“Whack” Defence Lawyers No More: Infusing Ethics into the Academic Dialogue Around Sexual Assault Trials in Canada

Whack

Following up on my recent posts about Ewanchuk and Professor Elaine Craig’s horrendous book, I noticed a lot of ideas tracing their way to a respected law professor out of the University of Windsor – David Tanovich. He appears to be a part of a group of academics – whom I’ll call “the #Me Too gang”, who seem intent on revolutionizing the way sexual assault trials are conducted, and all but call explicitly for the reversal of the burden of proof in trials of sexual assault. Note Professor – now Judge Woolley’s comments and a reply here: “That trade-off is one that I think our system has to make in order to ensure the rule of law – that the state only punishes people who have been shown beyond a reasonable doubt to deserve it. But we cannot ignore the price that is paid for that outcome, and we have to be as careful as we can to ensure that that price is no greater than it has to be.” I suspect scholarship from Tanovich and Craig will do a lot to ensure that the “price” of the presumption of innocence is “no greater than it has to be”. I thought I’d have a read of Tanovich’s influential 2015 article, “Whack” No More: Infusing Equality into the Ethics of Defence Lawyering in Sexual Assault Cases, 2015 CanLIIDocs 164, available here. It is cited (not surprisingly) – alongside Craig – in R. v. Goldfinch, 2019 SCC 38 (CanLII), at para. 33.

I find him to be somewhat less of a shock jock than Craig with just a tad more nuance. Nonetheless, his ideas are quite dangerous and have a similar result. The intent is – similar to Craig – to further mangle the law of sexual assault in Canada, terrorize judges and all other justice players into rendering results that they deem satisfactory, and continue to derogate criminal defence lawyers.

Many of the cases relied on by Craig (e.g. Wagar, Ewanchuk, BS, etc.) are excellent examples of borderline cases. They are not cases where Craig and/or Tanovich argue the ethics of defence lawyering need to change much (i.e. guilt is clear to the defence lawyer). The unfortunate irony is that in precisely the cases where there is so much ink spilled and hand-wringing (often followed by concrete actions in Parliament), there is very little clarity about guilt. One would think the obvious cases would be, but no. Defence lawyers are usually wise enough to not waste time on trials on clear cases, so we’re left with very ambiguous cases – at best – over which the #MeToo gang have the most concerns. I’ve discussed Ewanchuk and BS previously. I’ll qualify my statement here: some of the cases pointed to by Tanovich (i.e. in note 10 on page 6, quoting Craig’s article The Ethical Obligations of Defence Counsel in Sexual Assault Cases which is more nuanced and objective than her book) do appear to be clear examples of problematic behaviour by defence counsel.

I’ll go into some more detail on Wagar later in this post. Issues like consent and due process vis-à-vis the victim’s rights (assuming of course that the complainant is a victim, which our Criminal Code very unfortunately does) are critical issues, and continue to be hotly debated – see R. v. Sullivan, 2020 ONCA 333 (CanLII), which should be decided at the Supreme Court in the next year or two. For that matter, it’s about time s. 276 was looked at critically again – along with every other one of our sexual assault laws – since R. v. Seaboyer; R. v. Gayme, 1991 CanLII 76 (SCC). Hopefully, Sullivan will be looked at seriously and critically by the Court and the interveners. Speaking of interveners, ever notice how the Crown can be “radically feminist” when it comes to eroding rights of accused and the presumption of innocence, and significantly less “woke” when it comes to other issues like, say, defunding the police, decarceration, decriminalizing drugs, critical race theory, holding police accountable, etc.? See Aya Gruber’s work: The Feminist War on Crime, available here, as well as Rape, Feminism, and the War on Crime (here) and Gruber’s book.

I’ll begin with Tanovich’s article. I’ll get into more detail on Wagar and wrongful convictions afterward.

Tanovich

p. 8: Sexual assault is the most under-reported and under-prosecuted offence. It has the highest rate of acquittals and the highest rate of overturned convictions by appellate courts.

Of course, under-reporting can be explained by a host of social factors unrelated to perceived mistreatment at the hands of the justice system. Highest rate of acquittals might have to do with the strength of the cases prosecuted. Overturned convictions may have to do with the amount of butchering judges do with the law and the presumption of innocence – thanks in large part to the irresponsible “scholarship” of the MeToo gang.

It involves conduct for which stereotypes about women continue to linger, notwithstanding significant law reform and feminist activism.

Stereotypes about women continue to linger. Of course, there are no stereotypes about men that play a role. Nor are there stereotypes about women (innocence, chastity, purity, etc.) playing a role in inducing wrongful convictions.

It is the one offence where, more often than not, the complainant is more vulnerable than the accused on account of gender, age, race or Aboriginality, or physical and/or mental disability.

He has the decency to mention in a footnote here that “This is not to suggest that there are not exceptions. For example, where the accused is Aboriginal or racialized and the complainant is White…”. The complainant is (often?) more vulnerable than the accused and therefore what? We should automatically convict? Besides, as he admits (albeit in a footnote), the accused is often more vulnerable than the complainant (as if this were a “vulnerability contest”). Additionally, the accused is often extremely vulnerable regardless of the vulnerability of the complainant. Most right-minded people would agree that accused individuals are – by definition – some of the most vulnerable members of our society. It’s one of the reasons for the safeguards that have been built into our system for centuries that seem rather troublesome for some scholars who like to think of themselves as progressive.

p. 9: In addition, heightened zeal has ramifications rarely seen in other cases. These collateral consequences include under-reporting for fear of being “whacked,” secondary trauma to complainants and low conviction rates. These consequences fundamentally jeopardize the legitimacy of the system and the rule of law.

Heightened zeal also has the ramifications of damaging the presumption of innocence and inducing wrongful convictions, as well as attack the integrity of various lawyers needlessly. These consequences certainly fundamentally “jeopardize the legitimacy of the system and the rule of law.”

p. 11: Finally, sexual assault is also arguably the only offence where defence lawyers are socialized and taught by their peers and mentors that the client’s best defence is to have a lawyer who is prepared to act like Rambo and do whatever it takes to secure an acquittal, even if it means violating basic tenants [sic] of human decency and dignity and the lawyer’s own commitment to equality. So what is the etiology of this defence lawyering socialization in Canada?

Rambo? I’ve certainly met Crowns (and judges) act like Rambo, but defence? I must not be hanging around the right folks. Overzealous advocacy is certainly not restricted to the defence bar – there’s no shortage of Crowns, judges and academics guilty as charged.

p. 12: More recently, a senior member of the Toronto criminal defence bar advised young defence counsel that they must “kill the witness on cross” in sexual assault cases.

Have you seen what the Crown does to the accused in cross? “Killing” would be an understatement.

Another powerful moment occurred when senior members of the criminal defence bar, including Eddie Greenspan, came to the defence of Justice McClung of the Alberta Court of Appeal, who had taken the unprecedented step of writing a letter to the National Post attacking Justice L’Heureux-Dubé the day after the Supreme Court had reversed its decision in the “no means no” sexual assault case of R v Ewanchuk. In order to understand just how extraordinary the defence of Justice McClung was by Greenspan et al, it is necessary to highlight Justice McClung’s comments for the majority of the Alberta Court of Appeal in Ewanchuk and the response of Justice L’Heureux-Dubé in her concurring opinion in the Supreme Court.

There is so much to discuss here, and Tanovich spends the better part of 2 pages discussing it. I’ve addressed the case in my Ewanchuk post, and instead of repeating myself here, I’ll direct you to it. Suffice it to say I’ll side with Greenspan (and Alan Gold, mentioned in a footnote) on this one. I found the article quoting Gold (emphasis added):

The unanimous decision drew scathing comments from Toronto criminal defence lawyer Alan Gold, who said it puts “complainants on a pedestal” by absolving them of any responsibility for their conduct.

“This radical feminist judgment is just extremely disappointing in 1999,” Gold said in a television interview. “This is a 1989 set of beliefs.

“This protocol for human sexuality is ridiculous,” he said.

“It turns it into a business-like formalistic affair where everything must be absolutely clear. I mean, human sexuality is governed in many cases by the height of ambiguity and nuance and all kinds of things that aren’t susceptible to this kind of subsequent verbalization.”

Let’s continue:

p. 13: Meanwhile, Ewanchuk has now been declared a long-term offender after having repeatedly sexually assaulted an eight-year-old girl upon his release from prison.

This is extremely problematic. As if Ewanchuk’s prior (or subsequent) sexual assault convictions are at all relevant in whether or not he was guilty of the offence charged. A so-called expert in evidence should know better.

p. 17-18: Any conduct by a defence lawyer that promotes or exploits stereotypes in sexual assault cases violates their ethical duty to not act in a discriminatory fashion. This would include cross-examination on what the complainant was wearing, whether she immediately reported the incident, whether she spoke to a psychiatrist, her socio-economic status, drug or alcohol use, lifestyle, or marital status. This is not to suggest that all cross-examination on these factors is improper. The question is whether the implicit purpose of the cross-examination is to suggest that the complainant “is the kind of person to consent” or “the kind of person to lie about consent.” These are some of the classic rape myths. [Emphasis added.]

Of course, the crown (and the judge) need to read the mind of defence counsel on questions like these to determine what their “implicit purpose” is, in determining whether or not the question is acceptable. Of course, this is on top of the judge having to “mind read” the complainant as to whether or not she consented – despite her conduct, as mentioned by Greenspan. Clearly, sometimes these questions are not improper. Good luck getting all parties to agree on whether it’s proper – especially before the questions are asked. In practice, these lines are generally considered improper – despite the fact that they’re not always improper. I note that criticism around Wagar, for example, did not include any discussion of whether the impugned comments were appropriate in their context.

Note the reduced nuance in pp. 4-5 (and cited in Goldfinch):

Whacking the complainant includes humiliating or prolonged cross-examination that “seek[s] to put the complainant on trial rather than the accused”; specious applications to obtain the complainant’s records; and the invoking and exploiting of stereotypical assumptions about women and consent, including assumptions about communication, dress, revenge, marriage, prior sexual history, therapy, lack of resistance and delayed disclosure.

For an example of rape myths that the defence and judge (and I suppose on occasion the Crown?) need to be on constant guard for, see page 110 of The trial of sexual offence cases, Fuerst, Michelle K., Mona Duckett, and Frank P. Hoskins, Thomson Reuters 2018, 2nd edition:

9.2 Avoiding Impermissible Reasoning Based on Myths and Stereotypes

It is important that assessment of the conduct and credibility of complainants in sexual offence cases is not premised in whole or in part on gender-based myths and stereotypes about women. The notions that “unchaste” women are less worthy of belief or that because the complainant consented to sexual activity on a previous occasion it is more likely that she consented on this occasion, referred to as the “twin myths” at which s. 276  – of the Criminal Code is directed, are obvious examples.

Other assumptions that courts have recognized as objectionable include the following:

  • women agree to have sex, but later complain of sexual assault;
  • women say no to sexual activity when they do not necessarily mean no;
  • a woman who does not want to have sex will physically resist;
  • passivity constitutes consent to sexual activity;
  • women of bad character, such as those who drink or use drugs, are more likely to consent;
  • women provoke or precipitate sexual assault, including by the way they dress;
  • a woman who is sexually assaulted will tell someone immediately.

Questions of complainants, legal argument, and judicial reasoning that reflect these assumptions is inappropriate and should be avoided.

What complicates things are the multiple lines of questioning that are to be avoided. The problem with this is, in many instances, these lines of questioning are necessary and should not be prohibited.

Delayed disclosure is a good example of a “rape myth” that is easily misunderstood. It is thought of as a “rape myth” that a delay in disclosure reduces the credibility of the complainant. In fact, it is one aspect to consider, but is not itself determinative of consent – see the majority opinion of the Supreme Court of Canada in R. v. D.D., 2000 SCC 43 (CanLII) in the context of delayed disclosure by a child complainant, and likely similarly applicable in other cases (emphasis added, at para. 65):

A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave.  Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse.  Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge.  In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case.  A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

See R v CMG, 2016 ABQB 368 (CanLII), wherein Justice Sheilah Martin, then of Alberta’s Court of Queen’s Bench (now on the Supreme Court of Canada) discusses rape myths in their historical context, particularly at para. 56. Note para. 73, where D.D. is misquoted on the point made previously regarding a delay in disclosure (“In R v DD2000 SCC 43, the majority held that a delay in disclosure can never give rise to an adverse inference against the complainant’s credibility: R v DD at para 65” – emphasis added).

Wagar

Despite coming to the clearly correct result, the judge lost his career. The accused was remanded for six months (denied bail), as a result of the bogus charges, as noted in the transcript (see here for transcript, CJC complaint, etc.). I note he was also denied bail pending his re-trial, for which he was also acquitted. I understand the brand new case of R. v. Zora, 2020 SCC 14 (CanLII) is hoped to partially remedy the unmitigated disaster that is bail in this country. Note the trial judge’s comments, after a 6-day re-trial – para. 170 of R v Wagar, 2017 ABPC 17 (CanLII) (emphasis added):

In that regard, it is my conclusion that even if I had not accepted any of the defence evidence including the testimony of Ms. Porter, given the statement of the complainant that “I wanted him to do it”, meaning the accused, I would have acquitted the accused in any event.  In the face of that statement, given the circumstances in which it was given and in conjunction with other credibility issues concerning the complainant’s testimony, I am left with a reasonable doubt as to the complainant’s absence of consent purely on the basis of her testimony alone.

Come to think of it, that’s an additional 8 months in remand pending retrial (denied bail June 2016 and acquittal rendered January 31, 2017). The complainant was extremely dishonest. Note also that some of the questions may have been allowed (depending on the context, per Tanovich). No concerns apparently about the Calgary Crown’s dubious decision to prosecute the case (unsuccessfully) not once but twice, as well as the appellate intervention and the accompanying waste of scarce resources (according to a “Pay to Play” approach, it would be interesting to speculate how much money the wrongfully accused in this case is entitled to). Nothing about a very weak case and a judge who got the result right – if not the language. Not a word about over a year spent in remand on garbage charges, and the fact that it would have been a lot more wasted time in custody had the accused (the actual victim in this case) exercised his constitutional right to, say, a jury trial. No apologies for destroying the judge’s career by orchestrating a media and public outcry – and then having the gall to insist that the public’s confidence in the administration of justice demands no less than the judge’s removal from the bench. Mind you, the judge was not even sitting on a criminal court at the time of the complaint. I’d recommend the former judge in question sue everyone involved for a fortune – particularly if the law was misrepresented to the media and the CJC.

Also, the Crown appeared to misrepresent the case law on consent in Wagar (as though it required verbal consent – cited approvingly at p. 5 (or 539 here) of the CJC complaint, issued by Professors Koshan, Woolley, Craig, and Downie. This is blatantly incorrect, per Ewanchuk, which allows for consent by conduct. Further, the complaint misapprehended the law on delayed disclosure (p. 6, or 540) – as discussed above regarding DD. This is precisely my point on the complexity and absurdity of our sexual assault laws: if four law professors (supposedly experts on sexual assault law and/or legal ethics) misunderstand (or misrepresent) the law on sexual assault in their formal complaint, why would we expect better from your run-of-the-mill judge, defence lawyer, or Crown? What a mess.

Mistaken belief in consent was irrelevant in the context of Wagar, so the portion of the complaint about section 273.2 (pp. 5-6) is entirely irrelevant. See, for example p. 432, line 1 (439 of attachment), of the trial transcript (emphasis added):

And leaving that to one side because it’s not a competition, I’m not in a position to reject the accused’s version. On the accused’s version, he received positive indications from the complainant that she wanted to have sex with him.

Similarly, the concerns about the judge’s lack of compliance with the s. 276 regime (p. 5) are also imprecise. The s. 276 concerns were addressed by the judge and counsel, and the judge seemed to agree with the defence that the concerns were about flirting only and not sexual activity. While he may have been wrong about whether flirting is considered sexual activity (e.g. see R. v. Ayenun, 2013 ONCJ 260 (CanLII), although in that case the evidence was found to be relevant though technically sexual activity), I don’t fault the judge for being confused with an extremely complex area of law, particularly when neither counsel were of much assistance in this regard (e.g. see p. 317-320 (325-328 of PDF) where he specifically requested and did not receive any assistance). Regardless, he is also absolutely right that s. 276 is extremely incursive legislation – all the more so the Dec. 2018 amendment to the Code (subsection 4) that explicitly includes flirting in the s. 276 regime: “For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature”.

See, for example, Jochelson and Kramar: Essentialism Makes for Strange Bedmates: The Supreme Court Case of J.A. and the Intervention of L.E.A.F., 30 Windsor Y.B. Access Just. 77 (2012), available here. In L. Dufraimont: Myth, Inference and Evidence in Sexual Assault Trials, 44 Queen’s L.J. 316 (2018-2019), available here, it’s noted (pp. 327-328, emphasis added):

A similar issue arises in one passage in Professor Elaine Craig’s important new book on sexual assault trials in Canada. In discussing R v Schmaltz, a case where consent was in issue and evidence was led about whether there was flirting earlier in the evening between the accused and the complainant, Professor Craig writes: “Under Canadian law, whether the complainant was flirting earlier in the evening is irrelevant to the issue of consent. Consent to sexual touching must be contemporaneous. It must be given at the time of the sexual contact.” To the extent that it relies on the timing of the flirting to argue its irrelevance to consent, this argument seems to confuse a requirement of the substantive law with an evidentiary requirement. As explained above, the fact that consent must be contemporaneous does not mean that evidence relevant to the factual question of consent must also be contemporaneous.

Also, see Paciocco: Competing Constitutional Rights in an Age of Deference: A Bad Time to Be Accused, The Supreme Court Law Review, 14(2), 2001, available here, where excellent points are made (that apparently have been entirely lost on our courts and academics in the subsequent two decades). From pages 118-119, emphasis added:

Mills and Darrach were not viewed as cases in which the state, in the pursuit of social utility, was attempting to deprive the accused of his fundamental constitutional right to gain access to evidence. The state was simply brokering a dispute between the competing rights of private actors and, as such, could accomplish indirectly the very consequence that it could not accomplish directly. It could conduct a criminal trial in which it was attempting to deprive the accused of his liberty, and in which the ability of the accused to defend himself was abridged, even denied, because of the calculus of the social interest in such things as encouraging reporting, enabling complainants to seek therapy and preserving confidential relations.  

I want to be clear. I have no concern with competing considerations like privacy interests or any other matters of public utility being considered. Of course, they should be considered in opposition to constitutional claims. It is evident from the prior discussion, however, that what I do have grave concerns about is the practice of identifying constitutional rights in third parties that can be given presumptive weight equal to the constitutional rights of the accused, and then tendered in a criminal trial between the accused and the state, in opposition to the accused’s efforts to defend himself or herself against the state. That troubles me because the ultimate effect of giving constitutional status to interests preferred by the state is to deprive the constitutional rights possessed by the accused of their very essence as constitutional rights. In particular, giving constitutional status to interests preferred by the state deprives the constitutional rights possessed by the accused of the presumptively superior status they were to have when tendered against opposing state interests. Conferring presumptive weight, after all, is the whole point in recognizing rights as constitutional ones.

On page 122, discussing R. v. Sharpe, 2001 SCC 2 (CanLII), Paciocco notes (emphasis added):

This aside, what the dissenting justices were doing was to conceive of the contest before them as between the claim of the accused to freedom of expression (a right they would have denied even existed in the case) and the claims of vulnerable, disadvantaged members of society seeking equality. At one time, it was considered that in a criminal prosecution, it is the accused who is the vulnerable one. During the trial, the accused stands before the awesome power that the state has to deprive him or her of his or her liberty, a state that is bringing its considerable resources to bear in order to brand him or her a criminal, and to punish him or her. Remove the state from the equation, and the accused is no longer vulnerable. Invoke the constitutional equality rights of complainants (conceptualized as the right of future victims of the vulnerable class to be free from victimization so that they can flourish in society), and put those complainants in the place of the state, and it is not the rights of the accused that require protection. Context, balance and even the issues of concern are altered dramatically. The claim of the accused is seen as being brought on behalf of victimizers, and it is seen as a claim being tendered against victims, not against the state. When we conceive of constitutional adjudication in this way, we do disservice to the presumption of innocence, and we debilitate the Charter rights of the accused. It is something of an understatement to say that in such a regime, things do not bode well for the rights of the accused.

Also, see Tanovich and Craig’s Globe article regarding Ghomeshi: Whacking the complainant: A real and current systemic problem, dated February 10, 2016:

Sexual assault trials, even when conducted ethically and within the bounds of law, harm complainants. This is the harsh reality of an adversarial and constitutionalized justice system that requires a rigorous testing of the evidence before depriving a person of their liberty.

Throughout the very public trial of Jian Ghomeshi, the term whacking – which refers to tactics that seek to exploit the stereotypes and vulnerabilities inherent in sexual assault cases to secure a favourable outcome – has been prevalent.

This appears to be contrary to Craig’s unexpected concession in her book:

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, emphasis added).

Wrongful conviction cases:

I thought I’d include a summary of some cases of convictions overturned at appellate levels. They mostly consist of recent cases, that I have added to My Lexbox (through CanLII). Hopefully, they’re representative of some of the major issues that come up on a regular basis – on convictions that are overturned in the context of sexual assault trials.

In Foster v. R., 2020 NBCA 7 (CanLII), the trial judge failed to consider consent properly before considering the defence of honest but mistaken belief in consent. In R. v. G.F., 2019 ONCA 493 (CanLII), the judge failed to consider consent as distinct from capacity to consent due to intoxication.

In R. v. Esquivel-Benitez, 2020 ONCA 160 (CanLII), the Ontario Court of Appeal overturned a conviction where the judge had made multiple errors, including relying “improperly on the appellant’s presence in the courtroom when the complainant testified to negatively assess his credibility” (para. 16). See the Star’s report here. The trial judge’s other errors included treating the credibility issue as a contest between the complainant and the appellant and failed to meaningfully recognize or address the evidence of the complainant’s possible motive to fabricate when assessing credibility.

R. v. M.D.,2020 ONCA 290 (CanLII), and R. v. G.V.,2020 ONCA 291 (CanLII) are good recent examples of convictions overturned due to the assertion that access to the Crown’s case (disclosure) allowed the accused an opportunity to tailor his evidence. In R. v. Biladeau, 2008 ONCA 833 (CanLII), a retrial was ordered, due to the Crown’s commenting on the accused’s failure to testify.

Improper use of prior consistent statements in R. v. G.J.S., 2020 ONCA 317 (CanLII); R. v. D.K., 2020 ONCA 79 (CanLII); and R. v. A.V., 2020 ONCA 58 (CanLII). In R. v. A.S., 2020 ONCA 229 (CanLII), misuse of a prior consistent statement, and absence of proven motive to fabricate not beneficial to complainant – per se.

See Berger J.’s dissent in R v Quartey, 2018 ABCA 12 (CanLII) – appeal to SCC dismissed (R. v. Quartey, 2018 SCC 59 (CanLII), where the trial judge arguably shifted the burden of proof and applied stereotypes to the accused – not to the complainant. The burden of proof was shifted with regard to the motive to fabricate in R. v. M.S., 2019 ONCA 869 (CanLII).

In R v Schmaltz, 2015 ABCA 4 (CanLII) and R v Quintero-Gelvez, 2019 ABCA 17 (CanLII), sex assault convictions were overturned, due to excessive intervention by the trial judge.

A misapprehension of evidence was critical in both R v Mehari, 2020 SKCA 37 (CanLII) and R v Kwon, 2020 SKCA 56 (CanLII). Judge said inconceivable that complainant would consensually have sex with accused, which is both offensive and improper: R. v. Kodwat, 2017 YKCA 11 (CanLII).

A WD misdirection and flaws in complainant testimony were problematic in R. v. C.L., 2020 ONCA 258 (CanLII). In R v Dowd, 2020 MBCA 23 (CanLII), insufficient reasons and Browne v. Dunn rule invoked by judge only led to an overturned conviction.

In R. v. Cepic, 2019 ONCA 541 (CanLII), the Ontario Court of Appeal noted, at paras. 14-15:

It is an error of law to rely on pre-conceived views about how sexual assault victims would behave: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275 at para. 65; R. v. A.R.J.D.2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2. These are the “myths” of appropriate behaviour that the law seeks to eradicate. Historically, these myths have operated to undermine a complainant’s testimony. But they may also operate in the reverse, to artificially bolster a complainant’s credibility on the basis that “no young woman would consensually engage in the alleged behaviour”: R. v. J.L., 2018 ONCA 756, 367 C.C.C. (3d) 249, at paras. 46-47.

Here the trial judge used assumptions about female behaviour as the basis for accepting the complainant’s testimony. The corollary is that the assumptions about what a woman would or would not do were also used to undermine the appellant’s credibility.

In R. v. Senthamilselvan, 2019 ONSC 3884 (CanLII), the “trial judge erred by impermissibly relying on assumptions and generalizations about how an innocent person in the appellant’s circumstances would behave or be expected to behave and then drawing an adverse inference from the appellant’s failure to behave in that manner” – para. 3.

Continuing with Tanovich (emphasis added):

p. 31: Some will no doubt challenge this approach as a thinly-veiled attempt to do away with the presumption of innocence in sexual assault cases. Nothing could be further from the truth. The presumption of innocence does not give the accused a licence to engage in distortion in an effort to escape liability, nor does it remove the public interest in ensuring a fair trial for both the accused and the community. The fact that a “whack the complainant” strategy—defined broadly as an attempt to rely on and exploit discriminatory assumptions about women and sexual assault—may be all that an accused has to secure an acquittal is not a sufficient justification for the harm caused. It is trite law now after cases like Darrach, Mills and R v NS,129 that the need to ensure respect for the autonomy and dignity of criminal accused by ensuring a fair trial while of fundamental importance is not absolute. It is about achieving a constitutional balance. The ethical limits suggested in this article are an attempt to balance the competing interests in sexual assault cases of ensuring full answer and defence and protecting the trial and complainant from discrimination. None of these limits threaten an accused’s constitutional right to reliable verdict achieved in a fair process. Rather, they ensure access to justice for both an accused and sexual assault complainants and they protect the repute of the administration of justice by reducing the likelihood that discriminatory and stereotypical assumptions will taint the process and ultimate verdict.

I would absolutely categorize his approach as “a thinly-veiled attempt to do away with the presumption of innocence in sexual assault cases”. When I start to see a little bit of nuance around “rape myths”, less hysteria about under-reporting and low rates of conviction – as if they’re indicative of a problem with our justice system, some concern about wrongful convictions, and a little more fairness to the defence bar who sometimes fearlessly defend the most despised members of our society, I’ll perhaps begin to be convinced otherwise.

Since we’re on the topic of improving sexual assault trials, I thought I’d provide my input:

Suggestions for improving the justice system without further destroying the presumption of innocence:

  1. Show some respect for defence counsel
  2. Value the presumption of innocence
  3. Force the Crown to prosecute only strong cases, and stop believing every single complaint they receive
  4. Admit that in borderline cases – perhaps the vast majority of cases prosecuted – a very robust defence is not only required but essential if we’re going to slow the rate of wrongful convictions
  5. Realize that discussions around “rape myths” and ethical defence (and Crown) lawyering and judging need to be extremely nuanced. Continuing to insinuate that delayed disclosure for example, is a rape myth, is simply incorrect and dangerous. The same goes for whether complainants need to be automatically believed. “#Me Too” may be a fine social movement and Twitter hashtag, but it has absolutely no place in a court of law, and we should stop acting as if it does.

 

Published by Efrayim Moldofsky

I am a junior criminal defence lawyer in Calgary, Alberta. Read my observations here.

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