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Sexual Assault in Canada

Law, Legal Practice and Women’s Activism

Elizabeth A. Sheehy

Publication Year: 2012

Sexual Assault in Canada is the first English-language book in almost two decades to assess the state of sexual assault law and legal practice in Canada. Gathering together feminist scholars, lawyers, activists and policy-makers, it presents a picture of the difficult issues that Canadian women face when reporting and prosecuting sexual violence. The volume addresses many themes including the systematic undermining of women who have been sexually assaulted, the experiences of marginalized women, and the role of women’s activism. It explores sexual assault in various contexts, including professional sports, the doctor–patient relationship, and residential schools. And it highlights the influence of certain players in the reporting and litigation of sexual violence, including health care providers, social workers, police, lawyers and judges. Sexual Assault in Canada provides both a multi-faceted assessment of the progress of feminist reforms to Canadian sexual assault law and practice, and articulates a myriad of new ideas, proposed changes to law, and inspired activist strategies.

This book was created to celebrate the tenth anniversary of Jane Doe’s remarkable legal victory against the Toronto police for sex discrimination in the policing of rape and for negligence in failing to warn her of a serial rapist. The case made legal history and motivated a new generation of feminist activists. This book honours her pioneering work by reflecting on how law, legal practice and activism have evolved over the past decade and where feminist research and reform should lead in the years to come.

Published by: University of Ottawa Press

Title Page, Copyright Page

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Table of Contents

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pp. vi-

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Dedication

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pp. x-

This book is dedicated to all the Jane Does and the feminists who advocate for and with them: may you find validation, strength and inspiration among these pages to continue...

Part I 

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Foreword

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pp. 1-6

International Women’s Day is a time to remember past struggles, contemplate present realizations, and envision a path to a better future. I could not imagine a better day than March 9th, International Women’s Day, to hold the “Sexual Assault Law: Practice and Activism in a Post-Jane Doe Era” conference...

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Introduction

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pp. 7-22

This edited collection assesses sexual assault law, legal practice, and activism in Canada as of 2009. It represents both a celebration and a review of where Jane Doe’s brave advocacy has taken us in the more than ten years that have...

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1. The Victories of Jane Doe

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pp. 23-46

In 1986, an audacious woman known only as “Jane Doe” initiated a chain of radical actions against the Toronto Police on both political and legal fronts. In August of 1986 she had been raped in her bed in the middle of the night by a man armed with a knife. When she reported the crime to Toronto...

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2. Jane Doe v Toronto Commissioners of Police: A View from the Bar

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pp. 47-52

I kept a scrapbook during the trial and dusted it off to prepare this paper. The Jane Doe trial lasted eight or nine weeks in the fall of 1997 and received saturation coverage, largely due to Jane Doe’s media savvy. The Toronto Star, which at the time was the largest circulation paper in Canada, had a reporter...

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3. New Zealand’s Jane Doe

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pp. 53-72

Jane Doe’s protracted legal battle took place in Toronto, Canada, in the late 1980s to the late 1990s. On the other side of the world in the 2000s, New Zealand had its own Jane Doe. By briefly describing her journey and some of its outcomes, I also take the opportunity to honour those women whose costly...

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4. Hockey Night in Canada

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pp. 73-86

This is an excerpt from an email sent on 12 August 1998 by one of three female witnesses in the trial of former hockey coach and NHL player agent David Frost, who was tried and acquitted on four counts of touching for a sexual purpose. The trial was the latest chapter in a litany of chapters detailing...

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5. Indigenous Women and Sexual Assault in Canada

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pp. 87-110

We would like, first, to thank the Algonquin people for allowing us onto their territory. We would also like to thank the Indigenous women who have taken their cases to court, the families who support them, and the communities...

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6. Lawful Subversion of the Criminal Justice Process? Judicial, Prosecutorial, and Police Discretion in Edmondson, Kindrat, and Brown

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pp. 111-150

R v Edmondson, R v Kindrat, and R v Brown1 (2001–2008) provide disconcerting evidence that patterns of practice in sexual assault cases continue to be largely resistant to meaningful change at the grassroots level, at least in the province of Saskatchewan. Misunderstanding and confusion about the applicable...

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7. The Supreme Court of Canada’s Betrayal of Residential School Survivors: Ignorance is No Excuse

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pp. 151-172

I focus on the last of the nine decisions, EB v Oblates of Mary Immaculate in the Province of BC [Oblates]3 as an illustration of the court’s refusal to engage the realities of systemic inequality in institutional child abuse decisions. I argue that this refusal amounts to a stark indictment of the limits of our current...

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8. Sexual Assault and Disabled Women Ten Years after Jane Doe

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pp. 173-190

Ten years after the Jane Doe legal victory,1 and decades since the crime of sexual assault was reconceptualized in the Criminal Code,2 the specificity of the sexual assault of disabled women remains largely unaddressed and meaningfully...

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9. Police Investigation of Sexual Assault Complaints: How Far Have We Come Since Jane Doe?

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pp. 191-210

Jane Doe’s victory against the Toronto Commissioners of Police1 was expected to mark the beginning of significant reform in police forces across Canada. It was assumed that Jane Doe’s exposure and Madam Justice MacFarland’s...

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10. Striking Back: The Viability of a Civil Action Against the Police for the

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pp. 211-242

I came to my pro-feminist views on the investigation of sexual assaults quite by accident. As the only associate working for a lawyer who represented individuals suing the police, I was frequently contacted by women who had been raped who wished to sue, not their attacker, but the local Police Services Board...

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11. Third-Wave Anti-rape Activism on Neoliberal Terrain: The Garneau Sisterhood

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pp. 243-266

The victory in Jane Doe v Metropolitan Toronto Police2 resulted from the “sustained collaborative work” of “feminist activists, lawyers, experts and judges.”3 Ten years later, however, the basis for such strategic collaborations has been eroded...

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12. Sisterhood Will Get Ya: Anti-rape Activism and the Criminal Justice System

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pp. 267-300

The spectre of a serial rapist invading homes is terrifying. Women who are conditioned from a young age to monitor their behaviour to protect themselves from rape react strongly when they are faced with the prospect of being attacked...

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13. Where Has All the Anger Gone?

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pp. 301-312

Thirty-five years ago, we gathered in kitchens, in living rooms, and in greasy spoons, to connect with other women over our outrage at the appalling injustice following our experiences of rape, incest, and other forms of sexual violence. We began to speak out and to organize ourselves into groups...

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14. Vitreous Fragility: Reimagining Women Through Art

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pp. 313-330

As a visual artist, I draw inspiration from a rich history of incredible women in my field who have tenaciously battled to express their personal truths. The world of historical and contemporary art has been and remains steeped in gender inequality. The art I make comes out of a long tradition of...

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15. The Jane Doe Coffee-Table Book About Rape: Reflections on Rebellious Writing and Teaching

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pp. 331-354

Rebecca: I hope people who wanted them got copies of Jane’s book — The Story of Jane Doe: A Book About Rape.3 Did you know that some of my students this year couldn’t get copies? They were told it was out of print. Gillian: Get out! I don’t believe you. Rebecca: I’m not kidding. Seems...

Part II

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16. Who Benefits From the Sexual Assault Evidence Kit?

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pp. 355-388

Examining Canadian laws and policies as they apply to women who experience sexual assault feels like a natural progression for me. It is the next step in the body of work I began when, over twenty years ago, I became the woman in the lawsuit, Jane Doe v the Metropolitan Toronto (Municipality) Commissioners...

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17. Perpetuating—and Resisting—Rape Myths in Trial Discourse

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pp. 389-408

Feminist critiques of the law have often cited the rape trial as exemplifying much of what is problematic about the legal system for women. Carol Smart, for example, argues that the rape trial is illustrative of the law’s juridogenic potential...

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18. Questioning “Expert” Knowledges

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pp. 409-450

It was a terrible trial. A victim3 of brutal sexual violence was being forced to testify against her will, despite having repeatedly asserted she could not, and the days were not going well. Defence counsel were “whacking the complainant”4 with everything they had and she was going in and out of flashback on the stand. That this is what was occurring was patently obvious...

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19. Zero Tolerance Some of the Time? Doctors and Sexual Abuse in Ontario

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pp. 451-482

In 1991, the College of Physicians and Surgeons of Ontario (CPSO) established a task force on the sexual exploitation of patients, and began a systematic review of doctors’ sexual abuse.1 CPSO records revealed that the abuse of patients was well documented, and was not occasional or anomalous....

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20. Judges and the Reasonable Steps Requirement: The Judicial Stance on Perpetration Against Unconscious Women

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pp. 483-540

The prosecution of sexual assault cases where the complainant has no memory because she was unconscious at the time of the attack presents a paradox. On the one hand, these are cases which, to the lay person, might seem dead easy:...

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21. An Equality-Oriented Approach to the Admissibility of Similar Fact Evidence in Sexual Assault Prosecutions

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pp. 541-568

There has been very little critical and feminist commentary in Canada on the admissibility of prior sexual misconduct evidence as similar fact evidence in sexual assault cases.2 Similar fact evidence is a specific type of bad character or conduct...

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22. Raising the Age of Sexual Consent: Renewing Legal Moralism?

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pp. 569-590

Toward the end of the eighteenth century, Blackstone stated that any use of force, however minimal, could constitute an assault.1 This principle acquires its full meaning within the context of sexual aggression where either a caress or a beating can sustain charges of sexual assault.2 Charges of sexual...

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23. What’s in a Face? Demeanour Evidence in the Sexual Assault Context

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pp. 591-612

Women’s bodies are too often the sites of cultural conflicts. In the context of sexual violence, the criminal law has forced women to fit into rigid characterizations of the ideal rape victim. This ideal rape victim has been described not only as morally and sexually virtuous (read white), but also as cautious, unprovocative...

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24. Limits of a Criminal Justice Response: Trends in Police and Court Processing of Sexual Assault

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pp. 613-634

Sexual assault is the most gendered of crimes. Only 3 percent of those charged by police with sexual assault offences in Canada in 2007 were women, yet 86 percent of those victimized were women and girls.1 It is no coincidence that...

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25. HIV Exposure as Assault: Progressive Development or Misplaced Focus?

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pp. 635-664

In 1998, the development of the law of assault in Canada took an intriguing turn. In this year, the Supreme Court of Canada ruled that disclosure of HIV-positive status is required by the criminal law before a person living with HIV/...

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26. All That Glitters Is Not Gold: The False Promise of Victim Impact Statements

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pp. 665-700

The last few decades have brought increasing attention to the experiences of victims in the Canadian criminal justice system. Such experiences have been commonly referred to as a “second victimization” giventhe insensitive treatment...

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27. Confronting Restorative Justice in Neo-Liberal Times: Legal and Rape Narratives in Conditional Sentencing

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pp. 701-724

In the sentencing decision of R v Tulk,1 a sixty-year-old white male was convicted of a serious sexual assault of a female acquaintance who was in a comatose state due to diabetic shock. He received a conditional sentence of two years less a day as part of a restorative justice sentencing practice...

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28. A Feminist Remedy for Sexual Assault: A Quest for Answers

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pp. 725-740

“Imprisonment would be of no assistance to the accused.” The sentence leaped out at me as I waded through the 1,202 reported and unreported sexual assault judgments I had assembled for research I was doing into Canadian legal history...

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Afterword

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pp. 741-742

This book represents a transformation. A conscious, lovingly-crafted collection of thought, theory, and research, born of a feminist conference in 2009. There, for the first time any of us could remember, women who are experts on rape came together to dialogue proactively — and not in response...

Contributors

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pp. 743-754

Index

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pp. 755-819


E-ISBN-13: 9780776619774
E-ISBN-10: 0776619772
Print-ISBN-13: 9780776630441
Print-ISBN-10: 077663044X

Page Count: 836
Publication Year: 2012

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Subject Headings

  • Rape--Canada.
  • Sex crimes--Canada.
  • Women--Crimes against--Canada.
  • Criminal justice, Administration of--Canada.
  • Sexual abuse victims--Legal status, laws, etc.--Canada.
  • Sex crimes--Investigation--Canada.
  • Feminism--Canada.
  • Doe, Jane.
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