The Globe and Mail with Elizabeth Sheehy 18 January 2018
Two new Crown attorneys dedicated solely to the prosecution of sexual-violence cases have been hired in Nova Scotia.
Constance MacIsaac and Danielle Fostey will prosecute some cases directly, although part of their mandate includes providing advice and specialized training to other Crown attorneys working on sexual-assault cases. They will also develop measures for monitoring Crown attorney performance in the prosecution of sexual-violence cases, which have historically low conviction rates across the country.
“Often, these cases are very complex and require the expertise of a specialist,” Nova Scotia Premier Stephen McNeil said. He said his government wants to “ensure that when someone is brave enough to come forward with a very traumatic experience … that we have the capacity to conduct the appropriate prosecution and the skill set required.”
Called an “enhanced prosecution model,” Nova Scotia’s new system is similar to one developed recently in Ontario, wherein senior Crown attorneys with expertise in sexual assault cases provide ongoing advice and sometimes mentoring to trial crowns. Both provinces are in the midst of implementing strategies to tackle sexual violence that include specialized assistance for victims, police service audits, training for police, Crown attorneys and strengthened relationships with victim advocacy groups.
“It’s critically important given the small conviction rate for sex assaults and it holds great promise for having a more consistent and informed Crown prosecution,” said Elizabeth Sheehy, who teaches sexual-assault law in the faculty of law at the University of Ottawa.
Sexual assault is one of the most under-reported crimes in Canada; of those that are reported, only a small number make their way through the criminal justice system and result in a conviction. According to Statistics Canada, less than half of all sexual assaults reported to and substantiated by police between 2009 and 2014 resulted in a criminal charge being laid. Of those, one in five went to court; from there, slightly more than one in ten – 12 per cent – led to a criminal conviction.
There are several initiatives under way across the country that aim to improve those statistics, including courts that specialize in domestic violence. Ms. Fostey leaves a position as lead Crown attorney on domestic violence in Fort McMurray, Alta., while Ms. MacIsaac, who has amassed much experience working in cases that involve gender-based violence, joins the province after a term at Nova Scotia Legal Aid.
Ms. Sheehy, who has been closely monitoring work done by the senior Crown attorneys in Ontario with sex assault expertise, said their work is “promising,” but it is too soon to evaluate whether the group has been effective.
“I can’t say for sure that this is a magic bullet,” she said. “But I do think having prosecutors at a senior level who have their eye on the jurisprudence developing in the province is really important.
“Sexual-assault law has become a very complex area of law that Crown attorneys need assistance with.”
There are a number of challenges facing prosecutors in sexual-assault cases, she said, including the fact that offences usually occur in private without witnesses, and impairment or intoxication is common. Prosecutors often have to battle stereotypes, contend with rape myths and be cautious not to avoid retraumatizing a victim while handling the complex legal issues around consent.
All of the aforementioned issues arose in a taxi assault case involving an intoxicated female victim heard in Halifax last year. The accused, cab driver Bassam Al-Rawi, had his pants undone, partially lowered and was between the legs of the 28-year-old victim when she awoke after losing consciousness for about 10 minutes in the back of his car. Fully dressed when she got in the cab, the victim awoke naked from her breasts down; her legs were propped up on the bucket seats in front of her in a splayed position. Issues surrounding the victim’s intoxication and ability to consent factored in the judge’s decision to acquit Mr. Al-Rawi.
The decision is now under appeal and has sparked widespread criticism of how Nova Scotia’s courts handle sexual-assault cases. In a paper published by the Canadian Bar Review, Elaine Craig, a professor who specializes in sexual-assault law at Dalhousie University’s Schulich School of Law, said the acquittal “suggests a failure of our legal system to respond appropriately to … sexual assault.”