A composite image of five photographs show former members of Canada's 2018 World Juniors hockey team, left to right, Alex Formenton, Cal Foote, Michael McLeod, Dillon Dube and Carter Hart as they individually arrived to court in London, Ont., on April 30.Nicole Osborne/The Canadian Press
Shannon Kari is a freelance writer who specializes in justice issues and the courts.
The Supreme Court of Canada has been very clear about how trial judges should balance fair trial rights for defendants in sexual-assault prosecutions and what is acceptable treatment of the complainant.
“The accused is not permitted to ‘whack the complainant’ through the use of stereotypes regarding victims of sexual assault,” it said in one decision. “It has been increasingly recognized in recent years, however, that cross-examination techniques in sexual assault cases that seek to put the complainant on trial rather than the accused are abusive and distort rather than enhance the search for truth,” it stated in another.
Were these recent decisions perhaps stemming from the Me Too movement? No, the judgments in R v. Mills and R v. Shearing were issued in 1999 and 2002 respectively. They were just two of a long line of Supreme Court decisions during this period that tried to limit the use of stereotypes and myths about sexual-assault victims during cross-examination.
The reference to “whack the complainant” is even older. It goes back to a legal education conference in Ottawa in 1988, where a defence lawyer told attendees that they should “whack the complainant hard” during cross-examination in a sexual-assault case. If you “destroy” the complainant, you will “cut off the head” of the Crown’s case, they were told.
The reporting from the sexual-assault trial in London, Ont., of five former members of the 2018 Canadian world junior hockey team certainly suggests that “whacking” is alive and well in our criminal courts in 2025. The trial resumed on Friday before the judge alone, after a second jury was dismissed.
The complainant was subjected to seven days of cross-examination by the lawyers representing the hockey players on trial for sexual assault. She testified that she consented to sex with one of the defendants, but was impaired and did not consent to any subsequent sexual acts.
During the cross-examination, the defence made various suggestions that included claiming she wanted to have a “wild night” and engage in sex with multiple men, that she lied about the events so her boyfriend would not break up with her and that she had an agenda. The subject matter was lurid, including texts that the defendants had sent each other.
I have covered numerous sexual-assault trials as a reporter. I was based at the downtown Superior Court office in Toronto for a few years, reporting on criminal trials on a daily basis. I know many of the defence lawyers in the London trial and they are all very capable and ethical.
I was not in the courtroom for this trial. Based on the media coverage (and the reporters at the various media outlets are all very credible and experienced themselves), however, the cross-examination fit the predictable template that is still used repeatedly in sexual-assault trials across the country.
Rarely are cross-examinations specifically about “the events that brought us to court today,” as Crown attorneys frequently tell jurors. The questions are predominantly around the fringes, to try to point out errors or omissions in a complainant‘s statements to police, or in previous testimony. The strategy is to be able to argue that if the complainant lied about this one thing, how can we believe anything she says?
Minor inconsistencies are seized upon as a way to attack credibility as a whole. How a complainant acted after an incident is frequently highlighted, as if a sexual-assault victim is supposed to react a certain way after a traumatic event – or not be believed at all.
This strategy was deployed repeatedly in the cross-examinations in London. The young woman was essentially portrayed as sex-crazed; errors in recollection or inconsistencies in statements were highlighted. One defence lawyer, in advancing the “agenda” theory, quizzed the complainant on why she referred to the hockey players as “boys” at the time and “men” in her testimony. The defendants were young men back in 2018.
The task for any judge in a sexual-assault trial is a difficult one. The right to make “full answer and defence” is fundamental in our criminal justice system. But as the Supreme Court also said in Mills, fair trial rights must be assessed “from the point of view of fairness in the eyes of the community and the complainant and not just the accused.”