Tag Archives: 276

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Presumption of Guilt in Sexual Offence Trials in Canada

We will have to repent in this generation not merely for the hateful words and actions of the bad people but for the appalling silence of the good people.

― Martin Luther King Jr., Letter from a Birmingham Jail [King, Jr.]

I’ve been watching excellent seminars from Professor Sankoff recently. As always, incredible quality and value. As usual, I had some “aha” moments watching the videos. While listening to this excellent seminar (Sexual Assault: Consent and HMB Seminar), I noted the following:

How is “consent” in the context of a sexual assault trial determined? R. v. Ewanchuk, 1999 CanLII 711 (SCC) – a case I review here, noting that it is the worst decision in Canadian judicial history  – has established that it’s a subjective analysis – subjective to the complainant. It is not an objective (or “modified objective”) test. On one hand, it suggests the testimony of the complainant is the only thing that matters. On the other hand, it also suggests that words or actions of the complainant can affect the analysis of whether or not there was consent – essentially a subjective test, but one that is assessed by the trier of fact, so in that sense it is objective.

See the following paragraph from Ewanchuk (para. 29, emphasis added):

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.

In other words, the complainant’s assertion of non-consent needs to be assessed using the words and/or actions of the complainant – before and during (and likely after) the incident. That sounds perfectly reasonable to me. This appears to be a fair approach, and is one that is encouraged in cases like R. v. Roth, 2020 BCCA 240 (CanLII), Foster v. R., 2020 NBCA 7 (CanLII), (both mentioned in Professor Sankoff’s “Top 10 Cases from 2020” seminar, which he co-hosts with Prof. Penney), as well as academics like Sankoff, Dufraimont, Justice Paciocco, etc. So far, so good.

Then, see para. 31 – a mere two paragraphs later – of Ewanchuk (emphasis added):

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.

This is likely the most problematic paragraph ever written by the Supreme Court of Canada. If the trier of fact accepts the complainant’s testimony of non-consent, then no matter how strongly her conduct contradicts that claim, absence of consent is established? Why on earth would the trial judge accept the claim if the conduct contradicts it? Especially if 2 paragraphs before, we said that conduct is assessed when determining consent? Surely both paragraphs can’t be right!

It reminds me of the great “Fiddler on the Roof” scene:

Rabbi’s pupil: He’s right, and he’s right. They can’t both be right!

Tevye: (Pause). You know, you are also right.

This paragraph (31) seems to suggest that the analysis is entirely subjective and conduct is entirely immaterial – again, of course, a direct contradiction to what it said a couple of paragraphs previously. This extremely problematic paragraph would appear to blatantly reverse (perhaps entirely obliterate) the burden of proof in a sexual assault case – if the complainant asserts no consent, nothing else matters. We seem to move very quickly from an approach that is “only concerned with the complainant’s perspective” and “purely subjective” (para. 27) to one that completely discounts any evidence contradicting this “perspective.”  This approach appears to be embraced by the Craig/Tanovich/Karakatsanis/L’Heureux-Dubé crowd. Of course, they’re technically no less correct than the para. 29 adherents, and this approach certainly seems to be more popular in this country than the para. 29 one. Given our Supreme Court’s recent concerning streak in sexual assault cases, it’s reasonable to expect this will continue.

Thankfully, excellent cases like R. v. Percy, 2020 NSCA 11 (CanLII) – also reviewed in the seminar (thank goodness the victim/wrongly accused and prosecuted individual in that case had a video of the encounter – otherwise he likely would have done a “pen stint”) – appear to apply para. 29, while many others (including the Crown’s position in Percy) seem to enthusiastically apply para. 31.

Further complicating the issue, Ewanchuk itself and subsequent cases appear to suggest that words or conduct of the complainant are relevant to honest but mistaken belief in consent only – not consent itself (to be clear, it’s not explicit in Ewanchuk, but it’s an available inference). This is highly problematic, and directly contradictory to para. 29 (but not para. 31, of course) of Ewanchuk. See R. v. Barton, 2019 SCC 33 (CanLII) (also mentioned in this excellent seminar), at para. 90, emphasis added:

For purposes of the mens rea, and specifically for purposes of the defence of honest but mistaken belief in communicated consent, “consent” means “that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexual activity with the accused” (Ewanchuk, at para. 49). Hence, the focus at this stage shifts to the mental state of the accused, and the question becomes whether the accused honestly believed “the complainant effectively said ‘yes’ through her words and/or actions” (ibid., at para. 47).

Relegating words or actions suggesting consent to honest but mistaken belief in consent greatly weakens the consent analysis, reverses the burden of proof, and puts the accused in a very difficult position overall. Essentially, the complainant’s version is accepted without question, and then we analyze whether or not the accused was clueless enough to miss the cues – however obvious they were. Note that conflating consent with honest but mistaken belief in consent was criticized in Foster.

Other important issues that are peripheral but very much related to this, include:

  1. 276 and myths/stereotypes (not that they’re the same thing)

What evidence is relevant to determining consent? The Crown (and SCC) typically want you to think nothing is relevant. The complainant should be taken at her (or his) word – full stop. This explains the trend to try and “hide behind” s. 276 on just about any exculpatory detail (I recently had a Crown successfully assert that a history with Child and Family Services was impermissible under s. 276 grounds! – I think he/she meant stereotypes). Myths and stereotypes are constantly being misapplied and misunderstood by courts – usually to the detriment of the accused (both myths about the accused and myths about the complainant). Of course, at the same time, the Crown typically has a field day introducing – whenever possible – bad character evidence of the accused (only for context and to explain delayed disclosure, of course), prior consistent statements, and much more. I discuss this here. This is, of course, extremely problematic, given the limitations placed on the accused resulting from both s. 276 and myths/stereotypes and the application and misapplication of both. Thankfully, recent decisions like Roth are starting to reverse the trend from bad cases like R. v A.R.D., 2017 ABCA 237 (CanLII) regarding myths/stereotypes – yet it’s too early to tell whether this will continue.

Prof. Sankoff also does a bang-up job on these (reviewed here).

  1. 278.92 – reverse disclosure provisions

The presumption of guilt can partly explain the reverse disclosure allowed in the recently-introduced s. 278.92 – if we automatically assume the complainant is truthful (perhaps despite or because of all evidence to the contrary), it follows that there shouldn’t be a problem with requiring reverse disclosure from the accused. After all, we’re merely giving effect to the complainant’s Charter rights, “evening the playing field”, helping to reverse the “low rate of conviction” and assisting with not demeaning and attacking the complainant – goals we all need to be very much supportive of. What could possibly go wrong?

Prof. Sankoff discusses s. 278.92 in detail in his Top 10 seminar under R. v J.J, 2020 BCSC 29 (CanLII), a direct Crown appeal of interlocutory Charter decision to the SCC. The provisions have been struck down in Alberta by Sanderman J. (Sankoff’s case) – R. v. J.S., [2019] A.J. No. 1639 [ABQB] – QuickLaw; subsequently followed in both R. v. Reddick, 2020 ONSC 7156 (CanLII) and R. v. D.L.B., 2020 YKTC 8 (CanLII). JJ only strikes down the notice provision – not the reverse disclosure aspect.

  1. Consent and capacity to consent

Note R. v. J.A., 2011 SCC 28 (CanLII) – an influential case from the SCC. In that case, “advance consent” was deemed to be meaningless, despite a strong dissent. It overturned the decision of the ONCA in R. v. J.A., 2010 ONCA 226 (CanLII). The majority of the SCC ruled that a person cannot perform sexual acts on a person who is unconscious even if the “victim” gave consent in advance to that activity. In that case, the complainant recanted her original allegation that she had consented in advance – again, deemed irrelevant because her consent is deemed meaningless. See para. 46, emphasis added:

The only relevant period of time for the complainant’s consent is while the touching is occurring: Ewanchuk, at para. 26. The complainant’s views towards the touching before or after are not directly relevant. An offence has not occurred if the complainant consents at the time but later changes her mind (absent grounds for vitiating consent). Conversely, the actus reus has been committed if the complainant was not consenting in her mind while the touching took place, even if she expressed her consent before or after the fact.

This greatly downplays the importance of the complainant’s views “before or after” the contact, which is supportive of the Crown’s common and offensive position that any conduct before or after the contact is irrelevant – on s. 276 and other grounds. Of course, keeping anything related to the accused (including, but not limited to, how many times he refused to take out the garbage) entirely relevant to the credibility analysis. While the point may be technically correct for the purpose of this case – where the complainant was unconscious as part of consensual sexual activity – it is dangerous in other contexts, where behaviour before and after can be very helpful in determining credibility of complainant’s assertion of non-consent – of course, assuming we don’t automatically believe the complainant. The case is also troubling for its actual ratio, but that’s a matter for another day.

The issue of capacity to consent is also extensively discussed by Prof. Sankoff – often in the context of R. v. G.F., 2019 ONCA 493 (CanLII) – SCC to release its judgment (hopefully lengthier than a paragraph) in the near future; Her Majesty the Queen v. GF, et al., 2020 CanLII 227 (SCC) – and a common error of courts to conflate incapacity with intoxication, for instance.

Note the awful language in JA, at para. 65, emphasis added:

In the end, we are left with this. Parliament has defined sexual assault as sexual touching without consent. It has dealt with consent in a way that makes it clear that ongoing, conscious and present consent to “the sexual activity in question” is required. This concept of consent produces just results in the vast majority of cases. It has proved of great value in combating the stereotypes that historically have surrounded consent to sexual relations and undermined the law’s ability to address the crime of sexual assault. In some situations, the concept of consent Parliament has adopted may seem unrealistic. However, it is inappropriate for this Court to carve out exceptions when they undermine Parliament’s choice. In the absence of a constitutional challenge, the appropriate body to alter the law on consent in relation to sexual assault is Parliament, should it deem this necessary.

Perhaps our sexual assault laws are good enough because they produce “just results in the vast majority of cases” (a generous estimate, in any event)? It would appear so. The “slim minority” of wrongful convictions are clearly just the cost of being male “doing business”.

  1. “Today, not only does no mean no, but only yes means yes. Nothing less than positive affirmation is required.”

This problematic line from Karakatsanis J. in R. v. Goldfinch, 2019 SCC 38 (CanLII) at para. 44 suggests that only clear words (not conduct or more ambiguous words) constitute consent. This is contrary to para. 29 (again, not para. 31) of Ewanchuk. It will inevitably be applied by trial courts.

  1. Sentencing

R. v. Friesen, 2020 SCC 9 (CanLII) is a decision that I review here and that Prof. Sankoff includes in his Top 10. While noting that sentences for sexual offences against children must increase (e.g. para. 100), it should not be taken as direction to decrease or as a bar against increasing sentences against offences against adults, at para. 118, emphasis added:

We would emphasize that nothing in these reasons should be taken either as a direction to decrease sentences for sexual offences against adult victims or as a bar against increasing sentences for sexual offences against adult victims. As this Court recently held, our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened (Goldfinch, at para. 37). In jurisdictions that have erroneously equated sexual violence against children with sexual violence against adults, courts should correct this error by increasing sentences for sexual offences against children — not by decreasing sentences for sexual offences against adults.

I’d agree that our understanding of profound harm has deepened. I’d also posit that our understanding of wrongful convictions and due process has significantly weakened – despite countless examples of wrongful convictions – many of them (such as Truscott) in the emotionally-charged arena of sexual assault. Perhaps it’s time to “deepen” our commitment to make our sexual assault laws even slightly fair to an accused person?

Articles on rape myths, etc.

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.

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

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

Prior consistent statements

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

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

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

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

I’m frankly confused.

Bad character evidence

Another issue is bad character evidence 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 – pre-Barton, anyway (constitutional problem right there, methinks).

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

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

See also the words of Mitchell J. in R. v. A.B.A., 2018 ONSC 2198 (CanLII), at paras. 30-31:

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

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

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

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

Rape myths

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

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

In yet another disturbing overturning of a solid fact-driven acquittal, the Alberta Court of Appeal found in R v ADG, 2015 ABCA 149 (CanLII), at para. 33:

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

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

Also, see the downright wrong analysis, in yet another overturning of an acquittal (an unreported decision, hence challenging to assess how poor the appellate court’s thought process otherwise was) – R. v A.R.D., 2017 ABCA 237 (CanLII) – appeal to SCC dismissed (para. 39, emphasis added):

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

Note also the strong rhetoric in para. 9:

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

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

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

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

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

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

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

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

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

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

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

S. 276 and conviction rates

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

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

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

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

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

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

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

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

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

Conviction rates

Craig notes a “profoundly dysfunctional legal system” (in her book, at p. 22, reviewed here), and low conviction rates. Note Tanovich’s influential 2015 article, “Whack” No More: Infusing Equality into the Ethics of Defence Lawyering in Sexual Assault Cases, 2015 CanLIIDocs 164, available here, at p. 503 (my review here):

In addition, heightened zeal has ramifications rarely seen in other cases. These collateral consequences include under-reporting for fear of being “whacked,” secondary trauma to complainants and low conviction rates.

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

Defence counsel wanted to use the painting “to make the point that the theme of false accusation is not the exclusive invention of criminal defence lawyers.”37
Ibid. at para 2. If anything, given the reluctance of women to report sexual assault and the fear of being violated and humiliated in court, it is hard to imagine why someone would bring a false claim. This point is made by Justice L’Heureux-Dubé in Osolin SCC, supra note 4 at 625, where she notes that, “[t]here is absolutely no evidence to suggest that false allegations are more common in sexual assaults than in other offences; indeed, given the data indicating the strong disincentives to reporting, it seems much more likely that the opposite is true.” See also, Sampert, supra note 28 at 307–11 where Professor Sampert notes that one of the myths surrounding sexual assault that is often portrayed in the media is that “innocent men are regularly accused of sexual assault and women regularly lie about it.” This is not to suggest that there are not wrongful sexual assault convictions, but there is little, if any, evidence that this concern extends beyond cases that turn on identification evidence—that is, where the issue is not consent nor whether the act occurred, but whether, in fact, it was the accused who assaulted the complainant. In this category of sexual assault cases, the concerns with “whacking” rarely arise since the focus is not on making the complainant out to be a liar but with whether that identification is mistaken.

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

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

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

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

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

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

Presumption of Guilt: Edward L. Greenspan Q.C.’s “The Case for the Defence” – 1987

However, this great, impersonal awesome machinery has one built-in bias. It is an unconscious, functional bias, somewhat like an aircraft’s bias for leaving the ground as soon as it has attained a certain speed. The bias of the justice system is to find guilt. That is, first, to define any human act that comes to its attention as a crime; then, to define any suspect as a person who has probably committed such an act; and finally, to define any human being who has committed such an act as a criminal. That’s the way the justice system flies.

Everyone knows that in an individual case none of this may be true – yet the great machine of the criminal-justice system may thunder down the runway and take off regardless. (E. Greenspan, p. 260)

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 some 35 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. 

More Recent Wrongful Sexual Assault Convictions

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

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

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

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

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

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

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

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

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

See also para. 26:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Progressive, eh?

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

Book Review: Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession

61Ddb8AtgsLI read Professor Elaine Craig’s 2018 book: Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession a year or so ago, and felt quite unsettled. I wanted to address it in a blog post, but then convinced myself that no one would take the book seriously. I then saw that the Supreme Court of Canada cited it approvingly twice in 2019, and changed my position. I decided to read it again and blog about it.

She gets off to a bad start:

Imagine a society – one that purports to be a rule of law society – in which one segment of the population regularly engages in harmful acts of sexual violation against another segment of the community with almost complete legal immunity. Canada is such a society… (p. 3).

I see – let’s blame the justice system for sexual violence? She immediately follows up with “over ninety percent of sexual assaults in Canada go unreported”. More on this in a minute.

One of the primary sources of data relied upon in this book is trial transcripts:

Transcripts from twenty recent sexual assault trials in Canada were examined…Given the difficulty and expense of securing trial transcripts, I pursued either cases where there was some reference to the length or style of defence counsel’s cross-examination of the complainant in a reported decision… stereotypical thinking had informed the trial judge’s reasoning… The twenty cases for which transcripts were obtained are not relied upon to make assertions about the problematic practices that they arguably reveal. [emphasis added] – pp. 17-18.

This is highly problematic – the author looks at only twenty trial transcripts. She readily admits that she focused on cases where “stereotypical thinking had informed the trial judge’s reasoning”. Despite her assertion that they’re not relied upon to “make assertions about the problematic practices that they arguably reveal” – this is exactly what she tries to do. Even if she didn’t, the fact that she’s looking at only cases that appear to be problematic tells us from the get-go that she’s looking for problems. This is by no means a thorough analysis of sexual assault trials in Canada – the good, the bad and the ugly. It’s merely pointing to problematic cases and telling us what Craig views as wrong with them.

She continues: “A legal system in which more than nine out of every ten sexual assaults receive no legal scrutiny is a profoundly dysfunctional legal system” – p. 22. This is profoundly incorrect. Firstly, she’s already established that nine out of ten assaults go unreported. Second, even if she’s referring to the remaining ten percent, again, the fault for sexual violence does not lie squarely at the feet of the justice system – not by a long shot. There can be a million other reasons why nine out of every ten sexual assaults (alleged and/or actual) receive no legal scrutiny (other than the lack of reporting), and many of them have nothing to do with the justice system. It is difficult to conceive how Professor Craig expects to be taken seriously – by anyone – and not as a shock jock. Oh, wait – she was cited at least twice last year by our country’s highest court.

She goes on and on about defence lawyers and their insidious efforts to “whack the complainant”. This is quite unfair. Yes, I am open to a nuanced discussion about the role of defence counsel (alongside other players in the justice system). Perhaps defence lawyers occasionally cross boundaries (ethical or otherwise), and she certainly goes to great pains to suggest that this is a regular occurrence. She neglects to mention that the system is quite human: prosecutors, judges, and academics are also not immune to biases and to overstepping boundaries. Many would agree that a breach of any obligation by a prosecutor or judge towards the accused is a far greater crime than a defence lawyer being (perhaps) too harsh while cross examining a complainant. This, of course, assumes great importance is given to the central tenet of the presumption of innocence in our criminal justice system – a tenet that Craig reluctantly pays lip service to.

Accused are generally in an unfortunate position. If they’re falsely accused (or not), they’re up against a system which is highly unfavourable: they’re typically less than sympathetic, they may have been denied bail for multiple months, their lawyer is an underpaid and overworked Legal Aid lawyer, and they sometimes show up to trial in prison clothes. Why would anyone expect them to have a fair trial?

Cross-examination is critical – particularly in the context of a sexual assault trial where the testimony of the opposing parties is often all there is. It is basically all the defence has – and the Crown has, assuming the presumption of innocence is not displaced. See, for example, para. 7 of R v Quintero-Gelvez, 2019 ABCA 17 (CanLII):

Cross-examination has been repeatedly described as a matter of fundamental importance that is integral to the conduct of a fair trial and a meaningful application of the presumption of innocence: see R v Osolin1993 CanLII 54 (SCC), [1993] 4 SCR 595 at pp 663-65. The principles of fundamental justice include the right to a fair trial and to make full answer and defence. A fair trial must be one which is perceived to have been conducted fairly; see R v Switzer2014 ABCA 129 at para 5.

Note that the Crown is by no means expected to “go gentle” on the accused. If the accused has the gall to testify, he or she can expect a rigorous (and yes – often, demeaning, degrading, etc.) cross-examination by the Crown. Of course, Craig would like it to be a one-way street – no-holds-barred on questioning the accused, but don’t step on anyone’s toes while questioning the complainant. Somehow, we’ll keep the presumption of innocence intact, as well.

She makes a decent point about aggression: “Beginning in law school and continuing throughout their professional development, lawyers (and in particular criminal lawyers) are socialized or even trained to value aggressive, unrelenting advocacy” (p. 98). I agree – it would certainly be nice if aggression were celebrated less in this profession. In the meantime, I don’t recommend criminal defence lawyers tone down the aggression – particularly if the Crown is ripping the head off the accused.

Many of her other points are just stupid. We should get rid of the big portraits of the Queen in courthouses – see page 184. Reduce legalese in the courtroom (not a bad idea, actually). Complainants should be allowed to sit during their testimony (there’s really no reason why they won’t be, and judges routinely allow them this courtesy). All sexual assault decisions should be reported – as in reported in CanLII. Judges need tons of education about rape myths (read: reminders about how badly their career will go if they’re caught saying the wrong thing to the complainant) … Not surprisingly, some of her ideas about mandated judicial education are currently being paraded about in Parliament.

SB and Ghomeshi

I don’t want to get into extensive discussions about some of the cases and transcripts she reviews. Suffice it to say that she presents a very skewed version of what happened, all in an attempt to make her points. For example:

In R v B(S) the section 276 ruling…was even worse…SB was acquitted and the Crown appealed. The Newfoundland Court of Appeal found that the use of evidence of the complainant’s other sexual activity in this case gratuitously denigrated and humiliated the complainant, and triggered the discriminatory twin myths in front of the jury” (p. 51).

She spends a considerable amount of time going through much of the transcript, in an effort to show the depths to which senior defence counsel in that case resorted to in questioning the complainant. Conspicuously absent is any mention of the fact that the complainant had lied quite seriously on the stand, and it was a large part of the reason why the majority of the Court of Appeal upheld the acquittal. For reference, in R. v S.B., 2016 NLCA 20 (CanLII), the majority of the Court of Appeal found that, although defence counsel had gone too far in its defence of the accused, the lies said by the complainant were sufficient enough to not order a new trial (see para. 86). Not surprisingly, the Supreme Court of Canada (in a one-line judgment of a unanimous 7-panel forum, at R. v. S.B., 2017 SCC 16 (CanLII)), disagreed with that result, and sided with the minority opinion. I would be interested to know the result of the retrial – on the off chance that the Crown went ahead with it. In any event, the main takeaway from the case should be “BAD DEFENCE LAWYER” and not “holy crap – that complainant was unable to say the truth if her life depended on it”. Her discussion of the Wagar case (unfortunately not a reported decision, but appealed at R v Wagar, 2015 ABCA 327 (CanLII), and subject to much media and academic criticism – incidentally the result was correct and the language used arguably was, as well – the 1,000-page transcript can be found here and the subsequent acquittal at the retrial here) and many others is similar.

She skims over the R. v. Ghomeshi, 2016 ONCJ 155 (CanLII) brouhaha:

To be clear, the much-discussed cross-examinations of the complainants in R v Ghomeshi did 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).

Craig otherwise glosses over this important trial, and does not mention the intense media and public criticism of the decision (not to mention the reprehensible legislation that arose as a direct result of it). Do you know who else the trial was profoundly traumatic for? The accused person. Oh, and if defence counsel is not to blame for the trauma experienced by the women who testified against Ghomeshi, who is? Their own foolishness? Or perhaps the abject failure of our criminal justice system to automatically believe complainants and convict those accused of sexual assault without bothering to pester complainants with the “traumatic” process of a trial?

For a thoughtful analysis of the Ghomeshi decision, see Joshua Sealy-Harrington’s thorough post in Ablawg (July 2022 edit: I criticize it subsequently here). Also, see Kyla Lee’s excellent blog post.

Rape Myths

Regarding the substantive content of “rape shield legislation” and our sexual assault laws, I have several concerns with these. While she relies on these in making some of her points, they are problematic for a number of reasons, and I’ll address those briefly now.

For example, see L’Heureux-Dubé J.’s dissent in R. v. Osolin, 1993 CanLII 54 (SCC):

They include myths that deem certain types of women “unrapable” and others, because of their occupations or previous sexual history, unworthy of belief.  These myths suggest that women by their behaviour or appearance may be responsible for the occurrence of sexual assault.  They suggest that drug use or dependence on social assistance are relevant to the issue of credibility as to consent.  They suggest that the presence of certain emotional reactions and immediate reporting of the assault, despite all of the barriers that might discourage such reports, lend credibility to the assault report, whereas the opposite reactions lead to the conclusion that the complainant must be fabricating the event.  Furthermore, they are built on the suggestion that women, out of spite, fickleness or fantasy and despite the obvious trauma for victims in many, if not most, sexual assault trials, are inclined to lie about sexual assault.  The net result has been that sexual assaults are, and continue to be, underreported and underprosecuted; furthermore, the level of convictions that result in those cases that do reach the courts is significantly lower than for other offences. [Emphasis added.]

See also L’Heureux-Dubé J.’s dissent in R. v. Seaboyer; R. v. Gayme, 1991 CanLII 76 (SCC):

Sixty percent of those who tried reasoning with their attackers, and 60% of those who resisted actively by fighting or using weapon [sic] were injured.  Every sexual assault incident is unique and so many factors are unknown (physical size of victims and offenders, verbal or physical threats, etc.) that no single course of action can be recommended unqualifiedly.

In practice, this leads to the absurd result that no reaction of a complainant can be assessed or criticized. How dare we assume what a reasonable reaction should have been?

L’Heureux-Dubé J. continues:

  1. Reporting Rape. Two conflicting expectations exist concerning the reporting of rape.  One is that if a woman is raped she will be too upset and ashamed to report it, and hence most of the time this crime goes unreported.  The other is that if a woman is raped she will be so upset that she will report it.  Both expectations exist simultaneously. […]

  2. Woman as Fickle and Full of Spite. Another stereotype is that the feminine character is especially filled with malice.  Woman is seen as fickle and as seeking revenge on past lovers. […]

  3. Disputing That Sex Occurred. That females fantasize rape is another common stereotype.  Females are assumed to make up stories that sex occurred when in fact nothing happened. . . . Similarly, women are thought to fabricate the sexual activity not as part of a fantasy life, but out of spite.

I assume the basis for the “rape myth” that women lie about sexual assault stems from these clearly highly-researched points from L’Heureux-Dubé J. Notwithstanding the fact that this particular “myth” appears to be demonstrably true, it continues to have a firm grip on our Canadian criminal justice system.

It is said (and apparently it’s a “rape myth”) that people routinely lie about sexual assault. See an article titled: 1 in 7 sexual assault cases in 2017 deemed ‘unfounded’: StatsCan:

Last year, 14 per cent of sexual assaults reported to police were given the “unfounded” classification, down from 19 per cent in 2016. The figure is double the seven per cent of unfounded cases identified among all criminal incidents in Canada last year.

See Statistics Canada:

Nationally, the proportion of sexual assaults deemed unfounded decreased in 2017

In 2017, 14% of sexual assaults (levels 1, 2, and 3) reported to police were classified as unfounded, down from 19% in 2016 (Table 2; Chart 3) (see Text box 1).Note  A heightened awareness about sexual assaults and how they are classified may have had an impact on how other types of incidents were classified in 2017. For example, the proportion of physical assaults (levels 1, 2, and 3) classified as unfounded also decreased, though to a lesser extent (from 11% in 2016 to 9% in 2017) (Table 3; Chart 3).

These numbers make articles like this quite difficult to understand: Dispelling the myths about sexual assault:

Myth: Women lie and make up stories about being sexually assaulted.

Fact: The number of false reports for sexual assault is very low, consistent with the number of false reports for other crimes in Canada. Sexual assault carries such a stigma that many women prefer not to report.

Perhaps L’Heureux-Dubé J. was writing in the ’90s, before the prevalence of the internet, and possibly the numbers were different back then and/or more difficult to confirm. Or she made stuff up. Either way, I have trouble understanding why it continues to be currently considered good law.

A good example of a recent case that attempts to carefully consider the law along with the testimony of the witnesses at trial is R. v. J.E., 2019 NLSC 231 (CanLII). Incidentally, the Justice in this case happens to be Justice Stack, who is harshly criticized by Craig in her book, for his reasoning in the S.B. case.