable time.

There are certainly criminal legal system actors who try to support survivors: Crown prosecutors, complainant’s counsel, police officers and victim support workers who work within this system to give them a voice. However, for too long, we have relied on this system as the primary way to deal with sexual violence. Surely one of the things that the Hockey Canada trial and other high-profile prosecutions tells us is that it is not meeting muster.

So if not the criminal system, what else?

Restorative justice provides an alternative that survivors may consider the best way forward for them. It has its critics, who view it as a “soft on crime” response to sexual violence – a serious offence that is seen as demanding a criminal response. Survivors have different goals, however, and should be able to choose a process that is meaningful and suitable for their personal needs. Many have found, through personal experience, that restorative justice provided a meaningful way to promote their own healing, centre their own experience, and allow those who caused harm to understand, acknowledge and take responsibility for it.

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Restorative justice takes many different forms. One is victim-offender mediation, where trained facilitators bring together survivors and people who have caused harm to talk about the harm caused, how it has affected the survivor, and what solutions could meaningfully address it. Beyond anecdotal support, recent Canadian research reflects growing public interest in restorative justice for sexual violence. A 2024 report by Justice Canada found that 58 per cent of Canadians believe restorative justice should be available in cases of sexual assault. This suggests a shift in public attitudes toward more inclusive, survivor-centred justice options. The Office of the Federal Ombudsperson for Victims of Crime has also recognized the urgent need for reform, recently launching a systemic investigation into how sexual assault survivors are treated in the criminal justice system and what more survivor-centred approaches to justice could look like.

We need to support such efforts to explore and expand restorative justice options for survivors of sexual violence who may seek different pathways to healing and accountability. Programs exist in British Columbia for some forms of sexual violence, and a restorative justice pilot project was recently launched in Alberta.

Ontario, which has been a leader in providing free, independent legal advice to survivors, is well-positioned to build on its success and consider exploring restorative justice approaches that are survivor-centred, trauma-informed and voluntary. A first step would be to remove the province’s existing prohibition on using restorative justice for sexual offences – something for which survivors, advocates, and organizations have recently launched a co-ordinated call – and to properly fund restorative justice programs for sexual violence. Expanding the range of options available – whether through legal advice, restorative processes or other supports – can lead to more compassionate, empowering and effective responses to sexual violence.

No matter the outcome of the Hockey Canada trial, nobody should see it as a showcase for an ideal way to meaningfully address sexual violence. We should, however, see it as a catalyst for considering how to respond to it better.

Increasing access to restorative justice for sexual violence in Ontario and elsewhere – removing Crown prohibitions on its use and increasing the provincial government’s investment in restorative justice services – is one way to offer survivors more choices, and a more effective social response to sexual violence.