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).

2. 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.

3. 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”.

4. “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.

5. 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?