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Full-Text Articles in Law
Judging Sexual Assault Trials: Systemic Failure In The Case Of Regina V Bassam Al-Rawi, Elaine Craig
Judging Sexual Assault Trials: Systemic Failure In The Case Of Regina V Bassam Al-Rawi, Elaine Craig
Articles, Book Chapters, & Popular Press
The recent decision to acquit a Halifax taxi driver of sexual assault in a case involving a very intoxicated woman, who was found by police in the accused’s vehicle unconscious and naked from the breasts down, rightly sparked public criticism and consternation. A review of the trial record in Al-Rawi, including the examination and cross-examination of witnesses, the closing submissions of the Crown and defence counsel, and the trial judge’s oral decision suggests a failure of our legal system to respond appropriately to allegations of sexual assault - a failure for which, the author argues, both the trial judge and …
Section 276 Misconstrued: The Failure To Properly Interpret And Apply Canada's Rape Shield Provisions, Elaine Craig
Section 276 Misconstrued: The Failure To Properly Interpret And Apply Canada's Rape Shield Provisions, Elaine Craig
Articles, Book Chapters, & Popular Press
Despite the vintage of Canada’s rape shield provisions (which in their current manifestation have been in force since 1992), some trial judges continue to misinterpret and/or misapply the Criminal Code provisions limiting the use of evidence of a sexual assault complainant’s other sexual activity. These errors seem to flow from a combination of factors including a general misunderstanding on the part of some trial judges as to what section 276 requires and a failure on the part of some trial judges to properly identify, and fully remove, problematic assumptions about sex and gender from their analytical approach to the use …
The Ethical Identity Of Sexual Assault Lawyers, Elaine Craig
The Ethical Identity Of Sexual Assault Lawyers, Elaine Craig
Articles, Book Chapters, & Popular Press
Despite progressive law reforms, sexual assault complainants continue to experience the criminal justice response to the violations that they have suffered as unsatisfactory, if not traumatic. One emerging response to this dilemma involves greater consideration of the ethical boundaries imposed on lawyers that practice sexual assault law. What is the relationship between a criminal lawyer’s ethical duties and the reforms to the law of sexual assault in Canada? How do lawyers themselves understand the ethical limits imposed on their conduct of a sexual assault case? How do lawyers that practice in this area of law comprehend their role in the …
The Ethical Obligations Of Defence Counsel In Sexual Assault Cases, Elaine Craig
The Ethical Obligations Of Defence Counsel In Sexual Assault Cases, Elaine Craig
Articles, Book Chapters, & Popular Press
The treatment of sexual assault complainants by defence counsel has been the site of significant debate for legal ethicists. Even those with the strongest commitment to the ethics of zealous advocacy struggle with how to approach the cross-examination of sexual assault complainants. One of the most contentious issues in this debate pertains to the use of bias, stereotype and discriminatory tactics to advance one’s client’s position. This paper focuses on the professional responsibilities defence lawyers bear in sexual assault cases. Its central claim is as follows: Defence counsel are ethically obligated to restrict their carriage of a sexual assault case …
Ten Years After Ewanchuk The Art Of Seduction Is Alive And Well: An Examination Of The Mistaken Belief In Consent Defence, Elaine Craig
Ten Years After Ewanchuk The Art Of Seduction Is Alive And Well: An Examination Of The Mistaken Belief In Consent Defence, Elaine Craig
Articles, Book Chapters, & Popular Press
It has been a decade since the Supreme Court of Canada released its controversial decision in R. v. Ewanchuk. One of the central doctrinal issues raised by critics of Ewanchuk was a concern that it would not sufficiently allow for the mistaken belief defence in cases involving ‘morally innocent’ accused engaged in typical sexual overtures or in cases where the accused and complainant were in an ongoing sexual relationship at the time of the offence. A review of the reported cases, since 1998, demonstrates that the Ewanchuk analysis, properly interpreted, does not unjustly criminalize the progression of intimate behavior between …