Innocence is not a myth – Shakespeare, wrongful convictions and R v BEM, 2022 ABCA 207

I read a recent ABCA case of a conviction appeal dismissed that illustrates for me the extent of the quagmire that is sexual assault law in Canada.

The decision is indexed as R v BEM, 2022 ABCA 207. The majority decision is by Schutz and Slatter JJ.A., with a partial dissent by Veldhuis JA (on one issue only – far from the only problem with the conviction) – allowing for an appeal as of right to the Supreme Court of Canada on that issue alone.

The conviction was by a jury in 2021, for a historical sexual assault allegation. The trial judge was Henderson J. The charges appear to have been laid in 2015, and they were alleged to have occurred some 25 years prior to the trial (para. 3). Para. 4 begins, “The defence position was that the sexual assaults never occurred, which involved a direct challenge to the believability of the complainant.” This sentence grates on my nerves (like nails on a chalkboard) and is a good example of what bugs me about the decision. It is also not the only such sentence. The defence position clearly was not that “it never occurred” but rather that the Crown did not prove guilt beyond a reasonable doubt. This is not a credibility contest, nor is it an inquiry. The defence position “involved a direct challenge to the believability of the complainant”? How about “the Crown position involved a direct challenge to the believability of the accused” – that would be a lot less problematic. Essentially, to paraphrase the great BARD, “presumption of innocence – whither art thou?”

The main issue is whether the Crown’s “story” to the jury about his own childhood memories was prejudicial to the accused – the majority somehow found that it was not. Apparently two wrongs make a right – as defence counsel had referred briefly to his childhood (mentioning that 25 years ago was “40 pounds and a bunch of grey hairs ago” – italics in original, para. 6), the Crown’s misconduct story with extensive detail about his own childhood memories was somehow on par with that, and was “not serious” (para. 28).

It gets worse. The Crown appears to give extensive unqualified “expert evidence” on the subject of trauma and memory. For example, at para. 13 (emphasis added):

Why can’t [the complainant] give you more detail about what she considers — she says now she believes to be the first time? Well, here is a suggestion, trauma perhaps. The first time initially I think there would be a greater – it’s common sense to reason a greater level of trauma to a 13-year-old child. As it becomes routinized, that is routine, perhaps less trauma as the events are ongoing. (Transcript, p. 190, l. 35 to p. 191, l. 3)

See my recent comments in Trauma and memory – Moldofsky Law (along with this). Shockingly, no criticism by the ABCA of this “expert” evidence whatsoever. The Crown gives more “expert evidence” in para. 13 about how memory works. How the Crown can get away with not calling an expert on memory at this type of trial is simply unconscionable and is probably misconduct in and of itself. I guess making it up as we go along is just fine and dandy for the ABCA.

Here’s another incredibly problematic paragraph (para. 14, emphasis added):

Crown counsel then discussed some of the possible shortcomings in the complainant’s evidence, specifically relating to details of events that happened 25 years earlier, inconsistencies, and gaps in her memory: whether and how her clothes were removed at particular times, what type of clothing she was wearing, whether or when she was in a bed, timing of the assaults, locations etc. Crown counsel discussed inconsistencies between the complainant’s statement to the police, her testimony at the preliminary inquiry, and her testimony at trial. He argued that differences in recounting complex historic experiences at different times did not necessarily mean that the memories were unreliable. Crown counsel argued that the complainant’s failing to “fill in the gaps” in her evidence showed she was attempting to be truthful.

Where does one even start? Inconsistencies about all sorts of details – one would argue not peripheral ones, in that it deals with locations, etc. – can all be chalked up to trauma, somehow, and are not only not credibility problems, they’re credibility boosters! Oath helping, if you will – the more inconsistencies, the better! We’re not even ashamed, at this point. To hell with that quaint, outdated notion of the presumption of innocence – that went down the drain 50 years ago with the equally-outdated requirement for corroboration!

Despite all of this awful, unqualified Crown “expert evidence” the conviction is somehow good enough. Of course, the Crown applies a blatant double standard, arguing – despite his “expert” opinion – that most inconsistencies in the appellant’s version should be fatal to his credibility (para. 16). He didn’t know if there was a door? Obviously lying! Even more disturbing, “you can rely on [the complainant’s] evidence. You can be confident that she’s telling you to [sic] truth about her lived experience. She’s constrained by the truth” (para. 16). It’s unclear how “constrained by the truth” the Crown was.

The Crown continued with his brilliant oratory (para. 16, emphasis in original):

Well, memories change but yet memories can be relied upon. You know, for years my own personal experience — you know, you can talk about, you know, your own personal experience. It’s a well known analogy — I had a personal memory which I believe to be true that while on a camping trip when I was in grade 3, I slipped in a campground shower, bashed the back of my head, and had to go for stitches. That was my memory. […] My memory has been sort of shifted but fundamentally the truth of the experience — the core of the experience is persistent. Remains the same throughout. And I think that’s what’s happening here. That’s what happens naturally, that’s real life. That’s what [the complainant] is narrating to you folks. A lived experience. You can rely on her evidence (Transcript, p. 200, l. 36 to p. 202, l. 5).

Immediately following the Crown’s closing address, defence counsel “stated that he was “seriously contemplating a mistrial application” because of Crown counsel’s suggestion that the complainant had no motive to lie, and the suggestion that defence counsel had misrepresented that the complainant had testified that the sexual assaults happened “every time”. No objection was raised respecting the Crown’s personal anecdote about slipping in the shower” (para. 17). Unfortunately, the “no motive to lie” angle is not further explored, although absence of evidence is not evidence of absence.

Have a load of this (paras. 37, 39 emphases added):

When the Crown’s address to the jury is challenged, the core issue must be whether the trial was rendered unfair. While it would obviously have been better if the personal anecdote had been left out, it must be considered in context to assess its potential effect on the fairness of the trial. As stated in Pisani at p. 740: “There can be no unyielding general rule that an inflammatory or other improper address to the jury by Crown counsel is per se conclusive of the fact that there has been an unfair trial”. […]

The comment was “folksy”. It was not disrespectful, exaggerated, overzealous, inflammatory, or sarcastic, and it did not invite any prohibited line of reasoning: R. v Tokaryk2019 ABCA 439 at paras. 30-32. It was on the topic of “human memory”, an issue on which evidence is generally not called. Arguments about how human memory works are entirely appropriate, and human memory is a topic on which the jury is expected to apply its life experience. Overall, there is no risk that the Crown’s reference to this personal anecdote resulted in any miscarriage of justice.

Thankfully, Veldhuis JA’s dissent gives us an even better idea of how bad a wrongful conviction this was and is (legally).

The trial judge instructed the jury as follows: “The fact that [the complainant] waited 20 years to make the complaint is entirely irrelevant to the issues you have to decide. You must ignore this fact” (para. 60), with similar comments in para. 61 about the complainant later leaving her young child in the care of the accused. This jury charge is blatantly incorrect. Veldhuis JA for a unanimous panel (para. 1) concedes that this was improper, yet again, not a big enough problem.

Veldhuis JA continues with the completely nonsensical “stereotypical assumptions about sexual assault victims are “a form of ‘prohibited reasoning’, like the rule that the accused’s criminal record cannot be used to show that he had a propensity to commit the crime”. But trial judges and juries are entitled to use assumptions about the ordinary conduct of people to assess credibility” (para. 75). So they’re forbidden but also not forbidden? Super helpful – thanks for clarifying!

Yet again, I bring to you R. v. D.D., 2000 SCC 43 at para. 65 which is relatively straightforward and it’s unclear why it’s constantly butchered by so many courts and Crowns (emphasis added):

[T]here 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.

It is one factor to consider – but not the only one. It is not prohibited nor forbidden!

See also R v ADG, 2015 ABCA 149, which surprisingly gets it mostly right (at para. 32, emphasis added):

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.

R. v. Roth, 2020 BCCA 240, cited by Veldhuis JA at para. 73, also does a somewhat-better job, at para. 130-131, emphasis added:

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.

The sole “bone” Veldhuis JA throws the accused here (and the majority agree with her on this point – para. 1) is para. 77:

But that does not mean that a delay in reporting is always “entirely irrelevant” and must be “ignored”. It would have been more helpful if the jury was told something like:

“The fact that [the complainant] waited 20 years to make the complaint is something you may consider. However, do not rely on any stereotypical assumption that sexual assault complainants will immediately report an assault because there are many reasons for delayed reporting. You should consider all the circumstances surrounding the events before deciding if the case has been proven beyond a reasonable doubt.”

In this case, the appellant concedes that the instruction was sufficient because on this record, the delay was irrelevant. That is simply because the defence did not choose to make any use of it, and it had no probative value. But in another case, the late delay might have some probative value beyond the stereotype.

While the above from Veldhuis JA is remarkably ambiguous and non-committal, it’s far better than what we usually see on the subject of myths – particularly in Alberta and the Supreme Court of Canada, the latter of which has a current 34-case Crown win streak.

The leaving her child with the accused is a “myth” to the extent that it assumes she’d “avoid” him – again forbidden but also allowed, apparently (para. 79). To the extent that it argued her credibility was adversely impacted because she said she wanted to cut off all contact with him – that was apparently a “legitimate” avenue of attack (para. 80), despite the fact that she did not appear to say that she did cut off all contact.

I’ll leave you with a fantastic, related article, Due Process for College Students Undermined by New Jersey Title IX Bill (reason.com) (emphasis added):

However, some of those “providing services” to victims are also meant to be impartial investigators of serious allegations, such as university employees involved in adjudicating allegations of sexual assault. Giving “victim-centered” training to those employees raises the question of whether a victim-centered approach also allows for an impartial examination of the evidence and testimony for and against a student accused of sexual assault.

Students accused of Title IX violations already face low standards of evidence. If S.B. 2469 passes, every university employee involved in hearing a case would also be trained to see the accuser as more credible by default.

Such training requirements exist elsewhere in higher education. According to “Title IX and ‘Trauma-Focused’ Investigations: The Good, The Bad, and the Ugly,” a 2019 paper published in the Journal of Applied Research in Memory and Cognition, these trainings often assert that a victim must be believed—even if their story is deeply flawed. In fact, they often argue that having a confusing or unclear story is a sign that a complainant is telling the truth—as such flaws in testimony are the result of trauma. As the authors write, “A particularly ugly feature of [this] training is that it specifically suggests that if memory reports of alleged victims fit the ‘profile’ of those expected from a trauma victim, this fit should serve as evidence that the report is true.”

In a 2015 Harvard Law Review article, legal scholar Janet Halley examined Harvard’s “victim-centered” training, writing that it “is 100% aimed to convince [employees] to believe complaints, precisely when they seem unreliable and incoherent.” If Title IX investigators and decision makers are taught that every complainant is telling the truth—and that any inconsistencies are themselves signs of trauma—then any hearing is essentially a show trial. The accuser is telling the truth because they are the accuser, regardless of what the accused may say in response.

Requiring these trainings only makes sense if legislators believe that everyone accused of a Title IX offense is guilty—something which has been proven over and over to be untrue. The uncomfortable truth about Title IX investigations—and sexual assault investigations more broadly—is that there is rarely conclusive evidence against the accused, and some accusations are indeed false.

Sexual assault is a serious crime that often goes unpunished. However, we shouldn’t respond to this unpleasant fact by attempting to lower the standard of evidence—or in this case, bias Title IX employees toward the complainant.

Title IX investigators make crucially important decisions about whether to find someone responsible for sexual assault and intimate partner violence. Training Title IX employees to see the complaining party as always truthful, as S.B. 2469 would require, also means training them to assume that the accused party is always guilty. That is not a just scheme, even if it guarantees that every actual victim receives justice.

Published by Efrayim Moldofsky

I am a criminal defence lawyer in Calgary, Alberta.

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