Prior consistent statements, bad character, s. 276, rape myths and conviction rates

I thought I’d address some common problems in litigation of sexual offence charges. The most common problems, I’d suggest, are prior consistent statements, bad character evidence, and a presumption of truthfulness (explicitly stated or otherwise) being ascribed to the complainant. I’ll discuss these – along with concerns about s. 276 and conviction rates – below.

Prior consistent statements

The law on this is confusing and constantly misunderstood. The idea is that prior consistent statements of a witness are not supposed to be used by the trier of fact to support the credibility of the witness. How about if inconsistencies are an issue during cross-examination of the complainant? R. v. N.W., 2018 ONSC 774 (CanLII) suggests it’s still not allowed; also see here. Note the improper use of prior consistent statements noted in the following recent appellate decisions: R. v. G.J.S., 2020 ONCA 317 (CanLII); R. v. D.K., 2020 ONCA 79 (CanLII); R. v. A.V., 2020 ONCA 58 (CanLII); and R. v. A.S., 2020 ONCA 229 (CanLII).

However, perhaps this is unfair? Inconsistencies can be used to show a lack of credibility and/or reliability of the witness (e.g. inconsistencies in witnesses’ statements can be a sign of poor reliability – per Brown and Witkin’s 2nd edition of Prosecuting and defending sexual offence cases, 2020 – Alberta Law Libraries e-book link, at pp. 205-6.), so why can’t consistencies be used to show the reverse? I think it’s fair, as we’re trying to be fair to the accused, and the accused is generally the one who gains by the rule against prior consistent statements. In any event, the above cases appear to state that this is the law. If it is a “one-way street”, that’s not necessarily problematic.

However, it appears that some courts have struggled with this concept – of the defence having it “both ways”. See R v Griffin, 2018 ABCA 277 (CanLII):

[33] Neither does the record support the appellant’s argument that the trial judge used Taylor’s prior consistent statements to bolster her credibility. As stated in R v Lavallee, 2015 ABCA 288 at paragraph 22:
  • The defence cannot have it both ways. It cannot argue at trial that a complainant’s various accounts of what happened are inconsistent, and therefore, unreliable – compelling the court to look at them – and then argue on appeal, once this argument has been rejected, that the court erred by considering the consistency of the statements for the purposes of assessing the reliability of the complainant’s evidence.

I’m frankly confused.

Bad character evidence

Another issue is bad character of the accused. The Crown might be tempted to lead evidence of a history of rape by the accused toward the complainant, or a variety of other negative background details (i.e. never helped around the house, never had a job, didn’t take out garbage, didn’t pay bills, bad father, etc.). These would be helpful in terms of the context of the relationship. However, many (if not most) of these types of details should be inadmissible as bad character evidence. Further, some of this (e.g. history of rape) is also evidence of prior sexual activity, which would be barred if led by the defence absent a s. 276 application – of course, no two-way street there, as the Crown is able to adduce this evidence (constitutional problem right there, methinks).

In terms of bad character evidence, see the classic Paciocco/Stuesser text: The Law of Evidence, Irwin Law, Toronto, 2015 (7th edition) – Alberta Law Libraries e-book; 8th edition recently released, at (pp. 56-57):

The Exclusion of General Bad Character about the Accused
The Crown cannot call general bad character evidence, being evidence that shows only that the accused is the sort of person likely to commit the offence charged. This rule of exclusion is bolstered by a “prohibited inference.” Even where evidence is admissible for other purposes, if it incidentally exposes the general bad character of the accused, the trier of fact is prohibited by law from inferring that the accused may be guilty because he is the sort of person likely to commit the offence charged .
Naturally, in a criminal prosecution, the Crown can prove the conduct being prosecuted no matter how badly this may reflect on the character of the accused. What the Crown cannot do is lead “extrinsic evidence” – evidence about the accused’s behaviour on other occasions or about his general character – “simply to  show that the accused is the sort of person likely to commit the offence charged.” In R. v. Handy, the leading Canadian case on character evidence, Justice Binnie explained this “primary rule of exclusion, “one of the most deeply rooted and jealously guarded principles of our criminal law,” as follows:
  • Proof of general disposition is a prohibited purpose. Bad character is not an offence known to law. Discreditable disposition or character evidence at large, creates nothing but “moral prejudice” and the Crown is not entitled to ease its burden by stigmatizing the accused as a bad person.
While logically it may be easier to believe that a person of bad character would commit the offence charged – that someone who has burgled before would burgle again – evidence of general disposition is apt to add more heat than light. The trier of fact may convict not because of the natural strength of this kind of evidence, but as a reaction to the discreditable, contemptible, or stigmatizing character of the accused. For these reasons, in spite of its modest relevance, “[i]t is trite law that ‘character evidence [called by the Crown] which shows only that the accused is the type of person likely to have committed the offence in question is inadmissible.” Where the Crown seeks to lead evidence, including by cross-examining the accused, about his extrinsic  conduct or his character traits or practices, it is therefore essential to ask the threshold question of whether “the proposed evidence [is] discreditable to the accused ?” If it is, the rule applies. “Bad character evidence” is determined by asking whether the ordinary person would disapprove of the conduct or character revealed. Such conduct or character need not be criminal to engage this rule. Discreditable evidence includes any conduct or information about the accused that others are likely to find to be morally objectionable or apt to demonstrate that he has a contemptible or reprehensible character, and can include activities such as watching pornographic movies or engaging in phone sex. It even extends beyond this to include proof of a stigmatizing condition such as mental illness or alcohol abuse. Historically, it extended to same sex preference but given current attitudes, such evidence should fall outside of the bad character evidence rule, just as evidence of marital infidelity after separation now does.

See also the words of Mitchell J. in R. v. A.B.A., 2018 ONSC 2198 (CanLII), at 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.

Apparently however, this is allowed for “narrative” or “context” when damaging to accused – obviously not for complainant, though, in the s. 276 context. See R. v. F., D.S., 1999 CanLII 3704 (ON CA). Even then, however, require application and limiting instructions to the jury regarding the specific nature of the inferences allowed to be deduced from the evidence. Similarly, R. v. F.(J.E.), 1993 CanLII 3384 (ON CA), which also deals with prior consistent statements, has this to say about bad character evidence:

With respect to this issue, the appellant submits that the evidence of the appellant’s physical abuse of the complainant’s mother was inadmissible. This evidence was clearly admissible because it was witnessed by the complainant and was one reason given by her as justifying her fear of the appellant and her resultant silence about his abuse to her. There should, however, have been a limiting instruction to the jury that this evidence should not be relied upon as proof that the appellant was the sort of person who would commit the offence charged and on that basis infer that the appellant was in fact guilty: see R. v. B.(F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697 at pp. 707-08, 79 C.C.C. (3d) 112 at p. 119.

It appears that this evidence is inadmissible unless specifically for permitted purposes, with appropriate limiting instructions. I’ll admit that I’m confused on this issue, as well.

Rape myths

In a problematic decision – R. v. A.B.A., 2019 ONCA 124 (CanLII), the Ontario Court of Appeal overturned a very solid fact-driven acquittal based on what it perceived to be reliance on rape myths, at para. 17:

The trial judge then went on to explain why she did not believe the complainant, applying the stereotypical views about how victims of sexual assault should behave which have been described above. The trial judge’s determination that she believed the respondent was inextricably linked to her assessment of the complainant’s credibility, which itself was fundamentally affected by legal error.

In yet another disturbing overturning of a solid fact-driven acquittal, the Alberta Court of Appeal found in R v ADG, 2015 ABCA 149 (CanLII), at para. 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.

For yet another disturbing overturning a solid fact-driven acquittal (of an unreported decision, reviewed here), which of course, led to serious consequences for the accused and the judge (both of whom I’d categorize as victims in this case), see R v Wagar, 2015 ABCA 327 (CanLII).

Also, see the downright wrong analysis, in yet another overturning of an acquittal (an unreported decision, hence challenging to assess how poor the appellate court’s thought process otherwise was) – 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.

Note also the strong rhetoric in para. 9:

To be clear, reliance on a stereotype to found an assessment of credibility bearing on reasonable doubt is impermissible—it is an error of law. Accordingly, reasonable doubt is not a shield for appellate review if that doubt is informed by stereotypical and therefore prejudicial reasoning. Similarly, to suggest that stereotypical thinking is merely logic or common sense is a licence for it to continue unmasked and unabated. That is why, as a matter of law, this type of reasoning must not be insulated from appellate review.

See the far less problematic approach in the very recently released R. v. Roth, 2020 BCCA 240 (CanLII), at para. 130:

However, this does not mean that the evidence surrounding the driver’s attendance at the home, including the complainant’s conduct during that interaction, was not open for consideration in the credibility assessment and the trial judge was obliged to steer away from it.  The risk of myths and stereotypes distorting a judge’s fact‑finding or reasoning process does not prohibit use of a complainant’s behaviour for all analytical purposes (assuming the evidence surrounding that behaviour is properly before the court). Although a piece of evidence may carry the potential for impermissible reasoning, it may also have a permissible role to play as a circumstance to consider in assessing the evidence as a whole, in the context of the case’s particular “factual mosaic”: R. v. D.(D.), 2000 SCC 43 at para. 65Kiss at paras. 101–102.  In my view, what A.R.D. and like cases warn against is the improper use of this type of evidence, not any use at all.

This is a rather “generous” interpretation of ARD. My reading of ARD suggests that it absolutely warns against any use of this evidence – per para. 39, above.

Roth then quotes Dufraimont – thankfully, not Craig or Tanovich. I cite Dufraimont here, in the context of her critique of Craig, and her article can be found here. Dufraimont is more accurate than Craig, but hardly as clear as I’d like, given the popularity of “butchering” the law in this area, as I’ve noted extensively in this post and past posts (para. 131):

On this point, I agree with the comments of professor Lisa Dufraimont in “Myth, Inference and Evidence in Sexual Assault Trials”, (2019) 44 Queen’s L.J. 316 at 353:

Criminal courts … carry the heavy responsibility of ensuring that every accused person has a fair trial.  Subject to the rules of evidence and the prohibition of particular inferences, this requires that the defence generally be permitted to bring forward all evidence that is logically relevant to the material issues. Repudiating myths and stereotypes means rejecting certain discriminatory lines of reasoning, but it does not make whole categories of evidence irrelevant or inadmissible.  Indeed, sweeping prohibitions that would rule out any consideration of particular forms of evidence are avoided as inconsistent with the accused’s right to make full answer and defence and with our overall approach to finding facts.  Outside the prohibited lines of reasoning identified as myths, relevance remains an elastic concept that leaves a wide scope for reasoning from logic and human experience. [Emphasis added; internal references omitted.]

Even better is R. v. J.M., 2018 ONSC 344 (CanLII), wherein Justice Harris says overgeneralization is the problem – but the evidence is not inadmissible; at para. 67 (underlining added)”:

The legal position with respect to delays in disclosure dealt with by the Supreme Court in R. v. D. (D.)2000 SCC 43, [2000] 2 S.C.R. 275 and as recognized in A.R.D. at para. 55 is analogous. Delays do not automatically count against the complainant’s credibility. This is a serious error of law and is founded on stereotypical thinking. A judge must appreciate the psychology and circumstances that may lead to delayed disclosure. In D. (D.) at para. 65, it was said, and the comments apply equally to association evidence, the reasons for delayed disclosure “are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge.” A delay can, however, undoubtedly damage a complainant’s credibility, particularly when disclosure is made coincident with the impetus of a motive to fabricate.

Note also Paciocco’s text (pp. 534-5, emphasis added):

This does not mean that proof relating to a delay in complaining will necessarily be irrelevant and inadmissible. There may be circumstances in the particular case that make it reasonable to expect that had the sexual assault occurred, the complainant would have said so earlier. Where this is so, it remains proper to cross-examine the complainant about the failure to make a timely complaint. […]

S. 276 and conviction rates

In R. v. Seaboyer; R. v. Gayme, 1991 CanLII 76 (SCC), the majority of the Supreme Court struck down s. 276 which – at the time – excluded any evidence of prior sexual activity of the complainant. Apparently, the impugned provisions were in place for 8 years at that point. The majority of the SCC realized (after nearly a decade, anyway) that this was a major problem in terms of trial fairness to the accused. Unfortunately, the majority only struck it down to the extent that it had been a blanket exclusion – it subsequently still required a voir dire to determine the purpose of the evidence and to allow the judge to determine whether the evidence was problematic due to the “twin myths”. Parliament had the sense to adopt this revised version in its reworked version of s. 276 in 1992 rather than allow s. 276 to disappear like other archaic legislation, which is largely what we continue to be stuck with today. This is better than what had previously been the law, but it remains highly problematic. Why is all of this evidence presumptively inadmissible until the accused can prove that it’s necessary? Why not have no such rule, and simply require the judge to exclude the evidence if it appears to be supportive of the twin myths? Kind of how “myths and stereotypes” are supposed to be approached – carefully, but evidence that there was a delay in disclosure is neither presumptively inadmissible nor irrelevant.

In practice, Crowns and courts typically object strenuously to any defence-led evidence about the sexual relationship of the accused and complainant – even when it’s obviously for context only. Context appears to be necessary in every other trial – just not defence-led evidence that relates to history of a sexual relationship. Of course, if Crown wants to lead this evidence (and they often do), s. 276 does not bar them from doing so (note ss. 2 of s. 276 in the Criminal Code: “evidence shall not be adduced by or on behalf of the accused”). Seaboyer and s. 276 continue to be highly problematic. Of course, L’Heureux-Dubé’s dissent in Seaboyer was that the blanket exclusion was acceptable, and her ridiculous approach to criminal law (evidenced clearly in that case) contributed to wrecking the law in this country for more than a decade (e.g. Ewanchuk, Osolin, O’Connor, etc.) and into the foreseeable future.

Later, see R. v. Darrach, 2000 SCC 46 (CanLII), at para. 69:

The right to make full answer and defence, moreover, does not provide a right to cross-examine an accuser.

WTF? Note the majority in R. v. Osolin, 1993 CanLII 54 (SCC):

(1) Cross-examination as a Fundamental Aspect of a Fair Trial
There can be no question of the importance of cross-examination. It is of essential importance in determining whether a witness is credible. Even with the most honest witness cross-examination can provide the means to explore the frailties of the testimony. For example, it can demonstrate a witness’s weakness of sight or hearing. It can establish that the existing weather conditions may have limited the ability of a witness to observe, or that medication taken by the witness would have distorted vision or hearing. Its importance cannot be denied. It is the ultimate means of demonstrating truth and of testing veracity. Cross-examination must be permitted so that an accused can make full answer and defence. The opportunity to cross-examine witnesses is fundamental to providing a fair trial to an accused. This is an old and well established principle that is closely linked to the presumption of innocence. See R. v. Anderson (1938), 1938 CanLII 195 (MB CA), 70 C.C.C. 275 (Man. C.A.); R. v. Rewniak (1949), 1949 CanLII 358 (MB CA), 93 C.C.C. 142 (Man. C.A.); Abel v. The Queen (1955), 1955 CanLII 473 (QC CA), 115 C.C.C. 119 (Que. Q.B.); R. v. Lindlau (1978), 1978 CanLII 2366 (ON CA), 40 C.C.C. (2d) 47 (Ont. C.A.). The importance of the right to cross-examine was well expressed by the Court in the reasons of Ritchie J. in Titus v. The Queen1983 CanLII 49 (SCC), [1983] 1 S.C.R. 259, at pp. 263-64. There he wrote:
  • I think it essential to stress the purpose for which the cross- examination is permitted, namely, in order that the defence may explore to the full all factors which might expose the frailty of the evidence called by the prosecution. That the accused as he stands in the prisoner’s box on trial for murder is deemed to be innocent until proven guilty beyond a reasonable doubt is one of the fundamental presumptions inherent in the common law and as such the accused is entitled to employ every legitimate means of testing the evidence called by the Crown to negative that presumption and in my opinion this includes the right to explore all circumstances capable of indicating that any of the prosecution witnesses had a motive for favouring the Crown.
In R. v. Seaboyer1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, it was once again emphasized that the right to cross-examine constitutes a principle of fundamental justice that is critical to the fairness of the accused’s trial. In that case, the right to cross-examine was placed in the context of the right to make full answer and defence (at p. 608, per McLachlin J.):
  • The right of the innocent not to be convicted is dependent on the right to present full answer and defence. This, in turn, depends on being able to call the evidence necessary to establish a defence and to challenge the evidence called by the prosecution.
In short, the denial of the right to call and challenge evidence is tantamount to the denial of the right to rely on a defence to which the law says one is entitled. The defence which the law gives with one hand, may be taken away with the other. Procedural limitations make possible the conviction of persons who the criminal law says are innocent. Cross-examination is all the more crucial to the accused’s ability to make full answer and defence when credibility is the central issue in the trial. Such was the finding made by the Ontario Court of Appeal in R. v. Anandmalik (1984), 6 O.A.C. 143, at p. 144:
  • In a case where the guilt or innocence of the [accused] largely turned on credibility, it was a serious error to limit the [accused] of his substantial right to fully cross-examine the principal Crown witness. It would not be appropriate in the circumstances to invoke or apply the curative provisions of s. 613(1)(b)(iii).
The same point was made by the Alberta Court of Appeal in R. v. Giffin (1986), 1986 ABCA 107 (CanLII), 69 A.R. 158, at p. 159:
  • We agree …that the events about which counsel sought to cross-examine were relevant on the question of the credibility of the witness …. The accused in this case cannot be said to have had an opportunity for a fair answer and defence when he was not permitted to ask them.
To the same effect is R. v. Wallick (1990), 1990 CanLII 11128 (MB CA), 69 Man. R. (2d) 310 (C.A.), where at p. 311 it was said:
  • Cross-examination is a most powerful weapon of the defence, particularly when the entire case turns on credibility of the witnesses. An accused in a criminal case has the right of cross-examination in the fullest and widest sense of the word as long as he does not abuse that right. Any improper interference with the right is an error which will result in the conviction being quashed.
Thus it can be seen that the right to cross-examine has always been held to be of fundamental importance in a criminal trial.  That right is now protected by ss. 7 and 11(d) of the Charter. As a result it should be interpreted in the “broad and generous manner befitting its constitutional status” (see R. v. Potvin1989 CanLII 130 (SCC), [1989] 1 S.C.R. 525, at p. 544).

Professor Sankoff’s recent textThe Law of Witnesses and Evidence in Canada (formerly “Witnesses”) published by Thomson Reuters (Alberta Law Libraries e-book link) has a thorough, excellent treatment of s. 276 in Ch. 12 (see 12.3 – (iv) — The Test for Admissibility: Section 276(2)) – quoting from Chapter 12.4:

Each of these examples would have to be excluded if s. 276(1) were to be read literally. It is fortunate, thus, that most of the courts that have directly considered the matter have adopted Paciocco’s approach, and the Supreme Court, in the process of dismissing a constitutional challenge to the legislation in R. v. Darrach, appears to have implicitly done so as well. In rejecting the accused’s claim in that case that the operation of s. 276(1) would inevitably lead to the exclusion of probative evidence relating to consent, Gonthier J. wrote that:
  • Far from being a “blanket exclusion”, s. 276(1) only prohibits the use of evidence of past sexual activity when it is offered to support two specific, illegitimate inferences. These are known as the “twin myths”… If evidence of sexual activity is proffered for its non-sexual features, such as to show a pattern of conduct or a prior inconsistent statement, it may be permitted.
It follows that prior sexual history evidence can be offered to rebut claims of consent or to impeach credibility, so long as this is done directly, rather than by making a contention based on the complainant’s character.

He points out that ambiguity in s. 276 (“by reason of the sexual nature of that activity, the complainant[…] is more likely to have consented to the sexual activity that forms the subject-matter of the charge”), which is generally (hopefully) interpreted in the manner suggested by Paciocco and that is relatively favourable to the defence (that evidence not directly related to the twin myths is admissible – after an accused’s s. 276 application, of course), while others, of course, would prefer a “L’Heureux-Dubé – style” blanket exclusion, with or without an application.

Conviction rates

Craig notes a “profoundly dysfunctional legal system” (in her book, at p. 22, reviewed here), and low conviction rates. Note 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, at p. 503 (my review here):

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.

While I was reviewing Tanovich, I noticed this disturbing footnote commenting on (at p. 504):

Defence counsel wanted to use the painting “to make the point that the theme of false accusation is not the exclusive invention of criminal defence lawyers.”37
Ibid. at para 2. If anything, given the reluctance of women to report sexual assault and the fear of being violated and humiliated in court, it is hard to imagine why someone would bring a false claim. This point is made by Justice L’Heureux-Dubé in Osolin SCC, supra note 4 at 625, where she notes that, “[t]here 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.” See also, Sampert, supra note 28 at 307–11 where Professor Sampert notes that one of the myths surrounding sexual assault that is often portrayed in the media is that “innocent men are regularly accused of sexual assault and women regularly lie about it.” This is not to suggest that there are not wrongful sexual assault convictions, but there is little, if any, evidence that this concern extends beyond cases that turn on identification evidence—that is, where the issue is not consent nor whether the act occurred, but whether, in fact, it was the accused who assaulted the complainant. In this category of sexual assault cases, the concerns with “whacking” rarely arise since the focus is not on making the complainant out to be a liar but with whether that identification is mistaken.

This horses**t passing for “expertise” in social science and/or evidence and law is simply ridiculous. I’ve addressed this previously here. Tanovich is dead wrong about this. There are countless wrongful convictions on a regular basis – in part due to butchering of the law thanks to “scholarship” such as his (and that of Craig and L’Heureux-Dubé, etc.), and in part due to the fact that complainants lie. Mistaken identification is probably rarer than both of those scenarios (consent and whether the act occurred). The fact that complainants lie should not be a rape myth – it’s a plain fact, and one that’s borne out by statistics – since we’re so concerned about statistics. Besides – isn’t it a myth and stereotype that women don’t lie about these complaints, and/or that it’s “hard to imagine why they would bring a false claim”? I get affirmative action, but let’s not use it to secure wrongful convictions and promote outdated, archaic, and stereotypical thinking.

I’ve discussed statistics previously here, which tend to show weaknesses in the assertions of L’Heureux-Dubé and Tanovich. Further, there is a plethora of social science research documenting the extremely common false allegations of child sexual abuse in divorce/separation cases. One does not have to be a Mensa scholar to infer that it’s not merely false allegations of child sexual abuse that are being concocted in those cases.

Besides, as Greenspan points out, the question “why would a woman lie about rape?” is silly and misleading, and no more appropriate nor relevant than “why would a man rape?” or “why do people commit crimes?” or “why is the sky blue”? Of course, however, it’s a much more dangerous question, given that it’s used to insinuate that complainants – in a particular kind of case – are being truthful.

Note that it is wrong to presume that witnesses are being truthful and accurate in their testimony (R. v. Thain, 2009 ONCA 223 (CanLII), at para. 32, cited in Paciocco at p. 534, footnote 1). This is distinct from the concept that the witness herself (not her evidence) is presumed to be of good character and truthful (ibid., citing R. v. Giraldi (1975), 28 C.C.C. (2d) 248 (B.C.C.A.), leave to appeal to S.C.C. refused (1975), 28 C.C.C. (2d) 248n (S.C.C.)).

Of course, s. 276 assumes that it will “encourage the reporting of sexual offences” – as if this were a fact. I’m surprised it doesn’t add the tantalizing expectation of higher conviction rates, the reduced likelihood of “whacking the victim”, and rehabilitating our “dysfunctional legal system,” for good measure.

It is partly due to some of the “scholarship” mentioned above (that is irresponsible at best) that a male victim (wrongfully accused of sexual assault) has a better chance at a fair trial in China or Russia than in Canada from 1983 onward.

Published by Efrayim Moldofsky

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

Leave a comment

Leave a Reply

%d bloggers like this: