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LEAF: A Study of Legal Advocacy

On April 17, 1985, new guarantees of equality for women came into force in the Canadian Charter of Rights and Freedoms, including the right to equal benefit and protection of the law. The Women's Legal Education and Action Fund (LEAF) is a national organization dedicated to persuading the courts to put those abstract legal rights into action. LEAF's mandate is two-fold: to argue test cases before the courts, human rights commissions and government agencies on behalf of women, and to provide public education on the issue of gender equality. LEAF either represents women directly before the court as their lawyers, or intervenes in a case to make sex equality arguments which are important but unlikely to be raised by the people involved. Since 1985, LEAF has been involved in over 100 cases across Canada.

When selecting cases to support, a particular priority for LEAF is the issue of violence against women. Crimes of sexual assault must be understood as crimes which occur in the context of unequal power between the overwhelmingly male perpetrators and female victims. The unequal position of women relative to men is recreated and perpetuated by the sexual assault of women by men. Unfortunately, the dynamic of unequal power does not end with the crime of sexual assault; it also pervades the criminal justice system. Rape trials have focused on the behaviour of the women and children who have been sexually assaulted as opposed to the facts of the crime and the violent acts of the accused. For these reasons, sexual violence and the treatment of its victims in the legal system become a fundamental question of women's equality rights under the Charter.

LEAF has been active in many cases involving sexual assault. One recent decision of the Supreme Court of Canada marked an important victory for Canadian women, won with the assistance of LEAF. In 1992, Melvin Mason was convicted of sexually assaulting his 16-year old stepdaughter in Nova Scotia. However, the Nova Scotia Court of Appeal overturned the conviction because the Crown had not proven beyond a reasonable doubt that the victim had not consented to the sexual acts. The Court held that the girl's failure to resist the sexual conduct or to object to it through words or gestures could be equated with consent.

LEAF intervened in the case at the Supreme Court to argue that consent to sexual advances cannot be presumed from the failure to physically or verbally resist, particularly in relationships characterized by an imbalance of power, such as the parent-child relationship. To make that presumption deprives women of their right to equal protection under the Charter. LEAF argued that the courts must discourage the perpetuation of sexual myths and stereotypes about the lives of women and children.

Last May, the Supreme Court ruled unanimously to set aside the earlier decision and restore the conviction of Melvin Mason. The Supreme Court found that the Court of Appeal had indeed erred in equating lack of resistance with consent. R. v M. was the first case of its kind to come before the Supreme Court since the equality provisions of the Charter came into force. The decision by the Supreme Court in this case will be the basis for interpretation of sexual assault legislation by later courts.

In 1992, LEAF was involved in a significant civil case in Ontario, called simply K.M., that also concerned the need of the courts to understand the special dynamics of childhood sexual assault. The complainant was sexually abused by her father from the time she was eight until she left home at sixteen. Her father elicited her cooperation and silence through repeated threats. It was not until she was attending a self-help group in her late 20s that K.M. began to realize the impact of the sexual abuse and her father's responsibility for it.

In 1985, at the age of twenty-eight, K.M. sued her father for damages arising from incest and for breach of the relationship of trust owed by a parent to a child (known as the parent's fiduciary duty). However, the trial judge threw out her case, saying she had not filed her claim within four years of reaching the age of majority - eighteen - as required by the Ontario Limitations Act. This ruling was upheld by the Ontario Court of Appeal.

LEAF intervened once K.M. appealed the case to the Supreme Court of Canada. LEAF argued that the nature of childhood sexual abuse affects the time frame in which actions against assailants are brought and that the four year limitation period should not apply. Survivors of childhood sexual assault suffer complex psychological injuries which can for many years affect their ability to cope with what has happened to them and therefore their ability to bring action against their abuser.

LEAF argued that the law must take into account that the failure to initiate legal action is not a result of lack of diligence of the sexual assault survivor, but the direct result of the wrongdoing of the abuser. As with K.M., the abuser is often someone in a relationship of trust and dependency, who uses adult authority not only to exploit the dependent child but also to prevent the child from recognizing and revealing the abuse. LEAF also argued that incest should be recognized as a breach of fiduciary duty.

In an unanimous ruling in October 1992, the Supreme Court of Canada decided in K.M.'s favour. The Court said that in cases of childhood sexual assault, the time limits for launching lawsuits should start to run only when a survivor understands the full extent of the harm done, and can connect it to the childhood assaults. Although the Court did not find it necessary to decide the case on constitutional grounds, it set out guidelines governing how limitation periods should apply in these cases that were consistent with the arguments advanced by LEAF. The Court explicitly recognized the complex nature of incestuous abuse and the harm it causes, and the influence of the larger social context which has operated to discourage incest survivors from bringing forward their complaints. As well, the Court agreed that incest survivors can sue their abusers not only for assault, but for breaching their fiduciary duty.

These findings will make it much easier for survivors of childhood sexual assault to sue their abusers for damages in civil court. LEAF hopes that the availability of civil action for victims will also have value as a deterrent to childhood sexual abuse. The Ontario government has since amended the Ontario limitations law (the B.C. Limitations Act has been similarly changed).

Currently, LEAF is involved in another case concerning child sexual assault here in B.C. In 1991, four aboriginal women brought charges of rape and indecent assault against Bishop Hubert O'Connor, alleging they were assaulted as children at a residential school near Williams Lake. Acting on the pre-trial demand of the Bishop's lawyers, a B.C. Supreme Court Judge ordered the disclosure of all records of any therapists, counsellors, psychologists or psychiatrists who had ever treated the women in relation to sexual abuse.

While the Crown must provide all relevant material to the defence counsel in advance of a trial, the disclosure order in O'Connor was controversial because of its unusually broad scope and its interference with the Crown's exercise of discretion to decide what is relevant. The Crown delayed in complying with the order and ultimately the judge granted a stay of proceedings on all charges against the Bishop because he was not confident that full disclosure had been made.

LEAF had been following the case with interest and quickly took the lead in forming a coalition of women's groups to apply to intervene when the Crown filed an appeal. In 1993, the coalition presented its arguments at the B.C. Court of Appeal. Central to LEAF's analysis of the meaning of 'relevance' in a sexual assault case, was the idea that a fair trial must consider the constitutional rights of all participants. While recognizing the accused's right to make 'full answer and defence' to the charge (the rationale behind disclosure), the coalition argued that it is no longer acceptable to protect the interest of the mostly male perpetrators of sexual assault at the expense of the equally important interests of the mostly female victims.

As well, the disclosure of such records as a common practice would likely prevent women from coming forward with sexual assault charges in the first place. The coalition also argued that in fact, the records of mental health professionals are not only very personal and sensitive, but are also not recorded for the purpose of fact-finding in the legal process. Equally important, the coalition questioned the assumptions of those making sweeping requests for mental health information. Are they looking for something about a woman's character or experience that would make her less believable or somehow to blame? Or do they hope that the mere existence of such records will diminish her credibility? The coalition argued that the courts must not allow the wholesale violation of women's confidential relationships with mental health professionals on the basis of prejudiced misconceptions about women.

This spring, the B.C. Court of Appeal overturned the stay of proceedings granted in the trial of Bishop O'Connor and ordered a new trial. In its decision, the Court said that the right of the accused to a fair trial must be balanced with the privacy rights of the victims in sexual assault trials.

The Court laid out a two-step procedure for determining whether or not records are relevant. Firstly, the defence must lay a strong factual foundation that shows information contained in the records is likely to be relevant. Then, the trial judge must determine whether the contents of the records affect the accused's ability to make full answer and defence to the charges against him.

The Court also acknowledged the necessity of removing discriminatory belief about and bias against sexual assault complainants from the fact-finding process. Although privacy was used rather than equality rights as a foundation for the protection of the complainants, the decision provides much needed restrictions on the ability of the defence counsel to ask for and receive disclosure orders. Bishop O'Connor has appealed to the Supreme Court of Canada. The coalition will apply this fall for leave to intervene.

Despite the equality provisions in the Canadian Charter of Rights and Freedoms, LEAF knows that continued action is required to achieve for women the level of justice afforded men. To the extent that our justice system fails to protect women and children from violence, or to encourage them to take legal action in cases of assault, the system fails to meet the guarantees of the Charter. Justice reform is a vital step in both making the law more responsive to the problem of sexual assault, and in ending violence against women and children.

Judy Clarke, Technical Writer/Editor and Member of
West Coast LEAF