Survivors need better avenues to justice

A recent report from the Women's Legal Education and Action Fund (LEAF) underscores the pressing need for increased availability of restorative and transformative justice options in cases of sexual violence. It emphasizes how alternatives can help redirect certain cases away from the criminal justice system to provide more effective support for survivors.

While the Criminal Code offers avenues for such processes, the report highlights that Nova Scotia, Ontario, and British Columbia have imposed moratoriums on accessing them. It suggests lifting them to allow Crown prosecutors to redirect cases to local restorative or transformative justice programs.

The report also recommends increased and stable funding for these tools, better independent legal advice programs nationwide, participant protection measures, education about transformative and restorative justice, and access to basic social supports for survivors.

Roxana Parsa, a staff lawyer with LEAF, acknowledges there can be skepticism of these models and says they are not advocating the approach for everyone.

"There are situations where this does work, where both sides feel they can engage and that it will result in a non-adversarial process that will bring healing or restitution or some sense of justice to at least the survivor, but also maybe the perpetrator," Parsa says. 

According to Parsa, these approaches have a long history in Black, Indigenous, and other communities that have reasons to distrust the legal system. What's more, survivors typically have a limited role in the criminal process, often only as witnesses, which can re-traumatize them. Restorative or transformative justice can provide a survivor-centered approach, by involving a surrogate to represent the perpetrator, for example, to help the survivor communicate better.

"The criminal legal system doesn't seem to function well for survivors of sexual violence, and we've seen that over and over again for decades now," Parsa says. "It's pretty well accepted now that it fails them."

She adds that the moratoriums imposed on sexual violence programs were intended to allow the provinces time to adapt to the changes -- never to be permanent. Now, we have decades of research uncovering the many survivors who speak to the ongoing failures of the criminal legal system. "Only five percent of people report," says Parsa. Most prefer not to subject themselves to the system.

The key for some, she says, is to have the option to participate in these programs if they believe they can be beneficial in their specific case.

Kyla Lee, a criminal defense lawyer at Acumen Law Corporation in Vancouver and chair of the CBA's criminal justice section, mentions that the CBA has not officially endorsed these programs, but she personally supports them. 

"Anything that diverts things away from the trial process is good for the justice system and good for the parties involved," she says, adding that sexual assault trials are costly and resource-intensive. Changes to the Criminal Code have made them more complex, with numerous pre-trial applications required to introduce records and get permission to cross-examine complainants.

Lee says that moving these cases out of the system can relieve the overall burden on the justice system. Also, it can be distressing for complainants to undergo cross-examination at trial in an environment that is not trauma-informed, given the adversarial nature of criminal trials.

Restorative and transformative justice provides safer spaces for people to "explore what happened," she says. She adds that being outside the public eye offers accused individuals a preferable alternative to potentially facing public exposure and the potential repercussions of allegations affecting their employment and relationships. And whereas nobody is ever happy at the end of a sexual assault trial, a restorative justice process tends to leave people feeling that they got what they came for.

Susanne Zaccour, the director of legal affairs at the National Association of Women and the Law, applauds the report for supporting the needs of survivors looking to access different options. "Because the criminal justice system has its very serious limits," she says. "As a society, we have an idea of a good victim who does certain things, and it's very narrow."

"They go to the police immediately and want a criminal response, and while this is the desire of some victims, others want an apology or reparations, so making these other avenues better known and clarifying that there is no single appropriate way to react when someone has been sexually assaulted and giving legitimacy to different ways of responding is important."

Zaccour also stresses the need for a more trauma-informed criminal justice system. NAWL has collaborated with LEAF and other organizations to advocate for legal reform, such as Bill S-12, which passed in October, enabling survivors to share their stories without facing criminal penalties.

Pushing for these changes will likely face resistance to change funding these programs has hardly been a priority for the government, says Lee. There's also concern that restorative processes could expose individuals to civil liability, making them more susceptible to civil lawsuits.

Even so, Lee perceives a general consensus among criminal practitioners on both the Crown and defence side that sexual assault trials have become unnecessarily complex, time-consuming and traumatizing for the people involved.

But changes must also consider social support needs that the provinces have been reluctant to fund. In addition, the report recommends the creation of a directory of services that people in the system, such as Crown lawyers, can access to discover what's available if they hope to divert people away from the criminal system. 

Ultimately, governments need to reconsider their funding priorities, shifting away from a solely carceral approach and redirecting resources toward restorative or transformative justice, community programming, and independent legal advice, says Parsa. "If you're funding safe housing, counselling, and social supports for women as a way to prevent violence, and for those who are experiencing violence to put them in a place where if they want to seek some sort of redress, they can do that but they need somewhere to live first," she says. "That's where the real funding emphasis should be."