Court worked as it's designed to in the Hockey Canada case. That's the problem, survivors and lawyers say

WARNING: This article references alleged sexual assault and might affect those who have experienced​ ​​​sexual violence or know someone affected.

In the course of her daily work, Alexa Barkley meets with people who debate whether to go to police after being sexually assaulted. Barkley walks them through their options, careful to lay out the facts without pressuring them to choosing one over the other.

She's delicate, until it's time to warn them about what they'll be up against if their case makes it to court.

"I have to explain what they're going to be up against in engaging the system and how traumatic it can be," said Barkley, 45, a survivor of sexual assault and advocate with End Violence Everywhere.

"I wish I had better news for them, quite frankly."

Barkley is among survivors, advocates and lawyers who argue the trial for five former Hockey Canada athletes again underscores how the traditional Canadian court system is fundamentally ill equipped to settle cases of sexual assault in a way that balances the rights of the accused while protecting complainants' well-being. They say there is no one-size-fits-all alternative because different survivors will define justice differently.

They said successful models used elsewhere need to be explored in Canada because, under the current system, someone always loses something — even when complainants "win."

Ontario Superior Court Justice Maria Carroccia cleared all five ex-world junior players — Michael McLeod, Dillon Dubé, Alex Formenton, Cal Foote and Carter Hart — on sexual assault charges. She found the Crown didn't prove its case and E.M., the complainant, was an unreliable witness who had at times consented to group sexual activity in 2018.

• Find all of CBC's hockey trial coverage here

Four of the five men declined to testify in their own defence during the trial, and E.M. was in the witness box for nine days.

WATCH | How the Hockey Canada trial could affect future sexual assault cases:

After the acquittal of five former world junior hockey players, The National asks criminal defence lawyers Lydia Riva and David Butt to weigh in on the judge’s ruling and how the high-profile trial could impact future sexual assault cases.

In cross-examination, defence lawyers questioned the complainant on discrepancies between her statements to police in 2018 and her statements during Hockey Canada's own investigation in 2022. They asked whether she was actually as drunk as she claimed, pointing to videos of E.M. being steady on her feet in black high heels.

They suggested she was the one who wanted a "wild night" and adopted a "porn star" persona as she encouraged the men to have sex and mocked them if they declined. They said she only came forward to police because she wanted to keep the undisclosed amount of money from a settlement with Hockey Canada and to save face with her boyfriend, friends and family.

On Thursday, defence lawyers called the ruling a "vindication" and "exoneration," but not after their clients endured a one-sided trial in the court of public opinion for the better part of a decade.

"The Crown attorney's office did not have to take this case to trial. Instead of pursuing restorative justice, the Crown forced a distressing and unfair trial to the detriment of Mr. Hart, his co-accused, the complainant and the Canadian public," said Megan Savard, lawyer for Hart.

E.M. told the court she would've preferred to resolve the issue by having police speak to the men about their actions, but felt she had no choice but to pursue criminal charges after police told her in 2018 that the men could not be forced into a conversation. (In her ruling, Carroccia said she found the cross-examination "entirely appropriate" for the case.)

WATCH | Player's lawyer says he would've engaged in restorative justice to resolve case:

Megan Savard said Thursday the decision in the Hockey Canada trial was vindication for her client, Carter Hart. She says her client would have been willing to engage in restorative justice process had it been offered, rather than go through what she called a distressing and unnecessary trial.

Few people report sexual assault to the police and only a fraction those who do end up securing charges and criminal convictions.

Statistics Canada data shows only 36 per cent of police-reported sexual assaults ended in charges between 2015 and 2019, and fewer than half of those ended in a guilty verdict.

Most complainants want to resolve their cases with accountability, prevention and the healing opportunity to have their experience heard and acknowledged.

Like E.M., Tanya Couch felt she had no alternative but to pursue some form of justice in the criminal system. Her former commanding officer was charged with sexual assault in 2021, but charges were stayed at Couch's request two years later because defence counsel requested access to her counselling records and personal journals.

"There are no other options," Couch said of going to court. "I do think that that should be an option for victims to decide — the victim knows what's best for them."

There is no universally agreed alternative to the court system because sexual violence is a complex offence and the definition of "justice" varies between survivors.

Research from North America and Europe over the years has shown blended approaches, with a combination of trauma-informed practices, community accountability and legal reform being most effective. There is consensus that survivors need to be properly informed and supported as they choose between a range of options.

The European Forum for Restorative Justice last year conducted eight interviews with eight survivors who met with the perpetrator who sexually assaulted them, from childhood abuse to incest to stranger assault. No two meetings were the same and survivor's said a sense of agency was key.

"It was recognized that in many cases, it is the process, not the outcome, that makes for successful restorative justice. Success is achieved when, at the end, the person harmed feels listened to and satisfied [with the process], because the process was needs-led," authors wrote.

E.M.'s lawyer, Karen Bellehumeur, a former Crown prosecutor with Ontario's Ministry of the Attorney General, has pushed for confidential, trauma-informed legal representation for all victims to better protect their rights throughout the process.

Toronto-based lawyer Joseph Neuberger, who for decades has represented sexual assault complainants and suspects, said such cases should be removed "entirely from the criminal justice system." He said the country needs a separate regime where trained professionals — not necessarily police — guide complainants and accused individuals through a dispute resolution-type process, if the former has no interest in court.

"That may give a complainant far more satisfaction than going through a trial and having an acquittal or some conviction, which at the end of the day may seem to be like a Pyrrhic victory because of the emotional destruction they've gone through," said Neuberger, referring to an achievement not worth winning because the cost is so high.

"A more satisfactory outcome is not defined by wins, or losses or convictions. It's defined by how we solve problems, how we solve a societal problem," he continued. "How do we make better judgments? How do we understand each other's dynamics? How do we understand consent? How do we understand mutual respect? This can be dealt with in a non-criminal setting."

Following the public outcry over the Jian Ghomeshi case, changes were made to the Criminal Code to prevent defence lawyers from surprising complainants at trial with past emails or text messages with the defendant. A long-awaited bill requiring new judges to undergo training on sexual assault became law in 2023, though it doesn't include existing ones.

There is a patchwork of restorative justice options available in some provinces, but nothing nationwide.

"We have to find other ways ... but it's difficult because so much of our culture is based on the idea that, 'If somebody does something wrong and hurts another person, you have to charge them and they go to jail.' But it doesn't work like that," said Judy Rebick, a writer and feminist who has been advocating for a better approach since Canada's rape shield laws reached the nation's highest court in the early 1990s.

The experts, including E.M.'s lawyer, said they hoped the case would be the wake-up call they've wanted.

Barkley agreed. If there's any silver lining, she said it's that the case has made the criminal justice's shortcomings difficult to ignore.

"When I'm telling survivors about my experience or the experience of other advocates, they're thinking, 'OK, well, maybe, maybe this won't happen to me. Maybe this is not normal what you've experienced.' Now, they're getting it from multiple sources. Now they can see in the news how bad it is ... they can see how egregious their treatment will be," Barkley said in an interview from her Mississauga, Ont., home.

"With the Hockey Canada trial, it's dragged it all out into the open."

If you're in immediate danger or fear for your safety or that of others around you, please call 911. For support in your area, you can look for crisis lines and local services via the Ending Sexual Violence Association of Canada database. ​​