Please know that this episode contains references
to sensitive subject matter. Welcome to Law Syrup,
the show where we talk with special guests about
hot topics in Canadian law. This podcast is a
co -production with the Ontario Justice Education
Network, also known as OGEN. I'm your host, Herman
Wong. Let's tap it. Before we begin, please know
that this show is not intended to be legal advice
or a replacement for a legal representative.
Hi everyone, Happy New Year and welcome to Law
Syrup. Today, you'll hear my discussion with
Megan Cunningham. Megan is not only a Crown Prosecutor,
but she is also the current Chair of the Ministry
of the Attorney General's Sexual Violence Advisory
Group, and she is a highly requested speaker.
Recently, Megan was one of the prosecutors on
the Hockey Canada trial that has been much covered
in Canadian and international news. Together,
we talk about her beginnings as a Crown attorney,
how she balances work life and the emotional
aspects of her cases with her life at home, and
misconceptions the public may have about criminal
court, the Hockey Canada case, and the role of
Crown attorneys. Now, as a disclaimer, Megan
did not speak to me today as a representative
of the Ministry of the Attorney General, but
rather sharing her own personal thoughts and
reflections. So nothing she says here should
be taken as the words of the ministry itself.
With that being said, here's our discussion.
All right, so Megan, thank you so much for joining
us today. How are you? I'm doing very well, thanks.
Thanks for having me. Yes, it's so exciting to
speak to you. How are you enjoying the weather
outside? It's a lot warmer today than it has
been in the past, so I'll take it. You know what?
Like yesterday, there was freezing rain. I wasn't
very happy. Right now, we're in that moment where
it's after Christmas. And typically, I enjoy
snow for Christmas because it fits the season.
But now, everything is just turning to slush.
But hey, the days are getting longer, so that's
great. Yeah, I don't quite feel that yet, but
I know it is objectively true. Yeah, so just
waiting for the daylight to come back and I can
stop taking my vitamin D supplements. That would
be nice. Yes, but let's just jump right into
our discussion. Thank you so much for joining
us. We're so looking forward to hearing from
you about your own career and also about the
cases that you've handled, particularly the Hockey
Canada case that's been on the top of many people's
minds. So let's start at the very beginning.
Why the law? And I know you went to uOttawa to
do the common law program. Do you remember when
you first started thinking about a career in
law? Well... Not exactly, to be honest. I mean,
I would say that I was always interested in justice
issues, but not necessarily the law or legal
issues. You know, in high school and, you know,
undergrad, I was particularly interested in social
justice. But at that time, I really thought I
wanted to be a doctor. That really was where
I was sort of headed. And I was in the Artsci
program at McMaster for undergrad. And I did
my undergraduate thesis on media representations
of conjoined twin separations. Yeah. And... You
know, what really fascinated me about that area
was just how intertwined these sort of medical,
social, cultural sort of gender decisions were
in that particular case. And I think where I
ultimately kind of landed on this was this overarching
question about like. why was why were some of
these decisions that were made medical decisions
like who decided that doctors you know get to
make some of these decisions and so you know,
when I finished my undergrad, I did really think
that I was interested in sort of medical ethics.
And I thought I still might go to medical school.
But I also thought that law school might be a
good place to sort of explore some of these ethics
and policy questions that I had. So I wasn't,
when I went to law school, it wasn't really necessarily
with a career in law in mind. But that was sort
of my path to getting to law school. you know
that's super interesting because originally when
i was in elementary school i always thought i
would be a doctor um as most children do um and
actually in careers class we had this website
where you do a quiz to see what career suits
you best it was like i call career cruising or
something like that And I did the quiz and the
number one choice for me was bioethicist. Okay,
interesting. Kind of related to what you were
thinking about. And I was like, oh, that's interesting.
And I think the second one was actually judge.
And I was like, oh, they're very interesting
results. But eventually I went to high school.
During high school, I realized that science was
not my thing. But I was like, hey, I like social
justice. I like to read and write. So, you know,
law sounds pretty good. Yeah. You know, I mean,
there's a lot more overlap than than people might
think, really, between law and medicine and science.
So, yeah. So when you went to law school, did
you know you wanted to do criminal law in particular?
No, not at all. So I, you know, started law school,
not. thinking about criminal law at all, thinking
more about medical ethics and sort of policy.
I didn't plan on being a litigator at all necessarily.
And then what happened was I sort of fell in
love with criminal law in first year. It was
sort of my first year crim law class. It was
just kind of, you know, I felt like my eyes were
just sort of opened. you know, the issues are
so interesting. You know, they make... television
shows and movies about, you know, criminal law
and trials and things like that because they're
interesting, right? And because they matter,
you know, like these cases, you know, have that
intersection of being fascinating, being important,
mattering for everyone involved, right? The stakes
are so high for victims of crime, for those accused
of crime. And so, you know, criminal law quickly
became sort of my primary area of interest, you
know, once I started law school. But even once
I sort of discovered that criminal law was what
most interested me, I wouldn't say I was necessarily
leaning towards being a crown right away. And,
you know, I think my experience in law school
is that there was very much the sense that the
criminal justice system pits the vulnerable average
person against the sort of soulless machine of
the state. And there was this sense that the
sort of the honorable work is defending accused
persons against the state, not being sort of
a cog in that soulless machine of the state.
And so that was sort of where, you know, my sort
of head was at, you know, in law school. You
know, and I think there's no question that you
know, being a defense lawyer is honorable work
and defense lawyers play a critical role, you
know, in the criminal justice system. But when
it came time to sort of apply for articling positions,
I chose to article with the Crown instead of
a defense firm. primarily because I thought I
would get exposed to a broader range of work
there and I might get, you know, to take on more
responsibility early on. But I do remember that
during my articling interview, I was asked, where
do you see yourself, you know, 10 years from
now? And I said, I think probably doing defense
work. Oh, really? Because that's more philosophically
aligned with my views. And the person who was
interviewing me said, you're going to change
your mind. And I said, I don't think so. But
of course, you know, turns out she was completely
right. I did change my mind. I did not really
have a sense of what crown work was, I think,
when I was in law school. And so, yeah, once
I sort of discovered what it was, what it involved,
it turns out it was a really great fit for me.
So you mentioned that one person. Were there
any other specifically impactful cases that kind
of encouraged you to step into the world of criminal
law? Yeah, I mean, I think, you know, the parts
of law school that really interested me, and
in particular, as it relates to criminal law,
were these sort of this sense of this kind of
feedback loop between the law and our sort of
social values and structures, right? This idea
of how, you know, legal systems both impact and
are impacted by, you know, existing power structures
and the systems that we rely on. And so, you
know, in particular, I was interested in how,
you know, the laws and our legal processes reflect
and entrench sexist and racist attitudes and
ideals. And so there were two cases in particular
that really kind of stand out to me. So the first
is, it's a case called R. and Dudley and Stevens.
It's a case from 1884, and it involves high seas
cannibalism. Oh, I have never heard of that one.
You know, it doesn't come up, I think, ever except
in law school. What happened was some sailors
killed and ate a cabin boy to survive. And, you
know, it engaged the defense of necessity and
it kind of, you know, engages some of those questions
that I was already really kind of struggling
with. You know, who gets to make these decisions
and sort of the trolley problem, right? Is it
better to kill one person for the good of many
or do nothing but let many people die? And then,
you know, sort of that question of like. Why
was it the cabin boy that had to die, you know,
so that everyone else could live? Who made that
decision? So that case, you know, I think was
maybe one of the earliest ones that really stuck
with me. The second case, I think, you know,
maybe hits a little closer to home and it's the
case of Jane Doe. who sued the Toronto Police
for negligence and for violating her charter
right, security of the person, and her equality
right under section 15 of the charter. And of
course Jane Doe was sexually assaulted after
a man used her balcony to break into her apartment.
I think this was in 1985 or 1986. And she wasn't
the first. person to have been sexually assaulted
by this man. I think she was the fifth person
to be sexually assaulted by the same person.
He came to be known as the balcony rapist. And
even though police knew that there was a serial
predator targeting women in this particular neighborhood,
they made a deliberate choice not to warn the
public because they didn't want to tip him off.
So they wanted to catch him. And so Jane Doe
successfully sued the Toronto police. I think
her lawsuit was concluded in 1998. And she came
and spoke to my law class when I was in first
year, and that was 1999. So it was incredibly
impactful. I remember her speaking about how
she felt like she was used as bait. by the police,
how sort of dehumanizing that was. And I remember
really being struck by this sort of this tension.
I mean, the police are trying to catch a dangerous
sexual predator who's targeting women. But the
way they went about, you know, sort of achieving
that very, you know, important goal exposed Jane
Doe and others, you know, to unacceptable risk.
again, it kind of comes back to that question
of like, who gets to make these decisions? Who
are the people who are making these decisions?
You know, Jane Doe and these other women who
were exposed to the risk of sexual violence,
they had no say, you know, in the matter. They
had no voice. And that sense of powerlessness
has always really stuck with me. And then the
other part of that story that really stuck with
me is the way that Jane Doe used the legal system,
used a legal process to sort of reclaim some
of her power and reclaim her voice that was taken
from her. That was really powerful to me as a
law student. Well, that's amazing. And I know
a lot of the work that you do now focuses on
vulnerable victims, many of which are sexual
violence cases. I believe you're now the chair
of the Ministry of the Attorney General's Sexual
Violence Advisory Group. Can you tell us a little
bit more about what that group is? Yeah, absolutely.
So the Sexual Violence Advisory Group was formed
in 2015. It was part of then Premier Wynne's
Sexual Violence and Harassment Action Plan. And
it was sort of a multi -pronged approach that
affected a number of different, you know, aspects
and ministries. And for the Ministry of the Attorney
General, it created this sexual violence advisory
group, which is a dedicated group of seven specialized
prosecutors. And we were given the mandate of
developing an enhanced prosecution model for
sexual violence cases and trying to improve the
victim's experience in the criminal justice system
in particular. So, you know, I think this was
back in 2015. At the time, I wouldn't say that
I had necessarily specialized exclusively in
sexual violence cases at that point. I'd certainly
been more attracted to cases with vulnerable
victims and had done a lot of those cases. I
was very much attracted to the sort of... the
complex, you know, legal framework, you know,
in sexual assault prosecutions, but also the
sort of challenging human dynamics in those cases.
And, you know, I debated when the position became
available and when the Sexual Violence Advisory
Group was created. On the one hand, it was like,
wow, what an amazing opportunity. But I was also
a little bit reluctant because doing this kind
of work really does take a personal toll. And
I wasn't sure that I wanted to sort of do only,
you know, this kind of work. But ultimately,
that sort of the opportunity to kind of build
an enhanced prosecution model from scratch. was
too alluring. And I'm really glad I did sort
of take that leap because it's been an absolutely
amazing opportunity to sort of, you know, really
develop a depth of knowledge in one particular
area of criminal law, which is something as prosecutors,
we don't often get that opportunity to do. Most
Crown prosecutors are sort of generalists. We
do a little bit of everything. I see. So was
being part of this advisory group what led you
to take on the Hockey Canada case? Um, not -
Not necessarily. So the Hockey Canada case was
assigned to me, which is pretty much how every
case, you know, comes into the hands of any particular
crown. But, you know, it's a little bit unusual
because it was a case being prosecuted in London,
Ontario, and I don't work primarily in London,
Ontario. But obviously, you know, it was sort
of anticipated that this was going to be a major
prosecution that would take a lot of time, not
just for the trial itself, but also in the...
lead up to the trial, right? So the case management
aspects, when you have five accused, are going
to be pretty demanding. So, you know, I think
it was always clear that there was going to need
to be more than one crown on the case. Taking
two crowns from the London, you know, Crown's
office would be a significant drain on the resources
of that office. So I think it probably made sense
to bring someone in from outside of London. And
it was just a good fit for my experience and
the position that I was in at the time. So I'd
recently become the chair of the sexual violence
advisory group. I didn't have a demanding trial
schedule. My schedule was a bit more flexible
so I could handle the amount of case management
that would be involved in this particular case.
And I had done other cases that had attracted
media attention before. So I had that kind of
experience as well. Yeah, I want to talk to you
a bit more about that because you also mentioned
the personal toll that these types of cases has
on you. So when you got this case, how did you
prepare yourself mentally and emotionally? Yeah,
that's a really good question. I mean, I think,
you know, one of the most important... parts
of preparing mentally and emotionally for the
case is sort of making sure you've got a solid
support network in place, knowing, you know,
what the demands are going to be. So, you know,
a big part of that is, you know, your sort of
home, you know, support and network. And, you
know, so knowing that you've got your sort of
family and friends that you can rely on. But,
you know, there was also sort of different aspects
of developing and sort of making sure that my
work support network was in place as well. So
part of that involved getting to know who my
co -counsel was, someone who I didn't know before
I was assigned to this case. And so we had to
sort of develop a working relationship. We had
to get to know each other and figure out how
we can work together. And we did that from afar
before the case began. Same with the investigating
officer in the case. It's really important to
sort of build trust and sort of develop a rapport
with the people that you're going to work with,
knowing that once the trial actually gets going,
things can get pretty intense. And so you need
to have that kind of established relationship
before you get to that point. I would also say
that Part of it for me was recognizing early
on that once this trial began, it was going to
demand my full attention. So I had to be kind
of mentally prepared to let other things take
a backseat. for me personally, because I'm a
bit of a control freak, I had to sort of know
that I was leaving other things in good hands,
you know, both on a personal level and a professional
level. So, you know, I had amazing colleagues
on the sexual violence advisory group who stepped
in to handle all of the other stuff that might
have pulled my focus away, you know, during the
trial. You know, my husband was effectively solo
parenting, you know, during the trial. But I,
you know, was confident that all of that was,
you know, well in hand. And, you know, so it
was really about, you know, sort of trying to
get everything in place ahead of time before
the trial began so that, you know, I would be
able to devote, you know, my full attention to
the trial once it was happening. So once everything's
set in place, I was wondering if you could take
me through a day. working on this case, you know,
preparation, talking with your co -counsel, you
know, how long are your workdays and how do you
schedule it? So, yeah, during the trial itself,
the days were long. You know, I was living, you
know, in a rented apartment in London, Ontario,
650 kilometres away from where I normally live.
So, you know, my routine during that trial was
not at all usual in terms of what my life would
be like at home. Um, so I would say, you know,
during the trial, I think typically I would wake
up around 6 30 in the morning, you know, have
some breakfast, do a little work. Um, I was able
to walk to the courthouse in London. I was near
enough to do that. So I appreciated that opportunity
to get outside. And then, you know, you get to
the courthouse. You know, I was lucky enough
to have an office, you know, within the London
Crown Attorney's Office at the courthouse. So
I had a place where I could sort of leave my
things and print things as needed. You know,
I would connect with Heather, who was my co -counsel.
Sometimes we would need to connect with witnesses
or the investigating officer. We would be doing
some last minute prep for arguments we knew were
going to arise that day or printing of exhibits
and things like that. And that's all sort of
before we head up to the courtroom in London.
The courthouse is very vertical. I think there
were 14 floors. Yeah. And so our courtroom was
on the 14th floor. You really can only get there
by elevator. And there were generally only sort
of one or two of the three available elevators
in operation. So you had to leave a little bit
early to make sure you were going to get up to
the courtroom in time. So court starts at 10
typically. So, you know, around 930 or so, we'd
start gathering our stuff and getting ready to
kind of head up to the courtroom. And then the
court day usually goes till about 4 .30 or 5.
After that, we do some more debriefing. I'd speak
with my co -counsel, sometimes the investigating
officer. Again, we're making arrangements for
witnesses the next day, doing all of that kind
of stuff, talking about what issues might arise
the next day, dividing up work, doing that kind
of thing. And then sort of getting home around,
i don't know between six and seven you know have
some dinner sometimes do a little bit more work
i tried to leave um you know an hour or so before
bed to sort of you know decompress from the day
i actually find for me jigsaw puzzles are the
way to like shut my brain off oh i'm with you
i love a good jigsaw puzzle um i know that the
listeners can't see but behind me i have a giant
painting but it's actually a jigsaw puzzle Oh,
amazing. And I'm the type of crazy person that
glues my puzzles and frames them. So there you
go. So I wish I could show you on my, my dining
room table right now, I got a puzzle for Christmas
and it's a 2000 piece puzzle, but it makes eight.
Like it makes each of the planets. It makes planet
shaped puzzles, but they're all together in one
2000 piece thing. So you have to first kind of
sort them and decide. Anyway, it's a beautiful
puzzle and I just finished it. Congratulations.
Thank you. Yes. So we talked about, you know,
all the prep work that has to go into going to
a trial. And I feel like they don't really talk
about the prep work, especially in like TV shows
about criminal cases. you know when you watch
a tv show it always seems like trials are you
know an adrenaline rush it's always like super
dramatic but what are some of the other big misconceptions
that you think the public might have about criminal
court Well, I think one of the big misconceptions
is just how long, you know, it takes for a case
to make its way, you know, through the criminal
justice system. You know, an episode of Law and
Order, like the crime is committed and solved
and the trial is over all within, you know, a
one hour episode. So I think it kind of sets
up this idea that, you know, these cases can
move quite quickly when in fact they move slowly.
And I think people also don't understand just
how many. steps there are in the process right
so sometimes there are bail hearings there could
be a preliminary hearing there are pretrial motions
there are all kinds of meetings between the crown
and the defense lawyer judicial pretrials which
are meetings with the crown the defense lawyer
and the judge and so Things are happening on
the case, but nothing necessarily, you know,
in court on the record or even if things are
happening in court on the record, it's not part
of the trial. So I think people don't necessarily
understand that there's a lot more like the trial
is kind of the tip of the iceberg. Right. And
the rest of the iceberg is all of the rest of
the work that goes into getting ready for the
trial. How about any misconceptions about the
role of a crown attorney? You know, I think a
lot of people don't. necessarily understand what
the Crown's role is. I think a lot of people
think that the Crown is the victim's lawyer,
right? They sort of view, you know, a criminal
trial as like the accused versus the victim.
But that's not what a criminal trial is, right?
The Crown represents the public, not the victim.
And there's an aspect to the Crown role that
is sort of a quasi -minister of justice role.
You know, the Crown has to act in the public
interest. And that includes the victim is a member
of the public, it includes taking the victim's,
you know, views and interests into consideration.
But, you know, ultimately, the Crown is acting
in the public interest. And, you know, I think
people also don't necessarily understand just
how much discretion individual Crowns have, you
know, in relation to the cases that they have
carriage of. We do have policies to follow, but
for the most part, they're not rigid. And individual
crowns do have a lot of discretion. And in fact,
the system relies on individual crowns, you know,
making principled decisions in each case, making
decisions about whether there's a reasonable
prospect of conviction, making decisions about
what is in the public interest and how to conduct
their particular case. You know, part of that
sort of responsibility, you know, is what attracted
me to the Crown, you know, role. You know, it's
a responsibility, but it's also a freedom because,
you know, it is the Crown's job to do the right
thing. And if I can get into the Hockey Canada
case just in particular, in your opinion, since
you worked firsthand on this trial, what were
some of the biggest misconceptions that you think
people might have had about this case? Well,
you know, one of the issues that I saw come up
a lot was some confusion about The decision to
prosecute, you know, and how that decision gets
made and who makes that decision. And I don't
think it's necessarily unique to the Hockey Canada
case. I think in general, the public doesn't
necessarily understand what goes into a decision
about whether or not to proceed with a criminal
case. And in Ontario, the decision about whether
to lay a charge, right? Like if criminal charges
are going to be laid and what charges are going
to be laid and who's going to be charged. Those
decisions rest with the police. There can be
consultation between Crown and police, but ultimately
it's a police decision, you know, whether charges
are laid. But once the charges are laid, then
it's the Crown's decision. Then it's up to the
Crown to decide what's going to happen to those
charges. And, you know, in making that determination,
the Crown has to assess, is there a reasonable
prospect of conviction? And is the prosecution
in the public interest? And, you know, public
interest is another thing that I think, you know,
people don't really understand. Public interest
involves assessing a lot of different factors,
but the public interest assessment is not influenced
by politicians. It is not influenced by public
sentiment, right? It's not about what the public
wants. It's about what is in the best interest
of the public. right and so you know a prosecution
can only proceed a crown can only proceed with
a prosecution if they have concluded that there
is both a reasonable prospect of conviction and
a public interest in the prosecution so a really
strong public interest cannot make up for an
absence of a reasonable prospect of conviction.
Right, right. Right? And so, you know, a reasonable
prospect of conviction means that a guilty verdict
wouldn't be unreasonable. That's the sort of
the test. So, you know, as I sort of said earlier,
you know, as a prosecutor, it's your responsibility
to... proceed with cases where there's a reasonable
prospect of conviction and it's in the public
interest. But it's also the prosecutor's duty
to discontinue a prosecution if you don't believe
there's a reasonable prospect of conviction and
that continuing is not in the public interest.
You know, we talked about the complexities that
go into this case, but also how you need to decompress
from the pressures of it all. Do you find it
hard to detach from cases when you're working
on them, especially cases of this nature? Is
this even a goal or something you strive for?
Or do you like to be fully immersed in a case
when you're working on it? That's such a great
question, because I don't think that there's
sort of a right or wrong answer or one answer
that sort of... works for everyone or even that
works for me in all cases. You know, it's very
sort of individual. This kind of work does carry
a very high risk of vicarious trauma and moral
injury. And, you know, part of, I talked earlier
about this enhanced prosecution model, you know,
that we developed as part of the Sexual Violence
Advisory Group. The enhanced prosecution model
really at its core is a trauma -informed prosecution
model. And part of prosecuting sexual violence
cases effectively requires understanding the
impacts of trauma on the people involved in the
case, but also how it can affect us as well.
And one thing that we have learned is that traumatic
memories are very difficult for someone to sort
of access and communicate. But you give them
the best chance of being able to access and communicate
those memories effectively if you can sort of
put people at ease, right? The more anxious and
defensive, you know, and uncomfortable someone
is, the more difficult it's going to be for them
to access and communicate those traumatic memories.
So the reason I sort of think that's important
is because you know making a human connection
you know with the complainant in you know any
particular case is absolutely critical, not only
to that complainant's experience, engaging with
the criminal justice system, but it's also crucial
for a successful prosecution. It's crucial to
allow the complainant to effectively communicate
her experience. So completely detaching is really
not an option if you want to do these cases effectively.
you know, and some people talk about, you know,
you need to be empathetic. The difficulty with
empathy, right, is that it requires you to put
yourself in someone else's shoes. And that can
be really taxing emotionally, right? Because
then you're sort of feeling what they're feeling.
Some of the reading that I've done talks about
how a better approach might be focusing more
on compassion, right? To try and understand what
someone is experiencing and then respond to that,
right? To sort of fundamentally respect the dignity
of the people you're interacting with rather
than trying to sort of feel what they're feeling.
So, I mean, you know, that's the theory. In practice,
I think most of us just kind of feel our way
through it. You know, some complainants I connect
to more on a... personal level than others. Some
cases require more immersion than other cases
do. For the hockey case, I immersed myself in
that trial in a way that I probably wouldn't
for most other cases, but a large part of that
was the unique living situation I found myself
in. Living separate from my other life commitments
and activities that were otherwise on hold was
just a bit of a unique I think, you know, for
most people in most cases, you know, it is really
critical to sort of find a way to strike that
balance and draw that line between your work
life and your home life. And I think most people
would probably say that's a work in progress,
you know, right up until the point when you retire.
Did reading the news at all affect the way that
you were working, especially on a case like this?
Well, that's interesting. I mean, certainly I
got lots of advice before the trial started not
to read the news. You know, it's kind of impossible,
you know, at a certain point. There's a real
risk that it can be a distraction. You know,
I think when there's a jury trial, you know,
in particular, I do find it helpful to sort of
read. how the journalists who are sitting in
the courtroom are perceiving things and that's
interesting well because it gives you a little
bit of an insight into how the jury might be
perceiving things right these are also people
who are sort of hearing the evidence for the
first time So I think that when I'm doing a jury
trial, I do like to sort of keep an eye on some
of the reporting for that particular reason.
But I stay far away from social media, not just
in this case that's sort of a life rule generally,
but I'm very conscious of the sort of the negativity
bias that exists, right? Like one negative comment,
you know. takes on a much more significant role
than, you know, 50 positive comments. So, you
know, that was a distraction that I did not need.
And so I certainly stayed far away from that
in this case. That's good. Good for you. Yeah.
I have trouble detaching from social media, but
hey, it's 2026. That can be my new resolution.
Not too late. Exactly. after the verdict you
stood in front of reporters and there's a clip
of you where you said and i quote a successful
prosecution is not measured solely by whether
there are guilty verdicts in the end the crown's
goal throughout this proceeding is to see a fair
trial what were you hoping to communicate to
the public when you were making those remarks
um i think that part of the remarks really touched
on two things. First is that sort of idea of
the quasi -minister of justice part of the Crown's
role, right? The Crown is not looking for a conviction
at any cost. We are looking to have a case judge
fairly through a process that respects the rights
of the accused and respects the rights of the
victim. So a fair trial is always the end goal,
you know, for the Crown, not a conviction. So
that's part of it. And I think I was also trying
to communicate that the public interest can be
furthered by the prosecution itself, not just
by a particular outcome. So, you know, keeping
in mind, of course, that public interest is not
a substitute for reasonable prospect of conviction,
right? So I'm not sort of saying that, you know,
a public interest alone is enough. But I think
it's important that we don't sort of fall into
this trap of saying, well, there wasn't a conviction
at the end. So obviously the prosecution wasn't
in the public interest. I think, you know, in
this particular case, because of the media attention,
because so many people were paying attention
to what was happening in this case. it really
sparked important conversations about what consent
is, about how consent can and can't be communicated.
You know, important conversations about how well
our law is doing at understanding complex behavior.
You know, important conversations about how victims
of sexual violence are treated in the criminal
justice system. So I think, you know, these are
really important conversations for all of us
as a society, you know, to be having. And so
I think, you know, that's part of this. You know,
when the case was over, I received a lot of messages
from members of the public who I didn't know.
More than 50, in fact. And a lot of these messages
were from women who, you know, shared with me
their own experiences of sexual violence. They
talked about how they were not able to speak
up or fight for themselves. And they talked about
how seeing EM sort of. break the silence and
seeing her have the courage to testify and going
through that, how it was so meaningful for them.
Someone said her courage is contagious. So, you
know, I think that part of it sort of speaks
to the public interest issues as well. I think
there are public interest goals that can be achieved
through a prosecution that don't depend on the
actual outcome of the case. Yeah, and you spoke
about the dialogue. That's been ongoing, regardless
of what the verdict is. And I was wondering if
you think that whether or not this dialogue has
reached a point where people are discussing,
you know, what are other dispute resolution methods
when it comes to sexual assault cases? You know,
the words restorative justice are thrown around
here and there, but what's your take on it? Like,
are there alternative ways to address these matters?
Well, that's a really interesting and timely
question. There are lots of conversations being
had about restorative justice right now, in particular
how it might be used in relation to sexual assault
cases. I think it's important to contextualize
this a little bit. Research shows that approximately
5 % of sexual assaults are reported to the police.
Right. I mean, it's one of the most underreported
crimes. And the criminal code and our Supreme
Court say over and over again that we as a society
have an interest in encouraging the reporting
of sexual offenses. But we also have a delay
problem in our court system. So there's a tension
between wanting to increase reporting and our
system's sort of capacity to handle, you know,
an increase in volume. I think it's important
to sort of recognize the very important role
that the criminal justice system plays in society.
The criminal justice system helps us maintain
public confidence in the rule of law. It promotes
public safety and security. And so generally
speaking, the criminal justice system is where
serious crimes should be dealt with. That's the
system that we have for dealing with serious
crime. And sexual assault is a serious crime.
And it's taken a long time to have the public
and the courts recognize just how harmful and
serious non -consensual sexual touching can be,
especially when there are no overt threats or
physical violence involved. So I think it's important
to make sure we're not... you know, embarking
on a path that moves us backwards in terms of
recognizing the seriousness of sexual violence.
But at the same time, you know, it's undeniable
that the criminal justice system is not right
for every victim or for every case, right? For
very good reasons, a criminal trial requires
the Crown to prove the case beyond a reasonable
doubt, which is a very high standard. In most
cases, the accused's fair trial right means that
he will have an opportunity to cross -examine
the victim, and that can be a very, very difficult
experience for a victim. So, you know, I think
it's important to ensure that survivors of sexual
violence are... informed about their choices
and what might flow from starting down a particular
path. And I think we need to do what we can to
sort of empower survivors to make a choice for
themselves about what process they want to engage
with. And I have You know, I have quite a bit
of experience using restorative justice processes,
you know, as a Crown. I'm a huge supporter of
these processes, generally speaking. I've had
a lot of very positive experiences with them.
I know some people have expressed concerns about
the specifics of how we can use these processes
in the context of sexual violence. Should it
exist as part of the criminal justice system
or a complete alternative to someone engaging
with the criminal justice system? And I think
most advocates for the use of restorative justice
in sexual violence cases, I think most would
agree that the process has to be victim -focused
and victim -driven. It would not be appropriate
for a victim of a serious crime like sexual assault
to feel pressured into participating in a restorative
justice process. And restorative justice also
requires some sort of acknowledgement of harm
done, you know, by the offender. Right. Or at
least some kind of taking of responsibility or
acceptance of facts. Right. If you don't have
a sort of like common understanding or agreement
about what happened, it's hard to imagine how
that process could be, you know, healing or restorative,
you know, for the victim. So, you know. I think
it's a complex issue. I think these are, again,
really important conversations to be having.
I think we have to listen carefully when we're
hearing survivors of sexual violence, when we're
hearing some of them say they want more choices,
aside from just a criminal trial. It's important
to listen to what they're saying. But I think
it's also important not to view restorative justice
as some sort of panacea or something that will
be appropriate for all sexual violence cases,
like it's a complete answer. I think it's complicated,
and I think we're really just starting the important
discussions about that. And that's powerful,
and that's a great way to end things off. But
before I let you go, I know that you're known
for your focus on mentorship and championship
of generations who are coming after you. What's
a piece of advice that you would give to young
Crown attorneys or anyone who might be interested
in a role as a Crown prosecutor? Two things.
First, be yourself. This is a human job that
requires you to bring all of your human skills,
you know, connection, communication, curiosity.
All of this is critical. You, you know, young
crown starting out will never be able to do the
job exactly the same way that someone else does.
So, you know, I would tell, you know, a young
crown to take inspiration from the people that
you admire, but don't bottle up the things that
make you, you. That is the key to your success,
you know, as a litigator and as a crown. And
the second thing is be brave. You know, being
a crown means that you have the responsibility
and the freedom to do what you believe is the
right thing. Now, sometimes doing the right thing
aligns with what others want and sometimes it
doesn't. Right. So as a crown, it is really important
to be guided by principle, not the desire to
be popular. You can be a strong advocate in the
courtroom and still fulfill that quasi -minister
of justice role if you're brave. It is a great
job. It won't feel like it some days, but it
is tremendously rewarding if you stick with it.
Amazing. Well, Megan, thank you so much for your
time. I think this is a great conversation and
listeners are going to have a great time listening
to this and thinking about the topics that you've
raised. So Megan, thank you once again for joining
us and I wish you the best. Thanks. It was my
pleasure. Nice chatting with you. Thank you for
tapping into this episode of Law Syrup. Law Syrup
is produced by me, Herman Wong, and the Ontario
Justice Education Network. For more information
and for accompanying resources, check out ojen
.ca and our show notes. See you next time.