‘Whacking the complainant’ continues to be the norm in sexual-assault cases

The Supreme Court of Canada has been very clear about how trial judges should balance fair trial rights for defendants in sexual-assault prosecutions and what is acceptable treatment of the complainant.

“The accused is not permitted to ‘whack the complainant’ through the use of stereotypes regarding victims of sexual assault,” it said in one decision. “It has been increasingly recognized in recent years, however, that cross-examination techniques in sexual assault cases that seek to put the complainant on trial rather than the accused are abusive and distort rather than enhance the search for truth,” it stated in another.

Were these recent decisions perhaps stemming from the Me Too movement? No, the judgments in R v. Mills and R v. Shearing were issued in 1999 and 2002 respectively. They were just two of a long line of Supreme Court decisions during this period that tried to limit the use of stereotypes and myths about sexual-assault victims during cross-examination.

The reference to “whack the complainant” is even older. It goes back to a legal education conference in Ottawa in 1988, where a defence lawyer told attendees that they should “whack the complainant hard” during cross-examination in a sexual-assault case. If you “destroy” the complainant, you will “cut off the head” of the Crown’s case, they were told.

The reporting from the sexual-assault trial in London, Ont., of five former members of the 2018 Canadian world junior hockey team certainly suggests that “whacking” is alive and well in our criminal courts in 2025. The trial resumed on Friday before the judge alone, after a second jury was dismissed.

The complainant was subjected to seven days of cross-examination by the lawyers representing the hockey players on trial for sexual assault. She testified that she consented to sex with one of the defendants, but was impaired and did not consent to any subsequent sexual acts.

During the cross-examination, the defence made various suggestions that included claiming she wanted to have a “wild night” and engage in sex with multiple men, that she lied about the events so her boyfriend would not break up with her and that she had an agenda. The subject matter was lurid, including texts that the defendants had sent each other.

Link to full story here.