Victims claim gender discrimination in application of sex crime laws

WARNING: This article contains details of abuse

Leslie McMillan still remembers the night she dragged her intoxicated friend, Ali, out of their high school music teacher's hotel room.

"She's lying on his bed, on her back, totally passed out, pants undone," recalled McMillan. "I knew in my gut what had happened."

It was May 1987 and they were on a school trip to Montreal. Ali was in Grade 11 and the teacher was near mid-life, married with children.

• Listen to the new CBC investigative podcast: The Banned Teacher

What happened that night remained unreported until last fall when Ali, now 53, went to York Regional Police to report what she believed was sexual exploitation and assault.

"He was 39," Ali told CBC. "I cannot imagine getting sexually involved with a 17-year-old."

CBC News has agreed to withhold her last name as she continues to pursue justice.

In November, a detective videotaped an interview with Ali and took the names of potential witnesses — 35 years after the band trip.

Though there is no statute of limitation for sex crimes in Canada, no one would call on McMillan, or anyone else, to testify what she and others saw as teenagers.

In fact, the detective told Ali there would be no case.

"What he did wasn't illegal," said Ali, explaining what the officer told her. "There was no law on the books at the time."

A suspect can only be charged with violations listed in Canada's Criminal Code at the time of the alleged infraction. Sexual exploitation — a charge commonly used against teachers and other people in positions of authority for crimes against someone under 18 — became law in January 1988.

That was seven months after Ali's hotel incident.

No laws apply

A new CBC investigative podcast reveals, since 1998, three women have independently reported to Ontario police forces claiming the same music teacher — William Douglas Walker — groomed, manipulated and sexually assaulted them in the 1970s and '80s.

In all three cases, authorities came to the same conclusion: no laws apply.

To date, Walker has never been convicted of any crime. He's long maintained the sexual encounters were consensual — an assertion that a judge agreed with in one of the three cases.

But legal observers say if the complainants were boys, it might be a different story.

"People that were boy victims do make out better in the process than people that were girls at the time of the assault," said Blair Crew, director of legal aid at Queen's University in Kingston, Ont.

"One of the reasons for that is looking back in the laws."

Specifically, police have more easily found and laid charges against men and convicted teachers, coaches and others in positions of authority for crimes they committed against boys in the 1970s and '80s.

Survivors and lawyers who spoke to CBC say the difference in treatment based on gender creates a systemic double standard that continues to hinder women from seeking justice decades later. They say the discriminatory application of Canadian laws is allowing some predators to go unpunished.

'On the basis of sex'

Anne-Marie Robinson, 62, was one of the three women who reported Walker to police. She said the law is not being applied equally.

"Unequal application on the basis of sex, that's a huge policy problem that exists and governments need to fix this," said Robinson.

Crew, who for years has provided independent legal advice to sexual assault survivors, says antiquated laws, such as gross indecency, are more often applied to crimes committed against boys in the 1970s and '80s than girls.

Gross indecency is defined in the Criminal Code as anyone who wilfully does an indecent act in a public place in the presence of one or more persons, or in any place with intent to insult or offend any person.

Their innocence and their trust was so grossly abused.

– Janine Benedet, UBC law professor

"In the 1980s, the laws were still very, very homophobic in their orientation, and most of the laws, let's face it, were written by men. So there was a sense at the time that anything that was any kind of coerced homosexual conduct was immediately a crime," said Crew.

He notes the idea of a man having sex with a girl could be perceived by some authorities as less offensive.

"Women have always faced the whole idea of the rape myth that women are available for consent. So there's always this question in a Crown attorney's mind about whether or not they're going to be able to prove lack of consent," said Crew.

"Men that were boys at the time of the assault never seemed to face the same level of scrutiny."

Changes to law

The charge of gross indecency has also been used to criminalize sex between consenting men, said Janine Benedet, law professor at the University of British Columbia.

"It's been used in discriminatory ways, but for this kind of fact scenario it's actually tailor-made," said Benedet, referring to the alleged crimes against female students by their teacher in the 1970s and '80s.

"Their innocence and their trust was so grossly abused."

Canada's Criminal Code changed significantly 40 years ago.

Several laws were repealed and new violations were introduced, including sexual exploitation — the inappropriate sexual actions of a person of authority over a youth under 18.

The law didn't receive royal assent until Jan. 1, 1988 and police cannot retroactively lay the charge. As far as Ali knows, authorities didn't consider the charge of gross indecency.

Jeanie McKay, the third woman who reported Walker to police, told York Regional police in 1998 about the grooming and sexual abuse from the early 1980s. She also reported there had been other victims at her school.

No charges were laid and Walker remained in the classroom until 2000. A year later, the Ontario College of Teachers banned him from teaching after investigating allegations of abuse.

A 2019 CBC podcast investigated the abuse of boys by male teachers during the 1970s and '80s. One teacher was convicted of 10 offences including gross indecency and indecent assault.

'Wrong then, wrong now'

University of Ottawa law professor Constance Backhouse says the discrepancy raises questions.

"The historical applications of the law was wrong then and it remains wrong now," said Backhouse, author of Carnal Crimes: Sexual Assault Law in Canada.

"There were always charges that could have been laid even then … It was the restrictive and sexist interpretation that police and prosecutors and judges put on those words that was the problem."

The CBC podcast investigation found 15 girls who allege they were harassed, propositioned or sexually assaulted by Walker. He taught at seven different schools in the greater Toronto area between 1974 and 2000.

"I think it really calls out for the federal minister of justice to … put in much better policy instructions in terms of how their laws are applied," said Robinson.

In an email to CBC, the Department of Justice said eliminating sexual violence is a top priority, but didn't acknowledge the issues raised by Robinson.

The department deferred to the provinces, which "administer justice," while the Ontario government deferred to police. Police forces involved did not comment.

"There might be a human rights complaint there," said Crew. Survivors say they will consider that option.

Support is available for anyone who has been sexually assaulted. You can access crisis lines and local support services through this Government of Canada website or the Ending Violence Association of Canada database. ​​If you're in immediate danger or fear for your safety or that of others around you, please call 911.