“What Worries Me (Most) About Sexual Assault Prosecutions”

I recently watched OsgoodePD’s 2021 Symposium on Sexual Assault available here – not inexpensive, but quite worthwhile. I enjoyed most of it. My favourite part was by far the “debate” between Professor Melanie Randall (“Randall”) and Alan Gold. Randall is a law professor out of Western, and Gold is a legendary criminal defence lawyer (and prolific criminal law author) based in Toronto. The format is essentially each gave a monologue of about 10 minutes about “what worries me about sexual assault prosecutions.” Each had very different views – both were very critical of what passes for our criminal justice system in the area of sexual assault, but for predictably very divergent reasons. I thought Randall’s screed was so useful in that it encapsulates everything that is actually wrong with our system. I suggest her monologue should be made freely and publicly available, and distributed as “Exhibit A” of everything wrong with criminal justice in Canada. I have to say, it was refreshing, as she was far clearer about her concerns than other academics, as I’ve mentioned here.

The main problem with her monologue is her continued insistence on the “pernicious myth” that women “routinely” lie about sexual assault – which is, in her view, not only empirically wrong but also conceptually incoherent (4:38). This is all I really need to know. Why is that a myth, and where is this clear social science evidence showing that it is empirically wrong? I’ll wait. In the meantime, here’s an excellent blog post casting doubt on her baseless assertion. More importantly, it is utterly irreconcilable with the presumption of innocence. See how this crap is indirectly “debunked” nicely by the great Paciocco JA recently in R. v. JC, 2021 ONCA 131 as follows, paras. 88-89, emphasis added:

It is dangerous for a trial judge to find relevance in the fact that a complainant has exposed herself to the unpleasant rigours of a criminal trial. As this court said in R. v. G.R.A (1994), 1994 CanLII 8756 (ON CA), 35 C.R. (4th) 340 (Ont. C.A.), “the fact that a complainant pursues a complaint cannot be a piece of evidence bolstering her credibility. Otherwise it could have the effect of reversing the onus of proof”. Of interest, in R. v. K.(V.) (1991), 1991 CanLII 5761 (BC CA), 68 C.C.C. (3d) 18 (B.C.C.A.), at p. 35, Wood J.A. disapproved of such reasoning because it would itself rest in “gender-related stereotypical thinking” that sexual offence complainants are believable. Such reasoning would be a stereotype because it is a prejudicial generalization that would be available in every case.

The primary concern with using a complainant’s readiness to advance a criminal prosecution is that doing so cannot be reconciled with the presumption of innocence. The trial is to begin on the rebuttable premise that the accused is not guilty, not on the basis that the mere making of a criminal sexual assault allegation favours a finding of guilt: R. v. Stewart (1994), 1994 CanLII 7208 (ON CA), 90 C.C.C. (3d) 242 (Ont. C.A.), at p. 252, leave to appeal refused, [1994] S.C.C.A. No. 290; R. v. Nyznik2017 ONSC 4392, 350 C.C.C. (3d) 335, at para. 17.

In any event, even if her claim was both true and appropriate (for the sake of argument alone), it is a stereotype, generalization, and entirely unhelpful in the context of any particular complaint – whether these types of complaints are usually or generally true or not is entirely irrelevant, dangerous, and highly prejudicial to the possibility of a fair trial.

She goes on about “ritualized hostility and sustained attacks on credibility” – as against the complainant only, as if the accused (supposedly presumptively innocent) does not regularly have to endure extremely hostile attacks on his credibility by Crowns who – of course – never “whack” the defendant. Note bad character evidence – regularly and wrongly introduced against the accused and rarely if ever corrected on appeal (see R. v. Z.W.C., 2021 ONCA 116 and R v Stauth, 2021 ABCA 88 – contrary to R v JKED, 2021 ABCA 111). Note that this crap is usually excused as “context” or “narrative” – which would never fly for s. 276 evidence about the complainant, as I’ve pointed out repeatedly (see here, for example).

She goes on about “repetitive, invasive questions, direct claims that lying, and host of other tactics of intimidation….” There is nothing wrong (generally) with repetitive questioning, other than this academic’s claim otherwise and (perhaps) bad U.S. TV contributing to this erroneous perception. Direct claims of lying are bad? I see – I’m sure the Crown usually accepts everything the accused claims on the stand without a grain of salt (insert sarcasm).

An interesting point she makes is that Judith Herman (?) states if one were intentionally setting up a system for harassing victims, it would look like what we have (paraphrasing). I don’t think Herman is correct, but if she is, maybe court is not a good option altogether. Perhaps the presumption of innocence itself is entirely incompatible with giving the required respect to complainants. Perhaps we should automatically convict (which is pretty close to what already occurs)? Maybe there should another way of investigating, prosecuting, defending, rehabilitating altogether? I don’t know, but I’m certainly open to ideas.

Note a respected lawyer’s recent, public comment that “Public confidence — to the extent that there is any — in the court’s ability to adequately manage sexual assault cases is so fragile as it is,” as I tweeted. Perhaps an entirely new system is required, and pretending to respect both the presumption of innocence and the dignity of the complainant (and of course, the “truth” that “victims” rarely – if ever – lie) is just not working? Note the telling comment of another prominent academic (now judge) that “we have to be as careful as we can to ensure that that price [of the presumption of innocence] is no greater than it has to be” (emphasis added, see here) – see also here. Something to think about for the Supreme Court (I will not discuss its latest atrocity in R. v. G.F., 2021 SCC 20 here, other than to link to my Twitter thread on it).

She continues about the “loss of confidence in our criminal justice system” – made popular through the #MeToo movement. Yes. It would be nice if our Courts (Supreme and otherwise), along with academics and practitioners, were less influenced by this crap – to the direct detriment of the presumption of innocence.

At the risk of repeating myself, the presumption of innocence demands that we believe no witness or charge before trial. If her garbage about people don’t lie about this stuff is true, there’s no point in running a trial, and the burden of proof is reversed from the get-go. This is exactly the problem, and one that appears to be entirely missed by these academics and ideological courts (not that they haven’t been made aware of the problem – they simply refuse to acknowledge it, let alone deal with it). Note also that there is (theoretically, anyway) no initial presumption that a witness is telling the truth (R. v. Semple2015 ONCA 562, at para. 3).

She makes the very ironic point that law is saturated with psychological assumptions, yet lawyers are “psychologically illiterate”. She fails to note that some areas of law are also saturated with erroneous sociological assumptions – far more dangerous.

The presumption of innocence is hardly mentioned – except in the context that it should not require the presumption of lying on the complainant’s part.

Tellingly, she claims that debate in Parliament about advance notice (of complainant’s communications – s. 278) illustrates this “justice gap”!
She asks rhetorically, “How is argument for necessity of ambush at trial any different than claiming defence should have right to catch them in a lie?” It’s not! It’s “problematically predicated on assumption that SA complainants routinely lie” – maybe or maybe not, but they certainly sometimes lie. Your presumption that they never do is precisely what is problematic – especially if the presumption of innocence is not mere BS that judges go on about before convicting. My favourite part is perhaps 4:41 – “every reform on behalf of complainants is met with serious pushback from the defence bar” – if only!

She quotes Janine Benedet, “anytime accused argues consent, he is saying the accused is a liar.” DAMN STRAIGHT!! I thought the presumption of innocence was a thing – in some countries at some points in history, anyway. Of course, presumably, if the defence is it never happened, he’s also arguing she’s a liar. I guess anything other than a quick, remorseful guilty plea – followed by a very harsh sentence to reflect denunciation and deterrence, is entirely inconsistent with her worldview?

This is blatant #MeToo. We should at least be honest – go straight to sentence. Don’t waste time, effort and your client’s funds banging your head against the wall (if you have the misfortune of being accused or defence counsel) by bringing a s. 276 application, a s. 278 “reverse disclosure” application, mounting any other kind of defence, or arguing about consent or honest but mistaken belief. Go to jail – go directly to jail. Hope for some leniency on a guilty plea. You are obviously guilty (by the nature of the charges) so stop wasting our time (at both trial and if you have the audacity to – gasp! – challenge your conviction on appeal) – an approach that is unfortunately mirrored at our appellate courts – most notably our highest laughingstock Court in Ottawa. If you get killed in jail by virtue of being called a “skinner” that’s just too bad.

Alan Gold’s rebuttal is pretty solid, considering “the circumstances.” He points out that sexual assault laws are now ridiculously complicated, moreso than tax law. He raises specific concerns with the focus and laws themselves. He points out (at 4:50) that defence rarely questions the credibility of a complainant – merely her reliability – in other words, they rarely call her a liar. I don’t blame him for taking this defensive stance, but I think it’s wrong – credibility is usually the main issue, and being afraid to call the complainant a liar is one of the main problems I think I’ve addressed.

He points out the problem of assuming the conclusion (I think “affirming the consequent”?) when we assume that delay in calling police, for example, is indicative of trauma, when the event itself having occurred may be what’s at question. He also deals with relevance and specific stereotypes, as does Randall. He closes by pointing out that more education of the bar is needed – not incorrect, but it does not confront the actual problem (not that it’s an easy fix). The laws are a mess and are themselves the problem, and our society’s and profession’s refusal to deal with this fiasco is a bigger problem.

Published by Efrayim Moldofsky

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

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