Tag Archives: guilt

The Trial of Steven Truscott – How Little has Changed since 1959

“And with the greatest respect, my lord, I submit that the jury listening to your charge could not help but get the impression that you consider a verdict of guilty was warranted on the evidence,” Steven’s lawyer said. It was as close to calling a judge biased as a lawyer could go.

The judge’s five-word response was stunning.

“What is wrong with that?”

I recently read the excellent 1966 book by Isabel LeBourdais, The Trial of Steven Truscott (Amazon). It details a wrongful conviction from 1959 – a grisly rape/murder of a 12 year-old girl for which a 14 year-old boy (Truscott) was wrongfully accused, convicted and sentenced to hang. Thankfully, the sentence was soon commuted to life imprisonment and he was released after about 10 years of wrongful imprisonment. It appeared to capture the public’s imagination – given the nature of the tragedy of both the murder of the victim and the imminent hanging of the other victim (the wrongfully charged and convicted 14 year-old). The commutation of the sentence to life imprisonment helped to somewhat lessen the consequences of the tragedy.

See “Requiem for a fourteen-year-old”, a haunting poem by journalist Pierre Berton, published in the Toronto Star on Oct. 5, 1959 – a mere six days after the sentence, and quoted in LeBourdais’ book (“Just eye for eye and tooth for tooth/Tooth for tooth and eye for eye:/A child does murder/A child must die. […] Save your prayers for the righteous ghouls/In that Higher Court who write the rules/For judge and jury and hangman too:/The Court composed of me and you.”). Apparently, Berton received a ton of hate mail for it (p. 212), including some wishing horrendous things on his own children.

Truscott’s wrongful conviction may never have reached the public consciousness as such if not for the superhuman efforts of Isabel LeBourdais (she was almost unknown before her book). Apparently, the SCC, in its unhuman arrogance, refused to allow her a seat[1] to watch the “retrial” or Reference. It apparently took her a long time to find a publisher for her book, given that she was – gasp! – critical of our justice system[2]. Publishers (and their lawyers) were concerned of being found to be in “contempt of court” if they published her critique and they all turned her down, until she eventually found a willing publisher. Has anything changed in the 55 years since then? Absolutely not! The hubris of our judicial system – and the sheer horror that accompanies any criticism of it (unless of course adjudged to be politically correct, such as Elaine Craig’s unjustified and vague critiques) – continues to be astounding. Note the book is reviewed: “The book is a “terrible revelation of the bumptious arrogance, the pretence and the ritualistic nonsense which afflicts the Canadian courtroom“” and “Crown counsel, she said, was antagonistic, vindictive, and interested only in securing a conviction – wasn’t interested in the cause of justice at all” – Innocence Lost, pp. 65 and 66, emphasis added.

A brief history of the case: Truscott told police when the girl had gone missing that he had given her a bike ride to the highway, and that he had seen her get into a car. The police and Crown – instead chose to proceed on the assumption that he never took her to the road, but had instead gruesomely raped and murdered her in the nearby bushes – where she had been found a day or two later. Whether this choice of the prosecution was because they had no other suspect and almost no real evidence (hence a bit desperate) or was a product of their sick minds is difficult to know. There is some indication in the literature (e.g. Real Justice) that there was a viable suspect that was not investigated, given his military rank.

In any event, the media quickly bought into this absurd theory. So did most of the townspeople of the little town he lived in. Clearly, so too did the judge and jurors at his 1959 local trial – see chapter XI of the book for eye-raisingly alarming misrepresentations and “spin” by the judge in his charge to the jury at the end of the trial – some notable examples include commenting on Truscott’s appearance at trial as apathetic (“You will ask yourselves and you will ask yourselves the reason if this boy is guilty, why he has shown such calmness and apathy” – dismissed by the SCC, though slammed by Hall J. in dissent), misstating the evidence on multiple points, showing significant favouritism to the Crown’s case, “experts” and witnesses, even suggesting an inference not available in the evidence – that if Truscott was not lying about taking her to the highway – as the Crown had so strenuously argued he was lying – he might have also taken her back, as someone must have(!). You’ll never believe that the judge (Justice Robert Irvine Ferguson – bio likely here, he had 9 years of judicial experience at the time of trial) later tried to get LeBourdais (and Berton) in trouble for writing her book (recommending a prosecution for public mischief, given her “thoroughly dishonest piece of writing” – in his opinion – and “vilification of the courts” – surprisingly not pursued by the Attorney General – without a doubt no one dared complain about the judge himself and if they had, they would have been punished)! Don’t get me started on the Crown’s behaviour at the trial, which objectively should have been more than sufficient for him to have been disbarred (one example was a sly mention to the jury of a statement made by Truscott that was later ruled inadmissible – even the judge said the Crown had “made a mistrial” with his idiotic and unethical comment – unfortunately, it was overlooked later in the trial and surprisingly found to be insufficient for a new trial according to the SCC). I can guarantee you he faced absolutely no censure – I’d be surprised if he (Glen Hays, Q.C.) wasn’t promoted and/or appointed a judge after his unethical behaviour at trial. Well done!

In the book, the overwhelming presumption of guilt that appeared to surround these charges (both at the time of trial and much later, clearly) is extremely obvious. She points out the editor of the local paper telling her he didn’t know a soul who didn’t believe in Truscott’s guilt.

After conviction, the Ontario Court of Appeal refused to overturn the conviction (a 5 member unanimous panel – Regina v. Truscott, 1960 CanLII 474 (ON CA), as did the Supreme Court (shocker!) shortly thereafter (not reported, apparently they dismissed it 2 days after it was filed, according to Real Justice). Following the controversy following the release of the book (it had 4 editions in 1966 – likely a bestseller), the SCC (very reluctantly, it appears – note LeBourdais’ accurate prediction that the SCC would not be prepared to overrule its earlier decision) agreed to hear a retrial (a Reference – apparently the first time the SCC had ever allowed new evidence on an appeal). In the SCC, Truscott testified (he didn’t at trial – not that, God forbid, that was used against him in any way, shape or form, at the trial). In any event, the SCC found him to be incredibly unreliable (“Since the evidence was given at trial, Truscott has testified on the reference. We refer herein to the parts of his testimony which simply cannot be believed” – emphasis added. Why can’t he be believed, you ask? Because, among other things, the SCC was convinced the killing happened where the body was found – definitely not true, and the book goes to great pains to show why this is not the case) and appears persuaded by the Crown’s child witnesses, most of whom were lying through their teeth – establishing that the SCC is just as bad at assessing credibility as it is at both applying the law and amateur sleuthing. Truscott had the benefit of G. Arthur Martin, Q.C. as his lawyer at the SCC – probably the most respected criminal law mind in Canadian history. Note the Crown had no doubt some of the best lawyers in the country representing it at the SCC (W.C. Bowman Q.C., D.H. Scott, Q.C., and federal deputy justice minister D.H. Christie, Q.C. – later associate chief judge of the Tax Court [3]) – yet it didn’t disclose critical information (such as Dr. Penistan’s recent, “agonizing reappraisal” nor the presence of a 4th witness, Karen Daum, who corroborated Truscott’s 3 other witnesses – each of whom the Crown had claimed were liars).

There was a vicious “battle of the experts” at the SCC, along with various new evidence adduced (almost entirely thanks to LeBourdais’ fantastic book). After a multiple day hearing, the SCC reserved its decision. When it returned its decision (Reference Re: Steven Murray Truscott, 1967 CanLII 66 (SCC)), it dismissed the appeal, by an 8-1 margin. The lone justice apparently prepared to acknowledge innocence when it stared him right in the face was Justice Emmett Hall (highly respected and not a member of the SCC when the first appeal was dismissed).

The case more-or-less disappeared from the public limelight afterward. In 2000, a Fifth Estate episode and very hard work by Innocence Canada (lawyer James Lockyer, among others, and extensive new entomological evidence), the ONCA agreed to reopen the case, overturn the conviction and enter an acquittal in its place (Truscott (Re), 2007 ONCA 575). The poor victim was even paid a few million dollars of “hush money” by the government for his troubles. As far as I know, the SCC has not yet apologized (and why should they, given that they’re infallible) – nor have they even acknowledged their horrendous, inexcusable and bone-headed role in this awful wrongful conviction.

What I find most shocking about the SCC’s decision was its conclusion that the weight of the evidence – including the new evidence – points to guilt and that “parts of his testimony simply cannot be believed” [4]. How that finding is compatible with any of the 8 being, er, the most intelligent judges in the country is simply mind-blowing[5]. A quick review of the book (and/or the new evidence) is all that is needed to see that the conviction was incredibly weak. How that could be missed can only be explained by tunnel vision, or at best – the presumption of innocence being an absolute joke[6] (of course, the SCC likely didn’t read the book – why would they? Definitely want to make sure the Crown gets a “fair shake” at the hearing).

There were a number of issues that the Crown relied on to obtain the conviction, including but not limited to:

  1. Numerous eyewitnesses (mostly children) that swore up and down that they had or hadn’t seen the accused at the appropriate times (on the bridge, biking back, etc.). Of course, there were many other children testifying for the defence, but they were mostly “liars.” The Crown witnesses were clearly tampered with and coached excessively by police and/or Crown, and most were almost certainly lying (see Real Justice). Nevertheless, their testimony was considered extremely reliable – by the Crown, trial judge, jury, and clearly the SCC on both occasions. In fact, you can say the SCC largely “hung its hat” on this absurd and tenuous testimony in 1967, essentially finding that there was no other way to explain such convincing “evidence” of guilt. See here.
  2. The stomach contents evidence – the Crown relied on very shaky “evidence” at trial from pathologists (primarily Dr. Penistan) who insisted that the stomach contents put the time of death precisely between 7:15-7:45 PM that evening, which tightened the grip “like a vise” around Truscott, according to the trial Crown in closing argument. There were significant weaknesses in this nonsense, and some of it was exposed by defence at trial, especially by its own expert, and also by LeBourdais in her book (extensively – suggesting the time of death was quite possibly at least a few hours later – Innocence Canada notes that Dr. Penistan’s draft notes at the time of the autopsy – not disclosed to defence – put the timeframe after midnight that evening, 5 hours later than the time Dr. Penistan swore up and down at trial that the death occurred). On the 1967 Reference, countless experts were called – by both sides – with at least one Crown “expert” making a complete ass of himself thanks to rigorous (and legendary) cross-examination by G. Arthur Martin (excerpted in just about every Canadian advocacy textbook – neglecting to mention that the “ammunition” for this lethal cross-examination likely came directly from LeBourdais’ book) – not that the inconsistencies appeared to be recognized by the SCC. Somehow, this wasn’t sufficient for the SCC to overturn the conviction. Note that on the 2007 reference, a big part of the decision focused on newer, entomological evidence that also destroyed the Crown hypothesis. Did I mention that Dr. Penistan had an “agonizing re-appraisal[7] of his opinion prior to the 1967 Reference (right around when the book was released – coincidentally!), which was never mentioned to the defence, and he was (surprisingly!) not called at the SCC Reference? Note that the Crown even had the nerve to call further evidence at the 2007 Reference supporting Dr. Penistan’s trial perjury/lies – thankfully dismissed by the Court (paras. 165-166). Of course, theoretically improved (as of the ‘90s) Crown “disclosure obligations” should fix that! (sarcasm).
  3. Genital lesions on Truscott – the Crown made a very big deal out of these at trial, and is utterly demolished in the book. Thankfully, the Crown appeared to ignore the issue at the Reference, and practically conceded that it was entirely BS. Apparently, 5 dermatologists further testified at that Reference (all for defence) that the Crown trial doctors (including Penistan, whose other testimony should also be suspect as a direct result of these lies) were full of s**t – at best – who cares, right?
  4. View of the highway from the road – Truscott had told police that he could see the colour (not the numbers, as was wrongly claimed at trial by both the Crown and judge) of the license plate that picked up the girl from where he stood on the road. Misleading Crown evidence “showed” he was a liar – thoroughly debunked in the book. Insufficient – surprisingly – for a new trial at the SCC (downplayed there altogether), despite the egregious nature of this bogus evidence and the very significant negative (or positive – depending on your perspective) effect it certainly had at trial.
  5. There was also some crap about Truscott telling a kid (Arnold “Butch” George) to back up his “alibi” defence – this is also thoroughly demolished in the book. Note that George had originally told police that he had seen Truscott and retracted it the next day – once the police began homing in on Truscott as the suspect – and then claimed Truscott had told him to lie for him. Of course, dangerous for Truscott’s credibility and “character.” Concerningly, not criticized by SCC.
  6. There was another witness (a Jocelyne Gaudete – incredibly unreliable) who made up a story about Truscott trying to get her to see some calves (or ponies – I’ve lost track at this point) with her – you’ll be surprised to know that her evidence was relied on heavily by the Crown to secure the conviction (see here for weaknesses in her evidence – known to police and/or Crown at the time)! Her story included that Truscott had told her not to tell anyone – also (false) bad character evidence. Of course, more awful bad character evidence, which I’m sure courts these days would excuse as necessary for “narrative,” as the SCC majority blatantly did in the 1967 Reference.
  7. The accused did not give evidence at his trial – definitely not allowed to be relied upon to establish guilt (in theory), but in practice, it very often is (to this day!) – in Canada, anyway[8]. Note the second sentence of the 1967 reference (emphasis and brackets added): “Most of the evidence was circumstantial [ya think?] and the accused did not give evidence at his trial [therefore? …]”.
  8. Media – in fact, allowed to be tried as an adult to entitle the media to broadcast his “guilt” as early and as often as it pleased and to allow for the death penalty (Regina v. Truscott, 1959 CanLII 496 (ON SC) – note the ironic finding that “in a matter of this kind where public sentiment may have been aroused, the trial and disposition of the matter shall be in the ordinary course and free from any criticism” – emphasis added) – apparently, media allowed to report all of the details at the trial – despite the youth of the accused and the blindingly obvious prejudicial nature of this coverage.
  9. Have a load of this, from the SCC: “We do not think that there is any doubt about the place of death. The position of the body, the scuff marks and a footprint at the foot, and the flattening of the vegetation between the legs, indicated that the act of rape took place there.” This is dead wrong actually – it was definitely not the place of death, as established in the book, and conclusively at the 2007 Reference.
  10. The trial judge’s charge to the jury included (emphasis added) “It will be for you to say whether you accept Doctor Penistan’s theory, an Attorney-General’s Pathologist of many years’ standing, or do you accept Doctor Brown’s [defence] evidence.” Biased much?
  11. Blame defence counsel! Defence didn’t insist on a mistrial at the time – due to some blatant misconduct from the Crown that the judge at the time suggested called for a mistrial. Same with other clearly biased words from both the Crown and judge. Whether or not the SCC explicitly blames defence counsel, it certainly penalizes the victim, which further adds insult to injury. It’s very simple, SCC – glaring mistakes made by Crown, judge, etc. are grounds for a new trial – whether or not defence counsel objected at the time. Please don’t continue to blame the accused and/or his counsel (and visit the consequences upon them) for a grossly unfair system that they’ve done nothing to establish.

Here are some lessons I think we can all take from this awful wrongful conviction (ahem, SCC) – adoption of which may slightly reduce the odds in the future of this kind of travesty, considering that so little has actually changed in our laws or approach to criminal justice and trials in general since 1959 (other than abolition of death penalty, improved theoretical right to disclosure; otherwise, convictions have been made arguably a lot easier by “relaxing” of evidentiary rules and the quagmire that is “credibility contests” these days and denial of almost all possible defences for sexual assault charges – with ss. 276, 278, and the refusal to allow most defences by somehow calling them “myths” as I’ve blogged about extensively in the past):

  1. Presumption of innocence is a thing – it’s time to actually take it seriously, not just pay lip service to it, as we’ve been doing for a mere century or two. Maybe a complainant shouldn’t be defined as a “victim of an alleged offence” according to our Criminal Code (pre-conviction, s. 2, emphasis added). Same goes for ethical and fair conduct by the Crown and courts (of all levels – I should stress);
  2. Watch out for lying/perjuring “experts” – they’re fairly common, it appears;
  3. Watch out for lying/perjuring witnesses – these are also fairly common in Canada, it seems. Perhaps they should even suffer consequences on the odd occasion (blasphemy – I know). The excessive and obsequious “deference” regularly afforded to findings of fact as it relates to credibility of complainants in sexual assault (and other trials), as re-affirmed in v. G.F., 2021 SCC 20, is simply a travesty and practically explicitly invites and endorses wrongful convictions en masse. For example, an appeal of a sexual assault conviction in which some of the complainant’s testimony was found to be concerning, troubling, questionable, and a little unsettling (exact words used by the trial judge – R. v Saddleback, 2020 ABPC 168, at paras. 59, 60, 71) was found to be “frivolous” at the bail stage (R v DRS, 2021 ABCA 171, para. 13) – full disclosure, I was counsel at both levels of court;
  4. Bad character evidence against accused continues to be downplayed or ignored by appellate courts (including the SCC). It would be nice if they would start taking it even slightly as seriously as similar “evidence” against a complainant (e.g. “myths,” “whacking the complainant”, etc.);
  5. Media – they also need to at least pretend to respect the presumption of innocence. They should not be allowed to regularly plaster the names, faces and details of allegations of presumptively innocent accused persons – the same way they are almost never allowed to do so regarding the complainant;
  6. Disclosure – defence should have access to the entire police file, not just the parts the police and/or Crown deem disclosable;
  7. Anything else?

I’ll add below LeBourdais’ excellent foreword to her book (I should add the book should be required reading for all first-year law students, Crowns, academics, and judges of all levels) and Justice Hall’s dissent on the 1967 SCC Reference – emphases added.

Foreword: what does it really mean when a judge, under the law, instructs the jurors at the end of a trial that the accuse does not have to prove his innocence because the onus of proof is on the prosecution and that if there is any ground for a reasonable doubt the accused must be acquitted?

It means that we, the people, through our legislatures and our law courts, believe in the fundamental right of every one of us to the protection of his personal freedom and respect for his integrity. It means that regardless of any apparent circumstances those who accuse him of breaking the law must prove their case by clearly incriminating evidence, or it is they who are the transgressors against a fellow human being, not he.

Most of us give very little thought to the manner in which justice is administered. We leave it to the police, the magistrates, the judges and others involved in judicial processes. We chuckle at the time-worn jokes that a jury consists of twelve men chosen to decide who has the better lawyer, or that penitentiaries are inhabited solely by men who declare that they were unjustly convicted. But a news story about a crime, followed by someone’s’ arrest, interests us only slightly, for we usually take it for granted that the accused is guilty or the police would not have arrested him. We thoughtlessly line ourselves up with the police as judge, jury and even executioner.

How often does the most important fact enter our heads: that the accused is legally an innocent man until after he has been proven guilty?

It is customary for a judge to inform a convicted man that he has been found guilty after a fair trial, and for anyone who writes about a trial to assume that it was fair. By definition a fair trial is presumably one in which both sides have had legal counsel and the court was objective and impartial. That in many trials the scales are heavily weighted against the accused is admitted by every serious student of the subject. Therefore the accused has in fact had to prove his innocence regardless of what the judge might duly have said about the law in his address to the jury at the end of a trial.

This book is written in the belief that the law is a good law and should always give to the accused the advantage inherent in the presumption of innocence and not just lip service to that right, so that right is not a horrible, grim game with the accused tossed back and forth like a ball amid barrages of melodramatics and rhetoric. If the onus of proof is on the prosecution from beginning to end, it is always the accusers who must justify themselves, not the accused.

Justice Hall’s dissent:

Having considered the case fully, I believe that the conviction should be quashed and a new trial directed. I take the view that the trial was not conducted according to law. Even the guiltiest criminal must be tried according to law. That does not mean that I consider Truscott guilty or innocent. […]

It was inevitable that this horrible crime would arouse the indignation of the whole community. It was inevitable too that suspicion should fall on Truscott, the last person known to have been seen with Lynne in the general vicinity of the place where her body was found. The law has formulated certain principles and safeguards to be applied in the trial of a person accused of a crime and has throughout the centuries insisted on these principles and safeguards being observed. In the great majority of cases adherence to these fundamentals is not difficult but in a case like the present one, when passions are aroused and the Court is dealing with a crime which cries out for vengeance, then comes the time of testing. It is especially at such a time that the judicial machinery must function objectively, devoid of inflammatory appeals, with the scales of justice held in balance.

A bad trial remains a bad trial. The only remedy for a bad trial is a new trial. Accordingly, the validity of the trial is, in my view, the dominant issue. With deference to contrary opinion, I see no purpose in erecting a massive and detailed structure of evidence, inference and argument confirming a verdict that has no lawful foundation upon which to rest. […]

by his failure to stop Crown Counsel when in his speech to the jury he advanced subtly worded inflammatory arguments which should have been repudiated on the spot […]

The errors and inflammatory arguments were too numerous and too integrated into the whole of the case as to be capable of coming within the exception provided for by that section. […]

I do not find it necessary to go in detail into the medical evidence given on the reference in this Court. This has been done in the majority opinion and is seen to be contradictory in the extreme. This much must, however, be said that it tends strongly to increase the doubt a juryman may honestly have had as to the time of death, if properly charged […]

The reference to ‘apathy’ in this passage by the learned judge was purely gratuitous. The word itself or a condition or conduct so describing Truscott does not appear in the evidence. It had been urged that his appearance and conduct were normal. The learned judge wrongly transposed ‘normal’ into ‘apathy’. The dictionary definition of ‘apathy’ is ‘insensibility to suffering or feeling’. ‘Apathy’ in relation to the crime in question here was a description highly damaging to the accused. […]

A trial judge has the right to express his own opinion or opinions in the course of his charge to the jury, but he has the duty to put the defence of the accused fairly to the jury. This he did not do on this branch of the case. […]

The consequences of Defence Counsel’s failure to object at the trial do not fall upon counsel, but upon the client, in this case a 14½ year old boy on trial for his life.

I appreciate that after nearly eight years many difficulties will be met with if a new trial is held both on the part of the Crown and on the part of the accused, but these difficulties are relatively insignificant when compared to Truscott’s fundamental right to be tried according to law.


[1] See THE TRIUMPH OF ISABEL LEBOURDAIS | Maclean’s | November 19 1966 (macleans.ca); also THE TRIAL OF ISABEL LEBOURDAIS | Maclean’s | June 4 1966 (macleans.ca) See also Zealots at error | Maclean’s | FEBRUARY 22,1993 (macleans.ca); Marlene film (IMDB); and “Until You Are Dead”: Steven Truscott’s Long Ride into History: Sher, Julian: 9780676973815: Books – Amazon.ca

[2] “At some point, LeBourdais considered writing a magazine article, “but it just became too big,” her son says. “It became a book” – a book every publisher in Canada turned down on the advice of their lawyers, who were afraid it would be perceived as an attack on the justice system and lead to being found in contempt of court.” – The Star, emphasis added. See also Real Justice: Fourteen and Sentenced to Death: The story of Steven Truscott, 2012, Bill Swan.

[3] See Kaufman Report, 2004, Executive Summary

[4]The effect of the additional evidence which was heard by this Court, considered in its entirety, strengthens the view that the verdict of the jury ought not to be disturbed.” (emphasis added – also, nicely contradicted by the dissent)

[5] Oh, I see, the Chief Justice had begun his descent into alcoholism, at the time. That explains it (for 1 out of 8, anyway)!

[6] As I’ve suggested it continues to be. On a related note, I’m also enjoying this podcast (Not on the Record), and other similar material.

[7] So much for his confident trial certainty about a 30-minute window of time for the death to have occurred: “All findings are compatible with death within 2 hours of Lynne’s last meal. They are not incompatible with death at a later time (up to 12 hours or even longer)” – emphasis added, paras. 229-230 of 2007 Reference. So he may have been off by as many as 10 hours? Holy ****. Nothing to see here.

[8] See disturbing cases such as R. v. Prokofiew, 2012 SCC 49, where a 5-4 majority somehow found that commenting on accused’s failure to testify is not reversible error. Conversely, see People v. Hughes (2002) :: :: Supreme Court of California Decisions :: California Case Law :: California Law :: US Law :: Justia, emphasis added:

Pursuant to Griffin, it is error for a prosecutor to state that certain evidence is uncontradicted or unrefuted when that evidence could not be contradicted or refuted by anyone other than the defendant testifying on his or her own behalf. (People v. Murtishaw (1981) 29 Cal. 3d 733, 757-758 (Murtishaw); see also People v. Bradford (1997) 15 Cal. 4th 1229[27 Cal. 4th 372] 1339 (Bradford) [“a prosecutor may commit Griffin error if he or she argues to the jury that certain testimony or evidence is uncontradicted, if such contradiction or denial could be provided only by the defendant, who therefore would be required to take the witness stand“].)

“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?

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.