Quebec considers sexual assault courts

That’s why she is nonplused by all the hoopla and handwringing over an idea now being formally discussed to create a new division in the Court of Quebec to handle cases of sexual assault and domestic violence.

It would be the first court of its kind in Canada.

“Specialized courts are not a new notion or concept,” says LeBel, a veteran criminal and prosecuting lawyer who earned fame as the feisty chief prosecutor of the Charbonneau Commission in televised hearings on collusion in the Quebec construction industry.

“What is important to understand is that sexual crimes have a different psychological element in that victims are judged by their actions or inactions,” says LeBel, who was elected with the majority Coalition Avenir Québec government in October. “This requires education and certain types of understanding to judge criteria differently in that context.”

The idea for a new court has been gathering steam since November, when Quebec Premier François Legault said he was open to a proposal by Parti Québécois MNA Véronique Hivon for a non-partisan revamping of how sexual accusations are handled in the aftermath of the #MeToo movement.

The main tenet of Hivon’s proposal is the creation of a new division in the Court of Quebec — like the penal, civil and youth divisions — with judges, lawyers and legal experts trained on the effects of trauma on victims of sexual assault.

“A specialized court could help to reduce delays and provide better support for victims,” says Hivon, a trained lawyer and social policy expert who notably championed the right-to-die legislation passed by Quebec in 2014 — the first Canadian province to do so.

Hivon is also calling for a streamlining of legal and social services for victims of sexual assault.

“Many of these resources already exist but they are compartmentalized,” she says. “Victims have to go and knock on different doors to get the help they need. They feel abandoned.”

In January, LeBel met with Hivon and MNAs from Quebec’s two other political parties in a working group to explore ways of making the province’s justice system more sensitive and responsive to the situation and needs of victims of sexual abuse and domestic violence.

More meetings are planned with various legal and social stakeholders, including women’s groups, judges, lawyers and police.

Many of the publicly proposed actions were recommended a year ago by a working group set up by the Barreau du Québec.

The group was set up to examine how sexual assault cases were handled in Canada following several high-profile cases, including Jian Ghomeshi in Toronto and Gilbert Rozon in Montreal.

The group’s recommendations included the creation of specialized sexual assault units for police and training for defence lawyers on best practices for cross-examining vulnerable people.

“Action must be taken immediately to ensure fairer treatment for victims of sexual violence,” Barreau president Paul-Matthieu Grondin said then. “As a society, we must act.”

Proponents for the legislative enactment of a new specialized court for sexual assaults in Quebec point to a recent report by UN Women that lauds the performance of such tribunals in South Africa, where sexual assaults are rampant.

Closer to home, a decade-old domestic violence court in Moncton, N.B. has dedicated judges, Crown attorneys and police officers who handle cases during 1.5 days of sessions a week.

“It has certainly made for a very educated community in regards to cases of sexual assault and domestic abuse,” says Joanne Boucher, a social worker and the court’s co-ordinator since its inception in 2006.

According to Boucher, who did a presentation on the court at an interprovincial forum on judicial treatment of domestic violence in Montreal in 2015, the court’s strength is a collaborative approach that connects victims, social services, lawyers, probation officers and child protection services.

For McGill University law professor Marie Manikis, an important aspect of the proposed specialized court in Quebec is that is would serve as a “one-stop shop” where complainants could receive comprehensive information on the criminal justice process and the services available to them.

“In this respect, the primary aim of this new court is not necessarily to obtain convictions but to empower complainants through the provision of information that can enable them to choose from the range of avenues the ones that best address their complex circumstances,” she says.

She adds that another notion being considered for sexual assault cases in Quebec — the establishment of a prosecutorial review process — is an initiative that exists in England and Wales.

“The Victims’ Right to Review Scheme, established in 2013 by the Crown Prosecution Service, enables any victim to seek review of a prosecutorial decision to bring charges or terminate proceedings,” says Manikis. “Values of accountability and transparency underpin this process.”

Some Quebec defence lawyers, however, expressed fears that the proposed changes could lead to a revolutionary shift in the evidentiary burden to prove criminal offences beyond a reasonable doubt from prosecutors to the accused.

“The cornerstone of our criminal justice system is the burden of proof,” says Mia Manocchio, a criminal defence lawyer in Sherbrooke and president of the 600-member Association des Avocats et Avocates de la défense, Quebec’s largest group of defence lawyers. “As defence lawyers, we want to make certain that people’s fundamental rights are maintained.”

According to Manocchio, the new court idea is being driven by public indignation over the lack of charges laid against celebrities such as Rozon for alleged sexual crimes dating back years, even decades.

“Some people are taking a scorched-earth approach to how accusations of sexual assaults should be handled,” she says. “But the question of initial engagement and whether a case should even be authorized has a direct impact on my clients, who are my only concern. But that doesn’t mean we are against exploring new avenues and solutions that will improve the system.”

For her part, LeBel says she is approaching the topic with an open mind — to a certain point.

“Is a specialized court the way to go?” LeBel asks rhetorically. “I’m not sold on the idea, but it is a possible solution on my radar. It could be a means to an end, which is the best possible treatment of victims in the justice system.”

She adds that, under the current system, victims often feel lost and abandoned.

“We could look at things more from the perspective of the person and adapt the system to them, not the other way around,” says LeBel.

“But we’re not going to shake the foundations of the law. We will not change the burden of proof.”