Tanovich, David M., “Whack No More: Infusing Equality Into the Ethics of Defence Lawyering in Sexual Assault Cases” (2015) 45(3) Ottawa Law Review 495-525

Windsor Law Faculty Author: David Tanovich

Abstract:

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.

The article can be accessed here.