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July 11, 2016

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Law Times • JuLy 11, 2016 Page 11 www.lawtimesnews.com FOCUS Lawyers help assault survivors navigate the system BY MICHAEL MCKIERNAN For Law Times W hen Gillian Hnatiw took to the steps of To- ronto's Old City Hall courthouse and delivered a statement to the waiting me- dia horde on behalf of her cli- ent Lucy DeCoutere, one of the complainants in the sexual as- sault trial of Jian Ghomeshi, it marked a significant departure from her normal practice. "If I'm acting for the com- plainant, I generally try to re- main unseen. I don't tend to dis- close my involvement to either the Crown or defence counsel," says Hnatiw, a partner in the To- ronto office of Lerners LLP who regularly represents victims of sexual assault both in civil and criminal proceedings. Hnatiw's February speech came after two bruising days of cross-examination for De- Coutere in which the focus of the trial switched away from the circumstances of Ghomsehi's alleged assault and towards the issue of DeCoutere's subsequent conduct and credibility. Ontario Court Justice William Horkins was ultimately critical of De- Coutere's evidence in his judg- ment acquitting Ghomeshi. Such shifts in focus occur frequently and with ease in sex- ual assault trials, according to Hnatiw, and in less-high-profile matters, she says her involve- ment can play into that narra- tive, meaning complainants have little to gain from letting the other parties know. "If you tell the Crown, then they're obligated to tell every- thing to the defence, and it just ends up being more fodder for cross-examination. Regrettably, the mere act of wanting to get counsel for this acrimonious process can be twisted to imply the victim has less than genuine motives," Hnatiw says. "It's one of the many instances where I think the general public, judges, and the justice system generally need to have some evolution in their thinking. There's nothing wrong with seeking advice, and if you bring a lawsuit, there's nothing wrong with that either. The damage from sexual as- saults is significant and long- lasting." Hnatiw says her work on be- half of criminal complainants grew naturally out of her per- sonal injury practice focused on sexual abuse litigation. "One of the drawbacks of civil litigation is that there has to be some possibility of recovery, some significant assets, to make it worthwhile. I'm not just talk- ing financially, because it can be an extremely emotional and difficult process. You don't want to put someone through that if there's no reasonable prospect of recovery," she says. "Sometimes, the criminal avenue is the only one open, and, sometimes, it's the only one they want to pur- sue." Complainants coming into the system often have little idea about how it works, so a lot of Hnatiw's time ends up devoted to talking them through the ba- sics of criminal law. The role of the Crown is invariably one of the trickiest concepts to grasp for victims who might have ex- pected prosecutors to act more directly for them, and who may even feel alienated by a lack of interaction with Crown counsel, Hnatiw says. "One of the first things I ex- plain is that the Crown is not your lawyer, and that from a practical perspective, that will mean there is limited interaction with the Crown, because there is no privilege between the Crown and complainants," she says. David Butt, a Toronto crimi- nal lawyer who also acted for another Ghomeshi complain- ant, says demand is growing for legal counsel among sexual as- sault survivors, a development he welcomes. "For a sex assault survivor, whose role is to stand up in an unfriendly public forum and recount the most intimately devastating experience of their life, it's particularly important they have the compass of sensi- tive and knowledgeable legal representation," he says. "From a broader social perspective, I think that by retaining lawyers, complainants as a group are say- ing that they wish to be heard in a way that they have not been heard before. That's a very posi- tive development for society in my view." Butt spent the first 13 years of his legal career as Crown coun- sel, before going into private practice as a criminal defence lawyer more than a decade ago. He began acting for sexual as- sault complainants in third- party access requests, and he has slowly expanded his repertoire of services in the area. In 2012, he acted for N.S., a Muslim witness in a sexual as- sault matter who wished to keep her face covered by a niqab dur- ing her testimony in a case that went all the way to the Supreme Court of Canada. "There are occasions where complainants need legal advice and a Crown attorney is not able to give it. My own views have evolved to the point where I think opportunities to engage counsel should be expanded," Butt says. "The Supreme Court has recognized that complain- ants have various Charter rights, and I envision a justice system that is comprehensively respect- ful of Charter rights will see counsel for complainants rou- tinely engaged, along with coun- sel for the accused and counsel for the Crown." Butt says he gets pushback on his ideas from people who say criminal trials should be a straight fight between the ac- cused and the state, or that there are already enough lawyers in the criminal courtroom. "There is no doubt it would be far less messy if people had fewer rights," he says. "The tradi- tional view simply has to yield to the reality of people being able to assert their Charter rights." A new provincial pilot proj- ect that promises free legal ad- vice to sexual assault survivors is a "small step in the right direc- tion," according to Butt. The two-year program, of- ficially launched last month by Ontario's attorney general after a recruiting drive to find law- yers to join the roster, provides victims of sexual assault in To- ronto, Ottawa, and Thunder Bay with up to four hours of free advice from a lawyer either over the phone or in person after fill- ing out a voucher request form. Users of the Barbra Schlifer Commemorative Clinic, which supports abused women in To- ronto, can access the project directly, and the clinic's execu- tive director, Amanda Dale, says she's excited to get going. "It's a tremendous opportu- nity to reshape the role of the law in the protection of women and the amelioration of harm, and I'm looking forward to seeing what kind of dialogue opens up within the legal profession about the appropriate response to these kinds of harm," Dale says. The clinic has also taken a role in educating the lawyers who will take part in the pilot about the unique needs of sexual assault survivors. "It's important for lawyers to understand the impact of the as- sault," Dale says. "The tradition- al model of legal advice sees law- yers tending to take control, but in the context of a sexual assault law, the most important thing is to have her in the driver's seat of whatever solution or remedy she seeks. Gaining control of the outcome is crucial for someone who has just suffered the most intimate form of loss of control." Seeing the assault in the wid- er context of the survivor's life is also important for lawyers, so that they can help clients make the best choices about how to proceed, since pursuing crimi- nal charges can often have unin- tended consequences, according to Dale. "If there's an ongoing im- migration issue and the person who is charged with assault is also the victim's sponsor, that can have an impact. In family law proceedings, you also have to consider what affect an alle- gation of assault could have in that forum," Dale says. "Lawyers sometimes like to isolate things into discrete fact patterns, but life doesn't actually work that way, and the outcomes can be dire if you don't consider all pos- sibilities." LT Gillian Hnatiw says her work on behalf of criminal complainants grew out of her personal injury practice focused on sexual abuse litigation. Untitled-5 1 2016-07-05 2:49 PM

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