Marlee Liss still remembers how dehumanizing it felt to sit through the preliminary trial of the man accused of sexually assaulting her, disturbed by how she was treated while testifying, as she answered a series of invasive questions.
It took three years for the Toronto woman’s case to make it to trial. The whole time, she said, she didn’t necessarily want her alleged assailant to go to jail — she just wanted him to take accountability.
Thanks to a referral from her Crown attorney, the case was put on pause in 2019 so that Liss could pursue a community justice program, also known as restorative justice. There, she got to hear her alleged assailant take accountability in a private room, apologizing to her directly. He also underwent months of therapy.
Liss said the prosecutor agreeing to resolve the case outside the daunting courtroom was the most healing moment in the entire process.
“It was the first time someone was finally saying … ‘Your voice matters, what you need matters, your boundaries matter, your healing matters. Let’s act according to what you need,'” said Liss, who is the founder of the global advocacy group, Survivors 4 Justice Reform.
Because the case was diverted from the court system, Liss’s alleged assailant did not receive a criminal conviction, but by the time the community justice program was complete, Liss said she was confident he wouldn’t re-offend.
Liss’s experience is rare. In Ontario, sexual offences are among a list of serious offences deemed ineligible for referral to community justice programs by Crown prosecutors. According to a 2023 report from the Women’s Legal Education and Action Fund (LEAF), the Crown attorney for Liss’s case was later formally disciplined for her actions.
Survivors 4 Justice Reform is calling on the province to scrap that policy. The group has written an open letter to the Ministry of the Attorney General, co-signed by 50 individuals and organizations that work with and advocate for sexual assault survivors.
“Denying survivors this option perpetuates a one-size-fits-all approach that fails to meet the complex realities of sexual violence,” says the letter, shared publicly on Monday.
A spokesperson for the minister of the Attorney General declined to comment, having not yet seen the letter. Charlotte Carron then declined to answer questions from CBC about the policy of not referring sexual assault cases to community justice programs and whether that might be changed in the future. “It would not be appropriate to comment on this topic without seeing the letter,” she said via email.
Restorative justice can take different forms, including therapy, healing circles rooted in Indigenous practices, rehab programs or volunteer work. People accused of crimes have to assume responsibility for their actions and be willing to make “meaningful amends” to participate, according to the province’s Crown Prosecution Manual.
“The idea that restorative justice could be a thing that lets perpetrators off the hook — I think we have to start by recognizing perpetrators are not on the hook right now with the criminal legal system,” said Liss.
Survivors don’t know it’s an option
Right now, community justice programs are available in Ontario to sexual assault survivors who haven’t reported their case to police. But many don’t know that’s an option, Liss said. She says people’s first instinct is to call the police, and once a case is in the legal system it’s too late.
“We really want it to be possible for people who are already going through the criminal legal system to be able to change their mind … that’s what consent is,” Liss said.
Emily Quint says she wishes she’d known about restorative justice as the sexual assault case against her alleged assailant was going through the legal system.
The charges were eventually stayed because of an unreasonable delay in 2023. Hers was one of 59 sexual assault cases that year in Ontario which were stayed due to delays, according to data from from the Ministry of the Attorney General.
“I was re-traumatized, re-victimized, just treated like I was absolutely nothing,” she said.
More than half of the criminal charges laid by police in Ontario never make it to trial, according to data from Statistics Canada. As CBC’s Sarah MacMillan reports, the numbers paint a troubling picture of the province’s justice system.
While she understands why many survivors want to see their assailants punished, Quint says it was never about that for her.
“I wanted to stand up and say, ‘this is what happened to me and it wasn’t OK,'” she said. ” I wanted healing for myself, healing for him, counselling for myself, counselling for him.”
Lack of access is another barrier
Lawyer Deepa Mattoo said she’s seen many survivors prefer seeking justice outside the court in her time as director of the Barbra Schlifer Commemorative Clinic, which supports survivors of gender-based violence. She says they would go to the Human Rights Tribunal or the now-defunct Criminal Injuries Compensation Board.
Mattoo agrees survivors should have greater choice, but says the clinic tends not to refer them to restorative justice programs because of low availability for those services throughout the province.
“Those options need to be designed and available in [the] community for people to be referred out to,” Mattoo said.
The policy barring prosecutors from referring sexual assault survivors to these programs is a big reason that programs are under-resourced, according to Rosel Kim, a senior staff lawyer at LEAF, one of the organizations that co-signed the open letter.
Not only should the province relax its policy, Kim says, but it should also increase the funding for the programs as well.
“If you just sort of lift the moratorium, but they don’t provide options, that’s not meaningful either,” Kim said.
