Policing Thoughtcrime: The Role of Law Societies?

I’ve been thinking a lot recently about the role Law Societies play in regulating the opinions expressed by lawyers. Lawyers are required to be “respectful” of tribunals and courts, yet they’re also required to be critical of injustice when they see it. How does one reconcile these sometimes-conflicting duties, and who decides what behaviour is acceptable?

We live in a time of societal reckoning. Given the pandemic and some of the issues that have been front and centre, it is a time when many are challenging fundamental assumptions about how (and by whom) law is created, enforced and imposed. Although respect for our legal systems is required, fundamental rethinking of our legal systems themselves may require some creative thinking – and may occasionally show less respect than we’re accustomed to for the systems we have in place. People are beginning to challenge systemic racism and biases in our justice systems. Is that suggestive of respect for our legal system? I’d think not.

I’ve been openly critical of courts and our justice system – usually in specific instances – on my blog, for instance. I asked on Twitter (back in April) what people think of this, given that I had noticed several lawyers on Twitter deleting comments they had made that were slightly critical of the Supreme Court. One lawyer privately noted that he liked the points that I made. Another lawyer (bravely) publicly commented that “The litany of wrongful convictions in this country have exposed a series of systemic issues in our justice system. Robust and reasoned criticism should be encouraged” – which is perhaps more aspirational than practical. The very fact that lawyers are constantly deleting their comments is precisely indicative of the concern I am raising – if lawyers are terrified of criticizing courts, what kind of justice system is this altogether? An Orwellian version of 1950s McCarthyism? Other present-day countries for whom freedom of speech is an absolute joke?

It brings to mind the saga of Joe Groia – the lawyer who was harassed by the Law Society of Ontario for decades, finally to be vindicated by the Supreme Court some 4 years ago. He spoke at my school a while back, and he was easily the most inspiring figure I heard there – and I heard more than one Supreme Court justice speak. More on him below.

Judges

A major problem with our justice system is its aura of invincibility. Judges are practically equated with deities. This is not helpful to anyone, yet it permeates the culture in legal circles. I think treating judges as human beings would go a long way toward leveling the playing field and making our justice system more equitable, accessible and just.

For example, judges are “presumed to be impartial” and courts are often very resistant to the idea that a judge made a mistake – or worse, appeared to be biased against one side or another. I actually had a judge practically scream at me (while denying a mistrial application) about how fair all judges on the bench were – prior to my successful appeal of his trial decisions – primarily on the ground of bias.

Why are we so resistant to the idea that judges are human beings, and often simply do not bring their best selves to work? Lawyers – including very senior ones – are constantly disciplined for various misdemeanours and accounting irregularities, etc. Why do we assume that, once someone is appointed to the bench – particularly given that many appointments are political – they turn into a saint who can do no evil? Who does this fantasy serve? Certainly not the public nor the “administration of justice.” See Richard Posner’s excellent book for more on the humanity of judges.

Note the excellent decision of R. v. Gashikanyi, 2017 ABCA 194 – cited approvingly by the Supreme Court in R. v. Parranto, 2021 SCC 46 at para. 139 – in which Berger JA notes that judges are “no different than butchers, bakers, and candlestick makers” (para. 72). In para. 74, he notes – quite correctly, I’ll note – that “a disproportionate opportunity” is afforded to “certain judges to shape the jurisprudence of the Court.” Rowbotham JA strongly disagreed – ironically noting the “very high” presumption of judicial impartiality, “not easily displaced” (para. 116).

In R. v. Sitladeen, 2021 ONCA 303, Miller JA criticizes scholarly articles as “legal advocacy” and a “backdoor admission of expert social science evidence” (paras. 101, 99). If this is true, it is concerning, given that the majority of Supreme Court of Canada decisions rely on “legal advocacy” – including recent, extensive reliance on Professor Craig’s book “Putting Trials on Trial” – which I critically review here.

In R v Stephan, 2021 ABCA 82, the ABCA found that the trial judge’s behaviour gave rise to a reasonable apprehension of bias (para. 148). The Crown had delicately suggested not that the judge was “actually biased, only that the cumulative effect of some of his comments give rise to that perception” (para. 111). In that case, the trial judge had commented negatively about the accent and language skills of a proposed Crown expert. Based on my understanding of the facts of that case, I disagree with the Court of Appeal’s finding that the judge’s words would lead to a reasonable apprehension of bias (or actual bias), and the Crown subsequently stayed the proceedings anyway. It also appears that the expert was an absolute fraudster. In any event, would it have been a breach of Crown ethical duties had they alleged that the judge was actually biased? I would hope not – but again, it’s difficult to reconcile with the duty to be respectful of the court.

In R. v. Brown, 2003 CanLII 52142 (ON CA), the Ontario Court of Appeal dismissed a Crown appeal of a summary conviction appeal that had overturned a conviction where allegations of racial profiling against the arresting officer were found to be improper – at the trial level. Morden JA found that “open indication of distaste or, to use a synonym, aversion, during the presentation of a case is utterly inconsistent with the duty of a judge to listen dispassionately with an open mind” (para. 103).

Another judge who was publicly criticized is Judge Camp.[1] He was famously disgraced publicly (perhaps “tarred and feathered” would be a more accurate account) for making statements about a complainant in a sexual assault trial that were said to be demeaning. I think he did nothing wrong, and it’s a shame he was fired. What’s worse is so many judges do far worse than what he was accused of – usually towards presumptively innocent accused persons (for example, disbelieving them without good reason, presuming them to be guilty, etc.). I’ve never heard of anyone being disciplined for that – especially if they’re less overt about their views (“I mean, mistakes happen, right? That’s why we have appeal courts”, etc. etc.). Even in disturbing cases of wrongful convictions rarely being overturned (for example, R. v. Ururyar, 2017 ONSC 4428 – the trial judge’s reasons were simply “incomprehensible” and 4 of 6 grounds of appeal from conviction were valid – paras. 57, 62, 64, 66), I don’t recall a stitch of public outcry for sanctions against the judge – why is that? It’s a good thing that judge didn’t say anything even slightly distasteful to a lying complainant, as Judge Camp may have – otherwise, he’d be unceremoniously dumped, too. See also the R. v. Howe, 2015 NSCA 84 fiasco I discuss (alongside Ururyar) here – note the Ururyar judge’s recent virtue signaling post here – an apology to the public and to the accused would have been far more appropriate. See also here and here.

In R. v. Ibrahim, 2019 ONCA 631 (Star), the ONCA was highly critical of the trial judge’s (ON Superior Court Justice Robert Clark) “injudicious” (para. 95) approach, criticized his criticism of the ethics of counsel (finding them to be “unfair” and unfounded” – at para. 87), and criticized his refusal to allow counsel to rely on their observations at trial (para. 89). The appeal court was also quite concerned about allegations of injudicious judicial “deportment” (yelling, etc.) alleged by the appellant, not deciding whether it gave rise to a reasonable apprehension of bias (para. 109). In the conclusion, the appeal was granted on other grounds (para. 116). See paras. 113-114, emphasis added:

We appreciate that a lengthy murder trial can be very stressful for all involved — the jury, witnesses, counsel, court staff, the judge, spectators and, most especially, the accused person and his or her family, as well as the deceased’s family, friends and supporters. There is so much at stake. Emotions may run high. Things may be said that should not have been, or words spoken in an ill-advised manner. In most cases these moments naturally pass, perhaps after a short break. Sometimes an apology may be warranted. Nevertheless, and notwithstanding where fault lies, it is the trial judge’s responsibility to reduce the stress of conflict, not to exacerbate the situation through harsh words, a raised voice, or distracting and hostile non-verbal communications.

As Lord Denning said in The Family Story (London: Butterworths & Co. (Publishers) Ltd., 1981), at p. 162: “When a judge sits to try a case with a jury, he is himself on trial — before his fellow countrymen. It is on his behaviour that they will form their opinion of our system of justice.”

The mistrial application was dismissed (R. v Ibrahim, 2016 ONSC 7665 – a hefty 66-page decision) – subsequently criticized despite its length. Note defence counsel was racialized – same defence counsel as in R. v. Hill, 2011 ONSC 3935. Another racialized defence counsel recently disparaged here. Their crime? Speaking truth to power. I’ll get into this further, below.

Same judge also in R. v. Ruthowsky, 2018 ONCA 552 – appeal bail sadly denied. Also, similar allegations made against this same judge in both R. v. Gager, 2020 ONCA 274 (albeit dismissed – para. 150) and R. v. Mills, 2019 ONCA 940 (dismissed, e.g. para. 238) – hat tip Chris Sewrattan. Note also R. v. Roberts-Stevens, 2018 ONSC 6184, at paras. 62, 92-95 – agreeing with Paciocco JA’s observation in Ruthowsky that allegations of bias should ideally be brought at trial – not on appeal for the first time.

Same judge again in 2010 – mistrial granted. Note very senior defence counsel in that case (Eddie Greenspan) – one shudders to imagine how a junior counsel would have fared (not that I’ve ever been on the receiving end of a judge’s unseemly wrath for bringing an appropriate – and subsequently vindicated – mistrial application). Then again, in 2017, the same judge granted a mistrial for having uttered an obscenity during trial – just about everyone heard it, but he somehow insisted that he did not, in any event. What is that – 6 known requested (2 granted) mistrials from the same judge in less than a decade? Simply obscene. See here and here for more on this.

This judge was appointed in 2003, had been a Crown since 1984. Retired just last year. No publicly available record of discipline that I could find – likely safe to assume he received no discipline and/or complaints despite his clearly egregious misconduct over the course of a decade or longer.

The assertion that judges – who earn upwards of a half million dollars a year – are somehow vulnerable and deserving of extra protection (e.g. Rule 5.6 of the LSA’s Code of Conduct) is simply preposterous and inappropriate. Seriously?

See also Abbe Smith, Judges as Bullies (2017).

Lawyers’ Civility Requirement

Lawyers sometimes bravely and rightly criticize our justice system. For example, “Systemic racism in criminal punishment is not a uniquely American phenomenon”.

Pre-Groia: “Judge Camp’s conduct and reasons in Wagar angered and disgusted me.” – Prof. (now ABQB Justice) Alice Woolley, emphasis added, ABlawg. Further,

The exhortation to fair and temperate criticism needs to be understood in light of these broader concerns. As the Supreme Court said in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, “lawyers should not be expected to behave like verbal eunuchs. They not only have a right to speak their minds freely, they arguably have a duty to do so” (at para 68).

Or “…The findings affirm Woolley’s initial impressions when she first reviewed the transcript of the original trial. “I had a friend at the Crown and he read it with me,” she recalls. “We said, ‘oh, my God, this is jaw-dropping.’” Also temperate and respectful?[2]

The SCC released its decision – 4 years ago – in Groia v. Law Society of Upper Canada, 2018 SCC 27. Finally, some direction! In its decision, the Court recognized that trials are “often hard fought” and are “not tea parties” (Groia, paras 3 and 99). It is clearly virtuous – and arguably obligatory – lawyerly conduct to “raise fearlessly every issue, advance every argument and ask every question, however distasteful” to advance a client’s interests within the boundaries of the law (Groia, para 73). This is especially true in the criminal context, where liberty interests are at stake and the client has a constitutional right to make full answer and defence (Groia, para 62).

“In other words, allegations that are either made in bad faith or without a reasonable basis [may] amount to professional misconduct” – paras. 81-83. In other words, the presence of good faith and a reasonable basis should be absolute bars to a finding of misconduct. It would be nice if this were the standard enunciated and applied by Law Societies – rather than their obtuse, ambiguous, and contradictory ones (more on this below). Perhaps Law Societies can start by updating their “archaic” (p. 30) legislation in this manner – which clearly were updated after the Groia decision (sarcasm). While they’re (hopefully) at it, getting rid of the “confidentiality” requirement around complaints would also make sense, given that it protects no one but itself from criticism.

Apparently, despite the SCC’s very clear direction in Groia (following a decades-long, obscenely expensive, crippling and wrongful Law Society persecution of him), some law societies appear unprepared to accept its conclusions. Clearly, it is not only some appellate courts that choose to ignore Supreme Court decisions when they are not to their liking.

I have engaged in a bit of research while preparing this blog post, and it is my position that the “line” of civility is extremely ambiguous – pre-Groia, anyway. I have specifically reviewed, among other sources, The Advocates’ Society (rule 78); Groia v. Law Society of Upper Canada, 2018 SCC 27 – reviewed here, and the Law Society of Alberta’s Code of Conduct, e.g. 5.1-1. I note the commentary on 5.6 (emphasis added):

A lawyer should take care not to weaken or destroy public confidence in legal institutions or authorities by irresponsible allegations. The lawyer in public life should be particularly careful in this regard because the mere fact of being a lawyer will lend weight and credibility to public statements. Yet, for the same reason, a lawyer should not hesitate to speak out against an injustice. […]

Criticizing Tribunals – Proceedings and decisions of courts and tribunals are properly subject to scrutiny and criticism by all members of the public, including lawyers, but judges and members of tribunals are often prohibited by law or custom from defending themselves. Their inability to do so imposes special responsibilities upon lawyers. First, a lawyer should avoid criticism that is petty, intemperate or unsupported by a bona fide belief in its real merit, since, in the eyes of the public, professional knowledge lends weight to the lawyer’s judgments or criticism. Second, if a lawyer has been involved in the proceedings, there is the risk that any criticism may be, or may appear to be, partisan rather than objective. Third, when a tribunal is the object of unjust criticism, a lawyer, as a participant in the administration of justice, is uniquely able to, and should, support the tribunal, both because its members cannot defend themselves and because, in doing so, the lawyer contributes to greater public understanding of, and therefore respect for, the legal system. [4] A lawyer, by training, opportunity and experience, is in a position to observe the workings and discover the strengths and weaknesses of laws, legal institutions and public authorities. A lawyer should, therefore, lead in seeking improvements in the legal system, but any criticisms and proposals should be bona fide and reasoned.

For example, Rule 22: “Advocates should use tactics that are legal, honest, and respectful of courts and tribunals” (Advocates’ Society). Rules 79-87 include what counsel are entitled to expect from the judiciary, including 82: “Advocates are entitled to expect that judges will not unfairly or unjustifiably reprimand, criticize, disparage, or impugn counsel, litigants, and witnesses, or demonstrate or engage in intemperate and impatient behaviour.”

See also A. Woolley, Does Civility Matter?, (2008), at 188: and “Uncivil by too much civility”?: Critiquing Five More Years of Civility Regulation in Canada, 2013 CanLIIDocs 759, at 266.

Civility in the Courtroom | CanLII: Nicole Lewis, 2019 (stumbled upon excellent freely-available Carleton County Law Association’s criminal law conference materials, 2014-2019). Notes “contradictory” and “ambiguous” (I’d prefer “obtuse”) Law Society rules regarding civility (pp. 3-4), and mentions Groia.

Speaking of Groia, the prominent lawyer Frank Addario trashes the Law Society of Ontario in this 2015 article for the Star. It is so good I will need to quote the majority of it:

In an age when wrongful convictions are unearthed regularly and newspapers abound with stories of government misconduct, one might expect the role of defence lawyers to have earned a modicum of respect.

Guess again. The unsettling case of lawyer Joseph Groia is a shining example of how poorly the role of defence counsel is understood.

Groia is accused of defending his client too enthusiastically. […]

The scorecard is grim for Groia. After a slew of hearings, he faces a one-month suspension of his right to practise law and an order that he pay $200,000 in legal costs. Further appeals will likely focus on two central questions: Is there a need to rein in the defence bar? And if so, is there a means to do so that will not endanger the trial process?

The answer to each question is an emphatic no.

Groia’s sin during the lengthy Bre-X trial was to allege, noisily, that Felderhof had been abused and railroaded. Depending on one’s perspective, his manner was gratuitously rude and bombastic or tough, fearless and effective.

That a lawyer vigorously defending his client could be seen as deserving of professional censure reinforces the popular urban myth that defence counsel are more disruptive than helpful when it comes to achieving justice.

The courtroom is not a trousseau tea, where genteel bewigged lawyers agree to disagree. For the defendant it is a fight for his life; one in which the odds are stacked against him by a better-resourced opponent wearing the white hat. A certain amount of toughness is necessary.

If certain defences are off the table because they are too rude to advance, it is not the defence lawyer who suffers; it is the credibility of the legal system as a vehicle for getting to a just result. If a defence lawyer runs the risk of suffering reprisal, how can she be expected to take an unpopular or even irritating position? […]

Recently, the Ontario Court of Appeal overturned an attempted murder conviction on the basis that the trial prosecutor behaved with unacceptable zeal. The defendant — an intensely religious man entangled in a vitriolic separation — was accused of inciting the couple’s three children to drown their mother. In his closing address to the jury, the Crown referred to the defendant as a dangerous “Jesus nut.”

The chance of this prosecutor being disciplined or fined is close to zero. He might be counselled to temper his enthusiasm, an appropriate solution. Groia, on the other hand, saw his reputation and his pocketbook trashed for his transgressions. […]

If it is too much to expect the general public to understand the importance of what we do, it cannot be too much to ask of those who regulate our profession.

See also this great article on Groia, prior to the SCC decision (emphasis added):

The Ontario legal regulator has done absurd things over the years, but the most egregious is to attack Joe Groia and make him the poster child of a civility campaign.

When the justice system is splitting at the seams, students can’t find jobs, unrepresented litigants are clogging courts and new competitors are emerging to eat lawyers’ lunches, the law society focuses on civility. Rome burns and Nero fiddles. […]

His biggest transgressions were a sharp tongue, piercing words and pushing back hard for his client, despite a threatening letter from Big Brother hanging over his head.

He’s paid the ultimate price. His legal bill is nearing $2 million […]

There’s the rub. In an adversarial system, it takes two to tango, yet Groia was the only one charged. No prosecutors were called on the carpet for their tactics in that trial.

Groia’s case has become one of historical revisionism, with every level of court and tribunal doing what lawyers are so good at — second-guessing, navel gazing and using hindsight. Facts are cherry-picked or ignored to support viewpoints. […]

Rather, the legal regulator circled the wagons around lawyers at the securities regulator, including Naster [Crown], who later worked for the law society on the prosecution of former Torys LLP lawyers Beth DeMerchant and Darren Sukonick.

The profession should be concerned about the Groia case because, in civility prosecutions, defence counsel wear the target on their back.

A 2013 paper by lawyer Don Bayne examined law society statistics from 2010 to 2012 and found that 88 per cent of the incivility complaints involving criminal lawyers were against defence counsel; only 12 per cent involved Crown counsel. Also, judges complain more about criminal lawyers than any other type of lawyer. Bayne identifies a number of instances where the prosecution crossed the line in the Felderhof case, but he notes that Crown counsel “bore no discipline measure of responsibility for its role in the Felderhof incivility.” […]

Let’s hope the SCC sees it as broadly as Brown. Otherwise, litigators, get out your muzzle; the law society is watching you.

All excellent points. Defence counsel absolutely have a target on their back – particularly junior and racialized ones. Crowns are almost never the subject of serious scrutiny by Law Societies – bizarre, given its clear mandate to “protect the public” and the incredible power wielded by that particular office. Would Groia have been able to survive the onslaught had he been less senior and respected? Unlikely. He was called to the bar in 1981 – over 20 years before the brouhaha began.

Racism

The following SCC decision is said to be a racist decision: R. v. S. (R.D.), 1997 CanLII 324 (SCC) – a case I comment on here. See Richard Devlin’s 1995 article pre-dating it and Constance Backhouse’s recent (and quite troubling) article. See criticism from Prof. David Tanovich of our criminal justice system, based on this case. Another good example of a critique of our justice system by a prominent and excellent defence lawyer: “The problem is that it’s so rare to see the presumption of innocence actually play out in the courtroom – especially when the accused is racialized.” I haven’t heard of anyone (yet) getting into trouble for this type of criticism of our highest court. Are allegations of racism condoned while allegations of butchering the law of sexual assault or ignoring the presumption of innocence so obviously beyond the pale and/or scandalous?

I’ve reviewed a recent, “successful” Law Society of Alberta persecution of a senior, racialized defence lawyer on grounds of incivility. Noting Groia, the appeal panel upheld the prior finding of misconduct. The lawyer had sent around a letter complaining about the ethics of a judge whom he had dealt with extensively as a Crown in her prior career (LSA obviously refusing to publish the judge’s name). Given its acknowledgment that Groia suggests good faith and a reasonable basis can be absolute bar to a finding of misconduct, the panel (surprisingly?) found that it was not in good faith. A determination premised on what, you ask? Well, he hadn’t complained to the Law Society (para. 111), so clearly it was a frivolous complaint! I’d be tempted to call this reasoning “asinine” but I’m not sure if that’s permitted. Who do I ask?

A complaint about a former Crown who is now a judge is not an isolated event – nor by definition unjustified, as the LSA appears to think. See R. v. Strybosch, 2021 ONSC 6109.

Why the Law Society was not concerned about the substance of the complaint about the judge (or other Crowns in that office), choosing instead to shoot the messenger, is unclear. Are they protecting the public? It sure doesn’t seem that way. Instead, they seem eager to sanction (and muzzle) racialized, primarily junior, defence lawyers. For shame.[3]

 

[1] Not the first or last time a judge was ambushed in the court of public opinion (see 1990 case of Judge Bourassa).

[2] Speaking of temperate criticism, see Prof. Dufraimont’s new article on rape myths – my Twitter critique of it here and here. Noting my review of Prof. Sankoff’s seminar and this.

[3] Note the LSA’s lip service to “diversity” – e.g. “My Experience” Project – Law Society of Alberta, claiming to give voice to those who have experienced racial discrimination in Alberta.

25 “I have had my fair share of experiences that I can’t term as anything other than discriminatory and stereotyping, specifically by judges”, 2,

4 – “While for the most part, I have been treated with a basic level respect by colleagues in practise, I continue to experience “microaggressions” every day from lawyers and judges a like, that remind me that I am still an outsider” and “We are in a unique position to actively challenge, test, and thereby shape the legal system, and I would argue – it is our duty to do so.”

See also 8, 11, 13, 17, 18, 20, 23, 24, 26, 30.

“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.

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

I 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.