I read Professor Elaine Craig’s 2018 book: Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession a year or so ago, and felt quite unsettled. I wanted to address it in a blog post, but then convinced myself that no one would take the book seriously. I then saw that the Supreme Court of Canada cited it approvingly twice in 2019, and changed my position. I decided to read it again and blog about it.

She gets off to a bad start:

Imagine a society – one that purports to be a rule of law society – in which one segment of the population regularly engages in harmful acts of sexual violation against another segment of the community with almost complete legal immunity. Canada is such a society… (p. 3).

I see – let’s blame the justice system for sexual violence? She immediately follows up with “over ninety percent of sexual assaults in Canada go unreported”. More on this in a minute.

One of the primary sources of data relied upon in this book is trial transcripts:

Transcripts from twenty recent sexual assault trials in Canada were examined…Given the difficulty and expense of securing trial transcripts, I pursued either cases where there was some reference to the length or style of defence counsel’s cross-examination of the complainant in a reported decision… stereotypical thinking had informed the trial judge’s reasoning… The twenty cases for which transcripts were obtained are not relied upon to make assertions about the problematic practices that they arguably reveal. [emphasis added] – pp. 17-18.

This is highly problematic – the author looks at only twenty trial transcripts. She readily admits that she focused on cases where “stereotypical thinking had informed the trial judge’s reasoning”. Despite her assertion that they’re not relied upon to “make assertions about the problematic practices that they arguably reveal” – this is exactly what she tries to do. Even if she didn’t, the fact that she’s looking at only cases that appear to be problematic tells us from the get-go that she’s looking for problems. This is by no means a thorough analysis of sexual assault trials in Canada – the good, the bad and the ugly. It’s merely pointing to problematic cases and telling us what Craig views as wrong with them.

She continues: “A legal system in which more than nine out of every ten sexual assaults receive no legal scrutiny is a profoundly dysfunctional legal system” – p. 22. This is profoundly incorrect. Firstly, she’s already established that nine out of ten assaults go unreported. Second, even if she’s referring to the remaining ten percent, again, the fault for sexual violence does not lie squarely at the feet of the justice system – not by a long shot. There can be a million other reasons why nine out of every ten sexual assaults (alleged and/or actual) receive no legal scrutiny (other than the lack of reporting), and many of them have nothing to do with the justice system. It is difficult to conceive how Professor Craig expects to be taken seriously – by anyone – and not as a shock jock. Oh, wait – she was cited at least twice last year by our country’s highest court.

She goes on and on about defence lawyers and their insidious efforts to “whack the complainant”. This is quite unfair. Yes, I am open to a nuanced discussion about the role of defence counsel (alongside other players in the justice system). Perhaps defence lawyers occasionally cross boundaries (ethical or otherwise), and she certainly goes to great pains to suggest that this is a regular occurrence. She neglects to mention that the system is quite human: prosecutors, judges, and academics are also not immune to biases and to overstepping boundaries. Many would agree that a breach of any obligation by a prosecutor or judge towards the accused is a far greater crime than a defence lawyer being (perhaps) too harsh while cross examining a complainant. This, of course, assumes great importance is given to the central tenet of the presumption of innocence in our criminal justice system – a tenet that Craig reluctantly pays lip service to.

Accused are generally in an unfortunate position. If they’re falsely accused (or not), they’re up against a system which is highly unfavourable: they’re typically less than sympathetic, they may have been denied bail for multiple months, their lawyer is an underpaid and overworked Legal Aid lawyer, and they sometimes show up to trial in prison clothes. Why would anyone expect them to have a fair trial?

Cross-examination is critical – particularly in the context of a sexual assault trial where the testimony of the opposing parties is often all there is. It is basically all the defence has – and the Crown has, assuming the presumption of innocence is not displaced. See, for example, para. 7 of R v Quintero-Gelvez, 2019 ABCA 17 (CanLII):

Cross-examination has been repeatedly described as a matter of fundamental importance that is integral to the conduct of a fair trial and a meaningful application of the presumption of innocence: see R v Osolin, 1993 CanLII 54 (SCC), [1993] 4 SCR 595 at pp 663-65. The principles of fundamental justice include the right to a fair trial and to make full answer and defence. A fair trial must be one which is perceived to have been conducted fairly; see R v Switzer, 2014 ABCA 129 at para 5.

Note that the Crown is by no means expected to “go gentle” on the accused. If the accused has the gall to testify, he or she can expect a rigorous (and yes – often, demeaning, degrading, etc.) cross-examination by the Crown. Of course, Craig would like it to be a one-way street – no-holds-barred on questioning the accused, but don’t step on anyone’s toes while questioning the complainant. Somehow, we’ll keep the presumption of innocence intact, as well.

She makes a decent point about aggression: “Beginning in law school and continuing throughout their professional development, lawyers (and in particular criminal lawyers) are socialized or even trained to value aggressive, unrelenting advocacy” (p. 98). I agree – it would certainly be nice if aggression were celebrated less in this profession. In the meantime, I don’t recommend criminal defence lawyers tone down the aggression – particularly if the Crown is ripping the head off the accused.

Many of her other points are just stupid. We should get rid of the big portraits of the Queen in courthouses – see page 184. Reduce legalese in the courtroom (not a bad idea, actually). Complainants should be allowed to sit during their testimony (there’s really no reason why they won’t be, and judges routinely allow them this courtesy). All sexual assault decisions should be reported – as in reported in CanLII. Judges need tons of education about rape myths (read: reminders about how badly their career will go if they’re caught saying the wrong thing to the complainant) … Not surprisingly, some of her ideas about mandated judicial education are currently being paraded about in Parliament.

SB and Ghomeshi

I don’t want to get into extensive discussions about some of the cases and transcripts she reviews. Suffice it to say that she presents a very skewed version of what happened, all in an attempt to make her points. For example:

In R v B(S) the section 276 ruling…was even worse…SB was acquitted and the Crown appealed. The Newfoundland Court of Appeal found that the use of evidence of the complainant’s other sexual activity in this case gratuitously denigrated and humiliated the complainant, and triggered the discriminatory twin myths in front of the jury” (p. 51).

She spends a considerable amount of time going through much of the transcript, in an effort to show the depths to which senior defence counsel in that case resorted to in questioning the complainant. Conspicuously absent is any mention of the fact that the complainant had lied quite seriously on the stand, and it was a large part of the reason why the majority of the Court of Appeal upheld the acquittal. For reference, in R. v S.B., 2016 NLCA 20 (CanLII), the majority of the Court of Appeal found that, although defence counsel had gone too far in its defence of the accused, the lies said by the complainant were sufficient enough to not order a new trial (see para. 86). Not surprisingly, the Supreme Court of Canada (in a one-line judgment of a unanimous 7-panel forum, at R. v. S.B., 2017 SCC 16 (CanLII)), disagreed with that result, and sided with the minority opinion. I would be interested to know the result of the retrial – on the off chance that the Crown went ahead with it. In any event, the main takeaway from the case should be “BAD DEFENCE LAWYER” and not “holy crap – that complainant was unable to say the truth if her life depended on it”. Her discussion of the Wagar case (unfortunately not a reported decision, but appealed at R v Wagar, 2015 ABCA 327 (CanLII), and subject to much media and academic criticism – incidentally the result was correct and the language used arguably was, as well – the 1,000-page transcript can be found here and the subsequent acquittal at the retrial here) and many others is similar.

She skims over the R. v. Ghomeshi, 2016 ONCJ 155 (CanLII) brouhaha:

To be clear, the much-discussed cross-examinations of the complainants in R v Ghomeshi did not appear from the transcripts to involve the types of practices examined in the previous chapter and later in this chapter. While the trial process was profoundly traumatic for the women who testified against Ghomeshi, defence counsel’s conduct of the case is not to blame for their experiences (pp. 62-63).

Craig otherwise glosses over this important trial, and does not mention the intense media and public criticism of the decision (not to mention the reprehensible legislation that arose as a direct result of it). Do you know who else the trial was profoundly traumatic for? The accused person. Oh, and if defence counsel is not to blame for the trauma experienced by the women who testified against Ghomeshi, who is? Their own foolishness? Or perhaps the abject failure of our criminal justice system to automatically believe complainants and convict those accused of sexual assault without bothering to pester complainants with the “traumatic” process of a trial?

For a thoughtful analysis of the Ghomeshi decision, see Joshua Sealy-Harrington’s thorough post in Ablawg (July 2022 edit: I criticize it subsequently here). Also, see Kyla Lee’s excellent blog post.

Rape Myths

Regarding the substantive content of “rape shield legislation” and our sexual assault laws, I have several concerns with these. While she relies on these in making some of her points, they are problematic for a number of reasons, and I’ll address those briefly now.

For example, see L’Heureux-Dubé J.’s dissent in R. v. Osolin, 1993 CanLII 54 (SCC):

They include myths that deem certain types of women “unrapable” and others, because of their occupations or previous sexual history, unworthy of belief.  These myths suggest that women by their behaviour or appearance may be responsible for the occurrence of sexual assault.  They suggest that drug use or dependence on social assistance are relevant to the issue of credibility as to consent.  They suggest that the presence of certain emotional reactions and immediate reporting of the assault, despite all of the barriers that might discourage such reports, lend credibility to the assault report, whereas the opposite reactions lead to the conclusion that the complainant must be fabricating the event.  Furthermore, they are built on the suggestion that women, out of spite, fickleness or fantasy and despite the obvious trauma for victims in many, if not most, sexual assault trials, are inclined to lie about sexual assault.  The net result has been that sexual assaults are, and continue to be, underreported and underprosecuted; furthermore, the level of convictions that result in those cases that do reach the courts is significantly lower than for other offences. [Emphasis added.]

See also L’Heureux-Dubé J.’s dissent in R. v. Seaboyer; R. v. Gayme, 1991 CanLII 76 (SCC):

Sixty percent of those who tried reasoning with their attackers, and 60% of those who resisted actively by fighting or using weapon [sic] were injured.  Every sexual assault incident is unique and so many factors are unknown (physical size of victims and offenders, verbal or physical threats, etc.) that no single course of action can be recommended unqualifiedly.

In practice, this leads to the absurd result that no reaction of a complainant can be assessed or criticized. How dare we assume what a reasonable reaction should have been?

L’Heureux-Dubé J. continues:

6. Reporting Rape. Two conflicting expectations exist concerning the reporting of rape.  One is that if a woman is raped she will be too upset and ashamed to report it, and hence most of the time this crime goes unreported.  The other is that if a woman is raped she will be so upset that she will report it.  Both expectations exist simultaneously. […]

7. Woman as Fickle and Full of Spite. Another stereotype is that the feminine character is especially filled with malice.  Woman is seen as fickle and as seeking revenge on past lovers. […]

8. Disputing That Sex Occurred. That females fantasize rape is another common stereotype.  Females are assumed to make up stories that sex occurred when in fact nothing happened. . . . Similarly, women are thought to fabricate the sexual activity not as part of a fantasy life, but out of spite.

I assume the basis for the “rape myth” that women lie about sexual assault stems from these clearly highly-researched points from L’Heureux-Dubé J. Notwithstanding the fact that this particular “myth” appears to be demonstrably true, it continues to have a firm grip on our Canadian criminal justice system.

It is said (and apparently it’s a “rape myth”) that people routinely lie about sexual assault. See an article titled: 1 in 7 sexual assault cases in 2017 deemed ‘unfounded’: StatsCan:

Last year, 14 per cent of sexual assaults reported to police were given the “unfounded” classification, down from 19 per cent in 2016. The figure is double the seven per cent of unfounded cases identified among all criminal incidents in Canada last year.

See Statistics Canada:

Nationally, the proportion of sexual assaults deemed unfounded decreased in 2017

In 2017, 14% of sexual assaults (levels 1, 2, and 3) reported to police were classified as unfounded, down from 19% in 2016 (Table 2; Chart 3) (see Text box 1).Note  A heightened awareness about sexual assaults and how they are classified may have had an impact on how other types of incidents were classified in 2017. For example, the proportion of physical assaults (levels 1, 2, and 3) classified as unfounded also decreased, though to a lesser extent (from 11% in 2016 to 9% in 2017) (Table 3; Chart 3).

These numbers make articles like this quite difficult to understand: Dispelling the myths about sexual assault:

Myth: Women lie and make up stories about being sexually assaulted.

Fact: The number of false reports for sexual assault is very low, consistent with the number of false reports for other crimes in Canada. Sexual assault carries such a stigma that many women prefer not to report.

Perhaps L’Heureux-Dubé J. was writing in the ’90s, before the prevalence of the internet, and possibly the numbers were different back then and/or more difficult to confirm. Or she made stuff up. Either way, I have trouble understanding why it continues to be currently considered good law.

A good example of a recent case that attempts to carefully consider the law along with the testimony of the witnesses at trial is R. v. J.E., 2019 NLSC 231 (CanLII). Incidentally, the Justice in this case happens to be Justice Stack, who is harshly criticized by Craig in her book, for his reasoning in the S.B. case.