Given the recent awareness of wrongful convictions (triggered by the recent discovery of who the likely perpetrator was in the wrongful conviction case of Guy Morin), I thought I’d have a look at articles about sexual assault.
I’ve recently been able to access criminal law articles through WestLaw. I’m excited to read many articles I’ve been meaning to get my hands on, including (among others) Paciocco’s “The Perils and Potential of Prior Consistent Statements: Let’s Get It Right” (WestLaw). Naturally, I also sought articles on rape myths, s. 276 and other sexual assault laws. I was not disappointed – I found a wealth of articles, many of which were critical of our sexual assault laws (of course, these are not typically cited alongside Craig, Tanovich, etc. by our Supreme Court).
I noticed a 2015 article by Nathan Gorham about R v Schmaltz, 2015 ABCA 4, a case I comment on here and here, “Schmaltz: The need for caution when limiting relevant defence cross-examination in sexual assault cases,” available here, pp. 312-314 (all footnotes omitted):
The decision is controversial. Professor E. Sheehy promptly called for it to be appealed to the Supreme Court in order to clarify the role and responsibility of trial judges to intervene during cross-examination, “for the benefit of women who experience sexual assault,” Professor D. Tanovich argues in a forthcoming paper that the case displays the improper use of stereotypical assumptions regarding sexual assault and a “whack the complainant” strategy. Professor J. Benedet notes that “[a]ll of the lines of questioning at issue in this case have the potential to trade on one or more of these rape myths.”
Professor D. Stuart, on the other hand, points out that “[w]hen a judge asserts that something is a myth or false stereotype the factual inquiry into relevance is pre-empted.” I would agree and add that caution is generally required before intervening in defence cross-examination that is relevant and otherwise admissible out of concern that the questioning might incidentally impact on rejected rape myths. Sexual assault complainants, of course, have a right to be treated with dignity, respect and fairness throughout the criminal process. They must not be demeaned, harassed, humiliated or subjected to illegitimate or irrelevant questioning during cross-examination. That said, Schmaltz is an example of how trial fairness might be undermined through unwarranted concerns regarding rape myths. The defence right to cross-examine “without significant or unwarranted constraint” is protected by the right to full answer and defence and the presumption of innocence under sections 7 and 11(d) of the Charter. The right to cross-examine is particularly important in cases like Schmaltz where credibility is the central issue at trial. Generally speaking, where credibility questions posed of a sexual assault complainant are relevant, but might incidentally and unintentionally impact on rape myths, the cross-examination is presumptively admissible. In Shearing , Justice Binnie, writing for the majority, explained that “[u]nder Seaboyer and Osolin, the default position is that the defence is allowed to proceed with its cross-examination.” Relevant and otherwise admissible defence evidence is only excluded where the prejudice substantially outweighs the probative value.
I also read a 2017 article by Lisa Dufraimont about R. v A.R.D., 2017 ABCA 237 (CanLII) – appeal to SCC dismissed (a case I discuss here and here): “A.R.D.: Complainants’ After-the-Fact Conduct in Sexual Assault Cases” (WestLaw):
The majority judgment in A.R.D. clearly cautions trial judges against relying on rigid expectations about how complainants should behave. This aspect of the judgment is valuable, consistent with other recent appellate decisions, and largely uncontroversial. However, the majority judgment in A.R.D. also holds that the absence of avoidant behaviour by a sexual assault complainant is “logically irrelevant”. Since relevance is a precondition to admissibility, this might suggest that the complainant’s after-the-fact conduct in relation to the accused is inadmissible (even always inadmissible). It might even be taken to suggest that triers of fact are precluded from drawing any inferences favourable to the defence from the after-the-fact conduct of complainants. These suggestions arguably go too far, since they overlook the possibility that, like delays in disclosure, other features of the complainant’s after-the-fact conduct may have legitimate probative value in the factual mosaic of a particular case.
In the context of a criminal justice system premised on the presumption of innocence, we should be wary of suggestions that certain kinds of evidence can ground inferences favourable to the Crown but can never ground inferences favourable to the defence. […]
Also, see Don Stuart: “Barton: Sexual Assault Trials Must be Fair not Fixed”, a 2019 article (WestLaw) critiquing R v Barton, 2017 ABCA 216 (CanLII) (upheld in R. v. Barton, 2019 SCC 33 (CanLII)) – article cited in appellant factum, and note harsh criticism of Fraser CJ and the Alberta Court of Appeal by appellate counsel, despite general approval (and wholesale acceptance by a more-or-less unanimous Supreme Court) of the Court of Appeal’s decision.
The Court’s pro complainant bias
Although the Court of Appeal shows considerable mastery of sexual assault law nuances there are, to this commentator, signs of bias against rights of accused. The Court states that an accused is entitled to a fair not a fixed trial. At points I see the Court as trying to fix and strengthen laws to make sexual assault convictions more likely. I offer some examples. […]
Recall too that our rape shield laws since Seaboyer are unique in applying equally to prior sexual conduct with the accused. This is a principle that Professor Galvin, the author otherwise relied on in Seaboyer, did not favour, has been rejected by the House of Lords in R. v. A. and is not the law in the United States. That leaves conscientious and fair-minded Canadian judges in a quandary where prior sexual history with the accused seems obviously probative […]
In a 2009 paper by Don Stuart, “Twin Myth Hypotheses in Rape Shield Laws are Too Rigid and Darrach is Unclear” (available here, pp. 48-51):
Unlike any country in the Western world, this protection applies, ever since a further assertion by McLachlin J. in Seaboyer, equally to prior sexual history with the accused. […]
Admitting evidence is “part of the context” seems very like the “part of the narrative” ruse sometimes resorted to bypass unwelcome evidentiary rules. The real problem is that the twin myth hypotheses are too rigid. Professor David Paciocco suggests judges read them down to forbid only general stereotypical inferences and to allow inferences specific to the case. This was the approach taken by Fuerst J. in Temertzoglou. This solution is rather like that adopted in the Supreme Court in R. v. Handy for similar fact evidence: pattern evidence of the accused can exceptionally be admitted as evidence of specific rather than general propensity. The Paciocco analysis found favour in lower courts but was not squarely addressed by the Supreme Court in Darrach. The Supreme Court further speaks of Parliament having clarified that the sexual nature of the previous activity can never be referred to. This seems bizarre. It is only the sexual nature of the prior relationship evidence that could give it any probative force.
In R. v. A.(no.2) the House of Lords somehow read Darrach as not applying rape shield principles equally to prior sexual history with the accused. The Law Lords unanimously declared that new U.K. rape shield laws offended fair trial rights in the European Convention for the Protection of Human Rights and Fundamental Freedoms in applying with equal force to prior sexual history with the accused. Lord Steyn, for example reasoned as follows:
As a matter of common sense, a prior sexual relationship between the complainant and the accused may, depending on the circumstances, be relevant to the issue of consent. It is a species of prospectant evidence which may throw light on the complainant’s state of mind. It cannot, of course, prove that she consented on the occasion in question. Relevancy and sufficiency are different things…It is true that each decision to engage in sexual activity is always made afresh. On the other hand, the mind does not usually blot out all memories. What one has engaged on in the past may influence what choice one makes on a future occasion. Accordingly, a prior relationship between a complainant and an accused is sometimes relevant to what decision was made on the particular occasion.
Rape shield law protection in the United States presently do not extend to prior sexual history with the accused. Following the Kobe Bryant rape trial acquittal Dean Michelle Anderson has called for restrictions on such evidence. But she accepts it as a given that
prior negotiations between the complainant and the defendant regarding the specific acts at issue or customs and practices about those acts should be admissible. Those negotiations, customs, and practices between the parties reveal their legitimate expectations on the incident in question.
Until the Supreme Court speaks more clearly on this issue my sympathy is with trial judges attempting to ensure that sexual assault trials are fair to both the accused and the accuser.
R. v. Barton, 2019 SCC 33 (CanLII) is also critiqued by Lisa Dufraimont in a 2019 article entitled “R. v. Barton: Progress on Myths and Stereotypes in Sexual Assault” (WestLaw) as follows:
Remaining Silent on Permissible Inferences
The Court’s focus in Barton on specifying prohibited inferences stands in contrast to its relative silence on the question of evidence and inferences permissible to assist the defence. In the context of the defence of mistaken belief in communicated consent, Moldaver J. provided a lengthy explanation of situations where the defence does not arise but offered only a brief discussion of evidence that could support the defence. With respect to the evidence of the deceased’s prior sexual activity, Moldaver J. explicitly left the question of admissibility to be decided by the trial judge at the new trial. He explained that because the mandatory procedural requirements were not met at the original trial, “it would be both unwise and practically unworkable for this Court to speculate about what prior sexual activity evidence would have been admitted, and for what purposes, had a s. 276 hearing been held.” Consequently, while the judgment contains a detailed analysis of the impermissible uses of sexual history evidence, it includes almost no discussion of the kinds of inferences that can legitimately be drawn from evidence of a complainant’s other sexual activity. The overall effect is arguably unbalanced; indeed, a casual observer might come away from reading Barton with the impression that no evidence of the complainant’s other sexual activity could be admitted for any legitimate purpose, either in general or in the specific case. This sense of imbalance is unfortunate in the context of s. 276, where the Supreme Court has recognized that admitting the evidence is sometimes necessary to uphold the accused’s constitutional right to full answer and defence.
Moreover, by failing to discuss the permissible lines of argument for the defence, the Supreme Court missed an opportunity to provide guidance on what is arguably the most challenging part of eliminating myths and stereotypes from sexual assault trials: separating the permissible and impermissible uses of the same evidence. Examples of this challenge abound. For instance, as Moldaver J. noted in Barton, there is no defence of “implied consent” and consent cannot be “implied by the circumstances” where the complainant did not voluntarily agree, in her mind, to the sexual touching at the time that it occurred. However, it would be a mistake to conclude that the “circumstances” are irrelevant to the factual question of consent, or that the trier of fact is bound to accept a sexual assault complainant’s testimonial claim of non-consent. As the Supreme Court recognized R. v. Ewanchuk,
While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place.
Thus, evidence of the circumstances surrounding an alleged sexual assault can ground both permissible and impermissible inferences on the issue of consent. In this context and in sexual assault cases more broadly, trial judges would benefit from further appellate guidance on how to distinguish legitimate lines of reasoning from prohibited myths and stereotypes.
For a real “oldie-but goodie” see “From the Far West: The Erosion of the Presumption of Innocence”, a 1989 article in For the Defence, by Richard C.C. Peck, Q.C. (Vol. 10, no. 4, p. 11, December, 1989 – QuickLaw):
Included in the presumption of innocence is the necessity that the trial of the accused be one that is manifestly fair. Yet is it fair to put someone on trial for an offence where the cross-examination of the chief witness for the Crown is greatly restricted? The is precisely the result of s. 276 of the Criminal Code. Proponents of this legislation argue that a complainant’s prior sexual conduct is irrelevant to the charge before the Court and that cross-examination in this area amounts to nothing more than a scurrilous attack on the complainant’s character aimed at demeaning the witness in the eyes of the trier of fact for the sole purpose of reducing his or her credibility. It is conceded that in a small minority of cases this is so, but the unfortunate consequences of this legislation are such as to effectively prohibit an accused from cross-examining where there is reason to believe that a valid defence may arise from the cross-examination. Although the Criminal Code creates exceptions to this limitation on cross-examination these exceptions are seldom permitted. In the result the legislation has created an evil greater than the cure it was aimed at. It has also had the effect of creating a special class of witness subject to protections from cross-examination not enjoyed by other witnesses.
Put simply, we can — and must — do better. With forthcoming reasons expected from our Supreme Court in Her Majesty the Queen v. G.F., et al., 2020 CanLII 227 (SCC), perhaps it can show us all that it is capable of more than just dangerous rhetoric when it comes to sexual assault law.
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):
 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),  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.
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,  3 SCR 33. There is no inviolable rule on how victims of sexual assault will behave: R v DD, 2000 SCC 43 at para 63,  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 downrightwrong 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. 65; Kiss 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,  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 yearsat 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.
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 Queen, 1983 CanLII 49 (SCC),  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. Seaboyer, 1991 CanLII 76 (SCC),  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. Potvin, 1989 CanLII 130 (SCC),  1 S.C.R. 525, at p. 544).
Professor Sankoff’s recent text, The 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.
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.
The concept of the “presumption of guilt” is one that I was introduced to by reading Hersh Wolch Q.C.’s excellent lecture in “Counsel for the Defence: The Bernard Cohn Memorial Lectures in Criminal Law” (Amazon). Wolch argues that, despite the theory of a presumption of innocence, in practice, it usually operates more like a presumption of guilt. It’s a point that seems a daily reality to one who works in the criminal defence trenches, and it’s persuasively argued in Greenspan’s 1987 book “The Case for the Defence” – Macmillan (Amazon).
Greenspan’s book is excellent. Among other subjects, he discusses problems with the direction in which sexual assault laws in Canada were heading back then. Frankly, he was right on most counts. I’d say his words are more timely now than they were when he wrote them over 30 years ago. I’ll quote extensively from pages 224-244:
The problem here was simple. Our knowledge of human nature has always suggested that, on the whole, a real victim of sexual assault (or any other type of crime) would complain of it at the first reasonable opportunity. However, the new rules, while making life potentially easier for a lying complainant, made it harder for those truthful victims who did complain. Hindering witnesses who are somewhat more likely to tell the truth in order to help those who are somewhat more likely to lie did nothing, in my view, to assist the courts in their primary purpose, which is to arrive at a just result.
For instance, in common law the “recent complaint” rule used to permit complainants to bolster their own testimony by leading evidence that they had complained about being sexually assaulted at the first reasonable opportunity. This was simply to show consistency on their part – something that no other type of witness would be allowed to show (unless the other side challenged them by suggesting that their evidence was a recent fabrication). The rule favoured complainants. The downside of the rule was that, in the words of one judgment, “the jury must … be instructed that the absence of a recent complaint gives rise to an inference that tells against the truthfulness of a complainant’s evidence.” This rule was abolished. Curiously, while abrogating the rule made it easier to bring sexual-assault charges about which the complainant said nothing to anyone – whether at the first reasonable opportunity or ever – it took away a complainant’s chance to show the consistence of her allegation by a recent complaint.
Corroboration requirements were also abrogated, giving rise to a similar dichotomy. Judges used to be required to warn juries that, while it was open to them to convict on the uncorroborated evidence of a complainant, it was dangerous to do so, unless some other evidence connected her story to the alleged offence in some material particular. The abolition of this rule was actually welcomed by many defence lawyers, since in practice it often had the effect during the judge’s charge of focusing the jury’s attention on dozen of insignificant or dubious details in the Crown’s case as “corroborating” the complainant’s story. (For instance, the grass being flattened on a piece of ground could be held to “corroborate” a complainant’s story that she was raped at that spot – even though the fact in itself was just as consistent with the defendant’s claim that he had consensual intercourse with the complainant: the grass would be flattened in either case.) Still, while some reforms were needed, the total abrogation of corroboration rules tended to turn sexual-assault trials into a “her word against his” type of contest in which neither the truthful complainant nor the truthful accused could expect any help from the rules of evidence.
But all of this was dwarfed by the real problem, which was to severely curtail the defendant’s ability to test the complainant’s evidence against him through cross-examination. In some respects, complainants ceased to be compellable witnesses altogether. A complainant could no longer be asked many types of questions about her conduct – not even in a closed voir dire hearing to help a judge determine whether or not he should allow those questions to be asked in front of a jury.
The reasons for curtailing cross-examination were to save complainants from embarrassment, to protect their privacy, and to encourage them to come forward with complaints. However, whatever their merits, these reasons were not sufficient to deny natural justice to a man presumed to be innocent by preventing him from confronting his accuser, or to stop a judge from even considering whether an accused, by not being able to ask these questions in a given case, would be denied natural justice or not.
It was becoming increasingly difficult for anyone accused of sexual assault to exercise a citizen’s fundamental right to make full answer and defence to a criminal charge. […]
Evidently, many judges had not yet resigned themselves to asking participants to submit to a test of fire, as courts did in the Middle Ages, to see who was telling the truth. They wanted to preserve cross-examination – the finest instrument the law has for separating fact from fancy.
Some of then new laws were downright silly. For instance, a kiss could be defined as a sexual assault if the recipient did not consent it, and a charge could be brought against spouses actually living with each other. I theory, this made it possible for a husband to be found guilty of sexual assault on the following fact situation:
HUSBAND (to his wife after a disagreement): Oh, let’s kiss and make up.
HUSBAND: Aw, come on. (He kisses her. Enter police. Arrest, trial, conviction.)
The media – usually the keenest watchdog against any unfairness or injustice in society – often seemed to lose all sense of fairness when it came to feminist issues. Journalists would wax indignant over a judge’s sentencing a rapist to “only” four years in prison “in spite of the Crown’s demand for a sentence of ten years”. I could hardly believe my eyes seeing such examples. What did the Crown’s “demand” have to do with whether or not the sentence was appropriate? In the same courthouse on the same day, as the reporter ought to have known, judges were sentencing to four years all kinds of non-sexual offenders for whom Crown attorneys were also “demanding” ten-year sentences. It is a normal part of the adversary process for the Crown and defence to make widely disparate sentencing submissions, and for the judge to decide what is right. The press might have just as easily reported that despite a defence lawyer’s submission for an eighteen-month sentence in reformatory, the judge gave the accused four years in a penitentiary.
But some feminists wanted to “re-educate” judges – that is, to bully and coerce them to look at everything from their point of view – and latched upon the idea of using the media for the purpose. Perhaps this was made possible by the fact that reporters assigned to cover the courts (with some honourable exceptions) know surprisingly little about the law. Unlike journalists assigned to cover science, politics, or entertainment, court reporters and their editors often do not have even a well-educated layman’s understanding of the legal process about which they are expected to inform the public. (This is not just my opinion, incidentally; it was a frequently expressed complaint of Canada’s late Chief Justice, Bora Laskin.)
Nothing illustrates this better than two recent examples in which judges were vociferously castigated in the press for remarks made in the course of sexual-assault trials.
In one case a judge, while sentencing a man to a prison term for raping an exotic dancer, made some remark about a stripper being in a business designed “to inspire lust”. Immediately, a cry arose in the media demanding that the judge be censured. […]
Calling for censure in such a case, in my opinion, was nothing but an attempt to intimidate the judiciary. In so far as it was also made by some lawyers, it may have amounted to contempt of court. In the past, lawyers criticizing judges in this fashion had often been requested to apologize to the judges involved. In the case of feminist objections – as I put it in speech to the Ontario Psychiatric Association in 1986 – it was some of the judges who ended up apologizing to their critics.
The press was even wider off the mark in another case. That was a case in which an Ontario judge was being crucified in the media for rating a rape – again, after convicting the accused – as “a 2 on scale of 1 to 10”. […]
Co-author George Jonas then continues (in italics) with the story of Wayne St. Louis, a former client of Greenspan’s charges with sexual assault in 1981 in Windsor, Ontario (I couldn’t find any online references to this story).
It has been argued that when the police believe that someone may have committed a crime, it is their duty to lay a charge, even if the evidence against the accused is marginal. At the same time efficiency and common sense suggest that police exercise the discretion available to them and not waste the courts’ time and the taxpayers’ money with cases in which a conviction is all but impossible. Expediency and cost-effectiveness are not the only reasons. Some police officers honestly believe that harassing an accused for no reason or exposing him to the chance, however remote, of a perverse conviction is simply unfair.
The exceptions to this rule are high-profile crimes (such as, say, murder) or high-profile suspects (for instance, members of “organized crime” or very wealthy or famous persons). In such cases the police have been known to lay charges on very little evidence. Other exceptions include crimes that attract a lot of social pressure to prosecute no matter what, such as rape has become in recent years. Or any crime in which the suspect is a policeman. […]
As for rape, it has always been regarded as a very serious crime. Historically except for murder, it was the only other crime for which the death penalty remained available in some jurisdictions. However, precisely because it was taken so seriously, the courts were especially careful to have it proved beyond a reasonable doubt against an accused. Judges recognized that, while it exposed the accused to grave penal consequences and much social opprobrium, rape was a charge very easily brought against a person. Unlike other legal systems, English law never subscribed to the maxim of testis unus testis nullus, which prohibits conviction on the evidence of a single witness.
For this reason, much latitude used to be given to the defendants’ lawyers in the cross-examination of complainants. Sometimes – depending on the trial judge, who could always limit such questioning to relevant issues – this gave rise to an atmosphere in which rape trials were harder on the complainant than on the accused. It was said, with some justification, that the courts “put the victim on trial.” At times complaints of sexual assault were heard in courts in a climate of intrinsic disbelief.
It might have been possible to remedy all this intelligently, but – in the opinion of many lawyers – it wasn’t. in recent years it was remedied by simply reversing the unfairness. From intrinsic disbelief (which was unfair, of course), the climate changed to one that seemed to echo the rhetorical question “Why would a woman lie about being raped?”
But this is a silly question. As silly as asking, “Why would a man rape?” Generally, of course, men don’t rape and women don’t lie – about being raped or anything else. Most people tend to observe the biblical injunction against bearing false witness against fellow human beings most of the time. However, some people do lie sometimes, and it is the task of the criminal-justice system to separate, beyond a reasonable doubt, the minority who do from the majority who don’t. this cannot be accomplished by presumptions either way, only by a meticulous, case-by-case examination of the facts. In the words of the English jurist Sir James Stephen, “the power of lying is unlimited, the causes of lying and delusion are numerous …” It is not the court’s business to say why a woman would lie about being raped, only to make sure no innocent person is convicted in the rare instance when she does. […]
This indicated that, in law, it is possible to be convicted of sexual assault on an uncorroborated complaint, first made more than a year after the fact, shown to be inconsistent in vital details, altered in mid-trial to suit facts learned during the defendant’s testimony, and presented by a girl who, in her own words, tends to “dream about” essential parts of her evidence. It is possible to find a man of unblemished reputation guilty beyond a reasonable doubt on this kind of evidence alone. It is not unreasonable.
What, then, is unreasonable? Is it surprising that rape has been traditionally regarded as a charge very easy to bring and very hard to deny? Has it been wrong for the law in the past to surround defendants with certain safeguards? Or has it been a mistake for the law to remove them? […]
If, as a matter of social policy, we go on “sensitizing” girls and women to the “coercive sexuality” of men; if we keep giving seminars and showing propaganda films on the subject in schools; if we keep suggesting to young people that they be alert to “sexual harassment” and “bad touching” and invite them to view any gesture in the light of this possibility; if we positively urge people – as we are beginning to do – to have no tolerance of any “uninvited” sexual expression, not even “ogling” or “lewd remarks”, and to resolve any doubt they may have in this regard by reporting the matter to the authorities – if we do this, we will inevitably end up with accusations like the one levelled against the Windsor swimming-pool owner or Wayne St. Louis.
In addition, if we keep diluting our evidentiary rules; if we threaten our police, Crown attorneys, and judges with censure for applying the same common sense, or the same discretion, in cases of alleged sexual assault as they do in all other criminal investigations and trials, we will inevitably end up with innocent people convicted and ruined.
This is not just a possibility or a likelihood: it is a statistical certainty. In any population group there will be a few spiteful or evil-minded liars. There will be a few wicked or impressionable children, and a few malicious or fanatical adults to manipulate them. Their numbers will undoubtedly be small, but one in a thousand is enough. In the old days of witchcraft trials it was impressionable, wicked, or manipulated children who most often testified about seeing accused witches flying around on broomsticks. If, as an experiment, all schools started showing films requesting children to be on the alert for their parents or neighbours turning into little green men from Mars, it is a statistical certainty that some reports of such sightings would be received by the police. […]
[…] But there is a world of difference between protecting women and children, and inviting malicious, confused, or ideologically motivated to use sex as a weapon against others.
As a criminal lawyer I have seen nothing to persuade me that we cannot achieve the first aim without “taking a chance” on the second. True, any system of justice entails the incidental risk of injustice, but justice is never achieved by wilfully creating a climate in which it becomes easier to prosecute or convict the innocent.
One final point. At times lawyers are accused of having an economic interest in the social measures that they advocate. Frankly, as a criminal defence counsel, my economic interest is in seeing the greatest possible number of middle-class people being hauled into court on criminal charges of all kinds. If, for instance, in child custody battles every second wife were to charge her husband with having molested the children – an increasing number are doing it already – I could soon keep a yacht in the Mediterranean. […]
[…] I suggest that we should take a second look at our feminist-inspired social policies before some people’s vested interest in their perpetuation becomes overwhelming. As it is, an entire industry has sprung up around the educational, legislative, administrative, and enforcement aspects of feminist ideology. Pretty soon pulling back would entail having to add hundreds of bureaucrats, consultants, academics, educational filmmakers, social workers, newspaper columnists, and other experts – along with their secretaries, researchers, and assorted support personnel – to the welfare rolls.
That is without mentioning the new censors, the behaviour modification therapists, the anti-violence-and-pornography crowd that has become a contemporary meeting-ground between feminism and the Moral Majority. My 1986 speech to the Ontario Psychiatric Association centred mainly on them. I said at that time: […]
These censors, who form the great bridge in our days between Right and Left, between arch-conservatives and “progressives”, who forge ahead like the Light Brigade, deserve a chapter in themselves. A chapter like that would involve a discussion of art, literature, psychology and philosophy. Since I don’t want to step outside my own area, criminal law, it will have to be written by someone else.
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 mediacircus 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:
 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,  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:
 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.
 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):
 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:
 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.
 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 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?
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.
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):
 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  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.
 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,  3 SCR 33. There is no inviolable rule on how victims of sexual assault will behave: R v DD, 2000 SCC 43 at para 63,  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.
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.
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,  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,  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? 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. 40-41; R. v. Mugabo, 2017 ONCA 323 at para. 25; R. v. J.A, 2010 ONCA 491; reversed on other grounds 2011 SCC 17; R. v. Varcoe, 2007 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 Provisions – link, 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.
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.
I have been made aware of numerous complaints about Calgary Remand Centre staff and administration over the last week. None of it surprises me. The Centre is quite easily one of the worst remand centres in Canada in terms of how it treats its inmates, although it’s received little media attention compared to detention centres in Ontario. Most (if not all) of its inmates are awaiting trial or plea, and as such are presumed innocent – to the extent that our society presumes innocence before conviction (which is hardly if at all). It reminds me of a client who was beaten savagely off-camera there last year – he says it was by staff, and I absolutely believe him. I have approached media, and have received little interest so far in this story. I’ve decided to “publish” it myself on my blog. Names and dates are redacted. I have also provided more detailed complaints to the director of the Centre – I will publish his reply at the end of this post.
One client indicates the following:
My client is indigenous. He advises that he is only allowed nail clippers every other Sunday. He went last Sunday (July 5), between 12:30 to 1:00 PM to obtain nail clippers from staff. The mail slot was closed, so he waited 8-10 minutes by the seating area. He called “hello?” into the mail slot. The reply “can’t you see I’m fu**ing busy?” The staff member’s name may be “P”, although my client is not certain what his name is – apparently the guard refused to provide his name to my client, which is highly problematic on its own. My client said “do your job” and walked away. He then heard background noise, with the guard yelling at him “I’m not here to babysit you”. The guard then goes to my client, holding his pants up – suggesting aggression. The guard asks “which one’s your cell?” My client replies “cell _, why, you’re going to throw your authority around just for nail clippers?” The guard replies, “Get the f**k in your cell, you filthy, stinking savage.” The guard refused to repeat these words upon request. The guard added, “I don’t need my squad, I’ll beat the s**t out of you myself.” My client went back to his cell. The guard then stood at his door, continually berating, cursing and swearing at my client, clearly trying to provoke my client further. Other inmates clearly heard the exchange.
When getting off shift (after 3:30), my client told a new guard “I’m locked up because of your racist pig partner”. She said “what did you say?” He repeated his comment. She went running to the guard and told him what she had heard. He gets on the radio for this cell and said “what did you call me, you f**king piece of s**t?” He then continued swearing – all over the radio.
On Tuesday (July 7), between 8:30-9:00 AM, this guard and another guard told my client to “sit up. Why the f**k did you lie?” He replied, “what lie?” They continued swearing. Then the large guard says “you sit up and listen and talk to him”. Both were being extremely aggressive. My client said, “go ahead, beat me up”. He was then told he’s on lockup on Wednesday (for 24 hours).
My client also indicates that the medical office is trying to give him non-prescribed medication, and refuses to give him his proper medication.
Another client alleges the following: racially charged treatment and harassment by staff. His main concerns arise from events that took place Monday, July 6, 2020. He advises that his personal items were ruined during another “inspection” by staff. His drawings and photos of relatives were torn. He says his copies of the Quran were also stacked in a disrespectful fashion. The main instigator is a very senior guard named “S” (last name, I assume). My client was very upset about the destruction of his personal valuables. He kicked the door, at approximately 10:00 AM. S then stormed over (along with another guard), yelled expletives at my client, and pointed a large can of mace at him. S told him “you’ll die in here and I can make it happen.” My client has 17 other inmates who witnessed the above and signed a document to this effect.
Later, S retaliated by cancelling canteen privileges for the entire unit for the whole week. He also put the entire unit on lockdown for the rest of the day. Either of these actions could have resulted in serious repercussions for my client from other inmates. He also initiated institutional charges against my client. Medical attention for my client’s injured hand (because of punching the door after the guard had left) has also been sporadic.
I have also spoken to other inmates in Calgary remand Centre, and their complaints follow:
One individual says he has served time in many correctional centres around the country, and he has never seen treatment as poor as in this Centre. The following conditions are noted:
No access to rehabilitative programming at all;
Inmates are locked up 20 hours a day at least – most of time;
They are let out later than they’re supposed to be and locked back up earlier than scheduled;
Their family visits are cancelled due to COVID, which makes no sense because visits are behind glass;
They are often served food cold, because guards like to let food sit there (I’ve had this confirmed by at least one other inmate, who confirmed they had melted ice cream and cold chili for supper the other day);
Guards are aggressive, threatening, capricious, vindictive and arbitrary to prisoners. The behaviour of the guards is often criminal; and
Mistreatment of inmates is a regular occurrence.
Another inmate confirmed previous instances of misconduct by S (the guard named in the previous complaint); in particular an incident from August 2019 where he forced several inmates to kneel and face the wall and threatened to spray them with mace if they looked to their side – all for no apparent reason. It appears there have been multiple complaints over the years about sadistic treatment regarding S, who is apparently a very high-ranking staff member at the Centre;
Another inmate advises that when his relatives visit from the parking lot (inmates can see them one-way) and to deposit money in their account (which I understand can only be done in-person for some incomprehensible reason), staff tell them to go away and they are sworn at. They have been told that they are planning a breakoutand will get sprayed with mace if they don’t leave immediately. I have personally confirmed these offensive allegations with the father of this inmate over the phone on July 9, 2020. I understand there is also a video of one of these incidents.
I have provided the above complaints in writing to the director of the Centre, R. Wilson, on July 10, 2020. His written reply indicated that my various allegations and queries are under internal review, and he will respond upon its completion.
Following up on my recent posts about Ewanchuk and Professor Elaine Craig’s horrendous book, I noticed a lot of ideas tracing their way to a respected law professor out of the University of Windsor – David Tanovich. He appears to be a part of a group of academics – whom I’ll call “the #Me Too gang”, who seem intent on revolutionizing the way sexual assault trials are conducted, and all but call explicitly for the reversal of the burden of proof in trials of sexual assault. Note Professor – now Judge Woolley’s comments and a reply here: “That trade-off is one that I think our system has to make in order to ensure the rule of law – that the state only punishes people who have been shown beyond a reasonable doubt to deserve it. But we cannot ignore the price that is paid for that outcome, and we have to be as careful as we can to ensure that that price is no greater than it has to be.” I suspect scholarship from Tanovich and Craig will do a lot to ensure that the “price” of the presumption of innocence is “no greater than it has to be”. I thought I’d have a read of Tanovich’s influential 2015 article, “Whack” No More: Infusing Equality into the Ethics of Defence Lawyering in Sexual Assault Cases, 2015 CanLIIDocs 164, available here. It is cited (not surprisingly) – alongside Craig – in R. v. Goldfinch, 2019 SCC 38 (CanLII), at para. 33.
I find him to be somewhat less of a shock jock than Craig with just a tad more nuance. Nonetheless, his ideas are quite dangerous and have a similar result. The intent is – similar to Craig – to further mangle the law of sexual assault in Canada, terrorize judges and all other justice players into rendering results that they deem satisfactory, and continue to derogate criminal defence lawyers.
Many of the cases relied on by Craig (e.g. Wagar, Ewanchuk, BS, etc.) are excellent examples of borderline cases. They are not cases where Craig and/or Tanovich argue the ethics of defence lawyering need to change much (i.e. guilt is clear to the defence lawyer). The unfortunate irony is that in precisely the cases where there is so much ink spilled and hand-wringing (often followed by concrete actions in Parliament), there is very little clarity about guilt. One would think the obvious cases would be, but no. Defence lawyers are usually wise enough to not waste time on trials on clear cases, so we’re left with very ambiguous cases – at best – over which the #MeToo gang have the most concerns. I’ve discussed Ewanchukand BS previously. I’ll qualify my statement here: some of the cases pointed to by Tanovich (i.e. in note 10 on page 6, quoting Craig’s article The Ethical Obligations of Defence Counsel in Sexual Assault Cases which is more nuanced and objective than her book) do appear to be clear examples of problematic behaviour by defence counsel.
I’ll go into some more detail on Wagar later in this post. Issues like consent and due process vis-à-vis the victim’s rights (assuming of course that the complainant is a victim, which our Criminal Code very unfortunately does) are critical issues, and continue to be hotly debated – see R. v. Sullivan, 2020 ONCA 333 (CanLII), which should be decided at the Supreme Court in the next year or two. For that matter, it’s about time s. 276 was looked at critically again – along with every other one of our sexual assault laws – since R. v. Seaboyer; R. v. Gayme, 1991 CanLII 76 (SCC). Hopefully, Sullivan will be looked at seriously and critically by the Court and the interveners. Speaking of interveners, ever notice how the Crown can be “radically feminist” when it comes to eroding rights of accused and the presumption of innocence, and significantly less “woke” when it comes to other issues like, say, defunding the police, decarceration, decriminalizing drugs, critical race theory, holding police accountable, etc.? See Aya Gruber’s work: The Feminist War on Crime, available here, as well as Rape, Feminism, and the War on Crime (here) and Gruber’s book.
I’ll begin with Tanovich’s article. I’ll get into more detail on Wagar and wrongful convictions afterward.
p. 8: Sexual assault is the most under-reported and under-prosecuted offence. It has the highest rate of acquittals and the highest rate of overturned convictions by appellate courts.
Of course, under-reporting can be explained by a host of social factors unrelated to perceived mistreatment at the hands of the justice system. Highest rate of acquittals might have to do with the strength of the cases prosecuted. Overturned convictions may have to do with the amount of butchering judges do with the law and the presumption of innocence – thanks in large part to the irresponsible “scholarship” of the MeToo gang.
It involves conduct for which stereotypes about women continue to linger, notwithstanding significant law reform and feminist activism.
Stereotypes about women continue to linger. Of course, there are no stereotypes about men that play a role. Nor are there stereotypes about women (innocence, chastity, purity, etc.) playing a role in inducing wrongful convictions.
It is the one offence where, more often than not, the complainant is more vulnerable than the accused on account of gender, age, race or Aboriginality, or physical and/or mental disability.
He has the decency to mention in a footnote here that “This is not to suggest that there are not exceptions. For example, where the accused is Aboriginal or racialized and the complainant is White…”. The complainant is (often?) more vulnerable than the accused and therefore what? We should automatically convict? Besides, as he admits (albeit in a footnote), the accused is often more vulnerable than the complainant (as if this were a “vulnerability contest”). Additionally, the accused is often extremely vulnerable regardless of the vulnerability of the complainant. Most right-minded people would agree that accused individuals are – by definition – some of the most vulnerable members of our society. It’s one of the reasons for the safeguards that have been built into our system for centuries that seem rather troublesome for some scholars who like to think of themselves as progressive.
p. 9: In addition, heightened zeal has ramifications rarely seen in other cases. These collateral consequences include under-reporting for fear of being “whacked,” secondary trauma to complainants and low conviction rates. These consequences fundamentally jeopardize the legitimacy of the system and the rule of law.
Heightened zeal also has the ramifications of damaging the presumption of innocence and inducing wrongful convictions, as well as attack the integrity of various lawyers needlessly. These consequences certainly fundamentally “jeopardize the legitimacy of the system and the rule of law.”
p. 11: Finally, sexual assault is also arguably the only offence where defence lawyers are socialized and taught by their peers and mentors that the client’s best defence is to have a lawyer who is prepared to act like Rambo and do whatever it takes to secure an acquittal, even if it means violating basic tenants [sic] of human decency and dignity and the lawyer’s own commitment to equality. So what is the etiology of this defence lawyering socialization in Canada?
Rambo? I’ve certainly met Crowns (and judges) act like Rambo, but defence? I must not be hanging around the right folks. Overzealous advocacy is certainly not restricted to the defence bar – there’s no shortage of Crowns, judges and academics guilty as charged.
p. 12: More recently, a senior member of the Toronto criminal defence bar advised young defence counsel that they must “kill the witness on cross” in sexual assault cases.
Have you seen what the Crown does to the accused in cross? “Killing” would be an understatement.
Another powerful moment occurred when senior members of the criminal defence bar, including Eddie Greenspan, came to the defence of Justice McClung of the Alberta Court of Appeal, who had taken the unprecedented step of writing a letter to the National Post attacking Justice L’Heureux-Dubé the day after the Supreme Court had reversed its decision in the “no means no” sexual assault case of R v Ewanchuk. In order to understand just how extraordinary the defence of Justice McClung was by Greenspan et al, it is necessary to highlight Justice McClung’s comments for the majority of the Alberta Court of Appeal in Ewanchuk and the response of Justice L’Heureux-Dubé in her concurring opinion in the Supreme Court.
There is so much to discuss here, and Tanovich spends the better part of 2 pages discussing it. I’ve addressed the case in my Ewanchuk post, and instead of repeating myself here, I’ll direct you to it. Suffice it to say I’ll side with Greenspan (and Alan Gold, mentioned in a footnote) on this one. I found the article quoting Gold (emphasis added):
The unanimous decision drew scathing comments from Toronto criminal defence lawyer Alan Gold, who said it puts “complainants on a pedestal” by absolving them of any responsibility for their conduct.
“This radical feminist judgment is just extremely disappointing in 1999,” Gold said in a television interview. “This is a 1989 set of beliefs.
“This protocol for human sexuality is ridiculous,” he said.
“It turns it into a business-like formalistic affair where everything must be absolutely clear. I mean, human sexuality is governed in many cases by the height of ambiguity and nuance and all kinds of things that aren’t susceptible to this kind of subsequent verbalization.”
p. 13: Meanwhile, Ewanchuk has now been declared a long-term offender after having repeatedly sexually assaulted an eight-year-old girl upon his release from prison.
This is extremely problematic. As if Ewanchuk’s prior (or subsequent) sexual assault convictions are at all relevant in whether or not he was guilty of the offence charged. A so-called expert in evidence should know better.
p. 17-18: Any conduct by a defence lawyer that promotes or exploits stereotypes in sexual assault cases violates their ethical duty to not act in a discriminatory fashion. This would include cross-examination on what the complainant was wearing, whether she immediately reported the incident, whether she spoke to a psychiatrist, her socio-economic status, drug or alcohol use, lifestyle, or marital status. This is not to suggest that all cross-examination on these factors is improper. The question is whether the implicit purpose of the cross-examination is to suggest that the complainant “is the kind of person to consent” or “the kind of person to lie about consent.” These are some of the classic rape myths. [Emphasis added.]
Of course, the crown (and the judge) need to read the mind of defence counsel on questions like these to determine what their “implicit purpose” is, in determining whether or not the question is acceptable. Of course, this is on top of the judge having to “mind read” the complainant as to whether or not she consented – despite her conduct, as mentioned by Greenspan. Clearly, sometimes these questions are not improper. Good luck getting all parties to agree on whether it’s proper – especially before the questions are asked. In practice, these lines are generally considered improper – despite the fact that they’re not always improper. I note that criticism around Wagar, for example, did not include any discussion of whether the impugned comments were appropriate in their context.
Note the reduced nuance in pp. 4-5 (and cited in Goldfinch):
Whacking the complainant includes humiliating or prolonged cross-examination that “seek[s] to put the complainant on trial rather than the accused”; specious applications to obtain the complainant’s records; and the invoking and exploiting of stereotypical assumptions about women and consent, including assumptions about communication, dress, revenge, marriage, prior sexual history, therapy, lack of resistance and delayed disclosure.
For an example of rape myths that the defence and judge (and I suppose on occasion the Crown?) need to be on constant guard for, see page 110 of The trial of sexual offence cases, Fuerst, Michelle K., Mona Duckett, and Frank P. Hoskins, Thomson Reuters 2018, 2nd edition:
9.2 Avoiding Impermissible Reasoning Based on Myths and Stereotypes
It is important that assessment of the conduct and credibility of complainants in sexual offence cases is not premised in whole or in part on gender-based myths and stereotypes about women. The notions that “unchaste” women are less worthy of belief or that because the complainant consented to sexual activity on a previous occasion it is more likely that she consented on this occasion, referred to as the “twin myths” at which s. 276 – of the Criminal Code is directed, are obvious examples.
Other assumptions that courts have recognized as objectionable include the following:
women agree to have sex, but later complain of sexual assault;
women say no to sexual activity when they do not necessarily mean no;
a woman who does not want to have sex will physically resist;
passivity constitutes consent to sexual activity;
women of bad character, such as those who drink or use drugs, are more likely to consent;
women provoke or precipitate sexual assault, including by the way they dress;
a woman who is sexually assaulted will tell someone immediately.
Questions of complainants, legal argument, and judicial reasoning that reflect these assumptions is inappropriate and should be avoided.
What complicates things are the multiple lines of questioning that are to be avoided. The problem with this is, in many instances, these lines of questioning are necessary and should not be prohibited.
Delayed disclosure is a good example of a “rape myth” that is easily misunderstood. It is thought of as a “rape myth” that a delay in disclosure reduces the credibility of the complainant. In fact, it is one aspect to consider, but is not itself determinative of consent – see the majority opinion of the Supreme Court of Canada in R. v. D.D., 2000 SCC 43 (CanLII) in the context of delayed disclosure by a child complainant, and likely similarly applicable in other cases (emphasis added, at para. 65):
A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.
See R v CMG, 2016 ABQB 368 (CanLII), wherein Justice Sheilah Martin, then of Alberta’s Court of Queen’s Bench (now on the Supreme Court of Canada) discusses rape myths in their historical context, particularly at para. 56. Note para. 73, where D.D. is misquoted on the point made previously regarding a delay in disclosure (“InR v DD, 2000 SCC 43, the majority held that a delay in disclosure can never give rise to an adverse inference against the complainant’s credibility: R v DD at para 65” – emphasis added).
Despite coming to the clearly correct result, the judge lost his career. The accused was remanded for six months (denied bail), as a result of the bogus charges, as noted in the transcript (see here for transcript, CJC complaint, etc.). I note he was also denied bail pending his re-trial, for which he was also acquitted. I understand the brand new case of R. v. Zora, 2020 SCC 14 (CanLII) is hoped to partially remedy the unmitigated disaster that is bail in this country. Note the trial judge’s comments, after a 6-day re-trial – para. 170 of R v Wagar, 2017 ABPC 17 (CanLII) (emphasis added):
In that regard, it is my conclusion that even if I had not accepted any of the defence evidence including the testimony of Ms. Porter, given the statement of the complainant that “I wanted him to do it”, meaning the accused, I would have acquitted the accused in any event. In the face of that statement, given the circumstances in which it was given and in conjunction with other credibility issues concerning the complainant’s testimony, I am left with a reasonable doubt as to the complainant’s absence of consent purely on the basis of her testimony alone.
Come to think of it, that’s an additional 8 months in remand pending retrial (denied bail June 2016 and acquittal rendered January 31, 2017). The complainant was extremely dishonest. Note also that some of the questions may have been allowed (depending on the context, per Tanovich). No concerns apparently about the Calgary Crown’s dubious decision to prosecute the case (unsuccessfully) not once but twice, as well as the appellate intervention and the accompanying waste of scarce resources (according to a “Pay to Play” approach, it would be interesting to speculate how much money the wrongfully accused in this case is entitled to). Nothing about a very weak case and a judge who got the result right – if not the language. Not a word about over a year spent in remand on garbage charges, and the fact that it would have been a lot more wasted time in custody had the accused (the actual victim in this case) exercised his constitutional right to, say, a jury trial. No apologies for destroying the judge’s career by orchestrating a media and public outcry – and then having the gall to insist that the public’s confidence in the administration of justice demands no less than the judge’s removal from the bench. Mind you, the judge was not even sitting on a criminal court at the time of the complaint. I’d recommend the former judge in question sue everyone involved for a fortune – particularly if the law was misrepresented to the media and the CJC.
Also, the Crown appeared to misrepresent the case law on consent in Wagar (as though it required verbal consent – cited approvingly at p. 5 (or 539 here) of the CJC complaint, issued by Professors Koshan, Woolley, Craig, and Downie. This is blatantly incorrect, per Ewanchuk, which allows for consent by conduct. Further, the complaint misapprehended the law on delayed disclosure (p. 6, or 540) – as discussed above regarding DD. This is precisely my point on the complexity and absurdity of our sexual assault laws: if four law professors (supposedly experts on sexual assault law and/or legal ethics) misunderstand (or misrepresent) the law on sexual assault in their formal complaint, why would we expect better from your run-of-the-mill judge, defence lawyer, or Crown? What a mess.
Mistaken belief in consent was irrelevant in the context of Wagar, so the portion of the complaint about section 273.2 (pp. 5-6) is entirely irrelevant. See, for example p. 432, line 1 (439 of attachment), of the trial transcript (emphasis added):
And leaving that to one side because it’s not a competition, I’m not in a position to reject the accused’s version. On the accused’s version, he received positive indications from the complainant that she wanted to have sex with him.
Similarly, the concerns about the judge’s lack of compliance with the s. 276 regime (p. 5) are also imprecise. The s. 276 concerns were addressed by the judge and counsel, and the judge seemed to agree with the defence that the concerns were about flirting only and not sexual activity. While he may have been wrong about whether flirting is considered sexual activity (e.g. see R. v. Ayenun, 2013 ONCJ 260 (CanLII), although in that case the evidence was found to be relevant though technically sexual activity), I don’t fault the judge for being confused with an extremely complex area of law, particularly when neither counsel were of much assistance in this regard (e.g. see p. 317-320 (325-328 of PDF) where he specifically requested and did not receive any assistance). Regardless, he is also absolutely right that s. 276 is extremely incursive legislation – all the more so the Dec. 2018 amendment to the Code (subsection 4) that explicitly includes flirting in the s. 276 regime: “For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature”.
See, for example, Jochelson and Kramar: Essentialism Makes for Strange Bedmates: The Supreme Court Case of J.A. and the Intervention of L.E.A.F., 30 Windsor Y.B. Access Just. 77 (2012), available here. In L. Dufraimont: Myth, Inference and Evidence in Sexual Assault Trials, 44 Queen’s L.J. 316 (2018-2019), available here, it’s noted (pp. 327-328, emphasis added):
A similar issue arises in one passage in Professor Elaine Craig’s important new book on sexual assault trials in Canada. In discussing R v Schmaltz, a case where consent was in issue and evidence was led about whether there was flirting earlier in the evening between the accused and the complainant, Professor Craig writes: “Under Canadian law, whether the complainant was flirting earlier in the evening is irrelevant to the issue of consent. Consent to sexual touching must be contemporaneous. It must be given at the time of the sexual contact.” To the extent that it relies on the timing of the flirting to argue its irrelevance to consent, this argument seems to confuse a requirement of the substantive law with an evidentiary requirement. As explained above, the fact that consent must be contemporaneous does not mean that evidence relevant to the factual question of consent must also be contemporaneous.
Also, see Paciocco: Competing Constitutional Rights in an Age of Deference: A Bad Time to Be Accused, The Supreme Court Law Review, 14(2), 2001, available here, where excellent points are made (that apparently have been entirely lost on our courts and academics in the subsequent two decades). From pages 118-119, emphasis added:
Mills and Darrach were not viewed as cases in which the state, in the pursuit of social utility, was attempting to deprive the accused of his fundamental constitutional right to gain access to evidence. The state was simply brokering a dispute between the competing rights of private actors and, as such, could accomplish indirectly the very consequence that it could not accomplish directly. It could conduct a criminal trial in which it was attempting to deprive the accused of his liberty, and in which the ability of the accused to defend himself was abridged, even denied, because of the calculus of the social interest in such things as encouraging reporting, enabling complainants to seek therapy and preserving confidential relations.
I want to be clear. I have no concern with competing considerations like privacy interests or any other matters of public utility being considered. Of course, they should be considered in opposition to constitutional claims. It is evident from the prior discussion, however, that what I do have grave concerns about is the practice of identifying constitutional rights in third parties that can be given presumptive weight equal to the constitutional rights of the accused, and then tendered in a criminal trial between the accused and the state, in opposition to the accused’s efforts to defend himself or herself against the state. That troubles me because the ultimate effect of giving constitutional status to interests preferred by the state is to deprive the constitutional rights possessed by the accused of their very essence as constitutional rights. In particular, giving constitutional status to interests preferred by the state deprives the constitutional rights possessed by the accused of the presumptively superior status they were to have when tendered against opposing state interests. Conferring presumptive weight, after all, is the whole point in recognizing rights as constitutional ones.
On page 122, discussing R. v. Sharpe, 2001 SCC 2 (CanLII), Paciocco notes (emphasis added):
This aside, what the dissenting justices were doing was to conceive of the contest before them as between the claim of the accused to freedom of expression (a right they would have denied even existed in the case) and the claims of vulnerable, disadvantaged members of society seeking equality. At one time, it was considered that in a criminal prosecution, it is the accused who is the vulnerable one. During the trial, the accused stands before the awesome power that the state has to deprive him or her of his or her liberty, a state that is bringing its considerable resources to bear in order to brand him or her a criminal, and to punish him or her. Remove the state from the equation, and the accused is no longer vulnerable. Invoke the constitutional equality rights of complainants (conceptualized as the right of future victims of the vulnerable class to be free from victimization so that they can flourish in society), and put those complainants in the place of the state, and it is not the rights of the accused that require protection. Context, balance and even the issues of concern are altered dramatically. The claim of the accused is seen as being brought on behalf of victimizers, and it is seen as a claim being tendered against victims, not against the state. When we conceive of constitutional adjudication in this way, we do disservice to the presumption of innocence, and we debilitate the Charter rights of the accused. It is something of an understatement to say that in such a regime, things do not bode well for the rights of the accused.
Also, see Tanovich and Craig’s Globe article regarding Ghomeshi: Whacking the complainant: A real and current systemic problem, dated February 10, 2016:
Sexual assault trials, even when conducted ethically and within the bounds of law, harm complainants. This is the harsh reality of an adversarial and constitutionalized justice system that requires a rigorous testing of the evidence before depriving a person of their liberty.
Throughout the very public trial of Jian Ghomeshi,the term whacking – which refers to tactics that seek to exploit the stereotypes and vulnerabilities inherent in sexual assault cases to secure a favourable outcome – has been prevalent.
This appears to be contrary to Craig’s unexpected concession in her book:
To be clear, the much-discussed cross-examinations of the complainants in R v Ghomeshidid not appear from the transcripts to involve the types of practices examined in the previous chapter and later in this chapter. While the trial process was profoundly traumatic for the women who testified against Ghomeshi, defence counsel’s conduct of the case is not to blame for their experiences (pp. 62-63, emphasis added).
Wrongful conviction cases:
I thought I’d include a summary of some cases of convictions overturned at appellate levels. They mostly consist of recent cases, that I have added to My Lexbox (through CanLII). Hopefully, they’re representative of some of the major issues that come up on a regular basis – on convictions that are overturned in the context of sexual assault trials.
In Foster v. R., 2020 NBCA 7 (CanLII), the trial judge failed to consider consent properly before considering the defence of honest but mistaken belief in consent. In R. v. G.F., 2019 ONCA 493 (CanLII), the judge failed to consider consent as distinct from capacity to consent due to intoxication.
In R. v. Esquivel-Benitez, 2020 ONCA 160 (CanLII), the Ontario Court of Appeal overturned a conviction where the judge had made multiple errors, including relying “improperly on the appellant’s presence in the courtroom when the complainant testified to negatively assess his credibility” (para. 16). See the Star’s report here. The trial judge’s other errors included treating the credibility issue as a contest between the complainant and the appellant and failed to meaningfully recognize or address the evidence of the complainant’s possible motive to fabricate when assessing credibility.
R. v. M.D.,2020 ONCA 290 (CanLII), and R. v. G.V.,2020 ONCA 291 (CanLII) are good recent examples of convictions overturned due to the assertion that access to the Crown’s case (disclosure) allowed the accused an opportunity to tailor his evidence. In R. v. Biladeau, 2008 ONCA 833 (CanLII), a retrial was ordered, due to the Crown’s commenting on the accused’s failure to testify.
Improper use of prior consistent statements in R. v. G.J.S., 2020 ONCA 317 (CanLII); R. v. D.K., 2020 ONCA 79 (CanLII); and R. v. A.V., 2020 ONCA 58 (CanLII). In R. v. A.S., 2020 ONCA 229 (CanLII), misuse of a prior consistent statement, and absence of proven motive to fabricate not beneficial to complainant – per se.
See Berger J.’s dissent in R v Quartey, 2018 ABCA 12 (CanLII) – appeal to SCC dismissed (R. v. Quartey, 2018 SCC 59 (CanLII), where the trial judge arguably shifted the burden of proof and applied stereotypes to the accused – not to the complainant. The burden of proof was shifted with regard to the motive to fabricate in R. v. M.S., 2019 ONCA 869 (CanLII).
In R v Schmaltz, 2015 ABCA 4 (CanLII) and R v Quintero-Gelvez, 2019 ABCA 17 (CanLII), sex assault convictions were overturned, due to excessive intervention by the trial judge.
A misapprehension of evidence was critical in both R v Mehari, 2020 SKCA 37 (CanLII) and R v Kwon, 2020 SKCA 56 (CanLII). Judge said inconceivable that complainant would consensually have sex with accused, which is both offensive and improper: R. v. Kodwat, 2017 YKCA 11 (CanLII).
A WD misdirection and flaws in complainant testimony were problematic in R. v. C.L., 2020 ONCA 258 (CanLII). In R v Dowd, 2020 MBCA 23 (CanLII), insufficient reasons and Browne v. Dunn rule invoked by judge only led to an overturned conviction.
In R. v. Cepic, 2019 ONCA 541 (CanLII), the Ontario Court of Appeal noted, at paras. 14-15:
It is an error of law to rely on pre-conceived views about how sexual assault victims would behave: R. v. D.D., 2000 SCC 43,  2 S.C.R. 275 at para. 65; R. v. A.R.J.D., 2018 SCC 6,  1 S.C.R. 218, at para. 2. These are the “myths” of appropriate behaviour that the law seeks to eradicate. Historically, these myths have operated to undermine a complainant’s testimony. But they may also operate in the reverse, to artificially bolster a complainant’s credibility on the basis that “no young woman would consensually engage in the alleged behaviour”: R. v. J.L., 2018 ONCA 756, 367 C.C.C. (3d) 249, at paras. 46-47.
Here the trial judge used assumptions about female behaviour as the basis for accepting the complainant’s testimony. The corollary is that the assumptions about what a woman would or would not do were also used to undermine the appellant’s credibility.
In R. v. Senthamilselvan, 2019 ONSC 3884 (CanLII), the “trial judge erred by impermissibly relying on assumptions and generalizations about how an innocent person in the appellant’s circumstances would behave or be expected to behave and then drawing an adverse inference from the appellant’s failure to behave in that manner” – para. 3.
Continuing with Tanovich (emphasis added):
p. 31: Some will no doubt challenge this approach as a thinly-veiled attempt to do away with the presumption of innocence in sexual assault cases. Nothing could be further from the truth. The presumption of innocence does not give the accused a licence to engage in distortion in an effort to escape liability, nor does it remove the public interest in ensuring a fair trial for both the accused and the community. The fact that a “whack the complainant” strategy—defined broadly as an attempt to rely on and exploit discriminatory assumptions about women and sexual assault—may be all that an accused has to secure an acquittal is not a sufficient justification for the harm caused. It is trite law now after cases like Darrach, Mills and R v NS,129 that the need to ensure respect for the autonomy and dignity of criminal accused by ensuring a fair trial while of fundamental importance is not absolute. It is about achieving a constitutional balance. The ethical limits suggested in this article are an attempt to balance the competing interests in sexual assault cases of ensuring full answer and defence and protecting the trial and complainant from discrimination. None of these limits threaten an accused’s constitutional right to reliable verdict achieved in a fair process. Rather, they ensure access to justice for both an accused and sexual assault complainants and they protect the repute of the administration of justice by reducing the likelihood that discriminatory and stereotypical assumptions will taint the process and ultimate verdict.
I would absolutely categorize his approach as “a thinly-veiled attempt to do away with the presumption of innocence in sexual assault cases”. When I start to see a little bit of nuance around “rape myths”, less hysteria about under-reporting and low rates of conviction – as if they’re indicative of a problem with our justice system, some concern about wrongful convictions, and a little more fairness to the defence bar who sometimes fearlessly defend the most despised members of our society, I’ll perhaps begin to be convinced otherwise.
Since we’re on the topic of improving sexual assault trials, I thought I’d provide my input:
Suggestions for improving the justice system without further destroying the presumption of innocence:
Show some respect for defence counsel
Value the presumption of innocence
Force the Crown to prosecute only strong cases, and stop believing every single complaint they receive
Admit that in borderline cases – perhaps the vast majority of cases prosecuted – a very robust defence is not only required but essential if we’re going to slow the rate of wrongful convictions
Realize that discussions around “rape myths” and ethical defence (and Crown) lawyering and judging need to be extremely nuanced. Continuing to insinuate that delayed disclosure for example, is a rape myth, is simply incorrect and dangerous. The same goes for whether complainants need to be automatically believed. “#Me Too” may be a fine social movement and Twitter hashtag, but it has absolutely no place in a court of law, and we should stop acting as if it does.
I got into a Twitter spat last week. I noticed a lawyer calling out the Canadian judicial system for its apparent racial bias in a 1997 decision. I had a quick look at the case, and thought it was a weak claim. I tried to challenge the claim on Twitter, and met with a whole lot of resistance. I then realized Professor Tanovich – a respected law professor out of Ontario (and a subsequent article written in Slaw) made similar assertions. I asked for further clarification, and Chad Haggerty, a criminal lawyer (and ex-cop) was very helpful.
It’s an interesting case: R. v. S. (R.D.), 1997 CanLII 324 (SCC). A Black youngster was detained by police and charged with assaulting a police officer, among other things. The youngster’s testimony was that he was “nosy” but did not attack the officer. The officer, on the other hand, testified that the youngster rode his bike into him. In any event, the officer placed the youngster in a chokehold. The trial judge (in R. v. R.D.S.,  N.S.J. No. 629 – QuickLaw) acquitted, finding that there was reasonable doubt as to whether the youngster was guilty. Firstly, she found the youngster to be forthright. Second, she found that the officer had overreacted by overcharging and by using unnecessary force on the slight youngster. She also went on to note that racism was not uncommon in her community, and that police officers are known to overreact – particularly when dealing with racialized youth.
The Crown appealed the decision to the provincial superior court, indexed as R. v. R.D.S.,  N.S.J. No. 184 – QuickLaw. The appeal court ordered a retrial. The Court of Appeal (R. v. R.D.S., 1995 NSCA 201 (CanLII) upheld the appeal court’s decision – primarily on the basis of the judge’s comments appearing to show bias. Essentially, the judge was not being fair by generalizing from her understanding of common practice in that community to that particular officer – for whom there was no specific evidence of racism.
The Supreme Court of Canada reversed the decision however, restoring the acquittal. Cory, J. for the majority found that the judge’s comments were very “close to the line” but did not overcome the hurdle of showing judicial bias. The dissent agreed with the Court of Appeal. L’Heureux-Dubé (among others) wrote separate concurring reasons, agreeing with the result of the majority, but finding that the judge’s comments were not unfortunate or close to the line, and were sufficiently founded by the facts of the specific case.
I think Cory J. is technically right in the sense that the judge’s observation about general racism shouldn’t apply to this particular officer, given that there was no evidence of specific racism – although, one can argue that what was objectively excessive force could constitute this evidence, although the judge did not say this. However, given the excessive force used, her observations were probably correct – and even absent the controversial comments made – should not be considered problematic.
This case illustrates a weakness in our evidence laws. One is not entitled to argue that a witness is lying due to generalizations (i.e. police often lie or accused often lie, or sexual assault complainants often lie, or the opposite: that Z witnesses do not lie, etc.). While some of these generalizations may be true, we don’t allow this reasoning for obvious reasons – fear of injustice that will arise if people are disbelieved (or believed) for reasons that are rather vague, out of their control, often irrelevant and possibly false. How, then, does a judge determine who is saying the truth – particularly when there are conflicting stories?
There’s no easy answer to this. The judge must walk a very fine line of at least appearing to be fair to all parties, and choosing who to believe – without relying on generalizations. Often, they’ll use language such as “the witness was evasive” or contradicted themselves, etc. The hope is that the judge will be able to discern (magically, perhaps) who is lying and who is not by mere answers to questions from both lawyers – including, of course cross-examination, which is expected to be some sort of panacea, or “truth serum”.
Judges constantly get into trouble for saying the wrong thing – instead of saying “Witness X was full of s**t” – however accurate that may be, they are forced to resort to acceptable reasons for choosing one version of events over another. They may attempt to be subtle or gentle on the witness (e.g. “he might have been racist but I don’t think he was” as in this case, or “the complainant’s fear was not obvious although it definitely existed” – see my comments on Ewanchuk). On occasion, these reasons withhold appellate scrutiny. Other times, judges say things like “the accused had the benefit of disclosure which suggests they had the opportunity to fabricate” which is blatantly unacceptable, and a whole spate of recent ONCA decisions overturned convictions on this basis (see R. v. M.D., 2020 ONCA 290 (CanLII), and R. v. G.V., 2020 ONCA 291 (CanLII), for examples). Yet other times, judges are understood to rely on “rape myths” in acquitting and are generally pilloried by appeal courts for this (e.g. R v Wagar, 2015 ABCA 327 (CanLII)). Still other times, judges give scant reasons for their decision, and are usually criticized for that, too (e.g. R. v. Sheppard, 2002 SCC 26 (CanLII)). Or the age difference suggests lack of consent (e.g. R. v. Kodwat, 2017 YKCA 11 (CanLII), or what I’d term the “ew gross! argument”) is prohibited. Similar inferences suggested by a size difference (as used by the SCC in Ewanchuk) is also arguably prohibited reasoning. Of course, nothing is stopping a judge from arriving at a decision through impermissible reasoning but simply couching the decision in language that is permissible, though judges are generally trusted not to resort to this. For that matter, little prevents police officers and/or any other witnesses from doctoring their testimony so as to make it more palatable and/or persuasive to the trier of fact. But yes, education for judges about “rape myths” is all it will take to solve all of the problems with our justice system.
Essentially, there are a lot of restrictions on what reasoning judges are allowed to use and mention in believing or disbelieving witnesses. Assume for the sake of argument that the officer in this case did not objectively overreact (say the witnesses disagreed over whether a chokehold was used, or if the force used was not clearly excessive). Would the judge still be allowed to point out that racism is common, and quite possibly played a role? I doubt it. However, maybe that is problematic. Perhaps the judge should be allowed to use that reasoning. I would prefer not to have that possibility in our system – accused are entitled to not be prejudiced by these sorts of fallacies (in theory, anyway), and I don’t see why any other participant in the system should be subjected to that. In this particular case, I think since the officer did overreact, the judge’s comments about racism – although not specifically in the evidence for this officer – were acceptable, especially given that they did not appear to affect the acquittal. Essentially, it was a credibility (R. v. W.(D.), 1991 CanLII 93 (SCC)) case, and the judge clearly accepted the accused’s testimony. Whether she went a little too far in criticizing the police force in that community for racism is debatable, but I don’t see how it’s determinative.
Of course, this case is somewhat easier given that the officer did overreact – objectively. Let’s say he hadn’t. If his evidence was no chokehold and the youngster said there was a chokehold, etc. Now who do you believe? I suppose this is the difficult – and likely thankless – job for the judge to determine who to believe and why; obviously bearing in mind the burden of proof in the context of a criminal case. This ties in to one of the problems I have with our sexual assault laws as they stand – judges (and accused) are more constrained than in other matters from reasoning and arguing as a result of rape myths, effectively prohibiting many possible routes to acquittal, and generally ensuring an easier path to conviction for the Crown. I have briefly touched on this point in previousposts, and intend to follow up with a few more.
With extra time on my hands during this COVID era, I found myself looking up some horrendous U.S. Supreme Court decisions. I started with this list:
Dred Scott v. Sanford(1857): Hands down the worst Supreme Court decision ever, Dred Scott held that African Americans, whether free men or slaves, could not be considered American citizens. The ruling undid the Missouri Compromise, barred laws that would free slaves, and all but guaranteed that there would be no political solution to slavery. The opinion even included a ridiculous “parade of horribles” that would appear if Scott were recognized as a citizen, unspeakable scenarios like African Americans being able to vacation, hold public meetings, and exercise their free speech rights.
Buck v. Bell(1927): “Eugenics? Yes, please!” the Court declared in this terrible decision which still stands as good law. In an 8-1 decision written by Justice Oliver Wendell Holmes, the Court upheld the forced sterilization of those with intellectual disabilities “for the protection and health of the state.” Justice Holmes ruled that “society can prevent those who are manifestly unfit from continuing their kind” and ended the opinion by declaring that “three generations of imbeciles are enough.”
Korematsu v. United States(1944): Here, the Supreme Court upheld the internment of Japanese Americans during World War II, finding that the need to protect against espionage outweighed the individual rights of American citizens. In a cruel and ironic twist, this was also the first time the Court applied strict scrutiny to racial discrimination by the U.S. government, belying the idea that strict scrutiny is “strict in theory, fatal in fact.”
Plessy v. Ferguson(1896): The Court’s famous “separate but equal” ruling upheld state segregation laws. In doing so, the Court made sure that the gains of the post-Civil War reconstruction era were quickly replaced by decades of Jim Crow laws. […]
It made me think of horrible cases in Canadian jurisprudence. There are many doozies, like the wrongful conviction cases of R. v. Milgaard, 1971 CanLII 792 (SK CA), leave to appeal to S.C.C. ref’d (1971), 4 C.C.C.; (2d) 566; Reference Re: Steven Murray Truscott, 1967 CanLII 66 (SCC); R. v. Sophonow, 1984 CanLII 124 (SCC). The worst of all is definitely R. v. Ewanchuk, 1999 CanLII 711 (SCC) – it was a blatant wrongful conviction by our Supreme Court of Canada, and it has been leading to countless wrongful convictions over the past two decades in courts across this country.
Before I get into the nitty-gritty of Ewanchuk, I thought I’d give a brief background and some other comments: an acquittal for sexual assault, followed by an appeal dismissed at the Alberta Court of Appeal, after which a unanimous reversal at the Supreme Court. Instead of a retrial, a conviction was entered. It included very harsh criticism by Justice L’Heureux-Dubé of Justice McClung, then return rhetoric, followed by an apology from McClung. CJC complaints were made all around, but the CJC had the sense (then, at least) to not do anything. There was intense debate – those opposed to the Supreme Court’s view were few and far between, and best represented by Edward Greenspan, a world-renowned criminal defence lawyer from Ontario.
Note that in the more recent Judge Camp (of Wagar, or “knees together” infamy) public lynching, no one defended Judge Camp (perhaps in part because there was no written decision at the lower court, transcripts were not publicly available, and the agenda-driven academics bringing the complaint were hardly fair to him – notwithstanding the “ethics” credentials of one of them). Things have definitely gotten worse since Ewanchuk.
In “The New Truth: Victims Never Lie” (by Edward Greenspan, Q.C.) – an excellent article and starting point on the problems in sexual assault law – some of which were mentioned by Judge Camp in Wagar for which he was unceremoniously dumped by the CJC less than two decades later – and also quoted very briefly in Professor Elaine Craig [“Craig”] in her horrendous book: Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession, which I review here . This gem from Greenspan, for example:
Evidence of a prior consensual relationship between a defendant and a complainant is, of course, not conclusive proof of innocence. A man can certainly sexually assault a woman with whom he has engaged in consensual sex, and the prior sexual conduct does not justify, or even minimize, the crime. But surely the prior relationship is relevant evidence for the jury to consider as to whether the sexual encounter at issue was a continuation of the consensual relationship or a sexual assault. To me, this is a self-evident truth. To require the jury to decide the case as if it were a dispute between two strangers is to deny the fact-finder the essential context from which to judge who is lying and who is telling the truth. The notion that sexual assault victims deserve heightened protection begs the critical question: “Was the complainant indeed a sexual assault victim as she contended or was the defendant the victim of a false accusation as he contended?” Under our constitutional presumption of innocence, the legal system cannot assume the former in justifying a rule of evidence that denies the defendant the right to prove the latter. […]
What has not been given due consideration is what cost will be paid by according equal weight to the rights of a complainant. The exclusion of factually relevant evidence relating to prior sexual history which may be embarrassing and thereby violate the rights of the complainant, will not only undermine the rights of the accused, it will undermine the very essence of our criminal justice system whose ultimate goal it is to obtain the truth. While balancing of rights may work in other contexts, balancing in the criminal justice system distorts the process.
As far as I’m aware, Greenspan’s article has never been cited by our Supreme Court, nor any other Canadian court. In contrast, Craig’s work has been cited multiple times twice by our Supreme Court in 2019 alone, and already at least once in 2020.
For more problems on sexual assault law in Canada, start with this, this and this, the latter of which is briefly quoted in Craig.
Greenspan’s powerful editorial – also quoted in Craig, albeit selectively, like everything else she quotes – is almost prophetic in terms of his reference to complaints to the CJC; excerpt below – emphasis added:)
The profound reaction of the legal community, lining up on Judge L’Heureux-Dube’s side and ignoring the fact that her hurtful and thoroughly unnecessary words started the battle, is a striking example of how politics has taken over the issues surrounding sexual assault. It is clear that the feminist influence has amounted to intimidation, posing a potential danger to the independence of the judiciary. I deplore any attempt to use the Canadian Judicial Council as an agent of the women’s movement, through the filing of complaints against judges whose remarks do not accord with the feminist world view. Feminists have entrenched their ideology in the Supreme Court of Canada and have put all contrary views beyond the pale. I predicted a long time ago a judicial embracing of the feminist perspective. But to call for Judge McClung’s removal or censure means the feminists and their fellow travellers have created such a repressive and authoritarian world that certain words are not only unacceptable, but now constitute misconduct. The feminist perspective has hijacked the Supreme Court of Canada and now feminists want to throw off the bench anyone who disagrees with them. That no one in academia or legal circles has stood up for Judge McClung to date is shocking.
Judge L’Heureux-Dube was hell-bent on re-educating Judge McClung, bullying and coercing him into looking at everything from her point of view. She raked him over the coals for making remarks that may, in fact, be accurate in the given case. I don’t know. But just as he had no empirical evidence to support his view (if you discount all of human history), she has no empirical evidence to say what she says (if you discount Catharine MacKinnon’s collected works). Calling for his censure or removal from the bench is nothing but an attempt to intimidate the judiciary.
A former president of Yale University once said, “There occurs at times, a tyranny of group self righteousness, manifesting itself in a rage to ideological or dogmatic purity.” Madame Justice L’Heureux-Dube has shown an astounding insensitivity and an inability to conceive of any concepts outside her own terms of reference and has thereby disgraced the Supreme Court. Judge McClung may not have done anything to remove the stain. In fact, his words may have added to the stain. But don’t talk of removing him from office. Don’t talk of censure. Likewise, don’t censure her and don’t remove her. Let the record show that she is not a very nice person and let the public debate ask the only question that matters: Does the Supreme Court of Canada care so little about its own reputation that it could not persuade Judge L’Heureux-Dube to rewrite her judgment before she issued it, so as not to disgrace the court?
Also, in Greenspans’ follow-up, emphasis added (responding to this idiotic article):
– Judge Kozinski calls the Ewanchuk case the “now famous ‘no means no’ case.” For the life of me, I cannot understand how that expression applies to this case. For the information of Judge Kozinski, in Canada nobody has a problem with ‘no means no.’ Except sexual offenders. The problem is with “yes” (and perhaps also “maybe”) meaning “no.” The problem is that if a woman decides in retrospect that her demeanor, actions, and words that suggested “yes” or “maybe” ought to be disregarded, and that what she really meant was “no” in her mind, that is enough to convict someone of sexual assault. According to Justice L’Heureux-Dube, the issue is determined by a purely subjective test of what is in the complainant’s mind. The judge has the option of finding: (a) the woman consented in her mind; or (b) the woman didn’t consent in her mind. To choose, the judge must be a mind reader. If a trial judge believes the woman had “no” in her mind, the trial judge must disregard the woman’s demeanor, actions and words, which suggest the opposite. That is no longer an objective test. It is not even a test based on basic common sense. […]
What Justice McClung suggested was that a trier of fact is entitled to take into account all surrounding circumstances in order to determine the veracity of anyone’s testimony. Putting the matter into context is something that occurs in all trials, except sexual assault trials, which have now been isolated in a class of their own. […]
In Canada, common sense is supposed to have a place in the courtroom. All Justice McClung did was to look at two people’s conduct to determine whether one of those parties could be found guilty of a crime beyond a reasonable doubt. Only in a world of abstract ideology are female complainants immune to ordinary methods of inquiry and analysis. Only in such a world does applying common sense run the risk of being accused of blaming the victim — a charge only slightly less serious than sexual assault itself in the lexicon of ideological feminism. […]
When I chose to write on this subject, the National Council of Women and other feminist pressure groups were on their way to mau mau the Canadian Judicial Council, to censure, remove, or otherwise sanction Justice McClung, not for his intemperate letter for which he apologized and which was merely an excuse, but for his refusal to internalize feminist thought into his legal analysis. He had to go because of his refusal to accept feminist dogma. Apparently, in this area in Canada, there can be no differences of opinion. That’s why I weighed in to the debate.
In Canada, sexual assault trials still occur in the courtroom, not in the well of the Senate. In this country, we still believe that justice is supposed to be blind. Legal debates should not be politicized. In Canada, the meaning of sexual assault isn’t decided by Republican or Democratic agendas, or feminist or sexist agendas for that matter. Politicizing legal issues of sexual assault can only give rise to gender warfare. After the Anita Hill/Clarence Thomas hearings, it seemed that the United States chose not to completely subordinate legal thought to the battle of the sexes, yet that seems to be Judge Kozinski’s specialty. If for this reason, Judge Kozinski does not make it to the United States Supreme Court, perhaps there will be a place for him on ours.
Note that REAL complained to the CJC about L’Heureux-Dubé: see here. Thankfully, CJC found no problems for both judges, finding that McClung’s comments both on and off the bench did not display bias against women: see here. If this had happened in the last decade or so, I’m certain he would have been tarred and feathered – both by the CJC and everyone else.
It’s a shame we don’t have leaders like Greenspan today, and that the trash spouted from the likes of Craig appear to be all that matters in criminal law in this country today. Note that Craig absolutely trashes Greenspan in her book – which alone is enough to tell me her book is absolute hogwash. I think it’s a tribute to be lambasted by Craig – certainly not one needed by Greenspan, though.
Now for the nitty gritty of Ewanchuk:
Anyone who went to law school in Canada is very familiar with R. v. Ewanchuk, 1999 CanLII 711 (SCC). If you’re like me, you were indoctrinated taught the case in first-year criminal law, with a lot of “tsk tsk-ing” about McClung (a descendant of Nellie McClung – no less!) and how stupid his decision was and how mean he was to L’Heureux-Dubé.
The context of the case included a 2.5 hour visit (a job interview, apparently): context not at all clear that assault occurred. Seems more like a mutual flirting, where accused slightly overstepped boundaries. If guilty of anything, likely a “non-major sexual assault” – see facts recited in para. 2 – Court of Appeal case, indexed as R. v. Ewanchuk, 1998 ABCA 52 (CanLII).
Whether fear was a factor – the complainant said there was – is dubious. Trial judge (Moore, recited at para. 2, CA) found the fear to be entirely credible – it merely wasn’t communicated at all. I suspect that’s a “generous” interpretation of the evidence, and that it’s not at all clear that fear – communicated or otherwise – existed. Of course, the dissent in the Court of Appeal as well as all of the Supreme Court took full advantage of this “concession” and insisted that once fear was found, a conviction should follow.
I’ll quote extensively below, from Ewanchuk at both the CA and SCC, along with some comments:
I’ll quote from McClung’s majority decision at the CA:
 The complainant’s television-suggested plan (from the evidence drawn from the Family Channel) to rebuff Ewanchuk by a display of a bravura confidence was her choice and it was a choice for which she cannot be criticized. But it is not clear from the evidence that her inner concerns emanated from what the accused Ewanchuk said or did or were influenced by what she had learned on television.
I will gloss over the “bonnet and crinolines” comment in para. 4 – that horse has been beaten well to death, although it’s certainly been overused and abused by critics of McClung.
 Certainly the complainant was afraid of Ewanchuk as the trial judge found. But her concerns were turned inward. She was afraid, but she wanted Ewanchuk to think otherwise. She succeeded. Yet it seems that her suppressed concerns about the possibility of force from Ewanchuk were misplaced. In this the trial judge was mindful of the girl’s evidence that during each of three clumsy passes by Ewanchuk, when she said “No!” he promptly backed off, while assuring her at least once, that he was “not that kind of person” and “that she needn’t worry” and that he was a man of restraint. When she finally said she wanted to leave the vehicle he neither argued against it or materially obstructed her, delaying her exit. Again her wishes prevailed. The trailer of the vehicle was indeed his woodworking workshop and she entered it under no illusions or coercion from him. The complainant feared the door was locked. There was no evidence that it was. Clearly it could be latched from the inside, but any conclusion that it was under Ewanchuk’s control alone is speculative at best. The complainant had no difficulty leaving the trailer. In this it may be noteworthy that Ewanchuk was never charged with unlawful confinement and it may be assumed that the investigating police examined the trailer and the locking devices on its door. […]
 It is sufficient to say that unless clearly compelled to do so by statute trial judges or juries are not obliged to assume that the resolution of the issue of consent or its absence in these cases becomes a completely internal and subjective exercise reserved to the complainant alone — an exercise that is retrospective, optional and silent, and one perhaps in contravention of the objective facts underlying the case. To exclude the belief of the accused from any contribution to the consent issue (and quite possibly his own fate) cuts across enshrined Canadian criminal law precepts and renders the law uncertain, inconsistent and resented. Every right-minded Canadian, male or female, deplores violence against women. But even the pursuit of a violence-free society must not be allowed to repudiate, or even dilute, the entrenched and statutory safeguards of our jurisprudence which have long and fairly protected those accused of serious crime. Included must be the rights of those who have stood the trial of such accusations and have won their acquittals. […]
 Three overtures were made by Ewanchuk. The first two were marginally identifiable, if at all, as sexual in nature. They involved mutual body massages which, while they neared her sexual organs, were not in contact with them. Nonetheless, the last was a clearly sexual activity; a deliberate exposure of his sexual anatomy as he rubbed himself against her clothed pelvic area. This performance, if viewed in isolation (which the judge did not, apparently viewing the act as one that was not severable from the context of all the preceding consensual activity, some of it on the floor of the trailer) would hardly raise Ewanchuk’s stature in the pantheon of chivalric behaviour, but it did take place in private and following her protest — “No!” — led to nothing. The record would indicate that the one clearly sexual activity in the case ended swiftly with her injunctive “No!”.
 It is right that we be constantly reminded that sexual assault can intractably erode the present and future integrity of its victims. Clearly this is so. Yet we must also remain aware that nothing can destroy a life so utterly as an extended term of imprisonment following a precipitately decided sexual assault conviction. In the search for proof of guilt, sloganeering such as “No means No!”, “Zero Tolerance!”, and “Take back the night!” which, while they marshall desired social ideals, are no safe substitute for the orderly and objective judicial application of Canada’s criminal statutes.
 Yet, if review of the evidence that supports the trial judge’s doubts about consent in this case is called for, it may be found in the following. The advances that are now said to be criminally assaultive were preceded by an exchange of consensual body massages, partially on the floor of the trailer, hugs and assurances of trust and restraint, as well as a gift of $100.00 that arose when the complainant advised Ewanchuk that money being in short supply in her home, she was hard up. Beyond that (and somewhat inconsistent with an appellate profile of Ewanchuk as a relentless sexual predator) every advance he made to her stopped when she spoke against it. He even supplied her with his correct name, spelling it for her as she wrote it down. He did not confine her, nor did he lie to her. There was no evidence of an assault or even its threat.
 What was the Crown’s onus? It must prove mens rea.
“The mens rea for sexual assault is established by showing that the accused intended to touch the complainant in a manner that is sexual, and knew of, or was reckless or wilfully blind to, the fact that the complainant was not consenting to that touching. […]
 It is said that because the accused did not testify no finding as to the innocence of his intent should have been made in his favour. But that finding can be inferred, or a doubt raised within it, from the Crown evidence alone as it can be done in any other criminal prosecution. It was made here from the sum of the evidence presented against Ewanchuk, weighed by the trial judge and which, in his assessment, fell short of adequate proof of guilt. That is enough. The 1992 parliamentary changes (Bill C-49) to proof of consent in sexual assault cases did not repeal the protections allocated to the Canadian accused which have been long embedded in the Canada Evidence Act, R.S. c. E-10. Nor did they re-define the right of appellate courts to fossick guilt from fact-driven acquittals. […]
 In my reading of the trial record, this Crown appeal must be dismissed. Beyond the error of law issue, the sum of the evidence indicates that Ewanchuk’s advances to the complainant were far less criminal than hormonal. In a less litigious age going too far in the boyfriend’s car was better dealt with on site — a well-chosen expletive, a slap in the face or, if necessary, a well-directed knee. What this accused tried to initiate hardly qualifies him for the lasting stigma of a conviction for sexual assault and Alberta’s current bullet-train removal to the penitentiary for prolonged shrift. [I suppose Alberta’s draconian sentencing approaches are not anything new…
Sidenote: after the SCC reversed the acquittals and entered a conviction, the sentencing judge sentenced the accused to 1 year of jail, and considered a conditional sentence: CBC article. For more context, in the subsequent sentencing decision, see R. v. S.B.E.,  A.J. No. 1275 – QuickLaw), Crown had asked for 5 years of jail, then appeared to reduce their request somewhat (para. 28). Both Crown and defence appealed the sentence (R. v. Ewanchuk, 2002 ABCA 95 (CanLII)) and the Alberta Court of Appeal – to her credit, not including Fraser CJ or any other jurists sitting on the original ABCA decision – increased the sentence to 2 years (para. 87).]
Fraser CJ’s dissent (emphasis in original) at CA:
49 Consent to sexual activity may be expressed through words or in writing or implied through conduct.
 The trial judge began his analysis with a misunderstanding of the legal test for valid “consent”. He then proceeded, wrongly, to equate submission out of fear, where that fear has not been communicated to an accused, with the complainant’s implied consent. Not only is this, by itself, an error in law, but the trial judge then compounded these errors by imposing a strictly objective test on the assessment of the fear sustained by the complainant. And then, he went even further by ignoring, as part of the totality of the events which transpired here, the legal effect of the “No’s” which, according to his own fact findings, the complainant uttered. […]
 Since 1992, therefore, the mistake of fact defence is not available to an accused unless he first took “reasonable steps” to ascertain consent: see R. v. Redcliffe (7 April 1995) No. 95-18016 (Ont. C.A.); J. McInnes and C. Boyle, “Judging Sexual Assault Law Against a Standard of Equality” (1995) U.B.C. L. Rev. 341; and P. Hughes, “From a Woman’s Point of View” (1993) 42 U.N.B. L.J. 341. The “reasonable steps” provision imposes a positive duty on a person intent on sexual activity to make reasonable efforts to determine that he has the voluntary agreement of the other person to what is about to take place. Unless and until that threshold has been crossed, the defence of mistake of fact is not available to an accused. […]
 Parliament’s decision to impose this evidentiary predicate to an assertion of the defence of mistake of fact was in part in response to the increasing frequency with which that defence was being asserted in sexual assault cases even where no steps had first been taken by an accused to ascertain whether the complainant was consenting. Taken together with Parliament’s decision to define “consent” in this context, these amendments represent further legislative steps to overcome the apparent unwillingness by some to let go of the debunked notion that unless a complainant physically resisted or expressed verbal opposition to sexual activity, an accused was entitled to assume that consent existed. Instead, the amendments place the responsibility to ascertain the presence of consent to sexual activity precisely where it belongs — on the person, male or female, who wishes to initiate sexual contact with another person.
 Parliament also included for the first time ever (in s. 273.1) a statutory definition of consent in sexual assault cases. “Consent” now means the voluntary agreement of the complainant to engage in the sexual activity in question. By defining “consent” to mean the voluntary agreement to engage in sexual activity, Parliament signalled that the focus should henceforth be on whether the complainant positively affirmed her willingness to participate in the subject sexual activity as opposed to whether she expressly rejected it. Parliament understood very well that a definition of “consent” was required to overcome the historical tendency by some judges to treat a complainant’s silence or non-resistance as “implied consent”. It followed in the minds of those who took this view that the Crown could not meet its burden of proving lack of consent by showing that the complainant did not give her affirmative consent. This was not enough. What the Crown had to do, according to those who endorsed this approach, was to prove that the complainant had expressed her non-consent. In other words, did she say “No” or give the accused a slap in the face or a well-placed knee in the groin or some other incontrovertible overt “No” signal? If she did not, then her consent to what transpired could be presumptively implied by the judge as well as the perpetrator — and often was.
 How this theory operated in practice in some courtrooms prior to the 1992 amendments has been well-explained by R. Cornaviera in “The Reform of Sexual Assault Laws”, (1993) 2 Crown’s Newsl. 1 at 18-19:
“The inquiry into whether a complainant consented to sexual acts is vulnerable to sexist stereotypes. Rape mythology thrives in the absence of a statutory definition of consent through the vehicle of “implied consent”. The judicially created “theory of implied consent” is commonly applied in the context of sexual assault offences. The use of “implied consent theory” permits the perpetuation of rape mythology by presuming that consent to sexual touching exists ab initio and continues to exist until the woman successfully persuades the aggressor that she does not consent. Thus, consent may be implied in the absence of clear and unequivocal non consent (usually resistance) … [Footnotes omitted.]”
Under this theory, because women were treated as being available at all times for sexual activity, because the “default” position was assumed to be consent, the focus was — wrongly — on whether the woman expressed her dissent rather than on whether she gave her assent: See J. McInnes & C. Boyle “Judging Sexual Assault Law Against a Standard of Equality” (1995) 29 U.B.C. L. Rev. 341 at 353 n. 30, 357 n.38.
 Not all judges took this view of the law: see R. v. M. (M.L.)1994 CanLII 77 (SCC),  2 S.C.R. 3 which is based on the law as it existed prior to the 1992 amendments. But sufficient numbers did that Parliament saw fit to put the matter beyond doubt in 1992 by expressly defining consent to mean “voluntary agreement” to engage in the sexual activity. Thus, it follows that it is no longer appropriate to simply ask whether the woman said “No” or actively resisted sexual advances (here the trial judge concedes that the failure to resist was driven by genuine fear and that the woman did say “No” more than once). The real inquiry is whether she said “Yes” (or its equivalent), either expressly in words or in writing or impliedly by her conduct. Viewed in this light, the positive definition of consent contained in s. 273.1 of the Code, stressing as it does the equality of responsibility in sexual relations, is in keeping with several academic articles urging that the law recognize and protect women’s sexual autonomy: See e.g. R. Cairns Way, “Bill C-49 and the Politics of Constitutionalized Fault” (1993) 42 U.N.B. L.J. 325; M.T. Kasubhai, “Destabilizing Power in Rape: Why Consent Theory in Rape Law is Turned on its Head” (1996) 11 Wisc. Women’s L.J. 37; G. MacDonald & K. Gallagher, “The Myth of Consenting Adults: The New Sexual Assault Provisions” (1993) 42 U.N.B. L.J. 373; H.M. Malm, “The Ontological Status of Consent and its Implications for the Law on Rape” (1996) 2 Legal Theory 147; and J. McInnes & C. Boyle, “Judging Sexual Assault Law Against a Standard of Equality” (1995) 29 U.B.C. L. Rev. 341.
 What must be emphasized is that while a complainant’s consent may be expressed or implied, it still must be her actual consent. And in order to determine whether she gave either her expressed or implied consent, one must have regard to the state of mind of the complainant only. That this is so is evident from the fact that the definition of “consent” refers to the voluntary agreement of the complainant to engage in the impugned activity. Thus, it is to her state of mind that the inquiry must be directed. That inquiry into voluntariness must focus on the impact of the accused’s behaviour on the complainant at the relevant time and in the situation in which she found herself. […]
 One of the difficulties here is with the use of the term “implied consent” itself. Providing that the term is being used as a shorthand way of saying actual consent implied through conduct, it is a legitimate use of the term. But the problem is that the term has an unfortunate history, meaning therefore that it is capable of being misinterpreted. As noted earlier, there was a time when some were willing to “imply” a woman’s consent even in the absence of any evidence of actual consent on the basis that she did not resist or scream or scratch or do whatever else the trier of fact thought a true victim should have done. Thus, to the extent that this term suggests that judges can “imply” a complainant’s consent to sexual activity even where the evidence establishes that there was no actual consent, it is an inappropriate use of the term. Indeed, I would suggest that judges avoid the use of the term “implied consent” in sexual assault cases so long as the lingering myths of victim resistance continue to find a welcome greeting in some courtrooms in this country.
 What this all means is that while it is possible to speak of a complainant’s actual consent being implied or inferred through actions, as opposed to expressed through words, in both cases, the words or actions, taken in their context, must evince a voluntary agreement by the complainant to engage in the impugned sexual conduct. Simply, it must be real consent. It also means that it is wrong in law to assume that a woman gives her “implied consent” to sexual activity unless and until she overtly signals her non-consent. With the 1992 Code amendments, Parliament rejected this discredited theory of “implied consent”. It recognized that to presume that such “implied consent” exists denies women’s sexual autonomy, not to mention their Charter equality rights. Women in Canada are not walking around this country in a state of constant consent to sexual activity unless and until they say “No” or offer resistance to anyone who targets them for sexual activity.
[…]  When one looks at the evidence here, the suggestion of implied consent is based on what the complainant did not do. The trial judge focuses on the complainant’s failure to “properly” express her fear, the implication being that this was necessary so that the accused could thereby deduce that she was not consenting to his sexual advances. In other words, the trial judge erred in assuming that in order to prove lack of consent, the Crown had to prove that the complainant had expressed her opposition to the conduct in which Ewanchuk was engaged.
 The flaw in this approach is obvious. It presupposes that Ewanchuk was otherwise entitled to assume that the complainant was consenting until she communicated her non-consent. But Ewanchuk had no right to presume this consent absent some positive indication from the complainant that what she was interested in was sexual activity with him and not the job he purported to offer. I do not find any evidence of express consent here. Nor did the trial judge. Nor do I find any evidence, whether on the record or in the fact findings, from which consent to sexual activity by this complainant through her conduct can be properly implied. Once the trial judge here accepted, as he did, the complainant’s testimony that she was not a willing party to the sexual activity, that she submitted out of fear and in any event that she said “No” on at least two occasions before her final “No”, those findings in my view were dispositive of the issue before him. There was no actual consent by the complainant in this case, whether express or implied through conduct. Nor is there any basis in law for the trial judge to find a reasonable doubt on these facts.
Actually, the consent implied by conduct is fairly obvious here, and clearly addressed by McClung JA at para. 15. You’re entitled to disagree, but let’s not act like it’s obvious that no consent existed – it most certainly is not.
We get further derailed from there… Eventually:
 Each “No” the complainant stated meant in law that any consent given (if any had in fact been given) was at an end. The complainant no longer wanted to engage in sexual activity (if she in fact ever did). There is no ambiguity in that statement. When a woman says “No” to unwanted sexual activity, she is not required to give a list, whether oral or written, of what the “No” includes. Nor is she required to utter “No” to every step of every sexual advance. One “No” will do to put the other person on notice that there is then a problem with “consent”. Once a woman says “No” during the course of sexual activity, the person intent on continued sexual activity with her must then obtain a clear and unequivocal “Yes” before he again touches her in a sexual manner. Any other interpretation of s. 273.1(2)(e) would fall prey to the rejected myth that “No” really means “Try harder”.
Clear and unequivocal yes? What happened to the consent implied by conduct that Fraser CJ appears to believe in (para. 61)? Is that only when “no” wasn’t mentioned at any point? Or does Fraser CJ merely contradict herself on a rather critical point within the same judgment? (Note, Major J. for the SCC tries to fix this disaster, as follows – para. 51: “I take the reasons of Fraser C.J. to mean that an unequivocal “yes” may be given by either the spoken word or by conduct.” Frankly, I take her words to mean something quite different.) Later, positive assent (rather than consent either express or implied) is suggested as required (emphasis in original):
 Those amendments make it clear that the mens rea for sexual assault includes touching a complainant in a sexual manner without having first received her positive assent to the activity. In this regard, I agree with Madam Justice Claire L’Heureux-Dubé’s analysis in R. v. Park, 1995 CanLII 104 (SCC),  2 S.C.R. 836 at 864 which addresses the transformative nature of the 1992 amendments as they relate to mens rea: […]
Note the disturbing statement in the recent SCC pronouncement on consent in R. v. Goldfinch, 2019 SCC 38 (CanLII) (incidentally, I would argue, the “low-water” point for the SCC to date since Ewanchuk) at para. 44 (emphasis added): “Today, not only does no mean no, but only yes means yes. Nothing less than positive affirmation is required” – also, mantra repeated in para. 73. It’s not surprising that we’ve ended up here, given the trajectory we’ve careened down since Ewanchuk.
The SCC case (cited some 1203 times on CanLII – unlike the ABCA decision cited a mere 18 times):
6-person majority (per Major J.)
The absence of consent, however, is purely subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred. While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trier of fact in light of all the evidence. It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, the trial judge believes the complainant that she did not consent, the Crown has discharged its obligation to prove the absence of consent. The accused’s perception of the complainant’s state of mind is not relevant and only becomes so when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry.
Per L’Heureux‑Dubé and Gonthier JJ (generally concurring with majority):
This case is not about consent, since none was given. It is about myths and stereotypes. The trial judge believed the complainant and accepted her testimony that she was afraid and he acknowledged her unwillingness to engage in any sexual activity. However, he gave no legal effect to his conclusion that the complainant submitted to sexual activity out of fear that the accused would apply force to her. The application of s. 265(3) requires an entirely subjective test. As irrational as a complainant’s motive might be, if she subjectively felt fear, it must lead to a legal finding of absence of consent.
The question of implied consent should not have arisen. The trial judge’s conclusion that the complainant implicitly consented and that the Crown failed to prove lack of consent was a fundamental error given that he found the complainant credible, and accepted her evidence that she said “no” on three occasions and was afraid. This error does not derive from the findings of fact but from mythical assumptions. It denies women’s sexual autonomy and implies that women are in a state of constant consent to sexual activity.
The majority of the Court of Appeal also relied on inappropriate myths and stereotypes. Complainants should be able to rely on a system free from such myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions.
Finally and bizarrely, McLachlin J. adds brief separate concurring reasons, agreeing with L’Heureux Dubé.
29 While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent.
30 The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct is consistent with her claim of non-consent. The accused’s perception of the complainant’s state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry.
31 Counsel for the respondent submitted that the trier of fact may believe the complainant when she says she did not consent, but still acquit the accused on the basis that her conduct raised a reasonable doubt. Both he and the trial judge refer to this as “implied consent”. It follows from the foregoing, however, that the trier of fact may only come to one of two conclusions: the complainant either consented or not. There is no third option. If the trier of fact accepts the complainant’s testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of consent is established and the third component of the actus reus of sexual assault is proven. The doctrine of implied consent has been recognized in our common law jurisprudence in a variety of contexts but sexual assault is not one of them. There is no defence of implied consent to sexual assault in Canadian law.
(b) Application to the Present Case
32 In this case, the trial judge accepted the evidence of the complainant that she did not consent. That being so, he then misdirected himself when he considered the actions of the complainant, and not her subjective mental state, in determining the question of consent. As a result, he disregarded his previous finding that all the accused’s sexual touching was unwanted. Instead he treated what he perceived as her ambiguous conduct as a failure by the Crown to prove the absence of consent.
44 The defence of mistake is simply a denial of mens rea. It does not impose any burden of proof upon the accused (see R. v. Robertson, 1987 CanLII 61 (SCC),  1 S.C.R. 918, at p. 936) and it is not necessary for the accused to testify in order to raise the issue. Support for the defence may stem from any of the evidence before the court, including, the Crown’s case-in-chief and the testimony of the complainant. However, as a practical matter, this defence will usually arise in the evidence called by the accused.
85 I agree with Major J. that the application of s. 265(3) requires an entirely subjective test. In my opinion, as irrational as a complainant’s motive might be, if she subjectively felt fear, it must lead to a legal finding of absence of consent. Accordingly, I agree with Fraser C.J. that any objective factor should be considered under the defence of honest but mistaken belief.
89 Even though McClung J.A. asserted that he had no intention of denigrating the complainant, one might wonder why he felt necessary to point out these aspects of the trial record. Could it be to express that the complainant is not a virgin? Or that she is a person of questionable moral character because she is not married and lives with her boyfriend and another couple? These comments made by an appellate judge help reinforce the myth that under such circumstances, either the complainant is less worthy of belief, she invited the sexual assault, or her sexual experience signals probable consent to further sexual activity. Based on those attributed assumptions, the implication is that if the complainant articulates her lack of consent by saying “no”, she really does not mean it and even if she does, her refusal cannot be taken as seriously as if she were a girl of “good” moral character.
Since we’re being generous with interpreting the ABCA jurists’ words, I “take” McClung J. to have meant that the complainant was not a victim – she was essentially a willing participant, and her conduct and the entirety of the circumstances does not lead to the conclusion that she was afraid nor that she lacked consent to any of the activity.
I would suggest that wrongful convictions these days are at more than double-digits in terms of percentage of sexual assault convictions in Canada. We have the legacy of Ewanchuk, and the subsequent twenty-one years of Supreme Court (and Alberta court of Appeal) idiocy to thank.
This will be a fairly long post (approximately 8 pages). I’ll begin with the background to the Supreme Court of Canada’s latest pronouncement on starting point sentences in Friesen, using Alberta cases such as Hajar, Arcand, Gashikanyi, Godfrey and Parranto, as well as the SCC case of Lacasse. I’ll then discuss the effects of the case – and why (and how) the starting point and sentencing debate will continue to rage.
While R. v. Arcand, 2010 ABCA 363 (CanLII) is cited over 500 times over the past decade in reported decisions alone – it’s even mentioned 5 years ago in Lacasse dissent (para. 130 – parallel citation as R. v. J.L.M.A., 2010 ABCA 363) – one would have hoped the SCC wouldn’t have needed a decade to overrule it (explicitly – it was overruled somewhat less explicitly in Lacasse). Note the strong “concurring” opinion by 2 of the Justices in Arcand (Hunt and O’Brien JJ.) – basically dissenting – pointing out inconsistencies between the binding decision of Proulx and the majority’s view (see e.g. para. 361), etc.
Note that R v Hajar, 2016 ABCA 222 (CanLII) is cited favourably in Friesen in the context of harm done to victims of sexual abuse (for examples, paras. 64 and 78).
The Friesen case mostly serves to increase sentences in the context of sexual assaults, and also seeks to clarify a lot of potential issues relating to child sexual assault (e.g. “de facto” consent, categories of sexual assault, ensuring that assaults against children are sentenced more severely than those against adult, aggravating and mitigating factors etc.). Note that it overrules the lower court (MBCA)’s decision (R v Friesen, 2018 MBCA 69 (CanLII)) to reduce the sentence imposed by the judge. The way I see it – the case is a “win” for defence and sentencing judges in that it strongly denounces the approach of the ABCA in Arcand and establishes that the judge has all of the power to make the sentencing decision. At the same time, it both increases sentences and clarifies the law regarding sexual assaults against children, again, giving considerable power to the sentencing judge and more explicitly wresting it away from the appellate courts.
Arcand suggests that mere departure from a starting point can demonstrate an error in principle (italics in original, at para. 106):
This being so, deviations from the starting point in service of proportionality are an inseparable aspect of the starting point approach. Therefore, mere departure from the starting point does not, by itself, demonstrate error in principle. But a significant degree of departure may do so. A word of caution is in order. Facts relied on to deviate from the starting point should be relevant to sentence and reasonably justify deviation. It is not enough that there be differences from other cases. There always will be. And in dozens of irrelevant ways. The difference said to justify the deviation from the starting point should be a relevant difference. This is consistent with the parity principle which requires similarity of outcome for cases that are relevantly similar.
Also in Arcand (para 273, emphasis added):
Presumably because of the improper characterization of the unlawful act here, the sentencing judge effectively ignored binding authority, Sandercock, and the starting point it set for a major sexual assault, that is three years. In light of the sentence imposed and the absence of any rational justification for it, this too constitutes reviewable error. The corollary of a court of appeal’s authority to set properly defined starting points is that sentencing judges will give due consideration to those starting points and the process that starting point sentencing entails.
R. v. Lacasse, 2015 SCC 64 (CanLII) would appear to overrule Arcand on this point (paras. 60-61, emphasis added):
In other words, sentencing ranges are primarily guidelines, and not hard and fast rules: Nasogaluak, at para. 44. As a result, a deviation from a sentencing range is not synonymous with an error of law or an error in principle. Sopinka J. stated this clearly in McDonnell, although he was referring in that case to categories of assault:
… in my view it can never be an error in principle in itself to fail to place a particular offence within a judicially created category of assault for the purposes of sentencing… . If the categories are defined narrowly, and deviations from the categorization are generally reversed, the discretion that should be left in the hands of the trial and sentencing judges is shifted considerably to the appellate courts. [para. 32]
Any other conclusion would have the effect of authorizing appellate courts to create categories of offences with no real justification and accordingly intervene without deference to substitute a sentence on appeal. But the power to create categories of offences lies with Parliament, not the courts: McDonnell, at para. 33.
Note that starting points are synonymous with sentencing ranges, for the purpose of this analysis; see para. 57 of Lacasse (emphasis added):
Tariffs differ from sentencing ranges in that tariff-based sentencing is theoretically the opposite of sentence individualization, which the ranges allow: Thomas, at p. 8. On the other hand, the principle underlying the two approaches is the same: ensuring that offenders who have committed similar crimes in similar circumstances are given similar sentences. The same is true of the starting-point approach, which is used mainly in Alberta but sometimes also in other Canadian provinces: R. v. McDonnell,  1 S.C.R. 948, at para. 69. Ultimately, whatever mechanism or terminology is used, the principle on which it is based remains the same. Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case […]
Hajar acknowledges Lacasse’s ratio that failure to follow a starting point is not an error in principle per se – albeit only mentioned in technical dissent, and by Slatter J. (paras. 260, 272) – not the majority.
I’ll cut to the chase here with the new decision of R. v. Friesen, 2020 SCC 9 (CanLII), before getting back to the contextual background. The following quote is most relevant regarding Arcand, where the latter is more explicitly overruled (emphasis added):
37 This Court has repeatedly held that sentencing ranges and starting points are guidelines, not hard and fast rules (R. v. McDonnell, 1997 CanLII 389 (SCC),  1 S.C.R. 948, at para. 33; R. v. Wells, 2000 SCC 10,  1 S.C.R. 207, at para. 45; R. v. Nasogaluak, 2010 SCC 6,  1 S.C.R. 206, at para. 44; Lacasse, at para. 60). Appellate courts cannot treat the departure from or failure to refer to a range of sentence or starting point as an error in principle. Nor can they intervene simply because the sentence is different from the sentence that would have been reached had the range of sentence or starting point been applied (McDonnell, at para. 42). Ranges of sentence and starting points cannot be binding in either theory or practice, and appellate courts cannot interpret or apply the standard of review to enforce them, contrary to R. v. Arcand, 2010 ABCA 363, 40 Alta. L.R. (5th) 199, at paras. 116-18 and 273. As this Court held in Lacasse, to do so would be to usurp the role of Parliament in creating categories of offences (paras. 60-61; see also McDonnell, at paras. 33-34). […]
41 Many practitioners, judges, and academics have consistently expressed these concerns (see, e.g., A. Manson, “McDonnell and the Methodology of Sentencing” (1997), 6 C.R. (5th) 277; J. Rudin, “Eyes Wide Shut: The Alberta Court of Appeal’s Decision in R. v. Arcand and Aboriginal Offenders” (2011), 48 Alta. L. Rev 987; L. Silver, Sentencing to the Starting Point: The Alberta Debate, May 23, 2019 (online) [link]). We realize that the Alberta Court of Appeal has repeatedly defended the utility of the starting point methodology in the face of these concerns (see Arcand, at paras. 130-46; R. v. Parranto, 2019 ABCA 457, 98 Alta. L.R. (6th) 114, at paras. 28-38; see also P. Moreau, “In Defence of Starting Point Sentencing” (2016), 63 Crim. L.Q. 345). However, this Court has not yet addressed these concerns. We make no comment on the merits of these concerns. Nor should anything in these reasons be taken to suggest that starting points are no longer a permissible form of appellate guidance. While we have determined that this case does not provide an appropriate opportunity to assess the merits of these concerns, they raise an issue of importance that should be resolved in an appropriate case.
R v Godfrey, 2018 ABCA 369 (CanLII) is problematic on multiple levels (I’ve addressed it previously here). It likely both misquotes the sentencing judge and misapplies the law, per Lacasse which had already overruled Arcand (Godfrey, at para. 8)
[…] It was an error of principle calling for appellate intervention for the sentencing judge to conclude that she was not bound by the appellate case law in Alberta. The point was summed up in Arcand […]
The damage is partially mitigated in para. 17: “The trial judge noted the starting point in passing, but abandoned it as a meaningful foundation for her analysis, and never explained why the resulting sentences were compatible with it”. As pointed out in O’Ferrall J.’s dissent:
 With respect, I cannot agree. The sentencing judge considered herself bound by the starting point. She did so explicitly, acknowledging the starting point and that she was “of course bound by the directions of the Alberta Court of Appeal”: R v Godfrey, 2018 ABPC 45 at para 31. […]
 The sentencing judge acknowledged the three-year starting point, but all parties were of the view that a sentence less than the starting point was appropriate. The question was, how much less? To answer that question, the sentencing judge sought the guidance of a whole range of authorities. But in the final analysis, as helpful as such guidance might have been, she had to decide what constituted a fit sentence for these offences and these offenders and she did so in a transparent and reasonable way.
Why Godfrey was not appealed to the Supreme Court is difficult to understand – absent the fact that the majority’s decision disincentivized the defendant to appeal, as it did not directly affect the appellant – only everyone else in Alberta who came after (note the majority’s decision in para. 22 to vary the sentence to time served in that particular case, and see Berger J.’s criticism on this point below from Gashikanyi).
R v Felix, 2019 ABCA 458 (CanLII) and R v Parranto, 2019 ABCA 457 (CanLII) (essentially “sister” decisions – one of which I discuss here) are careful to state correctly – unlike Godfrey – that failure to adhere to a starting point is not an error in principle per se (e.g. Parranto – para. 72), yet it establishes a new starting point for wholesale fentanyl trafficking of 9 years. Although the sentencing judge made reference to a sentencing range, it was simply found to be inappropriate, and Ontario caselaw (paras. 69-70) – surprisingly – was used to decide a 9-year starting point was appropriate. It would be great if someone planned on appealing either case. Likely, the ratio (or outcome) of Parranto is – in retrospect, at least – inconsistent with Supreme Court jurisprudence in Friesen and probably Lacasse – assuming of course, that the original sentence was not “demonstrably unfit” which is a rather difficult determination for anyone to make – yet its decision to set a starting point – likely is not wrong – yet. The Supreme Court will need to decide the issue squarely once and for all, now that it’s again decided that failure to follow a starting point/range is not an error in principle per se; per Berger J.’s criticisms of the starting point approach in R v Legerton, 2015 ABCA 79 (CanLII – see e.g. para. 12) and Gashikanyi, etc. and the interveners’ concerns in Friesen: are starting points problematic in that they arguably fetter the discretion of a sentencing judge far more than a sentencing range does? Also – practically speaking, when is a judge’s sentencing decision simply inappropriate and requiring appellate intervention? This is also a crucial problem, and one that is clearly evident in the Hajar/Gashikanyi debate (I’ll get into Gashikanyi shortly: note there is much discussion there, as in Arcand and Hajar about “re-consideration cases” and significant debate about what constitutes an appropriate sentence). I suspect that that debate will rage on – although it will now be termed more in the language of “demonstrably unfit” rather than “error in principle”. Bottom line when it comes to sentencing: people (and courts) want numbers. Lacasse is helpful in providing guidance about what constitutes “demonstrably unfit” in terms of a sentence – I’ll get to this below. I’m hopeful that Lacasse will be sufficient, but I suspect that more clarity will be required – particularly when courts (and individual judges) disagree over the appropriate quantum of sentence for a particular type of offence or offenders.
52 It is possible for a sentence to be demonstrably unfit even if the judge has made no error in imposing it. As Laskin J.A. mentioned, writing for the Ontario Court of Appeal, the courts have used a variety of expressions to describe a sentence that is “demonstrably unfit”: “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate”, or representing a “substantial and marked departure” (R. v. Rezaie (1996), 1996 CanLII 1241 (ON CA), 31 O.R. (3d) 713 (C.A.), at p. 720).All these expressions reflect the very high threshold that applies to appellate courts when determining whether they should intervene after reviewing the fitness of a sentence.
53 This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code, which provides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle. Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2(a) and (b) of the Criminal Code.
54 The determination of whether a sentence is fit also requires that the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles set out in s. 718.2 be taken into account. Once again, however, it is up to the trial judge to properly weigh these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed. The principle of parity of sentences, on which the Court of Appeal relied, is secondary to the fundamental principle of proportionality. This Court explained this as follows in M. (C.A.):
It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. . . . Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. [para. 92]
See Berger J.’s prescient comments – criticizing Arcand, and writing for the majority – in R. v. Lee, 2012 ABCA 17 (CanLII) (emphasis in original):
53 The danger is that a judgment arising from a particular “doctrinal disposition” may be perceived as a response to the agenda of those who would, by way of example, “get tough on crime”. Such a pronouncement purporting to vindicate certain promises of the law but excluding others, may be seen as an echo of political or public sentiment. It is an inescapable truth that to call upon the judiciary to adopt the selective approach of the majority of an appellate sentencing panel, failing which “Parliament will act”, erodes the independence of the Court and threatens public confidence in the administration of justice.
54 In remarks to the Council of the Canadian Bar Association (the “CBA”) at the Canadian Legal Conference in Halifax on August 13, 2011, Chief Justice McLachlin spoke about public confidence in the judiciary. She referenced the response of the CBA to a speech given by a Minister of the Crown suggesting that some judges were insufficiently solicitous to government policy. She thanked the CBA for reminding the Minister in question “of the importance of public confidence in an independent and impartial judiciary that bases its decisions on the law and not on government policy.” That admonition, it seems to me, also applies to judges who may run the risk of being perceived as overly-solicitous to government policy.
Berger J. in R. v. Gashikanyi, 2017 ABCA 194 (CanLII) notes in paras. 16-36 an excellent critique of starting points. I’ll quote extensively, emphasis in original:
19 It is in this latter regard that the majority reasons in Hajar fail to provide meaningful guidance to sentencing judges in Alberta. The abandonment of sentencing ranges and substitution by this Court of starting points without first determining the “acceptable range of sentence” before fixing the starting point, operates in practical terms as a constraint on the discretion afforded to sentencing judges to impose individualized sentences. After all, sentencing ranges are, as the Supreme Court of Canada has made clear, “historical portraits” for the use of sentencing judges whose discretion should not be interfered with absent demonstrable unfitness:
“Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case.”
20 The majority in Hajar not only failed to conduct a detailed, comprehensive review of the minimum and maximum sentences for sexual interference imposed in the past by both trial and appellate judges, but also summarily resiled from the established sentencing range with the admonition that “…the Reasons [of the sentencing judge] overlook the fact that sentencing precedents from this Court are of limited precedential value.” (at para. 150)
21 Both the majority in Hajar and the Crown in the case at bar relied upon the majority decision in Arcand which, it will be remembered, suggested that starting point sentencing is “effectively neutered” or rendered “meaningless in practice” unless elevated to a rule of law (at paras. 99 and 110 of the Arcand majority judgment).
 The failure of the majority opinion in Arcand to recognize that starting points are guidelines and are not to be elevated to the status of legal imperatives is, with respect, a serious error, as is its suggestion that deviation from a starting point constitutes reversible error. The result is that the majority in Arcand relegates to insignificance the rich trove of trial and appellate pronouncements that deviate from starting points but inform the range of sentence that may properly be imposed for various crimes. (emphasis added)
23 In the result, as did the majority in Arcand, the collection of trial and appellate pronouncements that deviate from the starting point was again relegated to insignificance by the majority in Hajar.
24 The Hajar majority reasons, while citing Lacasse for other purposes, seems not to have appreciated Lacasse’s focus on the increased force of appellate deference and Lacasse’s reminder that reliance on the proposition “that an appellate court is to defer to a sentencing decision absent an error in principle, failure to consider a relevant factor, [or] an overemphasis of the appropriate factors” needed to be clarified and qualified (Lacasse at para. 47) With that in mind, Justice Wagner reminded both trial and appellate courts that departure from sentencing ranges or starting points are not only permitted but to be expected. He cautioned against “trivialization” of the term “error in principle”, emphasizing that an appellate court may not intervene simply because it would have weighed the relevant factors differently. (Lacasse at para. 49)
25 The majority reasons in Hajar also run afoul of Lacasse by failing to appreciate that the choice of a sentencing range [or a starting point] or of a category within a range falls within the trial judge’s discretion and cannot in itself constitute a reversible error. (Lacasse at para. 51)
26 The majority judgment in Lacasse took pains to emphasize (and the majority in Hajar failed to recognize) that the principle of parity of sentences is secondary to the principle of proportionality and must not be given priority over the principle of deference to the trial judge’s exercise of discretion. The majority failed to appreciate Lacasse’s lesson that “individualization and parity of sentences must be reconciled for a sentence to be proportionate” (Lacasse at para. 53) and that individualization takes priority over parity.
27 The foregoing clarifications and qualifications seem to have eluded the Hajar majority. That is not surprising given its view that the role of an appellate court is to stamp out “caprice” and to “act as a buffer against outliers of sentencing outcomes.” (Hajar at paras. 47, 50)
35 Notwithstanding this Court’s disclaimers to the contrary, sentencing judges in Alberta know that departure from a starting point facilitates appellate intervention in this jurisdiction and constrains their discretion. Simply put, they know it is much easier to upset a sentence of, say, 15 months’ imprisonment when the starting point is 3 years than it is when the range is 12 months to 3 years. The departure from the low end of the range may be seen on appellate review as acceptable while the departure from the starting point is more readily adjudged to be reversible error.
At para. 36 of Gashikanyi, Berger J. discusses the practical immunity to appeal of Hajar, Arcand and Rahime (I’ll add the more recent Godfrey decision to the mix); emphasis added at para. 36:
I would add only that in a number of leading judgments of this Court including Hajar, Arcand and R. v. Rahime, 2001 ABCA 203 (all five person panel appeals), the ultimate disposition of the Court was viewed favourably by both Crown and defence – the Crown, because the Court endorsed the legal argument advanced by the Crown in fixing the starting point for future cases; the defence, because in each case, although the sentence below was adjudged inadequate, the accused was not re-incarcerated. Neither side would have any interest whatsoever in appealing the matter to the Supreme Court of Canada. In each case the Crown had its precedent and the accused had his freedom; in each case the Court’s judgment was thereby rendered immune from further review by the Supreme Court.
Note the ABCA’s majority approach in important, 5-panel cases like Hajar and Arcand, the makeup of which, as Berger J. observes at paras. 68-75 of Gashikanyi, suggests something other than a random assignment of justices. I note that all 3 of the cases Berger J. cites (Hajar, Arcand, and Rahime) all include a 5-person panel for the ABCA, all include Fraser CJ, and none of them include Berger J. Further, both Hajar and Arcand include Fraser CJ and Watson J. – both of whom are necessary for the 3-person majority opinions (not that the “dissenters” were particularly opposed in Hajar). Berger J. is quite likely making a rather obvious point – although it’s one that’s denied perhaps too vociferously by commentators and other ABCA jurists in Gashikanyi. Clearly, it’s not random assignment or expertise preventing Berger J. from sitting on – say – Arcand. Whether or not that’s appropriate or ethical is perhaps “above my pay grade” – but let’s not pretend that his point isn’t obvious. Note also Watson J.’s presence in both R v Godfrey, 2018 ABCA 369 (CanLII) and R v Sumner, 2019 ABCA 399 (CanLII) – recent ABCA decisions I have criticized.
These points makes the comments of Fraser CJ in Arcand especially ironic (para. 8, emphasis added):
The third truth. Judges are not the only ones who know truths one and two, and thus judge shopping is alive and well in Canada – and fighting hard to stay that way. All lead inescapably to the fourth truth. Without reasonable uniformity of approach to sentencing amongst trial and appellate judges in Canada, many of the sentencing objectives and principles prescribed in the Code are not attainable. This makes the search for just sanctions at best a lottery, and at worst a myth. Pretending otherwise obscures the need for Canadian courts to do what Parliament has asked: minimize unjustified disparity in sentencing while maintaining flexibility.