The Supreme Court of Canada has come out with an interesting “trilogy” of cases on sexual assault in the past few months: R. v. Barton, 2019 SCC 33 (CanLII), R. v. Goldfinch, 2019 SCC 38 (CanLII), and now R. v. R.V., 2019 SCC 41 (CanLII). I have the most concerns over the most recent one – R.V. In this case, the Supreme Court overruled (by a 5-2 majority) a unanimous Ontario Court of Appeal decision (R. v. R.V., 2018 ONCA 547 (CanLII), decided by MacFarland, Watt and Paciocco JJ.A.) ordering a new trial where defence was wrongly precluded from asking critical questions during cross examination of the complainant. While the Supreme Court agreed that – notwithstanding s. 276 of the Criminal Code – the questions should have been allowed, it found that nevertheless it likely did not make enough difference in the trial to justify ordering a new trial.
The facts were essentially that a relative was accused of a sexual assault after the complainant was impregnated. Without any evidence as to paternity, the complainant accused the appellant of the assault (she was also underage, so “consent” would not have made a difference). The appellant’s counsel wanted to question her about other people who may have impregnated her, and the trial judge did not allow the s. 276 application. Meanwhile, the Crown was free to ask the appellant about the pregnancy.
Both the Court of Appeal and Supreme Court found it unfair that the appellant was not allowed to question her about this, given the centrality of the pregnancy in this case. However, the Supreme Court found that it did not matter enough, and enough avenues were available for the defence to sufficiently cross-examine.
I am troubled by this decision. Not only does it (and its predecessor, Goldfinch) quote Professor Elaine Craig’s disturbing book Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession in which she criticizes just about every judge and defence lawyer in the country (more on this in another post), it essentially condones trial unfairness and prejudice to an accused in the context of a sexual assault trial. As it is, the laws surrounding sexual assault trials are confounding and frankly contradictory (more on this another time, of course). Further, the fear of insulting complainants or of appearing to not be gentle enough on complainants appears to lead to multiple wrongful convictions in the context of sexual assault trials (I wonder how concerned Professor Craig is about these). These cases are starting to show the inherent challenges in the law of sexual assault – particularly in a “Me Too” era where fawning over victims is applauded. I’m optimistic that the law on sexual assault trials will – hopefully soon – start to make more sense.