Benjamin Roebuck, the federal ombudsperson for victims of crime, speaks during a news conference in Ottawa on Wednesday.Adrian Wyld/The Canadian Press
Delays in the justice system are leading to the halting of hundreds of sexual-violence trials, while the court process is retraumatizing many victims, a federal watchdog warned in a report on Wednesday.
An 18-month-long investigation into justice for victims of sexual violence found that in some court cases, humiliation of victims is being used as a deliberate tactic by defence lawyers, including displaying hours of graphic video footage recorded without the victims’ knowledge.
The almost 300-page report by the Office of the Federal Ombudsperson for Victims of Crime concluded that only six per cent of sexual assaults are reported to the police, with fear of court proceedings putting off many victims from reporting sexual assaults.
The report, Rethinking Justice for Survivors of Sexual Violence: A Systemic Investigation, said a rising number of victims of sexual violence who go to court are having their trials halted or withdrawn as a result of a court ruling that protected the right of the accused to a trial within a reasonable time.
The investigation found that since the R v. Jordan decision by the Supreme Court in 2016, strict timelines have led to more than 268 sexual-assault causes being stayed. One in seven cases of sexual assault were stayed or withdrawn in 2022-2023 because they exceeded timelines.
“Maintaining the current approach to R v. Jordan is unsustainable. It is compromising access to justice, violating victim rights to protection and undermining public confidence in the judicial system in Canada,” the report said.
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In an interview, Ombudsperson Benjamin Roebuck said “the dignity and privacy and security of survivors” is not always considered in the criminal-justice process.
He said one victim interviewed for the investigation “talked about having photos of her exposed body on a screen in a police room with multiple officers looking and pointing and talking.”
The report cited one case in which the court allowed the defence to pause a video with graphic footage, displayed on a large screen over several days, while a woman testified about a sexual assault. The court also permitted printed booklets with frame-by-frame stills of the assault to be distributed.
During a trial on the sexual assault of a 19-year-old racialized woman, the cross-examination was so traumatic that on the third day, she went to the hospital because she was feeling suicidal, the report said.
It suggests that Ottawa amend the Criminal Code so there are criteria that a court must consider before halting a court case, including the vulnerability of the victims, the complexity of the case and prejudice to the victims’ Charter rights.
Mr. Roebuck, a criminologist, said in the interview that it is important for courts to consider that victims of sexual violence have Charter rights, as well as the accused. He said victims’ rights are currently not given enough credence.
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Mr. Roebuck said some cases have been delayed because of arguments about whether victims should be able to testify from behind a screen, or remotely by video or be entitled to a support person in court.
He said victims of sexual assault should automatically have the right to such “testimonial aids.”
“All of these cases are on a timeline, and so when we’re losing time in sexual-assault cases on measures that are intended to protect survivors, in the end, we’re choosing between protection and maybe throwing the case out.”
The Ombudsperson’s investigation found that multiple pretrial motions are being used to prolong proceedings and wear down complainants.
Some cases have been delayed after the defence demanded records of therapy or counselling for survivors of sexual abuse.
The report found that disclosing therapy records can prove extremely distressing for survivors. One said that giving the court her therapy records, which included the disclosure of other sexual abuse and incest, had made her suicidal and wishing that she had never taken part in counselling or reported the crime.
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Mr. Roebuck said that “counselling records very often don’t provide a lot of value to the trial process, but they do provide a lot of intimidation and harm to survivors.”
A sexual-assault victim who had seven years of her therapy records subpoenaed asked the judge to stay the charges as a result.
Mr. Roebuck said fear of how they will be treated by the police and the court process is deterring many victims of sexual violence from reporting crimes. The report found that of the 1,000 victims of sexual violence surveyed, only 51 per cent contacted the police.
He said some victims of sexual violence have said that they want more access to restorative justice. However, it is largely inaccessible to them owing to provincial and territorial policies that prohibit its use in such cases.
Mr. Roebuck said the safety of victims when their perpetrators are released must be taken seriously, including their views in parole hearings.
“The parole board has to provide a written explanation when they don’t impose safety conditions that were requested by a victim,” he said.
He also said victims should automatically be told when the person who attacked them is due to be released from prison, but now they have to register and request such information.