The Supreme Court’s thundering decision in favour of abuse victims

But is the defence bar listening?

Victims of sexual abuse, particularly childhood sexual abuse, have two legal forums where they can seek redress for what they have suffered.The criminal court, where the focus is punishing the offender, and the civil court where the focus is on making the victim whole as well as our legal system can.

The common denominator in both systems is that the abuser, the institution behind them, or an insurance company hires a lawyer to try to defeat the claim put forward by the abuse survivor.

Now the adversarial system needs competent defence counsel; they play a critical role in achieving just results in civil and criminal cases.But in a sensitive field like sexual abuse, sometimes the defence can be too aggressive, unfair or use inappropriate tactics to protect their clients from otherwise meritorious claims.A defence council’s desire to protect their clients can lead to them stepping beyond the borders of good taste and respect, resulting in survivors being revictimized all over again.

One of the defence’s traditional tactics is to downplay the seriousness of the sexual violence the survivor has suffered. They suggest that it was “only” one incident.They choose language designed to downplay the harm inflicted by their client, claiming that it was “just” an over-the-clothes grope, or a “minor” fondling that took place.They try to create a narrative where a sexual assault was just an insignificant event in a life otherwise filled with more significant disasters.

This kind of harmful minimizing of sexual assaults has now been completely rejected by the Supreme Court of Canada, which excoriated many of the myths put forward by defence counsel to defeat meritorious claims.

R. v. Friesen is a case where the Supreme Court took a deep dive into how to sentence people who sexually abuse children. Our highest court had been hearing all of the usual arguments and decided that it had heard enough. In a lengthy judgment, the court eviscerated many of the typical defence arguments.

The Court literally wanted to send some messages to the legal profession, and came out of the gate firing on all cylinders:

“Children are the future of our country and our communities. They are also some of the most vulnerable members of our society. They deserve to enjoy a childhood free of sexual violence. Offenders who commit sexual violence against children deny thousands of Canadian children such a childhood every year. This case is about how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children.”

And that was just the beginning. In very clear language, the court shifted the way judges across our country are required to think about the sexual abuse of children.

Before examining more portions of this paradigm-shifting decision, a word on the importance of a Supreme Court decision is in order.Once the Supreme Court pronounces on an issue, there is no more wiggle room left.Their decision is the highest law in the land and judges and lawyers are bound to follow their directions precisely.To ignore their directions invites great legal peril.

After stressing the profound nature of the harm caused to children by sexual abuse, the court went on to build the new legal framework we are all required to respect in these types of tragic cases.

The court ruled that virtually all aspects of a child’s life are damaged by sexual abuse:

“Sexual violence against children is thus wrongful because it invades their personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity.”

The decision brought into sharp focus the fact that all sexual abuse of children is violence.Not just wrong but sexual violence.Defence counsel now cannot suggest that any act of sexual abuse by an adult to a child is not violent, even if it does not involve any physical contact at all (a more common occurrence in internet luring situations).The wiggle room is gone:

“any physical contact of a sexual nature with a child always constitutes a wrongful act of physical and psychological violence even if it is not accompanied by additional physical violence and does not result in physical or psychological injury. Courts must always give effect to this inherent violence since it forms an integral component of the normative character of the offender’s conduct”, and:

“As we have explained, any manner of physical sexual contact between an adult and a child is inherently violent and has the potential to cause harm. Even in child luring cases where all interactions occur online, the offender’s conduct can constitute a form of psychological, sexual violence that has the potential to cause serious harm.”

Thus, any type of sexual interaction between children and adults is always non-consensual and always inherently violent by its nature.

Recognizing that many courts are not yet applying appropriate modern standards to the handling of sexual abuse cases involving children, the court directs them to do so immediately, and bars them from relying on outdated stereotypes to deny survivors justice:

“Courts must also take the modern recognition of the wrongfulness and harmfulness of sexual violence against children into account when determining the offender’s degree of responsibility. They must not discount offenders’ degree of responsibility by relying on stereotypes that minimize the harmfulness or wrongfulness of sexual violence against children.”

Lastly, and perhaps most importantly, the court directs that not just judges, prosecutors, police, and health care professionals play a role in eliminating and reducing the harm of this scourge, but that we all do.And that direction particularly applies to the members of the legal profession who deal with cases involving sexual violence against minors.

The court opined:

“We wish to make clear at the outset of our discussion of these sentencing principles that we recognize that criminal justice responses alone cannot solve the problem of sexual violence against children. Rather, guaranteeing children in Canada a childhood free of sexual violence requires coordinated action by all levels of government and by civil society across policy domains as diverse as healthcare, education, and child welfare.”

If defence lawyers want to be part of civil society, they, too, have a role to play in solving the problem of sexual violence against children.Rather than engaging in personal attacks, rough house tactics and delaying cases (which only prolongs the suffering of the survivors), they must choose to treat these people with dignity and respect and help effectively shepherd these cases to a swift and fair conclusion.

Gamesmanship has no place in cases where a child has been the victim of sexual violence.It appears that some lawyers in the civil defence bar have not gotten the message.

Until they do it will be up to judges to force them kicking and screaming into the modern era.