Infantilized. Re-traumatized. Silenced: Why Ontario won’t give these sex assault survivors what they want

When Nathalia Comrie told the Crown attorney she didn’t want to testify at the sexual assault trial of her ex-partner, she said the prosecutor yelled at her.

“She said that I was breaking her heart,” the 21-year-old social work student told the Star.

The Crown told her that “feminists fought for so many years to have marital rape laws, and that I wasn’t being brave and courageous,” Comrie said.

“I said your idea of justice and my idea of justice are completely different,” Comrie said, “so please stop assigning your idea of justice to my sexual assault.”

“It is my hurt, my trauma, not yours.”

By that point, Comrie was already disheartened with a criminal justice system that she felt didn’t listen to her and often kept her in the dark. It was a system she had been trying in vain to escape by requesting that the case against her ex be put on hold so that they could explore a rarely used alternative for sexual offences.

In its most basic form, restorative justice brings the two parties together in a mediated setting where the survivor can seek healing by talking about being harmed, and the person who harmed them takes responsibility for their actions.

It’s a process that was allowed to proceed successfully in at least one Ontario criminal sexual assault case in 2019 — leading to the sexual assault charge being withdrawn with the agreement of the complainant — but almost never again since.

The Ministry of the Attorney General says sexual offences are ineligible for restorative justice because they’re too serious, citing the need for deterrence and the protection of victims. If convicted of sexual assault, penalties the offender may face include a criminal record, jail time, and being put on a sex offender’s registry.

“Moreover, sexual offences involve violations of sexual integrity, privacy, and autonomy which can have enduring and substantial effects upon victims and the community at large,” the ministry told the Star in a statement. “These crimes pose a serious threat to individual and public safety, and they are prosecuted vigorously.”

But where does that leave survivors?

Three women, including Comrie, spoke to the Star about their painful experiences as complainants in criminal sexual assault cases. They spoke of being infantilized, re-traumatized by having their personal lives vigorously questioned, and ultimately feeling a sense of hopelessness that anything good would come of the process.

All of them pushed for an alternative such as restorative justice, and all faced stiff opposition and ultimately refusal by Crown attorneys. As a result, their cases ended in stayed or withdrawn charges earlier this year after they declined to testify.

Despite the Canadian Victims Bill of Rights stipulating victims have the right to information about restorative justice programs, the women interviewed by the Star all had to find out about alternatives on their own.

In an email sent via a ministry spokesperson, the prosecutor in Comrie’s case said she “refutes making such comments or any allegations of wrongdoing.”

Not every case is right for restorative justice, and if complainants want to pursue criminal justice, they should be supported in doing so, the women say. But they’re urging Ontario’s prosecutors to make space for other options in sexual assault cases — models that they and a growing number of experts believe have the potential to help survivors heal and to rehabilitate offenders in a way prison can’t.

The “overwhelming feedback” from an extensive study speaking to survivors by Toronto-based organization WomenatthecentrE was that the criminal system “is as violent as the rape itself,” said executive director Nneka MacGregor.

“So if survivors are telling you that and Crowns are blinkered and obstinate and refusing to listen, it makes them complicit to the continuing harm that survivors are facing,” said MacGregor, whose organization is dedicated to eradicating gender-based violence. “And then you wonder why women don’t come forward.”

What is restorative justice?

More than 80 per cent of sexual violence offences are committed by a person known to the victim; securing a conviction in a sexual assault case is notoriously difficult, and well over 1,000 court cases end in stayed or withdrawn charges across Canada each year.

In the wake of these failed prosecutions, sexual assault survivors are left alone to pick up the pieces, not having been able to heal or to see the perpetrator take responsibility.

Restorative justice offers an alternative.

The process aims to meet the needs of the survivor and find accountability for the perpetrator. The survivor can speak freely about their harm, and the person who has caused that harm can, for example, apologize, answer the survivor’s questions, meet practical needs such as paying for therapy, and also commit to seeking therapy themselves.

Another example, one that has Indigenous roots, involves a circle of individuals — perhaps including the survivor, perpetrator, friends, family and even lawyers — all getting the chance to speak.

And restorative justice can also mean working with each person separately, said Kate Crozier, director of programs at Kitchener-based Community Justice Initiatives, which has offered restorative justice for decades, at no cost to participants.

The process can bring together a group of offenders to hear from a survivor of sexual violence who is not their direct victim, someone who can “talk about the experience of victimization, so those who have caused harm grow from that experience,” Crozier said. Her organization may also work with the offenders on understanding consent, boundaries, victim empathy and toxic masculinity.

The reasons why people offend sexually are much better addressed in a restorative justice setting than in a courtroom, where stress levels run high, Crozier says.

“They’re more likely to be vulnerable with us, share with us what they were thinking about at the time, and we can look at the root factors,” she said.

“We see them take more responsibility for what they’ve done.”

When someone is in prison for a sexual offence, “they’re trying very, very hard to hide that that’s even the reason they’re in prison, because it’s so dangerous to admit you’re there for sexual offending, and so you’re almost guaranteed to not reach out for any help for the behaviours that got you there.”

And the research says restorative justice works.

A 2018 paper said alternative justice models were found “to reduce victims’ fear of retaliation, and to help them to redefine their relationship with the offender. They also reduce recidivism. Victims are not only less afraid as a result of these justice approaches, but they are also less at risk.”

In the criminal system, “most victims are left traumatized and trapped in self-blame,” said the paper, produced by Shift: The Project to End Domestic Violence, at the University of Calgary. “Offenders, whether punished or exonerated, do not learn the true nature of their wrongs, or how to prevent reoffending.”

Pushing for an alternative

Comrie originally went to the police in late 2020 because she just wanted her ex to leave her alone after they broke up. She hoped he’d get a warning; she didn’t think it would go further than that.

She said officers kept pushing her for information, and she ended up revealing she had been sexually assaulted, which led to charges against her ex.

The prospect of a trial made her feel scared and nervous, concerned about the reaction from both of their families and also because she did not want her ex going to jail, believing it “wouldn’t solve anything.” A further consideration was that her ex was a Black man in a system where Black people are overrepresented.

“I did not feel OK taking part in a system that not only oppressed me and silenced me throughout the process, but also has been oppressing and silencing my people for generations to come,” she said.

Late last year, Comrie found out about restorative justice from her therapist and was then connected with Sarah Scanlon, a restorative justice practitioner and associate director, sexual violence response, in the office of human rights and conflict management at Wilfrid Laurier University.

It was the alternative Comrie had been looking for from the start but didn’t even know existed; she said she felt “deceived” she hadn’t been told about it by anyone in the criminal system.

Scanlon connected with Crozier and lawyers who had been through the process, helping Comrie to build a case for restorative justice. They spent hours strategizing how to bring the Crown on board, including by providing resources and contacts which the prosecutor said she would follow up on — but Comrie says nothing came of it.

Comrie also did her own research and outlined her reasoning in a letter addressed to the prosecutor and others. She suggested that the charges be put on hold to pursue the alternative route, and that the criminal proceedings could be reactivated if things didn’t go well.

Her ex had also expressed an interest in restorative justice. But the prosecutor ultimately denied the request, citing Crown policy. Comrie decided she wouldn’t testify. Without a complainant, the Crown had no case and stayed the charges earlier this year.

For his part, Comrie’s ex-partner remains interested in pursuing restorative justice “at any time,” his defence lawyer, Christien Levien, told the Star.

“Restorative justice is of particular interest to racialized victims, given their dissatisfaction with policing and the criminal justice system. They often have a preference that offenders from their own community are not incarcerated.”

Vanessa and Katrina’s story

Vanessa Setter and Katrina Abourisk were colleagues in late 2018 when each realized the other had been sexually assaulted by the same man, and decided to report to police together.

Both described initial encounters with the Crown attorney as lacking in compassion and empathy. “There was no connection, no learning to understand,” Setter said.

Abourisk said she felt like “a piece of paper … It was emotionless. It was like a meeting he had to check off.”

They described traumatic experiences testifying at the preliminary inquiry, where a judge decides if the evidence is sufficient to go to trial.

Setter spent two and a half days on the stand, becoming emotional as she described the experience and how she could barely sleep or eat. “I went into it almost like this is a competition, where I know the defence is doing their job, and their job is to discredit who I am as a human,” she said. “It’s hard to sit there and just have someone discredit you for hours and really just question and challenge my own experience of an event.”

Abourisk described a “brutal” day on the stand. “It was extremely difficult, sitting there in a room filled with strangers,” she said. “I felt like my character was being questioned constantly. The accused gets to sit there the whole time and not say a word, so I felt more broken with this process than I did when I originally went in.”

They had started requesting restorative justice early on in the criminal case, only to be rebuffed by the Crown.

Setter had first learned about it after her mother shared an article with her and Abourisk about sexual assault survivor Marlee Liss, the complainant in what was reported in 2019 as Ontario’s first criminal sexual assault case to be resolved through restorative justice. Setter then connected with Liss’ lawyer, Jeff Carolin.

Setter’s experience at the preliminary inquiry solidified her decision to pursue an alternative that wouldn’t be so crushing. She and Abourisk again asked the Crown for the criminal case to be put on hold to explore whether the accused would be willing to participate in restorative justice.

“I went through a little bit of a struggle of being like ‘Well I think he should go to jail, this is what people do when they do bad things,’” Abourisk said, but restorative justice “provides education to him, healing to both of us and potentially forgiveness and closure.”

But the Crown attorney refused Setter and Abourisk’s request, citing policy. They both decided not to testify at trial, leading the Crown to withdraw the charges.

Unrelated to Setter and Abourisk’s case, prosecutors were recently reminded that under no circumstances are they to allow sexual assault cases to go to restorative justice. Crown attorney Jill Witkin — the chair of the criminal law division’s sexual violence advisory group — sent an email to all Ontario prosecutors in February with a “few reminders” about prosecuting adult sexual offences.

“Sexual offences are strictly ineligible for any community justice program (diversion) and prosecutors must not refer a sexual offence to a community justice program, regardless of the circumstances of the offence or the accused,” Witkin wrote in the email, obtained by the Star (emphasis hers.)

“This means that any restorative justice alternative is not available, as per Crown policy.”

Setter described the policy as “incredibly outdated … uneducated, uninformed.” A rigid approach to handling cases like her own “inflicts more trauma,” she said.

The women are hopeful that they can still pursue an alternative form of justice even with the charges gone. Their lawyers have approached the defence lawyer in the criminal case to explore that possibility.

They have also expressed interest in transformative justice, which is the focus at WomenatthecentrE. It’s different than restorative justice, MacGregor said, explaining that transformative justice is a system created by Black women in the United States and engages the entire community.

Since the criminal case ended, “I feel like something has been lifted off my shoulders,” Abourisk said, “of not having to be scared of getting a phone call with upsetting news. Now I can continue to open a new chapter in my life.”

‘Repair from this harm and rupture’

The stay of charges against Comrie’s ex means the Crown has the option of bringing the charges back within a year. Once that year has passed, Comrie hopes to be able to pursue restorative justice — when the Crown can’t stand in her way.

She’s hoping to see her ex show accountability and learn about healthy relationships and coping strategies. She also wants her family members to be able to speak to him, pointing out that her experience has indirectly affected others around her.

Comrie’s experience in the criminal justice system has left her feeling deceived, betrayed, disappointed, and without any sense of justice.

“Restorative justice has the potential to turn the most painful, traumatizing experiences of my life into an opportunity for learning, accountability, rehabilitation/repair, and growth for myself, the defendant, and the community around us,” she wrote in her letter earlier this year to the Crown, defence and judge.

“We all deserve and need repair from this harm and rupture.”

If you or someone you know has experienced sexual violence, resources and support are available on the website of the Ontario Coalition of Rape Crisis Centres https://sexualassaultsupport.ca/get-help/.

The Ontario-wide Assaulted Women’s Hotline is 1-866-863-0511 and the Male Survivors of Sexual Violence number is 1-866-887-0015.

Jacques Gallant is a Toronto-based reporter covering courts, justice and legal affairs for the Star. Follow him on Twitter: @JacquesGallant