Technical Brief - Rethinking Justice for Survivors of Sexual Violence

Introduction

Sexual violence remains one of the most underreported crimes in Canada. Despite decades of reform, only 6% of sexual assaults are reported to police.

Furthermore, according to a 2024 Statistics Canada report, for every 1,000 sexual assaults that are reported to police, just under 22% of those reported went to trial.

On the other hand, prosecutors and judges have shared with us that the majority of their caseload is sexual assault. Courts are under resourced, delays are overwhelming, and cases are complex. Sometimes people working in the system experience vicarious trauma.

Our criminal justice system is failing us. And this is a problem for all of us.

Prevention is best. But when a crime does occur, it is in everyone’s best interest to have a criminal justice system we can rely on.

Our Office

We are the Office of the federal ombudsperson for victims of crime. The ombudsperson, Dr. Benjamin Roebuck, is a special advisor to the federal Minister of Justice.

Our Office:

• Promotes access to federal victim services
• Reviews fairness within those services

Victims of crime contact our Office to report violations of their victim rights under the Canadian Victims Bill of Rights (CBVR). The CVBR was enacted in 2015 and is quasi constitutional legislation.

Over the years, we were hearing increasingly from survivors of sexual violence about many barriers to reporting and barriers navigating the system. Our mandate allows us to conduct investigations when there are systemic issues affecting victims of crime.

We have learned that:

• There is a general lack of trust in the criminal justice system.
• This lack of trust, lack of reporting, lack of perpetrators being held accountable, delays upon delays, and re-traumatisation of survivors, brings the system into disrepute.

Investigation Overview

We launched our investigation on the experiences of survivors of sexual violence and the criminal justice system in March 2024. We knew that there was a lot of existing knowledge – advocates, survivors, sexual assault centres, and academics, have been crying out for years, that survivors of sexual violence are not accessing justice and the system is failing them.

Our goal was:

• To learn from and build on the work others have done
• To be guided by the voices of survivors.

When we launched our investigation, over 100 survivors contacted our Office, asking to share their experiences. Not because it would benefit them, but because they don’t want others to be harmed like they were. They want change. They expect change.

Some survivors shared with us that when they went to police to report, the police officer warned them against it. They said, if it were my daughter who was sexually assaulted, I would advise her not to go through with it.

Imagine a police officer giving this advice to survivors because they know how retraumatizing the criminal justice process is. 

And then other survivors shared that they did report, went through the whole process, got a conviction, and still regretted ever having reported in the first place. The pain and suffering they endured throughout the process was not worth the conviction. To the police officers’ point.

That doesn’t sound like a justice system that we can rely on.

Report Methodology

Our methodology focused on learning from the expertise of survivors.

Data Collection:

• 107 open-ended interviews with survivors
• 600 interviews with other experts in the field. Those interviews guided us to the specific issues we then focused on.
• 36 consultation tables across hosted across various sectors
• launched an anonymous survey that resulted in 450 stakeholder responses and 1000 survivor responses
• Review of 300+ media articles, 48 written submissions, and 750 court judgements

Advisory Framework

We were guided by an advisory and consultation framework, namely an expert advisory circle composed of 16 members from across Canada.

Chaired by well-known expert in the field Sunny Marriner, including:

• Survivor-advocates
• Legal professionals
• Clinicians
• Frontline anti-violence workers
• Academics

This advisory circle played a central role in guiding the investigation, offering insights on emerging issues, identifying gaps, and validating findings.

We also consulted with a Federal Interdepartmental Committee, comprised of working level representatives from various federal departments.

Our Office has standing advisory circles who provided guidance. They are:

• A First Nations, Inuit, Métis Advisory Circle
• An Academic Advisory circle
• And a Frontline Services Advisory circle

Our report contains ten chapters, each with a different focus. You’ll notice that each chapter starts with a two-page spread, with visuals to capture highlights.

Please refer to those pages for a quick view of our data and key ideas.

Recommendations

Our investigation culminated in 43 actionable recommendations. We carefully crafted recommendations that we believe are achievable, attainable, cost-efficient, and necessary. I will be touching on some of them as I speak.

Reporting

Systemic, practical, and identity-based barriers often make reporting unsafe and inaccessible.

Low reporting rates reflect a system that fails to ensure safety, dignity, and accountability.

Survivors in rural, remote, and northern communities described additional barriers to reporting, such as:

• lack of services,
• transportation barriers, and
• lack of accommodations for people with disabilities.

Indigenous, Black, 2SLGBTQI+ survivors, and survivors with disabilities experience additional and intersectional barriers to reporting and navigating the criminal justice system.

Survivors don’t report sexual violence for many reasons including an intense fear of disbelief, shame, and judgment. When they do report, they do so from a deep sense of responsibility to protect others.

We heard from survivors that they do not receive sufficient information about the process or what to expect. After reporting, they sometimes don’t receive any information or communication for lengthy periods of time.

We also learned about a positive development: according to our survivor survey, of those who reported to police, nearly half indicated they felt believed by police, marking a notable step forward.

Recommendation: Our Office recommends that survivors need to feel safe when they report and they need to be pro actively provided information about their rights.

R v. Jordan

Our next chapter is about the impact of a 2016 landmark case, R v. Jordan. The Supreme Court of Canada held, that in order to meet accused’s’ Charter rights to trial within a reasonable delay, trials could no longer exceed 30 months in superior courts and 18 months in provincial courts.

While this is a laudable decision in many ways, it has had devastating unintended consequences for survivors and their families.

Can you imagine mustering the courage to report then going through years of waiting, sometimes going through the devastating experience of testifying, then being told that the charges were stayed because the system took too long to try the accused?

When a Jordan stay is declared, the survivor loses access to bail conditions protecting them from the accused, leaving the survivor with no way to appeal and no chance to hold the perpetrator accountable in criminal court.

• Serious sexual assault charges, even against children have been stayed due to the Jordan decision.
• The current approach to R v. Jordan is compromising access to justice, violating the rights of victims of crime, and undermining public confidence in the judicial system in Canada.

Delays and stays have become unbearable. 

Recommendation: Our Office recommends that we minimize the harm from the unintended consequences of R v. Jordan.

Private Records Regime

Great efforts have been made over the years to ensure greater protections for survivors, to increase reporting and to encourage that survivors access mental health supports.

Despite those efforts, we have learned about devastating unintended consequences of the current private records regime, which in some circumstances may allow access of a survivor’s therapeutic records to the accused.

Before we launched our investigation, we were approached by a group called Survivor Safety Matters. One of the survivors had experienced sexual assault in the military. After she reported and the person was charged, the defence subpoenaed seven years of records from her counselling sessions. She was distraught that the person who assaulted her could have access to her most private conversations that took place in a therapeutic setting. Because she did not know what the outcome would be of his subpoena, she could not bear the risk of him accessing her intimate therapy records. She made the decision to ask the Crown to stay the charges.

The private records and sexual history regimes have harmed the mental health of survivors.

The risk of personal therapy records being disclosed in court means that many survivors felt like they had to choose between justice or getting mental health help.

During our investigation, a Crown prosecutor told us that a complainant was cross-examined for several hours about a dream she had confided in her therapist about, in a private counselling session, and how the dream differed from her testimony.

Survivors should not feel obliged to choose between reporting and accessing mental health supports.

Recommendation: Our Office recommends that we ensure better protections for therapeutic records and that survivors should not have to choose between potentially life saving mental health supports and holding perpetrators accountable.

Cross-Examination and Trial Fairness:

Cross-examination is an integral part of the truth-seeking function of a criminal trial but it can be profoundly and needlessly traumatizing for survivors.

We heard that myths and stereotypes continue to be relied on during cross examination, raising unfair doubt about the credibility of survivors. Even though the Supreme Court of Canada has clearly stated that it is an error in law to rely on myths and stereotypes, we still heard current examples of myth-based questioning.

We also heard about intimidation and ruthless cross examination tactics. 

People with intellectual disabilities experience disproportionate rates of sexual violence yet they are too often considered unreliable witnesses because they struggle with some of the traditional cross examination techniques.

We learned that there are ways for survivors, including vulnerable survivors, to feel more comfortable on the stand to be able to express what happened. For example, some Crown prosecutors told us about trauma informed prosecutions, that take into account the neuroscience of trauma.

Understanding the range of normal responses to trauma can prevent survivors from being unfairly treated as not credible or not reliable.

Since the objective of a criminal trial is truth-seeking, we should ask questions that facilitate that objective rather than interfere with it.

One survivor we met told us that while she was being cross examined, intimate images that the perpetrator had filmed while assaulting her were projected in the courtroom. The defence occasionally paused the videos and questioned her about it. This public humiliation not only retraumatized her but also prevented her from being able to give her testimony to the best of her ability.

Recommendation: Our Office recommends that we humanize cross examination and that we implement trauma informed prosecutions in all sexual assault trials.

Testimonial Aids

Testimonial aids are tools that help a person testify more comfortably. They can include:

• Testifying behind a screen so the survivor doesn’t have to look at the person who harmed them
• Having a support person or a support dog by their side
• Testifying from closed circuit television from a different location

Many judges and lawyers recognize that testimonial aids can help witnesses provide their best evidence while not violating an accused person’s rights to a fair trial.

Offering testimonial aids are positive advancements in the criminal justice system.

Yes, access to testimonial aids varies across the country, depending on jurisdiction and location.

We heard that defence are increasingly objecting to testimonial aids and court time and resources are spent arguing whether or not they should be granted.

Some survivors shared with us that they were not informed that they were allowed to request testimonial aids. If they aren’t pro actively told, how are they supposed to know they can request it?

Certain testimonial aids are presumptive upon request for children and people with disabilities, but survivors and stakeholders told us that they should be automatically offered to all complainants of sexual violence.

A courtroom is already an intimidating place. Testifying in front of a person who harmed you can exacerbate the feeling of intimidation. Ruthless cross-examination can lead to confusion.

Testimonial aids can provide a sense of safety and comfort to survivors while they have to re-live a traumatic experience and answer questions about it.

Recommendation: Our Office recommends that we offer testimonial aids proactively to all survivors of sexual assault.

Victim Impact Statements

A victim impact statement is a written statement that describes the harm that the victim of an offence has suffered.

The Court must take the statement into account when sentencing an offender. Victim impact statements were an important advancement in including the voice of the survivor in the criminal justice system.

In our criminal justice process, the victim has no standing. The victim is a witness to the crime: a crime is treated as though it were committed against the king.

The victim impact statement allows victims to explain to the Court and the offender, in their own words, how the crime has affected them.

But Victim Impact Statements are often redacted, which limits or eliminates the authenticity of the survivor’s voice.

Numerous victims and victim services professionals told us that the scale of the redaction was so complete that the statement was no longer their voice.

Recommendation: Our Office recommends that we stop over-redacting victim impact statements.

Restorative Justice

RJ is an approach to justice that seeks to repair harm. It is a voluntary, consent-based approach, which can allow survivors to participate more safely and on their terms.

RJ offers an alternative. It doesn’t replace the criminal justice process.

We heard from survivors and stakeholders, that survivor-led and culturally safe restorative justice programmes can meet needs the courts can’t meet. Perpetrators are held accountable and take responsibility in RJ processes.

RJ offers various approaches depending on the specific situation. For example, the survivor and the person who harmed them are not required to meet face to face.

The Canadian Victims Bill of Rights provides a right to information about RJ, but it is not routinely offered, explained, or accessible. 

Restorative justice remains largely inaccessible to survivors of sexual violence due to provincial and territorial policies that prohibit its use in these cases.

On one hand, some advocates have concerns that RJ shifts gendered violence back into the private sphere.

But others believe RJ is a much better alternative to the criminal justice process and that survivors should be offered RJ options and information to make informed decisions about what is best for them.

Survivors are demanding to have more choices, participation, and their voices heard. With inconsistent funding, RJ programmes are not always accessible.

Recommendation:  Our Office recommends that we allow survivors more voice and more options, including restorative justice options.

Independent Legal Representation/ Independent Legal Advice and the CVBR

The CVBR is a significant advancement for victims and survivors of crime in Canada, marking a culture change in Canada’s legal framework. The broad range of rights it endows, along with its primacy over other legislation, gives it the potential for considerable impact.

Consistently applied, it would provide victims with a stronger voice in the criminal justice system.

Many survivors shared that the amount of research they had to do made them feel like they earned a law degree. They had to teach themselves how to navigate a very complicated and confusing system that was written for lawyers.

Unlike with accused who are, rightly so, automatically informed of their rights including the right to have a lawyer, many survivors shared that they were left in the dark.

They are not proactively provided information. The CVBR provides them the right to information, upon request, but you don’t know what you don’t know.

We heard that having a lawyer to represent or provide advice to survivors reduces anxiety and helps them understand the process.

In a recent report by Women’s Legal Education and Action Fund (LEAF), they wrote that Independent legal advice “is critical for survivors to make educated decisions on how they want to proceed following sexual violence or to provide guidance on their involvement in the formal legal system.”

Recommendation: Our Office recommends effective rights and representation for survivors of sexual violence.

Access to Services:

Survivors of sexual violence should always have access to services that treat them with dignity and respect.

We learned that the number one barrier to services is information. Without a right to be proactively informed about support services, too many survivors are unaware of what is available.

Survivors who did access sexual assault centres and various other victim services, shared with us that they were their lifeline.

The scarcity of services in rural and marginalized communities can lead to overwhelmed service providers and compromised quality.

Children across the country have very inconsistent access to services. Whether or not a child has access to justice should not depend on where they live in Canada or on their individual identity.

Circuit courts in remote communities often happen in the local arena and become a community social event.

• Children in these communities sometimes have to walk past people they know as they prepare to testify
• In some rural communities, courthouses do not have a separate room where a child can testify or meet with the Crown
• We heard that children are sometimes forced to meet with Crowns or victim service workers in broom closets

Child and Youth Advocacy Centres are evidence based best practice models that offer child forensic interviews and child friendly interview rooms, wraparound supports, and CCTV testimony but are not always accessible in all geographic regions and their funding is at risk.

Survivors of sexual violence should always have access to support services regardless of sex, gender identity, race, culture, language preference, age, geographic location, disability, or other characteristics – consistent with the principles of procedural justice. When victims lack support, they may face significant isolation and trauma. A lack of support can also impact their decision to engage in the criminal justice process. To be effective, support services must be culturally responsive, trauma-informed, and meet the survivor’s language and communication needs.

Recommendation: Our Office recommends that we prioritise access to services, that children have consistent access to child youth and advocacy centres, and that people who experience intersectional barriers have safe and responsive services no matter where they live.

Data and Accountability:

We are very fortunate in Canada to have Statistics Canada, that provides excellent and world leading statistical information.

Police-reported crime data and victimization surveys have advanced our understanding of victims’ issues across Canada.

However, there are big gaps in publicly available data. Data gaps can allow problems to stay undetected.

We believe that improved data will lead to better public policy, more satisfied complainants, and more efficient and fair criminal law.

When the right statistics are not collected, are collected but not published, or are published but not disaggregated, we don’t learn what we need to learn to use our energy, time, resources, and dollars most efficiently and most helpfully.

Recommendation: Our Office recommends that we collect better data for better accountability.

Conclusion

Canada can choose a different path:

• A path where survivors’ rights are fundamental, fully respected, and consistently enforced under the CVBR and Canadian Charter of Rights and Freedoms.
• A future where systemic delays are eliminated, cases proceed efficiently, and survivors’ access to timely justice is guaranteed.
• A justice system where survivors are given a fair chance at cross-examinations, and testimonial aids are widely available and tailored to survivors’ diverse needs
• A commitment to trauma-informed policing and investigative practices, where survivors feel believed, safe, and supported if they choose to report.
• A greater effort to collect helpful data, to understand the status quo in order to improve it
• A path with healing options and proactive information to survivors, and a chance to consider restorative justice, if they want it.

While a lot has improved over the years, we think implementing the changes we recommend will make a significant difference in the lives of survivors of sexual violence and will improve the ability of the criminal justice system to respond to these crimes in a manner that is fair to the victim and fair to the accused. These changes will lead to more accountability, more healing, and a safer society.

Thank you for listening. We would be pleased to answer any questions you have.