What Regulators Can Learn From The Criminal Courts About Sexual Abuse Cases

• Published date: 23 March 2021
• Subject Matter: Litigation, Mediation & Arbitration, Criminal Law, Trials & Appeals & Compensation, Crime
• Law Firm: WeirFoulds LLP
• Author: Ms Lara Kinkartz

It is no secret that there has been a societal reckoning about sexual abuse in the last few years. From the #MeToo movement to the amendments to the Regulated Health Professions Act,¹ society and our government are beginning to take sexual misconduct more seriously. However, sexual abuse cases often prove to be the most challenging matters for discipline committees. There are typically no eyewitnesses, meaning that these cases often boil down to a pure credibility contest between the patient/client and the member. The added public scrutiny that sexual abuse cases are now receiving makes it more important than ever that discipline committees have the tools and education they need to decide them fairly.

In this respect, recent developments in the world of the criminal courts contain several lessons - and cautionary tales - that regulators may find helpful.

Reasoning Must not be Based on Generalizations

The Supreme Court of Canada recently underscored the importance of assessing the witness as an individual, as opposed to relying on stereotypes or generalizations. In R. v. Slatter,² the accused was alleged to have sexually assaulted a woman with an intellectual disability over a four-year period. At trial, the defence presented expert evidence indicating that individuals with intellectual disabilities were more suggestible than the average person. The trial judge believed the complainant and convicted the accused, but a majority of the Court of Appeal overturned the conviction, holding that the trial judge failed to adequately grapple with the complainant's reliability.

In a short, three-paragraph decision, the Supreme Court of Canada restored the conviction. It cautioned against relying on expert evidence that speaks to general characteristics of a population, rather than focusing on the witness's demonstrated ability to perceive, recall, and recount events. As noted by the dissenting judge at the Court of Appeal (who would have upheld the conviction), there were several instances during the trial when the complainant demonstrated that she was not in fact suggestible. Moreover, there was no evidence of any suggestive statements that could have influenced the complainant's report to police. In restoring the conviction, the Supreme Court noted that "over-reliance on generalities can perpetuate harmful myths and stereotypes about individuals with disabilities, which is inimical to the truth-seeking process, and creates additional barriers for those seeking access to justice."³

In the world of professional regulation, it is not uncommon for professionals who sexually abuse clients/patients to select individuals who are particularly vulnerable (for example, because of their young age, intellectual disability, or mental illness). In many of these cases, expert witnesses will be called by either the College or the defence. Slatter provides a...