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Putting Trials on Trial

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I remember sitting at my kitchen table when the verdict of the Jian Ghomeshi trial was announced on CBC. When the news reader said not guilty my phone started buzzing. Emails started coming in. Friends and colleagues began checking in with one another, first in disbelief, then in a panic and finally in resignation.

Why, in a country with some of the most robust rape shield laws in the world, do fewer than one percent of sexual assaults result in legal sanction for the perpetrators? Why, in Canada, do more than ninety percent of sexual assaults go unreported? According to the meticulous and unflinching work of Professor Elaine Craig the answer is this: the process is unnecessarily and, sometimes, unlawfully punitive towards the complainants.

Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession was, as other reviewers have noted, written and researched prior to the most recent deluge of public attention around systemic sexual harassment and assault. Craig, an associate professor at Dalhousie University’s Schulich School of Law, conducted her exhaustive research before #MeToo gained viral traction and before the development of the legal fund #TimesUp.

And yet, Craig’s case studies are contemporary: not a single case examined occurred prior to 2009. Indeed, the cases Craig unpacks are in great part the material of headline news: the alleged sexual assaults by Jian Ghomeshi, the legal failings of Judge Greg Lenehan in his proceeding over the Halifax taxi driver assault case, the disciplinary action taken against former Justice Robin Camp for his behaviour in a sexual assault trial in Alberta. As Craig outlines in her introduction, the justice system in Canada does not protect the most vulnerable. Rather, in many cases the justice system compounds violence.

In clear, concise language Craig explains how, despite changes to the legal system in the 1970s and 1980s, complainants’ experiences in the courtroom have not been eased. Instead, in example after example, Craig demonstrates that reporting sexual assault and pursuing legal action compounds a complainant’s trauma. Drawing directly from trial transcripts, Craig shows the ways in which defense lawyers rely on tactics of aggression that often cross lines of legality. Page after page of carefully documented evidence demonstrates that if you experience sexual assault and attempt to seek justice in Canada through the legal system you are almost certainly going to experience the opposite. Take, for example, a quote from a Crown attorney interviewed as a part of a 2013 study on the effects of the Victim Impact Statement:

I did not want it to happen this way but it went down that I had a prostitute complainant not show up for court, and I had her arrested on the street that night where she worked so that she could come and testify. She sure as hell wasn’t sticking around to file a [Victim Impact Statement] afterwards.

This is but one of the scores of astonishing pieces of evidence Craig offers to demonstrate the ways in which the system fails complainants at nearly every level. From the various ways in which the Crown fails complainants, to the near-systemic damage caused by trial judges who fail to protect complainants from being attacked on the stand, to the calculated tactics of re-traumatization used and passed down by defense lawyers, there is no denying that the system is broken.

If chapters outlining the fissures in the profession itself—the defense-counsel myths, the failures of the Crown and Juridical error—are somehow not enough to convince readers that we are in a justice crisis in Canada, consider this: Craig asked all of the criminal defense lawyers she interviewed the same question. “If you or someone you cared about were sexually assaulted, would you recommend reporting it and pursuing criminal conviction?”

Almost all of the lawyers interviewed said no, they would not advise loved ones to seek justice through the legal system.

This is a devastating book in both its form and its content. What is perhaps most devastating is Craig’s methodology. Her research and writing are even keeled. At no point does she demand change.

Instead, through evidence-based research, she presents the system as it is. It is up to those working within the system to implement changes to make it what it should and could be: a place to seek and find justice.

Putting Trials on Trial
Elaine Craig
McGill-Queen’s University Press

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Happy International Women’s Day! Atlantic Books Today salutes the many women who have struggled for equality, for women’s rights, over the centuries. And, as is our wont, we express gratitude to the writers of astute feminist analysis, the groundwork for progress in policy and human behaviour that can, we hope, result in true equality for all genders. This analysis is found in fiction, fact and poetry, and has been for some time. But recently, there’s been a real wave of new books that aren’t afraid to embrace feminism. Here are just five of the many from Atlantic Canadian writers and publishers:

Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession by Elaine Craig. Craig is an associate professor in the Schulich School of Law at Dalhousie. She covers a variety of sexual assault trials (and accompanying scandalous behaviour from members of the legal profession), including “the failings of Judge Greg Lenehan in the Halifax taxi driver [sexual assault] case.” As Clayton Ruby put it, “This spectacular, thoughtful, and hard-hitting book pushes all of us to reconsider the impact of trials on those caught up in the justice system. Elaine Craig has done us all a service. This is the most important book you’ll see this year.”

 

No Choice: The 30-Year Fight for Abortion on Prince Edward Island by Kate McKenna. Award-winning CBC journalist Kate McKenna points out that while abortion has been legal in Canada for nearly 50 years, the provincial government of Prince Edward Island refused to bring abortion services to the Island in the face of protests from a very vocal minority Right to Life movement until 2016. It is a story of an ideological battleground, a very practical need being denied and courageous women willing to work and fight for their rights.

The Witches of New York by Ami McKay. In her essay on Ami McKay’s novel, Witches of New York, St. John’s novelist Michelle Butler Hallett says “A particular delight of McKay’s novel…is how the female characters determine, for themselves, an answer to the question, ‘Who am I?’” In this work of historical fiction, McKay embodies a feminist perspective by presenting women taking enormous risks to live their lives as they please. Equally significance, male characters struggle with restrictive definitions of manhood. It is a subtle yet significant (and necessary) critique of what men do to maintain their unequal power.

Notes From a Feminist Killjoy by Erin Wunker. As an academic and a writer and a new mother, Wunker faced a common, practical problem. As a primary caregiver to an otherwise helpless (at times sleepless) infant, she lacked the time to seriously engage in proper thought, analysis and expression of ideas. But she still had ideas, some of them having to do with this motherhood. She came up with an innovative solution, writing in “small bursts, on what seemed like little Post-it notes of time.”Killjoy is a series of brief essays that are times humourous but always hard hitting, tackling rape culture and patriarchal “joys” like catcalling.

F-Bomb: Dispatches From the War on Feminism by Lauren McKeon. Like the other four book on this list, F-Bomb is clear that the struggle is far from over. She writes: “I want nothing more than for all the women who have dedicated their lives to feminism to retire and sip pina coladas on the beach while women and girls everywhere enjoy the fruits of their labor. Equal pay, lives free of violence, equal representation in positions of political power, absolute reproductive rights, harassment-free working environments, and about a bazillion other things. But I just don’t see that paradise yet.” McKeon proceeds to present a sophisticated and fascinating look at feminism and anti-feminism, arguing that feminists need to understand their movements flaws and mistakes to make it ultimately more appealing and powerful.