"Whack" no more: infusing equality into the ethics of defence lawyering in sexual assault cases.

AuthorTanovich, David M.

Fifteen years ago, defence lawyers in Ottawa were instructed to "whack" the complainant in sexual assault cases. These were their marching orders:

"[W]hack the complainant hard" at the preliminary inquiry.... "Generally, if you destroy the complainant in a prosecution.. .you destroy the head. You cut off the head of the Crown's case and the case is dead--[A]nd you've got to attack the complainant with all you've got so that he or she will say [']I'm not coming back in front of 12 good citizens to repeat this bullshit story that I've just told the judge.[']"

The "whacking" continues. This defence culture explains, in part, why defence lawyers have no hesitation in leaving their ethics at the courtroom door so as to exploit and perpetuate stereotypes about women and sexual assault in defence of their clients. With the recent focus on civility by the legal profession, and concerns raised about the failure of law reform initiatives to improve reporting and the fair prosecution of sexual assault cases, it is time to address the discriminatory lawyering and denial of access to justice that is taking place in these cases. The article begins by exploring how sexual assault is different from other offences in terms of how it is processed, conceived of, and defended by lawyers. It is argued that this difference requires a rethinking of ethical lawyering in this context. The next part attempts to set out a normative framework that is largely grounded in legal and ethical norms including equality values, the lawyer's duty to not discriminate, as well as an advocate's obligation to act in "good faith" and not mislead the court. The article turns to applying this framework by setting out what defence tactics should be ethically barred, particularly when you know your client is guilty. The critical question of when you know your client is guilty is also addressed. The final part uses three leading Supreme Court of Canada evidence cases (R v Khan; R v Osolin; R v Parrott) to examine how the proposed ethical limits might have impacted the conduct of the defence.

Il y a une quinzaine d'annees, on incitait les avocats de la defense exercant a Ottawa a > les plaignants dans des causes d'agression sexuelle. Voici le type d'instructions qui etaient alors donnees sur les etapes a suivre :


Et ce type de pression continue de nos jours. Cette culture de la defense explique, en partie, pourquoi les avocats n'hesitent pas a laisser leurs principes deontologiques a la porte du tribunal pour pouvoir exploiter et perpetuer les stereotypes au sujet des femmes et des agressions sexuelles afin de defendre leurs clients. Toutefois, si l'on considere les preoccupations recemment exprimees par la profession juridique au sujet de la civilite et de l'echec des projets de reforme visant a ameliorer les signalements et l'efficacite des poursuites judiciaires dans les affaires de viol et d'abus sexuels, le temps semble venu de remedier a cette pratique discriminatoire commune aux avocats et au deni d'acces a la justice en la matiere. L'article commence par explorer la maniere dont l'infraction d'agression sexuelle se distingue des autres dans la maniere dont elle est traitee, concue et defendue par les avocats. On soutient que cette difference exige que l'on repense l'exercice du droit de facon ethique dans ce contexte. Dans la seconde partie, on tente de circonscrire un cadre normatif largement fonde sur les normes juridiques et deontologiques qui comprennent les valeurs d'egalite, le devoir qu'a l'avocat d'eviter de faire preuve de discrimination, de meme que son obligation d'agir de > et de ne pas induire le tribunal en erreur. L'article examine ensuite la maniere d'appliquer ce cadre en determinant quelles tactiques de defense devraient, d'un point de vue deontologique, etre exclues, tout particulierement lorsque l'avocat sait que son client est coupable et en abordant egalement la question cruciale du moment ou l'avocat fait cette decouverte. Dans la derniere partie, on se penche sur trois arrets majeurs rendus par la Cour supreme du Canada en matiere de preuve (R c Khan; R c Osolin; R c Parrott) afin d'examiner dans quelle mesure des limites de nature deontologique peuvent avoir influence la conduite des avocats de la defense.

Table of Contents I. INTRODUCTION II. WHY SEXUAL ASSAULT IS DIFFERENT III. THE RELEVANT NORMATIVE FRAMEWORK IV. THE ETHICAL LIMITS 1. Reliance on Stereotypes 2. Determining When You Know Your Client is Guilty and the Ethical Limits That Follow V. THREE CASE STUDIES 1. R v Khan 2. R v Osolin 3. R v Parrott VI. CONCLUSION I. INTRODUCTION

Over the last few decades, there has been significant law reform to address the criminal law's discriminatory treatment of complainants in sexual assault cases. For example, there are now limits on the admissibility of a complainant's prior sexual history including with the accused and the production of her personal records. (1) In addition, Parliament reframed the mistake of fact defence by defining certain mistakes about consent as mistakes of law and by imposing a reasonable steps requirement. (2)

In many respects, these legislative changes were a response to a "whack the complainant" (3) strategy employed by defence lawyers in sexual assault cases, a strategy sanctioned by the common law. Whacking the complainant includes humiliating or prolonged cross-examination that "seek[s] to put the complainant on trial rather than the accused"; (4) specious applications to obtain the complainant's records; (5) and the invoking and exploiting of stereotypical assumptions about women and consent, including assumptions about communication, dress, revenge, marriage, prior sexual history, therapy, lack of resistance and delayed disclosure. (6)

In R v Mills, (7) Justices McLachlin, as she then was, and Iacobucci, writing for the majority, specifically referred to the problem of the whacking of sexual assault complainants by lawyers. They observed that"[t]he accused is not permitted to 'whack the complainant' through the use of stereotypes regarding victims of sexual assault." (8) The majority also appeared to recognize that this whacking is what likely motivated Parliament's attempts to address the problem through evidence regulation:

Parliament may also be understood to be recognizing "horizontal" equality concerns, where women's inequality results from the acts of other individuals and groups rather than the state, but which nonetheless may have consequences for the criminal justice system. (9) Notwithstanding these legislative responses and the Mills prohibition, the "whacking" continues. (10) As Professor Elaine Craig has observed, "[it] seems implausible that members of the legal profession would ... today" continue to invoke stereotypes that are "irrelevant, discriminatory and harmful, and outrageously outdated. ... Yet these are the stories the defence lawyers in Canada continue to tell about the women who have accused their clients of rape." (11) We, therefore, need to think beyond evidence regulation to curtail "the virulence of the assaults on women's credibility" (12) in sexual assault cases.

In addition to a "whacking" style of advocacy, there is also what might be called "under the radar" conduct of defence lawyers that impairs the fair treatment and adjudication of sexual assault cases. Examples of this conduct include shielding accountability through cultural incompetence, (13) deliberate ignorance of the client's guilt and relying on objectively "truthful evidence" notwithstanding that it is being introduced for a false purpose. (14) This conduct, in particular, does not lend itself well to judicial or evidence regulation because the trial judge is often unaware of what defence counsel knows or should know about their client's guilt.

While Parliament has taken the lead in reforming our substantive and procedural law, the necessary cultural change to give justice a chance in sexual assault cases requires leadership from the profession. (15) Our Law Societies need to step in and clearly set out, in Commentaries to the relevant Rules and in Continuing Legal Education (CLE) programs, that advocacy or conduct grounded in stereotypical norms about sexual assault violates the ethical norms of the profession. (16) They also need to push for greater cultural competence training in law school. The focus of this piece, however, is not on discipline and enforcement, but rather on identifying the problematic behaviour of defence lawyers and in identifying the relevant norms and the limits that could be applied to them in sexual assault cases. This piece along with Professor Craig's article are the first in Canada to focus on using ethics and professional responsibility as a means of counselling defence lawyers to live up to their oath and obligation to uphold the cause of justice in sexual assault cases. (17)

Part II will provide the relevant context by exploring how sexual assault is different from other offences because of stereotypes surrounding women and sexual assault. The focus will be on differential treatment in terms of how the offence is processed, conceived of and defended by lawyers. (18) It is argued that this difference manifested in a heightened duty of loyalty, unparalleled in any other context, requires a rethinking of ethical defence lawyering in sexual assault cases.

Part III will set out a normative framework for ethical defence lawyering in an effort to give effect to this context and experience. The analysis is grounded in a lawyer's ethical duty to not discriminate and to give effect to equality values, (19) and an advocate's obligation to act in "good faith." (20)

Part IV will apply this framework to consider what defence tactics in sexual assault cases should be ethically questioned particularly when you know your client is guilty. This raises the concern of when you know your client charged with sexual assault is guilty. Part IV will also...

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