More Recent Wrongful Sexual Assault Convictions

In R v ADG, 2015 ABCA 149 (CanLII), a sex assault acquittal was overturned (surprisingly, the ABCA didn’t “fossick guilt from a fact-driven acquittal”, to borrow the glorious prose of McClung J.A. in R. v. Ewanchuk, 1998 ABCA 52 (CanLII) at para. 9). This was due to a reliance on rape myths by the lower court judge – Justice Yamauchi. This is a ridiculous (but not surprising result), as the acquittal was based on very solid concerns with the testimony of the complainants, as is obvious when one reads the excellent reasons for the trial judge’s decision: R v ADG, 2013 ABQB 724 (CanLII). Of course, even a hint of a stereotype-based acquittal is enough to send the Alberta Court of Appeal into a frenzy, and into ordering a new trial. Not surprisingly, in the retrial, the accused was found guilty of (only) most of the allegations. Even less surprisingly, the ABCA refused to overturn that decision, despite numerous concerns with it (R v Griffin, 2018 ABCA 277 (CanLII)). Unfortunately, the decision on retrial was not reported, so it is difficult to determine how bad the errors in it were by reading the ABCA decision alone. Note also the intense media circus around these decisions. I’d be surprised if anyone was talking about investigating the judge’s conduct in the retrial for his mistakes that hurt the accused. Of course, the judge on the first trial acquitting is the basis for complaints and griping about needs for more “diversity” on the bench, and – wouldn’t you know it – better judicial education. It’s a shame that a judge (Judge Camp comes to mind) may lose his/her job for a fact-driven acquittal that is largely unproblematic from a legal perspective and is generally pilloried by appeal courts for the slightest hint of stereotypical thinking (which of course, will justify overturning an otherwise-solid fact-driven acquittal), while a wrongful conviction (one that is blatantly wrong or relies on very weak evidence) rarely leads to any kind of sanction – by the courts, press, public, or anyone else. Instead, the Courts of Appeal (e.g. Alberta’s) generally gleefully uphold the conviction, finding typically that they would simply be loath to intervene with the trial judge’s assessment of credibility and the evidence, etc. – e.g. R v SMC, 2020 ABCA 19 (CanLII – far be it from them to interfere with exercises of judicial discretion and judgment) and the next case discussed: A.B.A. In the event that a conviction is overturned, I’m unaware of a case where a judge faced any kind of sanction or repercussion (I’m not sure that they should – absent the fact that they often would if it had been an acquittal that was overturned). Oh, and haven’t I mentioned, the presumption of innocence is alive and well in our Canadian criminal justice system.

For another disturbing overturning of a fact-driven acquittal, see a recent decision of the Ontario Court of Appeal: R. v. A.B.A., 2019 ONCA 124 (CanLII) – not surprisingly not including Doherty, Watt, Paciocco, or Trotter, etc., where the ONCA overturns a very solid fact-based acquittal due to – you guessed it – myths and stereotypes. Unfortunately, it’s cited uncritically in Brown and Witkin’s recently-released 2nd edition of Prosecuting and defending sexual offence cases (Toronto: Emond Publishing, 2020 – Alberta Law Libraries e-book link) [“Brown/Witkin”] at p. 215. It points out (rightly), at para. 4:

[4]         The Crown’s right of appeal from an acquittal is limited to a question of law alone: R. v. J.M.H.2011 SCC 45, [2011] 3 S.C.R. 197, at para. 39.

Then see paras. 10-11, which is a gross “straw man” and oversimplification (bordering on outright misrepresentation) of the trial judge’s analysis:

[10]      Inherent in this approach is a comparison of the complainant’s behaviour to what the trial judge viewed was “appropriate” behaviour that the trial judge would have expected of an adult threatened with a sexual assault or a victim of sexual assault. The issue here was not what steps the complainant should have taken to protect herself, but, rather, whether she consented to sexual activity with the respondent.

[11]      The complainant testified that she was afraid of the respondent after he sexually assaulted her. The trial judge found that the complainant’s conduct after the assault, which included continued association with the respondent and failure to flee or call out for help when possible, undermined her evidence, again measured against how the trial judge would have reasonably expected her to behave. She stated, “Aside from the alleged rape, there is no evidence to support a finding that her fear existed or if it existed was reasonable in the circumstances.”

Thankfully, the lower court acquittal (by Mitchell J.) included written reasons – R. v. A.B.A., 2018 ONSC 2198 (CanLII):

[22]         I am mindful that the expectation of how a victim of sexual assault will, or should, behave must not be assessed on the basis of stereotypes, generalizations and myths.  Having said that, the behaviour of the complainant occurring after the first incident causes me to approach her evidence with extreme caution skepticism. Her admitted conduct following the first incident and surrounding the later incidents on August 1 and 2, 2015 is, at the very least, inconsistent with her testimony that she was scared and intimidated by the accused.

No fewer than 16 bullet points in para. 25 describe behaviour of the complainant that was inconsistent with her claims.

See also para. 26:

[26]         The basic theme underpinning S.B.’s testimony was that she has never had any sexual attraction towards Mr. A.B.A. because he was her sister’s husband.  She testified that she was sickened by the assaults.  She testified that she simply went along with whatever he requested of her because she was terrified of and intimidated by him and he scared her.  Her testimony is circular.  To find her evidence that she was scared and frightened of Mr. A.B.A. credible, the court must first find she was raped.  Aside from the alleged rape, there is no evidence to support a finding that her fear existed or if it existed was reasonable in the circumstances.  She admitted, he never threatened her with physical violence at any time or slapped, punched, kicked or hit her as a means of forcing her to engage in sexual activity with him.  After the last incident of vaginal intercourse in the bedroom, they snuggled before falling asleep.  When they awoke later that morning, she made no attempt to have Mr. A.B.A. leave or leave herself.  Instead, made her alleged rapist soup and spent some time knitting before Mr. A.B.A. left on his own accord.   This is not the behaviour of an individual who has been brutally sexually assaulted for the past 15 plus hours.

And note the fantastic language in paras. 30-31:

[…]Mr. A.B.A. admitted to suggestions by Crown counsel that he was of poor, or at the very least, low moral character.  Character assassination does not prove his guilt nor does it make him more likely to have sexually assaulted S.B.

[31]         Similar in vein to the requirement that the court must disabuse itself of stereotypes regarding how victims should behave, so too the courts must be loath to stereotype persons who commit sexual assaults.  Merely because Mr. A.B.A. is a 220 pound man with what he claims is an exceptionally large penis and S.B. is a petite woman who presented as mild-mannered in the courtroom, does not make Mr. A.B.A. more likely to have committed the offence with which he has been charged and S.B. to be more likely a victim.

Of course, the acquittal is no doubt very unsafe for this panel of the ONCA (Pardu, MacPherson and Brown JJ.). Had it been the ABCA (or the Supreme Court), the acquittal would likely have been overturned regardless of who was sitting on the panel.

Brown/Witkin is helpful in that it provides decent nuance around rape myths and the fact that they’re generally admissible and their weight is in issue – not their admissibility (see Chapter 7). It fails to criticize the recent SCC trilogy of Barton, Goldfinch, and RV, unfortunately, unlike Sankoff, as I point out here (it’s gratifying to know that there are perhaps at least two lawyers in the country publicly criticizing our sexual assault laws not from the “victim’s” perspective). It also doesn’t challenge the SCC or the state of our laws today, although one can hardly blame them, given that it’s the Supreme Court and decades of law in Canada that they’d need to critique. One quibble in particular: at p. 213, it quotes R. v. Osolin, 1993 CanLII 54 (SCC) to suggest that “there is no evidence or research to suggest that false allegations are more common in sexual assaults than in other allegations.” In dissent in Osolin, L’Heureux-Dubé J. does say:

There is absolutely no evidence to suggest that false allegations are more common in sexual assaults than in other offences; indeed, given the data indicating the strong disincentives to reporting, it seems much more likely that the opposite is true.

That may be the case. I’m not aware of statistics on false reporting for sexual assault being higher than for other crimes, but I’d be shocked if it wasn’t. Have any studies been done on this specific issue? Inquiring minds need to know. Also, as I’ve pointed out previously, 2017 Stats Can data suggest that the number of sexual assault reports classified as unfounded was double the rate of other crimes (and that’s in a year when the rate dropped from 19% to 14% for unfounded sex assault allegations). Now I’ll concede that “unfounded” does not necessarily mean false, but I think L’Heureux-Dubé’s assertion (accepted uncritically by the authors here) is weak – at best. What’s that they say about absence of evidence? See here for more about statistics.

Speaking of evidence, see Lisak, David & Gardinier, Lori & Nicksa, Sarah & Cote, Ashley, (2010) False Allegations of Sexual Assualt: An Analysis of Ten Years of Reported Cases, Violence Against Women, 16, 1318-34 – result is 2-10% of studied allegations of sexual assault were false – see here, p. 1318. It notes that other studies have come up with numbers of between 1.5 to 90% (p. 1319). Obvious concerns with the methodology of the study: it studied only alleged rapes reported to a university police – i.e. the parties were generally all university students (p. 1327). Also, it only counts cases where there is evidence that the report was false (e.g. p. 1318: “To classify a case as a false allegation, a thorough investigation must yield evidence that a crime did not occur”). Of course, that won’t exist in many cases of false reporting, just as reporting of sightings of Sasquatch won’t always have evidence confirming the claims to be false. Certainly, these sloppy social science findings (and assertions) are more than sufficient upon which to base countless wrongful convictions. A quick Wikipedia search is also helpful: note to our Supreme Court. And no, just because the vast majority of rapes may not be reported does not mean that the numbers are different and is not helpful in assessing the actual rate of false reports. For all we know, all of the non-reported rapes are true, and none of the reported ones are. But thanks L’Heureux-Dubé for qualifying yourself as an expert in social science and providing helpful evidence for the rest of us mortals here.

Surprisingly, sex assault convictions overturned in a 2-1 dissent by ABCA: R v Schmaltz, 2015 ABCA 4 (more on this case in a minute) and in R v Quintero-Gelvez, 2019 ABCA 17 (CanLII). In R. v. A.K., 2020 ONCA 435 (CanLII), a conviction was overturned for problematic reasons for disbelieving accused in a sex assault case. See also R. v D.R.S., 2013 ABCA 18 (CanLII) – sex assault conviction overturned after 8 years once complainant recanted – note the smarmy language of the ABCA (at para. 16, emphasis added):

Moreover, it is obviously not the fault of the appellant that he was convicted based on unreliable evidence. Nor is it any criticism of the Crown prosecutor, defence counsel, or the trial judge; it is merely a reflection of the fact that while the Canadian legal system is very good, it is not perfect.

I wouldn’t call it perfect or very good. Particularly in relation to sex assaults, it’s utterly horrendous.

Also, see this thoughtful blog post, and this book review.

Ururyar is an interesting case – it’s mentioned multiple times in Craig’s book (my review here). It’s a disturbing trial decision (a sex assault conviction – R. v. Ururyar, 2016 ONCJ 448 (CanLII), overturned in R. v. Ururyar, 2017 ONSC 4428 (CanLII), where the lower court judge’s reasoning was called “incomprehensible” multiple times (at paras. 57, 62, 64 – at least he didn’t use rape myths, so definitely no CJC complaint is necessary). The Crown – surprise surprise – did not re-prosecute (this wasn’t in Alberta). It appears to have been a blatant wrongful conviction – 4 of 6 grounds of appeal were valid, as well as the problematic and bats**t costs award against the accused (paras. 66-67). See the Star’s coverage here, Blatchford here, and charges dropped (Star). Also, see the Barbra Schlifer Commemorative Clinic’s disturbing press release after the appeal decision (you’ll probably be shocked to learn that they were disappointed with the result!). The impugned judge (Zuker) is apparently a professor at OISE and a judge until 2016. Craig is careful to note in a footnote that the trial decision was subsequently overturned, but “The case is cited here as relevant to the complainant’s experience of the trial process, and not as an endorsement of the trial judge’s reasoning”. Yet she also criticizes defence counsel’s cross-examination of the complainant for relying on the delayed disclosure stereotype (pp. 48-49), which again is not a problem per se – per Sankoff, Brown/Witkin, etc. – it is relevant and admissible, and the weight is the only factor that may be reduced.

She points out (pp. 196-197) that she clearly sides with the minority opinion in Schmaltz (emphasis added, my comments italicized in brackets):

As Justice Paperny demonstrated, that is not what occurred in this case. Take the accused’s argument that Judge Greaves improperly interfered with defence counsel’s ability to cross-examine the complainant as to whether she and Schmaltz had been flirting earlier in the day. The majority of the Court of Appeal concluded that this intervention interfered with cross-examination on a potentially critical ambiguity in the complainant’s statement to the police. Did she tell the police she flirted with him or not? Under Canadian law, whether the complainant was flirting earlier in the evening is irrelevant to the issue of consent [Incorrect – see next note]. Consent to sexual touching must be contemporaneous. It must be given at the time of sexual contact. An accused cannot rely on notions of implied consent or a mistaken belief in implied consent. The allegation in Schmaltz was that he digitally penetrated her vagina while she was asleep. He maintained that she was consenting [and was not sleeping, just to be perfectly clear]. To characterize the presence or absence of flirting earlier in the evening as a critical ambiguity in a case in which the central issue is consent suggests a misunderstanding of the law of consent on the part of the majority of the Court of Appeal [no, it doesn’t – flirting is absolutely relevant to whether or not consent occurred (e.g. see Brown/Witkin at p. 213), and Lisa Dufraimont points out this problem with Craig’s tirade nicely, as I’ve mentioned here. Further, as the majority points out, the much larger issue is credibility, and the trial judge’s interventions with cross-examination that might have shown flaws in credibility if it had not been stopped]. Whether she told the police she was flirting earlier in the evening is only a critical ambiguity if you assume that flirtation earlier in the evening made it more likely she consented to the vaginal penetration later in the evening: an assumption that would be wrong at law [wrong – again]. Indeed, far from being a critical ambiguity, upon a proper application of the law of consent, the ambiguity as to whether there was flirting was “collateral at best and irrelevant on the ultimate issue of consent.” To conclude that judicial intervention to interrupt this line of questioning created the perception of an unfair trial was wrong. As the dissent in Schmaltz correctly noted, the accused’s right to cross-examine a sexual assault complainant is circumscribed by common law rules and by provisions of the Criminal Code, which prohibit evidence of, among other things, a complainant’s sexual history and reputation, as well as irrelevant questions directed to discredited “rape myths” [again, not true – questions that may rely on stereotypes are admissible, and their weight needs to be apportioned carefully – this evidence is not prohibited, it merely may be found to be irrelevant]. The problematic fact that the Crown opened the door to this line of cross-examination by asking the complainant whether there was flirting earlier in the evening (discussed in chapter 5) does not alter the low probative value of the evidence.

Yet the majority of the ABCA decision notes, at para. 47 (emphasis added):

The difficulty however is that, while these issues may have been irrelevant to whether the complainant consented per se, defence counsel’s strategy was to show inconsistencies between the complainant’s trial testimony on these topics and her earlier statements. On these lines of questioning, defence counsel was not propagating rape myths. They were directed not to the issue of consent, but to the issue of credibility, which was central to the accused’s defence.

Note Brown/Witkin, at p. 218 (emphasis added), contradicting Craig’s point that the trial judge is expected to intervene at the slightest hint of cross-examination that may trigger stereotypical thinking:

A trier of fact may rely on the actual conduct of a complainant, witness, or accused in the context of the case being heard, so long as care is taken not to generalize. Evidence that involves how a person reacts to a situation or when a complaint is made, or whether the person engages in post-offence conduct can be helpful in that it informs a finding of credibility, but this evidence should not be assessed based on stereotypical generalizations about how a complainant (or accused) should behave given the nature of the case. Rather, the evidence should be analyzed looking at what is expected of that witness in that case based on his or her characteristics, background, etc. A trier of fact will be on safer ground relying as much as possible on how the person in question generally works, and would be expected to behave, rather than how the world works. Care must be taken to always consider explanations for behaviour and alternative inferences. Undoubtedly, the evidence must be tethered to an evidentiary base.

This is an excellent example of why I simply can’t stand Craig. I promise it would bother me less if she wasn’t cited approvingly by our Supreme Court on a regular basis.

Frankly, the law on stereotypes (e.g. delayed disclosure) is idiotic, and this fact partly (in a circular fashion) absolves Craig and everyone else (including our Supreme Court) of blame for butchering the law as badly as they do: see ADG (emphasis added):

[32]           The law is clear that no presumptive adverse inference may be drawn against a complainant who does not disclose sexual abuse immediately. Yet this does not mean that no consideration whatsoever can be given to the timing of the disclosure of abuse: R v TEM, 1996 ABCA 312 at paras 9-11, 187 AR 273, leave to appeal to SCC refused [1997] 2 SCR xv. The importance of delayed disclosure will vary depending on the circumstances of the particular complainant: TEM at para 11. Victims of sexual assault will have different reasons for reporting abuse at different points in time. It is up to finders of fact to evaluate the testimony of complainants and determine their credibility on the basis of all the evidence, including the timing of their disclosure.

[33]           No inference should be drawn regarding a complainant’s credibility that is based on assumptions about how a victim of sexual assault is supposed to react to the assault. The Supreme Court of Canada has made clear that sexual assault cases should be decided “without resort to folk tales about how abuse victims are expected by people who have never suffered abuse to react to the trauma”: R v Shearing, 2002 SCC 58 at para 121, [2002] 3 SCR 33. There is no inviolable rule on how victims of sexual assault will behave: R v DD2000 SCC 43 at para 63, [2000] 2 SCR 275.  It cannot be assumed that sexual assault victims will react to abuse in any objectively identifiable way. Findings of credibility should not be affected by the timing of disclosure alone – that is, affected by a comparison between a complainant’s disclosure and the disclosure of a hypothetical ‘objectively reasonable’ victim.

How on earth is a trial judge (or jury) supposed to reconcile the above 2 consecutive paragraphs? Delayed disclosure is irrelevant except when it isn’t? And if judges are allowed to consider delayed disclosure, why are judges like Yamauchi getting trashed by the ABCA for doing exactly that? If there is no “inviolable rule on how a sexual assault victim will behave”, how the heck is a judge supposed to consider delayed disclosure as a factor at all (preferably without being fired or ripped by the ABCA, the press and academics)? Perhaps a more sensible approach would be one that incorporates some common sense – wait, that’s a rape myth, too.

For further support that what is thought of generally as “myths” are admissible, see R v ADG, 2015 ABCA 149, at para. 32; R. v. J.M., 2018 ONSC 344, at para. 66,; R. v. L.S., 2017 ONCA 685, at para. 89; R. v. T.E.M., 1996 ABCA 312, at para. 11.

Here’s another tragic wrongful conviction: R. v. Howe, 2015 NSCA 84 (CanLII), lower court sentencing decision on QuickLaw – appears to be racially based wrongful conviction – see here. Jury decision where judge fu**ed up terribly (Chief Justice of the Nova Scotia Supreme Court, mind you). Judge apparently very recently retired. Craig mentions it very briefly in her awful book (p. 216):

It is not uncommon for the Crown to decline to prosecute a second time because of a complainant’s unwillingness to endure the distress and disruption of testifying at a retrial.

Endnote 73: For recent examples, see the cases of Lyle Howe (Blair Rhodes, “Halifax Defence Lawyer Lyle Howe Has Sexual Assault Charge Dropped,” CBC News [18 February 2016]) and of Stephen Taweel (Blair Rhodes, “P.E.I. Businessman Stephen Nicholas Taweel Won’t Face Sex Assault Retrial,” CBC News [9 May 2016].

I’m pretty sure the distress and disruption of testifying for the complainant was far from the only reason why the Crown declined to prosecute a second time. Oh, and no comment on the awful lower court (jury) trial, nor any indication of reporting the involved judge to the CJC by any Nova Scotia or Alberta academics for his terrible role in the wrongful conviction – noticing a pattern here?

I’ll note an excellent podcast on a wrongful conviction (I think it included charges of sexual assault, alongside murder): Glen Assoun. It’s an excellent illustration of the problem with our criminal justice system: especially when it is thought of by the public and its actors as a tool to punish “criminals” whose guilt is instantly presumed rather than choosing to fairly and justly determine culpability in the first place and actually honouring the presumption of innocence (of course, ensuring that its “price is no greater than it has to be” – see here). The SCC dismissed the conviction appeal: Glen Eugene Assoun v. Her Majesty the Queen, 2006 CanLII 31717 (SCC), upholding the lengthy appeal court decision of R. v. Assoun, 2006 NSCA 47 (CanLII). Sentencing: R. v. Assoun, 1999 CanLII 2819 (NS SC). It took DNA evidence to exonerate him, and he was not exonerated until March, 2019: see R. v Assoun, 2019 NSSC 220 (CanLII) – after a mere 17 years in prison. Nova Scotia has been called the capital of wrongful convictions in Canada – I’m sure Alberta is not far behind.

For more fun recent wrongful convictions, see paras. 72-73 of R. v. S.S.S., 2020 BCCA 180 (CanLII), where a sex assault conviction was overturned due to the judge’s erroneous conclusion of external inconsistency between the accused’s testimony and that of another witness (emphasis added):

The trial judge’s unforgiving approach to the evidence of the appellant in this case contrasted sharply with her more tolerant approach to problems with the evidence of the complainant. It is not necessary, however, to make any determination as to whether the conviction should be overturned on the basis of uneven treatment of evidence. In this case, the judge’s error of principle in respect of “external inconsistencies” in the evidence of the appellant is sufficient to require a new trial.

Also, see R. v. Carbone, 2020 ONCA 394 (CanLII), essentially a dastardly lower court decision where the trial judge effectively reversed the burden of proof – on surprise – a sex assault trial (paras. 30-45).

All this, of course, neatly lines up with the lofty ideal of what we should be able to expect of our judges at all levels; at para. 40 of L’Heureux-Dubé and McLachlin JJ, in R. v. S. (R.D.), 1997 CanLII 324 (SCC) – emphasis added:

The reasonable person, through whose eyes the apprehension of bias is assessed, expects judges to undertake an open-minded, carefully considered, and dispassionately deliberate investigation of the complicated reality of each case before them.

Progressive, eh? A review of Professor Sankoff’s s. 276 seminar

Disclaimer: the opinions expressed here are my own. Specific attacks against other academics are also entirely my own. 

I’ve greatly enjoyed Professor Sankoff’s seminars recently – both his free Youtube videos and his affordable (approx. $25 per seminar) online seminars. I watched his s. 276 webinar the other day (part 1 only), and my mind was blown with the sheer quality (and quantity) of information packed into the 90-minute video. Easily the best value I’ve seen for professional development content. In fact, the video is so phenomenal it should be mandatory viewing for all participants in the criminal justice system who may ever deal with a sexual assault matter – specifically all judges, Crowns, defence counsel and academics. I was thrilled with how he does a marvelous job of showing the weaknesses in our Canadian laws around sexual assault (s. 276, myths and stereotypes, and problematic caselaw). I was concerned that I am the only one criticizing some of these aspects of our legal system, and it’s nice to know that it’s not just me. I continue to seek out material of this nature, and if you are aware of any, please let me know (I’m hopeful, for example, that the newly-released 2nd edition of this book contains some criticism). I note that Sankoff’s excellent, recent text, The Law of Witnesses and Evidence in Canada (formerly “Witnesses”) published by Thomson Reuters (Alberta Law Libraries e-book link), also includes criticism of s. 276, 278 and of the recent SCC sexual assault pronouncements that are chock full of rhetoric and extremely weak on substance – Goldfinch, et al. (e.g. in chapters 12 and 17).

He begins his video noting the extreme complexity of s. 276 and the quagmire that is our sexual assault laws, in general. He talks about the new urgency attached to the importance of s. 276, as seen from the SCC’s recent trilogy (Barton, Goldfinch, and RV). He talks about s. 276 “creep”.

He points out plenty of problems with Barton (reasons by Moldaver J.) – the main one being that s. 276 should not apply to the Crown.

He has a lot more to say about Goldfinch. It analogizes s. 276 evidence (i.e. prior sexual history) to bad character evidence of the accused, which is problematic as it is defence evidence. He is greatly concerned about its confusing the test for admissibility – the prejudicial value needs to substantially outweigh the probative value of the evidence – not the other way around, as suggested by Karakatsanis J. in at least one point in the screed judgment. Further, the overall tone is greatly concerning to Sankoff (I agree) – it attempts to “balance” rights between the accused and the complainant (as does Tanovich), when this is extremely dangerous.

RV (also written by Karakatsanis J.) suffers from similar problems, including the probative/prejudicial mistake, as well, which will not help with confusion going forward. This reminds me of a similar “mistake” by Fraser CJ – in dissent at para. 95 of R. v. Ewanchuk, 1998 ABCA 52 (CanLII – before the SCC bought this dissent wholesale in R. v. Ewanchuk, 1999 CanLII 711 (SCC)) – which I point out here. Even Moldaver J.’s approach in para. 95 is criticized for similarly skewing the balance against the accused (the rest of Moldaver J.’s opinion is thought to be reasonable). I’ll also quote Goldfinch at para. 44 (mentioned previously, emphasis added): “Today, not only does no mean no, but only yes means yes. Nothing less than positive affirmation is required”, which blatantly disregards Ewanchuk SCC (but not necessarily Fraser CJ in dissent in Ewanchuk CA) in that conduct is admissible – not only words (not that anyone wants to touch conduct with a 10-foot pole given the prevalence of “myths and stereotypes”).

The seminar really gets interesting when he gets into the scope of s. 276, myths and stereotypes, practical tips, and hypotheticals showing the absurdity of our s. 276 and other “rape shield” laws.

His first hypothetical: does s. 276 apply to charges of prostitution? The answer – extremely unclear. Thanks to some really loose wording in Barton, the law is unclear at the moment. He goes through some recent jurisprudence highlighting the extent of this problem.

His next hypothetical is whether the complainant and accused visiting pornographic websites would qualify as sexual activity for the purposes of s. 276 – it appears to also be unclear on the wording of the statute, and he points to a recent case that suggests the courts will be eager to interpret it broadly: R v DM, [2019] OJ No 3514, 2019 ONSC 3895 – QuickLaw.

His next hypothetical is extremely concerning: whether flirting, kissing or touching that occurred at a bar an hour or so before the alleged sexual assault is sexual activity for the purpose of s. 276 (I note that this is precisely one of the problems dealt with by the original trial judge in Wagar, for which he was pilloried by some academics, the media, and just about everyone else – I discuss this briefly here). While the bulk of recent caselaw suggests that it should be included, it’s not clear from the wording of the statute that it is. Moreso, it should not be included (even if it were explicitly required, I’d add), as it’s simply part of the events – it’s the basic timeline of events per the accused. Certainly, the Crown is not expected to bring a s. 276 application to be able to ask the complainant (in direct examination) to relay the details of how the complainant and the accused met. This is essentially part of the sexual activity that forms the basis of the charge. He brings multiple reasons why this is problematic, including but not limited to: the addition of time consuming, unnecessary, and irrelevant applications, it essentially requires reverse disclosure of the accused’s basic version or timeline of events (not necessarily something Parliament or the courts are terribly concerned about – per s. 278), and it rarely affects the privacy or dignity of the complainant (I’ll add that it’s incredibly patronizing, sexist and disempowering to “protect” the complainant to this extreme and absurd extent, and I’ll also note that the stigma of sexual activity is no longer as strong today as it once was – per para. 45 of Goldfinch). He points out that R. v. C.M.M., 2020 BCCA 56 (CanLII) explicitly points out some of these concerns with applicability of s. 276 (e.g. para. 182), but declined to rule on it.

The seminar gets even better when he talks about rape myths, or “forbidden inferences”. The amount of butchering done in this area by judges, Crowns and academics alike is simply legendary. He notes the important distinction between twin myths (inadmissible) and myths and stereotypes (admissible – but may not have sufficient probative value to be helpful). If used to show something specific (i.e. consent or inconsistency in testimony), it may be helpful.

He gives an excellent example – continued contact with the accused to show that the alleged abuse did not happen (or that it was not abuse). This evidence is not automatically inadmissible – it simply needs to be weighed carefully with a mind to not overgeneralizing in the analysis. Certainly, in certain circumstances, it can be convincing or persuasive to the trier of fact. In others, not as much. It’s not black-and-white, contrary to what your average Crown and judge are led to believe by irresponsible academics (like Craig).

He gives the example of R. v A.R.D., 2017 ABCA 237 (CanLII) – appeal to SCC dismissed (para. 39, emphasis added):

The more important question is what, if anything, can evidence of a lack of avoidant behaviour by a complainant tell a trier of fact about a sexual assault allegation? The answer is simple—nothing.

This case makes this point even more explicit later – at para. 57. This is extremely problematic and also incorrect. A far better approach, he points out, is R. v. J.M., 2018 ONSC 344 (CanLII) – wherein Harris J. says overgeneralization is the problem – but the evidence is not inadmissible (para. 66, emphasis added, referring to A.R.D.):

If what was meant is that generalizations have no place in analyzing this type of evidence, I agree.  If, on the other hand, a rigid rule of irrelevancy was proposed, I do not think that is correct. There can be no blanket rule: each case must be looked at on its own footing. Of course, after the fact association with the accused can, in some instances, weigh against the complainant’s credibility: see R. v. L.S.2017 ONCA 680, [2017] O.J. No. 4586, at paras. 88-89 per Doherty J.A. Care must be taken to ensure that shattering myths and developing new understandings does not swing the pendulum to the other extreme out of a perceived duty of political rectitude.

Of course, post-offence conduct that’s consistent with the Crown’s theory (i.e. distress, crying, etc.) can be admissible, whereas conduct that’s not “Crown-friendly,” some (for instance, Alberta’s highest court in A.R.D., uncontradicted by the SCC) would like us to believe is entirely inadmissible. If this doesn’t formally reverse the burden of proof, what does? [Feb. 2022 edit: see R. v. D.A.B., 2021 MBQB 185 at para. 44 which makes this point precisely]. For example, see para. 34 of R. v. M., 2020 ONSC 3636 (CanLII – emphasis added):

There is a well-established body of jurisprudence that evidence of post-offence demeanour or emotional state of a sexual assault complainant may be used as circumstantial evidence to corroborate the complainant’s version of events: R. v. J.A.A. 2011 SCC 17 (CanLII), 2011 S.C.J.  17 at paras. 40-41R. v. Mugabo2017 ONCA 323 at para. 25R. v. J.A, 2010 ONCA 491; reversed on other grounds 2011 SCC 17;  R. v. Varcoe2007 ONCA 194 at para. 33.

Harris J. also points out the analogous issue of delayed disclosure (in para. 67) – I’ve briefly discussed it before, and noted Martin J.’s direct misquote of R. v. D.D., 2000 SCC 43 (CanLII) on a very critical point, at para. 73 of R v CMG, 2016 ABQB 368 (CanLII). The point is the same – evidence of delayed disclosure is admissible, as well, with the trier of fact needing to be careful in terms of how much weight to apportion it (of course, it will vary by the circumstances).

Sankoff also mentions R. v. Diabas, 2020 ONCA 283 (CanLII), where the ONCA appears to appreciate nuance in terms of continued contact (e.g. para. 39).

He doesn’t get into the expectation that a “true victim would fight back” or scream, for example, but I’d suggest that the analysis is the same. Despite the horrified pushback defence counsel and/or accused persons can anticipate from the judge, the Crown and likely the complainant, as well – if attempting to point to any of this evidence, this evidence is not irrelevant or inadmissible – it just needs to be dealt with very carefully.

He points out that specific inferences (directly related to the evidence in the case) should usually be allowed – not general inferences. Credibility, as well. Whether or not a s. 276 application would be required in these cases is not clear – I’m assuming it’s better safe than sorry, for defence.

I’ll contrast Sankoff’s points with Craig’s triumphalist horses**t (at p. 39 of Section 276 Misconstrued: the Failure to Properly Interpret and Apply Canada’s Rape Shield Provisionslink, emphasis added) :

With Parliament’s enactment of Bill C-49 in 1992, Canada’s rape shield regime became the most progressive legislation of its kind in the common law world. Properly interpreted and applied, it removes inferences and reasoning likely to distort the truth seeking function of the trial, and provides significant protections for sexual assault complainants from irrelevant and unnecessary attacks on their privacy and dignity. It does this without unduly compromising the critically important due process rights of the accused.

Progressive, eh?

As I’ve mentioned previously, this legislation and the jurisprudence surrounding it is ripe for review at the Supreme Court, and I hold out some hope that 30+ years of hand-wringing and blustery rhetoric will finally be looked at critically, for a change. To the extent that these laws continue to be butchered by our courts across this country at all levels, they continue to contribute to wrongful convictions on a daily basis (as I’ve noted), which should hopefully concern some of us – particularly those of us interested in critical race theory (the SCC appeared to embrace this in its recent decision of R. v. Ahmad, 2020 SCC 11 (CanLII), and the ONCA likely did, as well, in R. v. Sharma, 2020 ONCA 478 (CanLII) – the ABCA certainly did not, though, in R v Hills, 2020 ABCA 263 (CanLII) at paras. 288-289, and R v Perrot, 2015 ABCA 209 (CanLII) at para. 9). Hopefully, our highest Court is up for the challenge.