The criminal justice system is often described as a pathway to accountability, healing, and public protection. For survivors of sexual violence, however, the experience of seeking justice can sometimes become a source of further trauma. A recent commentary by Ontario lawyer and human rights advocate Deepa Mattoo highlights a concept that deserves greater attention within Canada’s justice system: juridogenic harm.
The term, first advanced by legal scholar Carol Smart, describes the harm that can be caused not by the original crime itself, but by the legal processes intended to address it. Much as a medical treatment can sometimes cause unintended injury, legal proceedings can inflict psychological, emotional, and even physical harm on those who seek help through the courts.
The Problem of Secondary Victimization
For many survivors of sexual assault, entering the criminal justice system can involve reliving traumatic experiences repeatedly. Police interviews, preliminary hearings, disclosure procedures, and courtroom testimony often require survivors to recount deeply painful events in exacting detail.
Modern trauma research has demonstrated that traumatic memories are frequently fragmented, nonlinear, and difficult to recount chronologically. Yet the traditional adversarial courtroom continues to place significant weight on consistency, precision, and demeanour. As a result, normal trauma responses may be interpreted as signs of unreliability or fabrication.
When legal institutions misunderstand the effects of trauma, survivors can experience what many scholars describe as “secondary victimization”—harm inflicted by the very system designed to protect them.
The Impact on Marginalized Communities
The burden of juridogenic harm is not experienced equally.
Racialized individuals, Indigenous peoples, newcomers to Canada, persons with precarious immigration status, and those living in poverty often face additional barriers when interacting with the justice system. Language barriers, cultural differences, distrust arising from historical experiences of discrimination, and concerns about immigration consequences can make reporting sexual violence particularly difficult.
For some survivors, the decision to report an assault may carry risks extending beyond the criminal process itself. Concerns about employment, housing, family stability, or immigration status may discourage individuals from seeking legal protection altogether.
These realities raise important questions about whether the justice system is sufficiently responsive to the needs of the diverse communities it serves.
Lessons for the Justice System
The discussion surrounding juridogenic harm is part of a broader movement toward trauma-informed justice.
Across Canada, initiatives such as Independent Legal Advice (ILA) and Independent Legal Representation (ILR) programs have helped provide survivors with legal guidance and support during criminal proceedings. These programs recognize that navigating the justice system can be overwhelming and that complainants often require independent advocacy to understand and protect their rights.
At the same time, advocates continue to call for broader reforms, including:
- Enhanced trauma-informed education for judges, Crown prosecutors, defence counsel, and police officers;
- Greater use of testimonial accommodations, including remote testimony and pre-recorded evidence;
- Increased transparency regarding delays, withdrawals, and stays of proceedings in sexual assault cases;
- Expanded access to mental health supports throughout the legal process; and
- Development of restorative and community-based approaches that complement traditional criminal justice responses.
Balancing Fairness and Compassion
Any discussion of reform must also recognize a fundamental principle of Canadian justice: the rights of complainants and the rights of the accused must both be protected.
Canada’s adversarial system exists, in part, to guard against wrongful convictions. Rigorous testing of evidence, disclosure obligations, and the presumption of innocence remain essential safeguards against miscarriages of justice.
The challenge facing policymakers is not whether to choose between fairness for complainants and fairness for accused persons. Rather, it is how to design processes that respect both.
A justice system that understands trauma, accommodates vulnerability, and treats participants with dignity can strengthen confidence in legal outcomes while maintaining the procedural protections necessary to prevent wrongful convictions.
A Shared Goal: Justice That Heals
The concept of juridogenic harm reminds us that legal institutions can sometimes produce unintended consequences. Recognizing those consequences is not a criticism of justice itself—it is an opportunity to improve it.
Whether addressing sexual violence, wrongful convictions, or systemic barriers to justice, the ultimate goal remains the same: a legal system that is fair, transparent, accountable, and humane.
For survivors, for accused persons, and for the broader public, justice should never become a source of unnecessary harm. The challenge for Canada is to continue building a system that seeks truth and accountability while preserving the dignity and well-being of all who enter its doors.