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

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

The judge’s five-word response was stunning.

“What is wrong with that?”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice Hall’s dissent:

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

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

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

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

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

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

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

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

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

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

Footnotes

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

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

[3] See Kaufman Report, 2004, Executive Summary

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

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

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

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

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

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

Law Blog

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

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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. Nyznik, 2017 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. Semple, 2015 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.

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The Presumption of Guilt in Sexual Offence Trials in Canada

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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?

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Articles on rape myths, etc.

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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.

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

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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 DD, 2000 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. 65; Kiss at paras. 101–102.  In my view, what A.R.D. and like cases warn against is the improper use of this type of evidence, not any use at all.

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

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

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

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

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

The legal position with respect to delays in disclosure dealt with by the Supreme Court in R. v. D. (D.), 2000 SCC 43, [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 Queen, 1983 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. Seaboyer, 1991 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. Potvin, 1989 CanLII 130 (SCC), [1989] 1 S.C.R. 525, at p. 544).

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

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

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

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.

Law Blog

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

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

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

The concept of the “presumption of guilt” is one that I was introduced to by reading Hersh Wolch Q.C.’s excellent lecture in “Counsel for the Defence: The Bernard Cohn Memorial Lectures in Criminal Law” (Amazon). Wolch argues that, despite the theory of a presumption of innocence, in practice, it usually operates more like a presumption of guilt. It’s a point that seems a daily reality to one who works in the criminal defence trenches, and it’s persuasively argued in Greenspan’s 1987 book “The Case for the Defence” – Macmillan (Amazon).

Greenspan’s book is excellent. Among other subjects, he discusses problems with the direction in which sexual assault laws in Canada were heading back then. Frankly, he was right on most counts. I’d say his words are more timely now than they were when he wrote them some 35 years ago. I’ll quote extensively from pages 224-244:

The problem here was simple. Our knowledge of human nature has always suggested that, on the whole, a real victim of sexual assault (or any other type of crime) would complain of it at the first reasonable opportunity. However, the new rules, while making life potentially easier for a lying complainant, made it harder for those truthful victims who did complain. Hindering witnesses who are somewhat more likely to tell the truth in order to help those who are somewhat more likely to lie did nothing, in my view, to assist the courts in their primary purpose, which is to arrive at a just result.

For instance, in common law the “recent complaint” rule used to permit complainants to bolster their own testimony by leading evidence that they had complained about being sexually assaulted at the first reasonable opportunity. This was simply to show consistency on their part – something that no other type of witness would be allowed to show (unless the other side challenged them by suggesting that their evidence was a recent fabrication). The rule favoured complainants. The downside of the rule was that, in the words of one judgment, “the jury must … be instructed that the absence of a recent complaint gives rise to an inference that tells against the truthfulness of a complainant’s evidence.” This rule was abolished. Curiously, while abrogating the rule made it easier to bring sexual-assault charges about which the complainant said nothing to anyone – whether at the first reasonable opportunity or ever – it took away a complainant’s chance to show the consistence of her allegation by a recent complaint.

Corroboration requirements were also abrogated, giving rise to a similar dichotomy. Judges used to be required to warn juries that, while it was open to them to convict on the uncorroborated evidence of a complainant, it was dangerous to do so, unless some other evidence connected her story to the alleged offence in some material particular. The abolition of this rule was actually welcomed by many defence lawyers, since in practice it often had the effect during the judge’s charge of focusing the jury’s attention on dozen of insignificant or dubious details in the Crown’s case as “corroborating” the complainant’s story. (For instance, the grass being flattened on a piece of ground could be held to “corroborate” a complainant’s story that she was raped at that spot – even though the fact in itself was just as consistent with the defendant’s claim that he had consensual intercourse with the complainant: the grass would be flattened in either case.) Still, while some reforms were needed, the total abrogation of corroboration rules tended to turn sexual-assault trials into a “her word against his” type of contest in which neither the truthful complainant nor the truthful accused could expect any help from the rules of evidence.

But all of this was dwarfed by the real problem, which was to severely curtail the defendant’s ability to test the complainant’s evidence against him through cross-examination. In some respects, complainants ceased to be compellable witnesses altogether. A complainant could no longer be asked many types of questions about her conduct – not even in a closed voir dire hearing to help a judge determine whether or not he should allow those questions to be asked in front of a jury.

The reasons for curtailing cross-examination were to save complainants from embarrassment, to protect their privacy, and to encourage them to come forward with complaints. However, whatever their merits, these reasons were not sufficient to deny natural justice to a man presumed to be innocent by preventing him from confronting his accuser, or to stop a judge from even considering whether an accused, by not being able to ask these questions in a given case, would be denied natural justice or not.

It was becoming increasingly difficult for anyone accused of sexual assault to exercise a citizen’s fundamental right to make full answer and defence to a criminal charge. […]

Evidently, many judges had not yet resigned themselves to asking participants to submit to a test of fire, as courts did in the Middle Ages, to see who was telling the truth. They wanted to preserve cross-examination – the finest instrument the law has for separating fact from fancy.

Some of then new laws were downright silly. For instance, a kiss could be defined as a sexual assault if the recipient did not consent it, and a charge could be brought against spouses actually living with each other. I theory, this made it possible for a husband to be found guilty of sexual assault on the following fact situation:

HUSBAND (to his wife after a disagreement): Oh, let’s kiss and make up.

WIFE: No.

HUSBAND: Aw, come on. (He kisses her. Enter police. Arrest, trial, conviction.)

The media – usually the keenest watchdog against any unfairness or injustice in society – often seemed to lose all sense of fairness when it came to feminist issues. Journalists would wax indignant over a judge’s sentencing a rapist to “only” four years in prison “in spite of the Crown’s demand for a sentence of ten years”. I could hardly believe my eyes seeing such examples. What did the Crown’s “demand” have to do with whether or not the sentence was appropriate? In the same courthouse on the same day, as the reporter ought to have known, judges were sentencing to four years all kinds of non-sexual offenders for whom Crown attorneys were also “demanding” ten-year sentences. It is a normal part of the adversary process for the Crown and defence to make widely disparate sentencing submissions, and for the judge to decide what is right. The press might have just as easily reported that despite a defence lawyer’s submission for an eighteen-month sentence in reformatory, the judge gave the accused four years in a penitentiary.

But some feminists wanted to “re-educate” judges – that is, to bully and coerce them to look at everything from their point of view – and latched upon the idea of using the media for the purpose. Perhaps this was made possible by the fact that reporters assigned to cover the courts (with some honourable exceptions) know surprisingly little about the law. Unlike journalists assigned to cover science, politics, or entertainment, court reporters and their editors often do not have even a well-educated layman’s understanding of the legal process about which they are expected to inform the public. (This is not just my opinion, incidentally; it was a frequently expressed complaint of Canada’s late Chief Justice, Bora Laskin.)

Nothing illustrates this better than two recent examples in which judges were vociferously castigated in the press for remarks made in the course of sexual-assault trials.

In one case a judge, while sentencing a man to a prison term for raping an exotic dancer, made some remark about a stripper being in a business designed “to inspire lust”. Immediately, a cry arose in the media demanding that the judge be censured. […]

Calling for censure in such a case, in my opinion, was nothing but an attempt to intimidate the judiciary. In so far as it was also made by some lawyers, it may have amounted to contempt of court. In the past, lawyers criticizing judges in this fashion had often been requested to apologize to the judges involved. In the case of feminist objections – as I put it in speech to the Ontario Psychiatric Association in 1986 – it was some of the judges who ended up apologizing to their critics.

The press was even wider off the mark in another case. That was a case in which an Ontario judge was being crucified in the media for rating a rape – again, after convicting the accused – as “a 2 on scale of 1 to 10”. […]

Co-author George Jonas then continues (in italics) with the story of Wayne St. Louis, a former client of Greenspan’s charges with sexual assault in 1981 in Windsor, Ontario (I couldn’t find any online references to this story).

It has been argued that when the police believe that someone may have committed a crime, it is their duty to lay a charge, even if the evidence against the accused is marginal. At the same time efficiency and common sense suggest that police exercise the discretion available to them and not waste the courts’ time and the taxpayers’ money with cases in which a conviction is all but impossible. Expediency and cost-effectiveness are not the only reasons. Some police officers honestly believe that harassing an accused for no reason or exposing him to the chance, however remote, of a perverse conviction is simply unfair.

The exceptions to this rule are high-profile crimes (such as, say, murder) or high-profile suspects (for instance, members of “organized crime” or very wealthy or famous persons). In such cases the police have been known to lay charges on very little evidence. Other exceptions include crimes that attract a lot of social pressure to prosecute no matter what, such as rape has become in recent years. Or any crime in which the suspect is a policeman. […]

As for rape, it has always been regarded as a very serious crime. Historically except for murder, it was the only other crime for which the death penalty remained available in some jurisdictions. However, precisely because it was taken so seriously, the courts were especially careful to have it proved beyond a reasonable doubt against an accused. Judges recognized that, while it exposed the accused to grave penal consequences and much social opprobrium, rape was a charge very easily brought against a person. Unlike other legal systems, English law never subscribed to the maxim of testis unus testis nullus, which prohibits conviction on the evidence of a single witness.

For this reason, much latitude used to be given to the defendants’ lawyers in the cross-examination of complainants. Sometimes – depending on the trial judge, who could always limit such questioning to relevant issues – this gave rise to an atmosphere in which rape trials were harder on the complainant than on the accused. It was said, with some justification, that the courts “put the victim on trial.” At times complaints of sexual assault were heard in courts in a climate of intrinsic disbelief.

It might have been possible to remedy all this intelligently, but – in the opinion of many lawyers – it wasn’t. in recent years it was remedied by simply reversing the unfairness. From intrinsic disbelief (which was unfair, of course), the climate changed to one that seemed to echo the rhetorical question “Why would a woman lie about being raped?”

But this is a silly question. As silly as asking, “Why would a man rape?” Generally, of course, men don’t rape and women don’t lie – about being raped or anything else. Most people tend to observe the biblical injunction against bearing false witness against fellow human beings most of the time. However, some people do lie sometimes, and it is the task of the criminal-justice system to separate, beyond a reasonable doubt, the minority who do from the majority who don’t. this cannot be accomplished by presumptions either way, only by a meticulous, case-by-case examination of the facts. In the words of the English jurist Sir James Stephen, “the power of lying is unlimited, the causes of lying and delusion are numerous …” It is not the court’s business to say why a woman would lie about being raped, only to make sure no innocent person is convicted in the rare instance when she does. […]

This indicated that, in law, it is possible to be convicted of sexual assault on an uncorroborated complaint, first made more than a year after the fact, shown to be inconsistent in vital details, altered in mid-trial to suit facts learned during the defendant’s testimony, and presented by a girl who, in her own words, tends to “dream about” essential parts of her evidence. It is possible to find a man of unblemished reputation guilty beyond a reasonable doubt on this kind of evidence alone. It is not unreasonable.

What, then, is unreasonable? Is it surprising that rape has been traditionally regarded as a charge very easy to bring and very hard to deny? Has it been wrong for the law in the past to surround defendants with certain safeguards? Or has it been a mistake for the law to remove them? […]

If, as a matter of social policy, we go on “sensitizing” girls and women to the “coercive sexuality” of men; if we keep giving seminars and showing propaganda films on the subject in schools; if we keep suggesting to young people that they be alert to “sexual harassment” and “bad touching” and invite them to view any gesture in the light of this possibility; if we positively urge people – as we are beginning to do – to have no tolerance of any “uninvited” sexual expression, not even “ogling” or “lewd remarks”, and to resolve any doubt they may have in this regard by reporting the matter to the authorities – if we do this, we will inevitably end up with accusations like the one levelled against the Windsor swimming-pool owner or Wayne St. Louis.

In addition, if we keep diluting our evidentiary rules; if we threaten our police, Crown attorneys, and judges with censure for applying the same common sense, or the same discretion, in cases of alleged sexual assault as they do in all other criminal investigations and trials, we will inevitably end up with innocent people convicted and ruined.

This is not just a possibility or a likelihood: it is a statistical certainty. In any population group there will be a few spiteful or evil-minded liars. There will be a few wicked or impressionable children, and a few malicious or fanatical adults to manipulate them. Their numbers will undoubtedly be small, but one in a thousand is enough. In the old days of witchcraft trials it was impressionable, wicked, or manipulated children who most often testified about seeing accused witches flying around on broomsticks. If, as an experiment, all schools started showing films requesting children to be on the alert for their parents or neighbours turning into little green men from Mars, it is a statistical certainty that some reports of such sightings would be received by the police. […]

[…] But there is a world of difference between protecting women and children, and inviting malicious, confused, or ideologically motivated to use sex as a weapon against others.

As a criminal lawyer I have seen nothing to persuade me that we cannot achieve the first aim without “taking a chance” on the second. True, any system of justice entails the incidental risk of injustice, but justice is never achieved by wilfully creating a climate in which it becomes easier to prosecute or convict the innocent.

One final point. At times lawyers are accused of having an economic interest in the social measures that they advocate. Frankly, as a criminal defence counsel, my economic interest is in seeing the greatest possible number of middle-class people being hauled into court on criminal charges of all kinds. If, for instance, in child custody battles every second wife were to charge her husband with having molested the children – an increasing number are doing it already – I could soon keep a yacht in the Mediterranean. […]

[…] I suggest that we should take a second look at our feminist-inspired social policies before some people’s vested interest in their perpetuation becomes overwhelming. As it is, an entire industry has sprung up around the educational, legislative, administrative, and enforcement aspects of feminist ideology. Pretty soon pulling back would entail having to add hundreds of bureaucrats, consultants, academics, educational filmmakers, social workers, newspaper columnists, and other experts – along with their secretaries, researchers, and assorted support personnel – to the welfare rolls.

That is without mentioning the new censors, the behaviour modification therapists, the anti-violence-and-pornography crowd that has become a contemporary meeting-ground between feminism and the Moral Majority. My 1986 speech to the Ontario Psychiatric Association centred mainly on them. I said at that time: […]

These censors, who form the great bridge in our days between Right and Left, between arch-conservatives and “progressives”, who forge ahead like the Light Brigade, deserve a chapter in themselves. A chapter like that would involve a discussion of art, literature, psychology and philosophy. Since I don’t want to step outside my own area, criminal law, it will have to be written by someone else. 

Law Blog

More Recent Wrongful Sexual Assault Convictions

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

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

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

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

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

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

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

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

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

See also para. 26:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There is a well-established body of jurisprudence that evidence of post-offence demeanour or emotional state of a sexual assault complainant may be used as circumstantial evidence to corroborate the complainant’s version of events: R. v. J.A.A. 2011 SCC 17 (CanLII), 2011 S.C.J.  17 at paras. 40-41; R. v. Mugabo, 2017 ONCA 323 at para. 25; R. v. J.A, 2010 ONCA 491; reversed on other grounds 2011 SCC 17;  R. v. Varcoe, 2007 ONCA 194 at para. 33.

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

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

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

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

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

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

Progressive, eh?

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

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“Whack” Defence Lawyers No More: Infusing Ethics into the Academic Dialogue Around Sexual Assault Trials in Canada

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Whack

Following up on my recent posts about Ewanchuk and Professor Elaine Craig’s horrendous book, I noticed a lot of ideas tracing their way to a respected law professor out of the University of Windsor – David Tanovich. He appears to be a part of a group of academics – whom I’ll call “the #Me Too gang”, who seem intent on revolutionizing the way sexual assault trials are conducted, and all but call explicitly for the reversal of the burden of proof in trials of sexual assault. Note Professor – now Judge Woolley’s comments and a reply here: “That trade-off is one that I think our system has to make in order to ensure the rule of law – that the state only punishes people who have been shown beyond a reasonable doubt to deserve it. But we cannot ignore the price that is paid for that outcome, and we have to be as careful as we can to ensure that that price is no greater than it has to be.” I suspect scholarship from Tanovich and Craig will do a lot to ensure that the “price” of the presumption of innocence is “no greater than it has to be”. I thought I’d have a read of Tanovich’s influential 2015 article, “Whack” No More: Infusing Equality into the Ethics of Defence Lawyering in Sexual Assault Cases, 2015 CanLIIDocs 164, available here. It is cited (not surprisingly) – alongside Craig – in R. v. Goldfinch, 2019 SCC 38 (CanLII), at para. 33.

I find him to be somewhat less of a shock jock than Craig with just a tad more nuance. Nonetheless, his ideas are quite dangerous and have a similar result. The intent is – similar to Craig – to further mangle the law of sexual assault in Canada, terrorize judges and all other justice players into rendering results that they deem satisfactory, and continue to derogate criminal defence lawyers.

Many of the cases relied on by Craig (e.g. Wagar, Ewanchuk, BS, etc.) are excellent examples of borderline cases. They are not cases where Craig and/or Tanovich argue the ethics of defence lawyering need to change much (i.e. guilt is clear to the defence lawyer). The unfortunate irony is that in precisely the cases where there is so much ink spilled and hand-wringing (often followed by concrete actions in Parliament), there is very little clarity about guilt. One would think the obvious cases would be, but no. Defence lawyers are usually wise enough to not waste time on trials on clear cases, so we’re left with very ambiguous cases – at best – over which the #MeToo gang have the most concerns. I’ve discussed Ewanchuk and BS previously. I’ll qualify my statement here: some of the cases pointed to by Tanovich (i.e. in note 10 on page 6, quoting Craig’s article The Ethical Obligations of Defence Counsel in Sexual Assault Cases which is more nuanced and objective than her book) do appear to be clear examples of problematic behaviour by defence counsel.

I’ll go into some more detail on Wagar later in this post. Issues like consent and due process vis-à-vis the victim’s rights (assuming of course that the complainant is a victim, which our Criminal Code very unfortunately does, in s. 2) are critical issues, and continue to be hotly debated – see R. v. Sullivan, 2020 ONCA 333 (CanLII), which should be decided at the Supreme Court in the next year or two. For that matter, it’s about time s. 276 was looked at critically again – along with every other one of our sexual assault laws – since R. v. Seaboyer; R. v. Gayme, 1991 CanLII 76 (SCC). Hopefully, Sullivan will be looked at seriously and critically by the Court and the interveners. Speaking of interveners, ever notice how the Crown can be “radically feminist” when it comes to eroding rights of accused and the presumption of innocence, and significantly less “woke” when it comes to other issues like, say, defunding the police, decarceration, decriminalizing drugs, critical race theory, holding police accountable, reducing sentences, etc.? See Aya Gruber’s work: The Feminist War on Crime, available here, as well as Rape, Feminism, and the War on Crime (here) and Gruber’s book.

I’ll begin with Tanovich’s article. I’ll get into more detail on Wagar and wrongful convictions afterward.

Tanovich

p. 8: Sexual assault is the most under-reported and under-prosecuted offence. It has the highest rate of acquittals and the highest rate of overturned convictions by appellate courts.

Of course, under-reporting can be explained by a host of social factors unrelated to perceived mistreatment at the hands of the justice system. Highest rate of acquittals might have to do with the strength of the cases prosecuted. Overturned convictions may have to do with the amount of butchering judges do with the law and the presumption of innocence – thanks in large part to the irresponsible “scholarship” of the #MeToo gang.

It involves conduct for which stereotypes about women continue to linger, notwithstanding significant law reform and feminist activism.

Stereotypes about women continue to linger. Of course, there are no stereotypes about men that play a role. Nor are there stereotypes about women (innocence, chastity, purity, etc.) playing a role in inducing wrongful convictions.

It is the one offence where, more often than not, the complainant is more vulnerable than the accused on account of gender, age, race or Aboriginality, or physical and/or mental disability.

He has the decency to mention in a footnote here that “This is not to suggest that there are not exceptions. For example, where the accused is Aboriginal or racialized and the complainant is White…”. The complainant is (often?) more vulnerable than the accused and therefore what? We should automatically convict? Besides, as he admits (albeit in a footnote), the accused is often more vulnerable than the complainant (as if this were a “vulnerability contest”). Additionally, the accused is often extremely vulnerable regardless of the vulnerability of the complainant. Most right-minded people would agree that accused individuals are – by definition – some of the most vulnerable members of our society. It’s one of the reasons for the safeguards that have been built into our system for centuries that seem rather troublesome for some scholars who like to think of themselves as progressive.

p. 9: In addition, heightened zeal has ramifications rarely seen in other cases. These collateral consequences include under-reporting for fear of being “whacked,” secondary trauma to complainants and low conviction rates. These consequences fundamentally jeopardize the legitimacy of the system and the rule of law.

Heightened zeal also has the ramifications of damaging the presumption of innocence and inducing wrongful convictions, as well as attack the integrity of various lawyers needlessly. These consequences certainly fundamentally “jeopardize the legitimacy of the system and the rule of law.”

p. 11: Finally, sexual assault is also arguably the only offence where defence lawyers are socialized and taught by their peers and mentors that the client’s best defence is to have a lawyer who is prepared to act like Rambo and do whatever it takes to secure an acquittal, even if it means violating basic tenants [sic] of human decency and dignity and the lawyer’s own commitment to equality. So what is the etiology of this defence lawyering socialization in Canada?

Rambo? I’ve certainly met Crowns (and judges) act like Rambo, but defence? I must not be hanging around the right folks. Overzealous advocacy is certainly not restricted to the defence bar – there’s no shortage of Crowns, judges and academics guilty as charged.

p. 12: More recently, a senior member of the Toronto criminal defence bar advised young defence counsel that they must “kill the witness on cross” in sexual assault cases.

Have you seen what the Crown does to the accused in cross? “Killing” would be an understatement.

Another powerful moment occurred when senior members of the criminal defence bar, including Eddie Greenspan, came to the defence of Justice McClung of the Alberta Court of Appeal, who had taken the unprecedented step of writing a letter to the National Post attacking Justice L’Heureux-Dubé the day after the Supreme Court had reversed its decision in the “no means no” sexual assault case of R v Ewanchuk. In order to understand just how extraordinary the defence of Justice McClung was by Greenspan et al, it is necessary to highlight Justice McClung’s comments for the majority of the Alberta Court of Appeal in Ewanchuk and the response of Justice L’Heureux-Dubé in her concurring opinion in the Supreme Court.

There is so much to discuss here, and Tanovich spends the better part of 2 pages discussing it. I’ve addressed the case in my Ewanchuk post, and instead of repeating myself here, I’ll direct you to it. Suffice it to say I’ll side with Greenspan (and Alan Gold, mentioned in a footnote) on this one. I found the article quoting Gold (emphasis added):

The unanimous decision drew scathing comments from Toronto criminal defence lawyer Alan Gold, who said it puts “complainants on a pedestal” by absolving them of any responsibility for their conduct.

“This radical feminist judgment is just extremely disappointing in 1999,” Gold said in a television interview. “This is a 1989 set of beliefs.

“This protocol for human sexuality is ridiculous,” he said.

“It turns it into a business-like formalistic affair where everything must be absolutely clear. I mean, human sexuality is governed in many cases by the height of ambiguity and nuance and all kinds of things that aren’t susceptible to this kind of subsequent verbalization.”

Let’s continue:

p. 13: Meanwhile, Ewanchuk has now been declared a long-term offender after having repeatedly sexually assaulted an eight-year-old girl upon his release from prison.

This is extremely problematic. As if Ewanchuk’s prior (or subsequent) sexual assault convictions are at all relevant in whether or not he was guilty of the offence charged. A so-called expert in evidence should know better.

p. 17-18: Any conduct by a defence lawyer that promotes or exploits stereotypes in sexual assault cases violates their ethical duty to not act in a discriminatory fashion. This would include cross-examination on what the complainant was wearing, whether she immediately reported the incident, whether she spoke to a psychiatrist, her socio-economic status, drug or alcohol use, lifestyle, or marital status. This is not to suggest that all cross-examination on these factors is improper. The question is whether the implicit purpose of the cross-examination is to suggest that the complainant “is the kind of person to consent” or “the kind of person to lie about consent.” These are some of the classic rape myths. [Emphasis added.]

Of course, the crown (and the judge) need to read the mind of defence counsel on questions like these to determine what their “implicit purpose” is, in determining whether or not the question is acceptable. Of course, this is on top of the judge having to “mind read” the complainant as to whether or not she consented – despite her conduct, as mentioned by Greenspan. Clearly, sometimes these questions are not improper. Good luck getting all parties to agree on whether it’s proper – especially before the questions are asked. In practice, these lines are generally considered improper – despite the fact that they’re not always improper. I note that criticism around Wagar, for example, did not include any discussion of whether the impugned comments were appropriate in their context.

Note the reduced nuance in pp. 4-5 (and cited in Goldfinch):

Whacking the complainant includes humiliating or prolonged cross-examination that “seek[s] to put the complainant on trial rather than the accused”; specious applications to obtain the complainant’s records; and the invoking and exploiting of stereotypical assumptions about women and consent, including assumptions about communication, dress, revenge, marriage, prior sexual history, therapy, lack of resistance and delayed disclosure.

For an example of rape myths that the defence and judge (and I suppose on occasion the Crown?) need to be on constant guard for, see page 110 of The trial of sexual offence cases, Fuerst, Michelle K., Mona Duckett, and Frank P. Hoskins, Thomson Reuters 2018, 2nd edition:

9.2 Avoiding Impermissible Reasoning Based on Myths and Stereotypes

It is important that assessment of the conduct and credibility of complainants in sexual offence cases is not premised in whole or in part on gender-based myths and stereotypes about women. The notions that “unchaste” women are less worthy of belief or that because the complainant consented to sexual activity on a previous occasion it is more likely that she consented on this occasion, referred to as the “twin myths” at which s. 276  – of the Criminal Code is directed, are obvious examples.

Other assumptions that courts have recognized as objectionable include the following:

  • women agree to have sex, but later complain of sexual assault;
  • women say no to sexual activity when they do not necessarily mean no;
  • a woman who does not want to have sex will physically resist;
  • passivity constitutes consent to sexual activity;
  • women of bad character, such as those who drink or use drugs, are more likely to consent;
  • women provoke or precipitate sexual assault, including by the way they dress;
  • a woman who is sexually assaulted will tell someone immediately.

Questions of complainants, legal argument, and judicial reasoning that reflect these assumptions is inappropriate and should be avoided.

What complicates things are the multiple lines of questioning that are to be avoided. The problem with this is, in many instances, these lines of questioning are necessary and should not be prohibited.

Delayed disclosure is a good example of a “rape myth” that is easily misunderstood. It is thought of as a “rape myth” that a delay in disclosure reduces the credibility of the complainant. In fact, it is one aspect to consider, but is not itself determinative of consent – see the majority opinion of the Supreme Court of Canada in R. v. D.D., 2000 SCC 43 (CanLII) in the context of delayed disclosure by a child complainant, and likely similarly applicable in other cases (emphasis added, at para. 65):

A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave.  Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse.  Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge.  In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case.  A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

See R v CMG, 2016 ABQB 368 (CanLII), wherein Justice Sheilah Martin, then of Alberta’s Court of Queen’s Bench (now on the Supreme Court of Canada) discusses rape myths in their historical context, particularly at para. 56. Note para. 73, where D.D. is misquoted on the point made previously regarding a delay in disclosure (“In R v DD, 2000 SCC 43, the majority held that a delay in disclosure can never give rise to an adverse inference against the complainant’s credibility: R v DD at para 65” – emphasis added).

Wagar (Judge Camp)

Despite coming to the clearly correct result, the judge lost his career. The accused was remanded for six months (denied bail), as a result of the bogus charges, as noted in the transcript (see here for transcript, CJC complaint, etc.). I note he was also denied bail pending his re-trial, for which he was also acquitted. I understand the brand new case of R. v. Zora, 2020 SCC 14 (CanLII) is hoped to partially remedy the unmitigated disaster that is bail in this country. Note the trial judge’s comments, after a 6-day re-trial – para. 170 of R v Wagar, 2017 ABPC 17 (CanLII) (emphasis added):

In that regard, it is my conclusion that even if I had not accepted any of the defence evidence including the testimony of Ms. Porter, given the statement of the complainant that “I wanted him to do it”, meaning the accused, I would have acquitted the accused in any event.  In the face of that statement, given the circumstances in which it was given and in conjunction with other credibility issues concerning the complainant’s testimony, I am left with a reasonable doubt as to the complainant’s absence of consent purely on the basis of her testimony alone.

Come to think of it, that’s an additional 8 months in remand pending retrial (denied bail June 2016 and acquittal rendered January 31, 2017). The complainant was extremely dishonest. Note also that some of the questions may have been allowed (depending on the context, per Tanovich). No concerns apparently about the Calgary Crown’s dubious decision to prosecute the case (unsuccessfully) not once but twice, as well as the appellate intervention and the accompanying waste of scarce resources (according to a “Pay to Play” approach, it would be interesting to speculate how much money the wrongfully accused in this case is entitled to). Nothing about a very weak case and a judge who got the result right – if not the language. Not a word about over a year spent in remand on garbage charges, and the fact that it would have been a lot more wasted time in custody had the accused (the actual victim in this case) exercised his constitutional right to, say, a jury trial. No apologies for destroying the judge’s career by orchestrating a media and public outcry – and then having the gall to insist that the public’s confidence in the administration of justice demands no less than the judge’s removal from the bench. Mind you, the judge was not even sitting on a criminal court at the time of the complaint. I’d recommend the former judge in question sue everyone involved for a fortune – particularly if the law was misrepresented to the media and the CJC, as we’ll see shortly.

Also, the Crown appeared to misrepresent the case law on consent in Wagar (as though it required verbal consent – cited approvingly at p. 5 (or 539 here) of the CJC complaint, issued by Professors Koshan, Woolley, Craig, and Downie. This is blatantly incorrect, per Ewanchuk, which allows for consent by conduct. Further, the complaint misapprehended the law on delayed disclosure (p. 6, or 540) – as discussed above regarding DD. This is precisely my point on the complexity and absurdity of our sexual assault laws: if four law professors (supposedly experts on sexual assault law and/or legal ethics) misunderstand (or misrepresent) the law on sexual assault in their formal complaint, why would we expect better from your run-of-the-mill judge, defence lawyer, or Crown? What a mess.

Mistaken belief in consent was irrelevant in the context of Wagar, so the portion of the complaint about section 273.2 (pp. 5-6) is entirely irrelevant. See, for example p. 432, line 1 (439 of attachment), of the trial transcript (emphasis added):

And leaving that to one side because it’s not a competition, I’m not in a position to reject the accused’s version. On the accused’s version, he received positive indications from the complainant that she wanted to have sex with him.

Similarly, the concerns about the judge’s lack of compliance with the s. 276 regime (p. 5) are also imprecise. The s. 276 concerns were addressed by the judge and counsel, and the judge seemed to agree with the defence that the concerns were about flirting only and not sexual activity. While he may have been wrong about whether flirting is considered sexual activity (e.g. see R. v. Ayenun, 2013 ONCJ 260 (CanLII), although in that case the evidence was found to be relevant though technically sexual activity), I don’t fault the judge for being confused with an extremely complex area of law, particularly when neither counsel were of much assistance in this regard (e.g. see p. 317-320 (325-328 of PDF) where he specifically requested and did not receive any assistance). Regardless, he is also absolutely right that s. 276 is extremely incursive legislation – all the more so the Dec. 2018 amendment to the Code (subsection 4) that explicitly includes flirting in the s. 276 regime: “For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature”.

See, for example, Jochelson and Kramar: Essentialism Makes for Strange Bedmates: The Supreme Court Case of J.A. and the Intervention of L.E.A.F., 30 Windsor Y.B. Access Just. 77 (2012), available here. In L. Dufraimont: Myth, Inference and Evidence in Sexual Assault Trials, 44 Queen’s L.J. 316 (2018-2019), available here, it’s noted (pp. 327-328, emphasis added):

A similar issue arises in one passage in Professor Elaine Craig’s important new book on sexual assault trials in Canada. In discussing R v Schmaltz, a case where consent was in issue and evidence was led about whether there was flirting earlier in the evening between the accused and the complainant, Professor Craig writes: “Under Canadian law, whether the complainant was flirting earlier in the evening is irrelevant to the issue of consent. Consent to sexual touching must be contemporaneous. It must be given at the time of the sexual contact.” To the extent that it relies on the timing of the flirting to argue its irrelevance to consent, this argument seems to confuse a requirement of the substantive law with an evidentiary requirement. As explained above, the fact that consent must be contemporaneous does not mean that evidence relevant to the factual question of consent must also be contemporaneous.

Also, see Paciocco: Competing Constitutional Rights in an Age of Deference: A Bad Time to Be Accused, The Supreme Court Law Review, 14(2), 2001, available here, where excellent points are made (that apparently have been entirely lost on our courts and academics in the subsequent two decades). From pages 118-119, emphasis added:

Mills and Darrach were not viewed as cases in which the state, in the pursuit of social utility, was attempting to deprive the accused of his fundamental constitutional right to gain access to evidence. The state was simply brokering a dispute between the competing rights of private actors and, as such, could accomplish indirectly the very consequence that it could not accomplish directly. It could conduct a criminal trial in which it was attempting to deprive the accused of his liberty, and in which the ability of the accused to defend himself was abridged, even denied, because of the calculus of the social interest in such things as encouraging reporting, enabling complainants to seek therapy and preserving confidential relations.  

I want to be clear. I have no concern with competing considerations like privacy interests or any other matters of public utility being considered. Of course, they should be considered in opposition to constitutional claims. It is evident from the prior discussion, however, that what I do have grave concerns about is the practice of identifying constitutional rights in third parties that can be given presumptive weight equal to the constitutional rights of the accused, and then tendered in a criminal trial between the accused and the state, in opposition to the accused’s efforts to defend himself or herself against the state. That troubles me because the ultimate effect of giving constitutional status to interests preferred by the state is to deprive the constitutional rights possessed by the accused of their very essence as constitutional rights. In particular, giving constitutional status to interests preferred by the state deprives the constitutional rights possessed by the accused of the presumptively superior status they were to have when tendered against opposing state interests. Conferring presumptive weight, after all, is the whole point in recognizing rights as constitutional ones.

On page 122, discussing R. v. Sharpe, 2001 SCC 2 (CanLII), Paciocco notes (emphasis added):

This aside, what the dissenting justices were doing was to conceive of the contest before them as between the claim of the accused to freedom of expression (a right they would have denied even existed in the case) and the claims of vulnerable, disadvantaged members of society seeking equality. At one time, it was considered that in a criminal prosecution, it is the accused who is the vulnerable one. During the trial, the accused stands before the awesome power that the state has to deprive him or her of his or her liberty, a state that is bringing its considerable resources to bear in order to brand him or her a criminal, and to punish him or her. Remove the state from the equation, and the accused is no longer vulnerable. Invoke the constitutional equality rights of complainants (conceptualized as the right of future victims of the vulnerable class to be free from victimization so that they can flourish in society), and put those complainants in the place of the state, and it is not the rights of the accused that require protection. Context, balance and even the issues of concern are altered dramatically. The claim of the accused is seen as being brought on behalf of victimizers, and it is seen as a claim being tendered against victims, not against the state. When we conceive of constitutional adjudication in this way, we do disservice to the presumption of innocence, and we debilitate the Charter rights of the accused. It is something of an understatement to say that in such a regime, things do not bode well for the rights of the accused.

Also, see Tanovich and Craig’s Globe article regarding Ghomeshi: Whacking the complainant: A real and current systemic problem, dated February 10, 2016:

Sexual assault trials, even when conducted ethically and within the bounds of law, harm complainants. This is the harsh reality of an adversarial and constitutionalized justice system that requires a rigorous testing of the evidence before depriving a person of their liberty.

Throughout the very public trial of Jian Ghomeshi, the term whacking – which refers to tactics that seek to exploit the stereotypes and vulnerabilities inherent in sexual assault cases to secure a favourable outcome – has been prevalent.

This appears to be contrary to Craig’s unexpected concession in her book:

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

Wrongful conviction cases:

I thought I’d include a summary of some cases of convictions overturned at appellate levels. They mostly consist of recent cases, that I have added to My Lexbox (through CanLII). Hopefully, they’re representative of some of the major issues that come up on a regular basis – on convictions that are overturned in the context of sexual assault trials.

In Foster v. R., 2020 NBCA 7 (CanLII), the trial judge failed to consider consent properly before considering the defence of honest but mistaken belief in consent. In R. v. G.F., 2019 ONCA 493 (CanLII), the judge failed to consider consent as distinct from capacity to consent due to intoxication.

In R. v. Esquivel-Benitez, 2020 ONCA 160 (CanLII), the Ontario Court of Appeal overturned a conviction where the judge had made multiple errors, including relying “improperly on the appellant’s presence in the courtroom when the complainant testified to negatively assess his credibility” (para. 16). See the Star’s report here. The trial judge’s other errors included treating the credibility issue as a contest between the complainant and the appellant and failed to meaningfully recognize or address the evidence of the complainant’s possible motive to fabricate when assessing credibility.

R. v. M.D.,2020 ONCA 290 (CanLII), and R. v. G.V.,2020 ONCA 291 (CanLII) are good recent examples of convictions overturned due to the assertion that access to the Crown’s case (disclosure) allowed the accused an opportunity to tailor his evidence. In R. v. Biladeau, 2008 ONCA 833 (CanLII), a retrial was ordered, due to the Crown’s commenting on the accused’s failure to testify.

Improper use of prior consistent statements in R. v. G.J.S., 2020 ONCA 317 (CanLII); R. v. D.K., 2020 ONCA 79 (CanLII); and R. v. A.V., 2020 ONCA 58 (CanLII). In R. v. A.S., 2020 ONCA 229 (CanLII), misuse of a prior consistent statement, and absence of proven motive to fabricate not beneficial to complainant – per se.

See Berger J.’s dissent in R v Quartey, 2018 ABCA 12 (CanLII) – appeal to SCC dismissed (R. v. Quartey, 2018 SCC 59 (CanLII), where the trial judge arguably shifted the burden of proof and applied stereotypes to the accused – not to the complainant. The burden of proof was shifted with regard to the motive to fabricate in R. v. M.S., 2019 ONCA 869 (CanLII).

In R v Schmaltz, 2015 ABCA 4 (CanLII) and R v Quintero-Gelvez, 2019 ABCA 17 (CanLII), sex assault convictions were overturned, due to excessive intervention by the trial judge.

A misapprehension of evidence was critical in both R v Mehari, 2020 SKCA 37 (CanLII) [edit: result subsequently overturned in R. v. Mehari, 2020 SCC 40] and R v Kwon, 2020 SKCA 56 (CanLII). Judge said inconceivable that complainant would consensually have sex with accused, which is both offensive and improper: R. v. Kodwat, 2017 YKCA 11 (CanLII).

A WD misdirection and flaws in complainant testimony were problematic in R. v. C.L., 2020 ONCA 258 (CanLII). In R v Dowd, 2020 MBCA 23 (CanLII), insufficient reasons and Browne v. Dunn rule invoked by judge only led to an overturned conviction.

In R. v. Cepic, 2019 ONCA 541 (CanLII), the Ontario Court of Appeal noted, at paras. 14-15:

It is an error of law to rely on pre-conceived views about how sexual assault victims would behave: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275 at para. 65; R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2. These are the “myths” of appropriate behaviour that the law seeks to eradicate. Historically, these myths have operated to undermine a complainant’s testimony. But they may also operate in the reverse, to artificially bolster a complainant’s credibility on the basis that “no young woman would consensually engage in the alleged behaviour”: R. v. J.L., 2018 ONCA 756, 367 C.C.C. (3d) 249, at paras. 46-47.

Here the trial judge used assumptions about female behaviour as the basis for accepting the complainant’s testimony. The corollary is that the assumptions about what a woman would or would not do were also used to undermine the appellant’s credibility.

In R. v. Senthamilselvan, 2019 ONSC 3884 (CanLII), the “trial judge erred by impermissibly relying on assumptions and generalizations about how an innocent person in the appellant’s circumstances would behave or be expected to behave and then drawing an adverse inference from the appellant’s failure to behave in that manner” – para. 3.

Continuing with Tanovich (emphasis added):

p. 31: Some will no doubt challenge this approach as a thinly-veiled attempt to do away with the presumption of innocence in sexual assault cases. Nothing could be further from the truth. The presumption of innocence does not give the accused a licence to engage in distortion in an effort to escape liability, nor does it remove the public interest in ensuring a fair trial for both the accused and the community. The fact that a “whack the complainant” strategy—defined broadly as an attempt to rely on and exploit discriminatory assumptions about women and sexual assault—may be all that an accused has to secure an acquittal is not a sufficient justification for the harm caused. It is trite law now after cases like Darrach, Mills and R v NS,129 that the need to ensure respect for the autonomy and dignity of criminal accused by ensuring a fair trial while of fundamental importance is not absolute. It is about achieving a constitutional balance. The ethical limits suggested in this article are an attempt to balance the competing interests in sexual assault cases of ensuring full answer and defence and protecting the trial and complainant from discrimination. None of these limits threaten an accused’s constitutional right to reliable verdict achieved in a fair process. Rather, they ensure access to justice for both an accused and sexual assault complainants and they protect the repute of the administration of justice by reducing the likelihood that discriminatory and stereotypical assumptions will taint the process and ultimate verdict.

I would absolutely categorize his approach as “a thinly-veiled attempt to do away with the presumption of innocence in sexual assault cases”. When I start to see a little bit of nuance around “rape myths”, less hysteria about under-reporting and low rates of conviction – as if they’re indicative of a problem with our justice system, some concern about wrongful convictions, and a little more fairness to the defence bar who sometimes fearlessly defend the most despised members of our society, I’ll perhaps begin to be convinced otherwise.

Since we’re on the topic of improving sexual assault trials, I thought I’d provide my input:

Suggestions for improving the justice system without further destroying the presumption of innocence:

  1. Show some respect for defence counsel
  2. Value the presumption of innocence
  3. Force the Crown to prosecute only strong cases, and stop believing every single complaint they receive
  4. Admit that in borderline cases – perhaps the vast majority of cases prosecuted – a very robust defence is not only required but essential if we’re going to slow the rate of wrongful convictions
  5. Realize that discussions around “rape myths” and ethical defence (and Crown) lawyering and judging need to be extremely nuanced. Continuing to insinuate that delayed disclosure for example, is a rape myth, is simply incorrect and dangerous. The same goes for whether complainants need to be automatically believed. “#Me Too” may be a fine social movement and Twitter hashtag, but it has absolutely no place in a court of law, and we should stop acting as if it does.

 

Law Blog

The Worst Case in Canadian Judicial History: R. v. Ewanchuk, 1999 CanLII 711 (SCC)

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scales of justiceWith extra time on my hands during this COVID era, I found myself looking up some horrendous U.S. Supreme Court decisions. I started with this list:

  1. Dred Scott v. Sanford(1857): Hands down the worst Supreme Court decision ever, Dred Scott held that African Americans, whether free men or slaves, could not be considered American citizens. The ruling undid the Missouri Compromise, barred laws that would free slaves, and all but guaranteed that there would be no political solution to slavery. The opinion even included a ridiculous “parade of horribles” that would appear if Scott were recognized as a citizen, unspeakable scenarios like African Americans being able to vacation, hold public meetings, and exercise their free speech rights.

  2. Buck v. Bell(1927): “Eugenics? Yes, please!” the Court declared in this terrible decision which still stands as good law. In an 8-1 decision written by Justice Oliver Wendell Holmes, the Court upheld the forced sterilization of those with intellectual disabilities “for the protection and health of the state.” Justice Holmes ruled that “society can prevent those who are manifestly unfit from continuing their kind” and ended the opinion by declaring that “three generations of imbeciles are enough.”

  3. Korematsu v. United States(1944): Here, the Supreme Court upheld the internment of Japanese Americans during World War II, finding that the need to protect against espionage outweighed the individual rights of American citizens. In a cruel and ironic twist, this was also the first time the Court applied strict scrutiny to racial discrimination by the U.S. government, belying the idea that strict scrutiny is “strict in theory, fatal in fact.”

  4. Plessy v. Ferguson(1896): The Court’s famous “separate but equal” ruling upheld state segregation laws. In doing so, the Court made sure that the gains of the post-Civil War reconstruction era were quickly replaced by decades of Jim Crow laws. […]

It made me think of horrible cases in Canadian jurisprudence. There are many doozies, like the wrongful conviction cases of R. v. Milgaard, 1971 CanLII 792 (SK CA), leave to appeal to S.C.C. ref’d (1971), 4 C.C.C.; (2d) 566; Reference Re: Steven Murray Truscott, 1967 CanLII 66 (SCC); R. v. Sophonow, 1984 CanLII 124 (SCC). The worst of all is definitely R. v. Ewanchuk, 1999 CanLII 711 (SCC) – it was a blatant wrongful conviction by our Supreme Court of Canada, and it has been leading to countless wrongful convictions over the past two decades in courts across this country.

Before I get into the nitty-gritty of Ewanchuk, I thought I’d give a brief background and some other comments: an acquittal for sexual assault, followed by an appeal dismissed at the Alberta Court of Appeal, after which a unanimous reversal at the Supreme Court. Instead of a retrial, a conviction was entered. It included very harsh criticism by Justice L’Heureux-Dubé of Justice McClung, then return rhetoric, followed by an apology from McClung. CJC complaints were made all around, but the CJC had the sense (then, at least) to not do anything. There was intense debate – those opposed to the Supreme Court’s view were few and far between, and best represented by Edward Greenspan, a world-renowned criminal defence lawyer from Ontario.

Note that in the more recent Judge Camp (of Wagar, or “knees together” infamy) public lynching, no one defended Judge Camp (perhaps in part because there was no written decision at the lower court, transcripts were not publicly available, and the agenda-driven academics bringing the complaint were hardly fair to him – notwithstanding the “ethics” credentials of one of them). Things have definitely gotten worse since Ewanchuk.

In “The New Truth: Victims Never Lie” (by Edward Greenspan, Q.C.) – an excellent 2001 article and starting point on the problems in sexual assault law – some of which were mentioned by Judge Camp in Wagar for which he was unceremoniously dumped by the CJC  less than two decades later – and also quoted very briefly in Professor Elaine Craig [“Craig”] in her horrendous 2018 book Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession, which I review here. This gem from Greenspan, for example:

Evidence of a prior consensual relationship between a defendant and a complainant is, of course, not conclusive proof of innocence. A man can certainly sexually assault a woman with whom he has engaged in consensual sex, and the prior sexual conduct does not justify, or even minimize, the crime. But surely the prior relationship is relevant evidence for the jury to consider as to whether the sexual encounter at issue was a continuation of the consensual relationship or a sexual assault. To me, this is a self-evident truth. To require the jury to decide the case as if it were a dispute between two strangers is to deny the fact-finder the essential context from which to judge who is lying and who is telling the truth. The notion that sexual assault victims deserve heightened protection begs the critical question: “Was the complainant indeed a sexual assault victim as she contended or was the defendant the victim of a false accusation as he contended?” Under our constitutional presumption of innocence, the legal system cannot assume the former in justifying a rule of evidence that denies the defendant the right to prove the latter. […]

What has not been given due consideration is what cost will be paid by according equal weight to the rights of a complainant. The exclusion of factually relevant evidence relating to prior sexual history which may be embarrassing and thereby violate the rights of the complainant, will not only undermine the rights of the accused, it will undermine the very essence of our criminal justice system whose ultimate goal it is to obtain the truth. While balancing of rights may work in other contexts, balancing in the criminal justice system distorts the process.

As far as I’m aware, Greenspan’s article has never been cited by our Supreme Court, nor any other Canadian court. In contrast, Craig’s work has been cited multiple times twice by our Supreme Court in 2019 alone, and already at least once in 2020.

For more problems on sexual assault law in Canada, start with this, this and this, the latter of which is briefly quoted in Craig.

Greenspan’s powerful editorial – also quoted in Craig, albeit selectively, like everything else she quotes – is almost prophetic in terms of his reference to complaints to the CJC; excerpt below – emphasis added:)

The profound reaction of the legal community, lining up on Judge L’Heureux-Dube’s side and ignoring the fact that her hurtful and thoroughly unnecessary words started the battle, is a striking example of how politics has taken over the issues surrounding sexual assault. It is clear that the feminist influence has amounted to intimidation, posing a potential danger to the independence of the judiciary. I deplore any attempt to use the Canadian Judicial Council as an agent of the women’s movement, through the filing of complaints against judges whose remarks do not accord with the feminist world view. Feminists have entrenched their ideology in the Supreme Court of Canada and have put all contrary views beyond the pale. I predicted a long time ago a judicial embracing of the feminist perspective. But to call for Judge McClung’s removal or censure means the feminists and their fellow travellers have created such a repressive and authoritarian world that certain words are not only unacceptable, but now constitute misconduct. The feminist perspective has hijacked the Supreme Court of Canada and now feminists want to throw off the bench anyone who disagrees with them. That no one in academia or legal circles has stood up for Judge McClung to date is shocking.

Judge L’Heureux-Dube was hell-bent on re-educating Judge McClung, bullying and coercing him into looking at everything from her point of view. She raked him over the coals for making remarks that may, in fact, be accurate in the given case. I don’t know. But just as he had no empirical evidence to support his view (if you discount all of human history), she has no empirical evidence to say what she says (if you discount Catharine MacKinnon’s collected works). Calling for his censure or removal from the bench is nothing but an attempt to intimidate the judiciary.

A former president of Yale University once said, “There occurs at times, a tyranny of group self righteousness, manifesting itself in a rage to ideological or dogmatic purity.” Madame Justice L’Heureux-Dube has shown an astounding insensitivity and an inability to conceive of any concepts outside her own terms of reference and has thereby disgraced the Supreme Court. Judge McClung may not have done anything to remove the stain. In fact, his words may have added to the stain. But don’t talk of removing him from office. Don’t talk of censure. Likewise, don’t censure her and don’t remove her. Let the record show that she is not a very nice person and let the public debate ask the only question that matters: Does the Supreme Court of Canada care so little about its own reputation that it could not persuade Judge L’Heureux-Dube to rewrite her judgment before she issued it, so as not to disgrace the court?

Also, in Greenspans’ follow-up, emphasis added (responding to this idiotic article):

– Judge Kozinski calls the Ewanchuk case the “now famous ‘no means no’ case.” For the life of me, I cannot understand how that expression applies to this case. For the information of Judge Kozinski, in Canada nobody has a problem with ‘no means no.’ Except sexual offenders. The problem is with “yes” (and perhaps also “maybe”) meaning “no.” The problem is that if a woman decides in retrospect that her demeanor, actions, and words that suggested “yes” or “maybe” ought to be disregarded, and that what she really meant was “no” in her mind, that is enough to convict someone of sexual assault. According to Justice L’Heureux-Dube, the issue is determined by a purely subjective test of what is in the complainant’s mind. The judge has the option of finding: (a) the woman consented in her mind; or (b) the woman didn’t consent in her mind. To choose, the judge must be a mind reader. If a trial judge believes the woman had “no” in her mind, the trial judge must disregard the woman’s demeanor, actions and words, which suggest the opposite. That is no longer an objective test. It is not even a test based on basic common sense. […]

What Justice McClung suggested was that a trier of fact is entitled to take into account all surrounding circumstances in order to determine the veracity of anyone’s testimony. Putting the matter into context is something that occurs in all trials, except sexual assault trials, which have now been isolated in a class of their own. […]

In Canada, common sense is supposed to have a place in the courtroom. All Justice McClung did was to look at two people’s conduct to determine whether one of those parties could be found guilty of a crime beyond a reasonable doubt. Only in a world of abstract ideology are female complainants immune to ordinary methods of inquiry and analysis. Only in such a world does applying common sense run the risk of being accused of blaming the victim — a charge only slightly less serious than sexual assault itself in the lexicon of ideological feminism. […]

When I chose to write on this subject, the National Council of Women and other feminist pressure groups were on their way to mau mau the Canadian Judicial Council, to censure, remove, or otherwise sanction Justice McClung, not for his intemperate letter for which he apologized and which was merely an excuse, but for his refusal to internalize feminist thought into his legal analysis. He had to go because of his refusal to accept feminist dogma. Apparently, in this area in Canada, there can be no differences of opinion. That’s why I weighed in to the debate.

In Canada, sexual assault trials still occur in the courtroom, not in the well of the Senate. In this country, we still believe that justice is supposed to be blind. Legal debates should not be politicized. In Canada, the meaning of sexual assault isn’t decided by Republican or Democratic agendas, or feminist or sexist agendas for that matter. Politicizing legal issues of sexual assault can only give rise to gender warfare. After the Anita Hill/Clarence Thomas hearings, it seemed that the United States chose not to completely subordinate legal thought to the battle of the sexes, yet that seems to be Judge Kozinski’s specialty. If for this reason, Judge Kozinski does not make it to the United States Supreme Court, perhaps there will be a place for him on ours.

Note that REAL complained to the CJC about L’Heureux-Dubé: see here. Thankfully, CJC found no problems for both judges, finding that McClung’s comments both on and off the bench did not display bias against women: see here. If this had happened in the last decade or so, I’m certain he would have been tarred and feathered – both by the CJC and everyone else.

It’s a shame we don’t have leaders like Greenspan today, and that the trash spouted from the likes of Craig appear to be all that matters in criminal law in this country today. Note that Craig absolutely trashes Greenspan in her book – which alone is enough to tell me her book is absolute hogwash. I think it’s a tribute to be lambasted by Craig – certainly not one needed by Greenspan, though.

Now for the nitty gritty of Ewanchuk:

Anyone who went to law school in Canada is very familiar with R. v. Ewanchuk, 1999 CanLII 711 (SCC). If you’re like me, you were indoctrinated taught the case in first-year criminal law, with a lot of “tsk tsk-ing” about McClung (a descendant of Nellie McClung – no less!) and how stupid his decision was and how mean he was to L’Heureux-Dubé.

The context of the case included a 2.5 hour visit (a job interview, apparently): context not at all clear that assault occurred. Seems more like a mutual flirting, where accused slightly overstepped boundaries. If guilty of anything, likely a “non-major sexual assault” – see facts recited in para. 2 – Court of Appeal case, indexed as R. v. Ewanchuk, 1998 ABCA 52 (CanLII).

Whether fear was a factor – the complainant said there was – is dubious. Trial judge (Moore, recited at para. 2, CA) found the fear to be entirely credible – it merely wasn’t communicated at all. I suspect that’s a “generous” interpretation of the evidence, and that it’s not at all clear that fear – communicated or otherwise – existed. Of course, the dissent in the Court of Appeal as well as all of the Supreme Court took full advantage of this “concession” and insisted that once fear was found, a conviction should follow.

I’ll quote extensively below, from Ewanchuk at both the CA and SCC, along with some comments:

I’ll quote from McClung’s majority decision at the CA:

[4]      The complainant’s television-suggested plan (from the evidence drawn from the Family Channel) to rebuff Ewanchuk by a display of a bravura confidence was her choice and it was a choice for which she cannot be criticized. But it is not clear from the evidence that her inner concerns emanated from what the accused Ewanchuk said or did or were influenced by what she had learned on television.

I will gloss over the “bonnet and crinolines” comment in para. 4 – that horse has been beaten well to death, although it’s certainly been overused and abused by critics of McClung.

[5]      Certainly the complainant was afraid of Ewanchuk as the trial judge found. But her concerns were turned inward. She was afraid, but she wanted Ewanchuk to think otherwise. She succeeded. Yet it seems that her suppressed concerns about the possibility of force from Ewanchuk were misplaced. In this the trial judge was mindful of the girl’s evidence that during each of three clumsy passes by Ewanchuk, when she said “No!” he promptly backed off, while assuring her at least once, that he was “not that kind of person” and “that she needn’t worry” and that he was a man of restraint. When she finally said she wanted to leave the vehicle he neither argued against it or materially obstructed her, delaying her exit. Again her wishes prevailed. The trailer of the vehicle was indeed his woodworking workshop and she entered it under no illusions or coercion from him. The complainant feared the door was locked. There was no evidence that it was. Clearly it could be latched from the inside, but any conclusion that it was under Ewanchuk’s control alone is speculative at best. The complainant had no difficulty leaving the trailer. In this it may be noteworthy that Ewanchuk was never charged with unlawful confinement and it may be assumed that the investigating police examined the trailer and the locking devices on its door. […]

[7]      It is sufficient to say that unless clearly compelled to do so by statute trial judges or juries are not obliged to assume that the resolution of the issue of consent or its absence in these cases becomes a completely internal and subjective exercise reserved to the  complainant alone — an exercise that is retrospective, optional and silent, and one perhaps in contravention of the objective facts underlying the case. To exclude the belief of the accused from any contribution to the consent issue (and quite possibly his own fate) cuts across enshrined Canadian criminal law precepts and renders the law uncertain, inconsistent and resented. Every right-minded Canadian, male or female, deplores violence against women. But even the pursuit of a violence-free society must not be allowed to repudiate, or even dilute, the entrenched and statutory safeguards of our jurisprudence which have long and fairly protected those accused of serious crime. Included must be the rights of those who have stood the trial of such accusations and have won their acquittals. […]

[11]   Three overtures were made by Ewanchuk. The first two were marginally identifiable, if at all, as sexual in nature. They involved mutual body massages which, while they neared her sexual organs, were not in contact with them. Nonetheless, the last was a clearly sexual activity; a deliberate exposure of his sexual anatomy as he rubbed himself against her clothed pelvic area. This performance, if viewed in isolation (which the judge did not, apparently viewing the act as one that was not severable from the context of all the preceding consensual activity, some of it on the floor of the trailer) would hardly raise Ewanchuk’s stature in the pantheon of chivalric behaviour, but it did take place in private and following her protest — “No!” — led to nothing. The record would indicate that the one clearly sexual activity in the case ended swiftly with her injunctive “No!”.

[12]   It is right that we be constantly reminded that sexual assault can intractably erode the present and future integrity of its victims. Clearly this is so. Yet we must also remain aware that nothing can destroy a life so utterly as an extended term of imprisonment following a precipitately decided sexual assault conviction. In the search for proof of guilt, sloganeering such as “No means No!”, “Zero Tolerance!”, and “Take back the night!”  which, while they marshall desired social ideals, are no safe substitute for the orderly and objective judicial application of Canada’s criminal statutes.

[15]   Yet, if review of the evidence that supports the trial judge’s doubts about consent in this case is called for, it may be found in the following. The advances that are now said to be criminally assaultive were preceded by an exchange of consensual body massages, partially on the floor of the trailer, hugs and assurances of trust and restraint, as well as a gift of $100.00 that arose when the complainant advised Ewanchuk that money being in short supply in her home, she was hard up. Beyond that (and somewhat inconsistent with an appellate profile of Ewanchuk as a relentless sexual predator) every advance he made to her stopped when she spoke against it. He even supplied her with his correct name, spelling it for her as she wrote it down. He did not confine her, nor did he lie to her. There was no evidence of an assault or even its threat.

[16]   What was the Crown’s onus?  It must prove mens rea.

“The mens rea for sexual assault is established by showing that the accused intended to touch the complainant in a manner that is sexual, and knew of, or was reckless or wilfully blind to, the fact that the complainant was not consenting to that touching. […]

[19]   It is said that because the accused did not testify no finding as to the innocence of his intent should have been made in his favour. But that finding can be inferred, or a doubt raised within it, from the Crown evidence alone as it can be done in any other criminal prosecution. It was made here from the sum of the evidence presented against Ewanchuk, weighed by the trial judge and which, in his assessment, fell short of adequate proof of guilt. That is enough. The 1992 parliamentary changes (Bill C-49) to proof of consent in sexual assault cases did not repeal the protections allocated to the Canadian accused which have been long embedded in the Canada Evidence Act, R.S. c. E-10. Nor did they re-define the right of appellate courts to fossick guilt from fact-driven acquittals. […]

[21]   In my reading of the trial record, this Crown appeal must be dismissed. Beyond the error of law issue, the sum of the evidence indicates that Ewanchuk’s advances to the complainant were far less criminal than hormonal. In a less litigious age going too far in the boyfriend’s car was better dealt with on site — a well-chosen expletive, a slap in the face or, if necessary, a well-directed knee. What this accused tried to initiate hardly qualifies him for the lasting stigma of a conviction for sexual assault and Alberta’s current bullet-train removal to the penitentiary for prolonged shrift. [I suppose Alberta’s draconian sentencing approaches are not anything new…

Sidenote: after the SCC reversed the acquittals and entered a conviction, the sentencing judge sentenced the accused to 1 year of jail, and considered a conditional sentence: CBC article. For more context, in the subsequent sentencing decision, see R. v. S.B.E., [2000] A.J. No. 1275 – QuickLaw), Crown had asked for 5 years of jail, then appeared to reduce their request somewhat (para. 28). Both Crown and defence appealed the sentence (R. v. Ewanchuk, 2002 ABCA 95 (CanLII)) and the Alberta Court of Appeal – to her credit, not including Fraser CJ or any other jurists sitting on the original ABCA decision – increased the sentence to 2 years (para. 87).]

Fraser CJ’s dissent (emphasis in original) at CA:

49 Consent to sexual activity may be expressed through words or in writing or implied through conduct.

[50]   The trial judge began his analysis with a misunderstanding of the legal test for valid “consent”. He then proceeded, wrongly, to equate submission out of fear, where that fear has not been communicated to an accused, with the complainant’s implied consent. Not only is this, by itself, an error in law, but the trial judge then compounded these errors by imposing a strictly objective test on the assessment of the fear sustained by the complainant. And then, he went even further by ignoring, as part of the totality of the events which transpired here, the legal effect of the “No’s” which, according to his own fact findings, the complainant uttered. […]

[56]   Since 1992, therefore, the mistake of fact defence is not available to an accused unless he first took “reasonable steps” to ascertain consent: see R. v. Redcliffe (7 April 1995) No. 95-18016 (Ont. C.A.); J. McInnes and C. Boyle, “Judging Sexual Assault Law Against a Standard of Equality” (1995) U.B.C. L. Rev. 341; and P. Hughes, “From a Woman’s Point of View” (1993) 42 U.N.B. L.J. 341. The “reasonable steps” provision imposes a positive duty on a person intent on sexual activity to make reasonable efforts to determine that he has the voluntary agreement of the other person to what is about to take place. Unless and until that threshold has been crossed, the defence of mistake of fact is not available to an accused. […]

[58]   Parliament’s decision to impose this evidentiary predicate to an assertion of the defence of mistake of fact was in part in response to the increasing frequency with which that defence was being asserted in sexual assault cases even where no steps had first been taken by an accused to ascertain whether the complainant was consenting. Taken together with Parliament’s decision to define “consent” in this context, these amendments represent further legislative steps to overcome the apparent unwillingness by some to let go of the debunked notion that unless a complainant physically resisted or expressed verbal opposition to sexual activity, an accused was entitled to assume that consent existed. Instead, the amendments place the responsibility to ascertain the presence of consent to sexual activity precisely where it belongs — on the person, male or female, who wishes to initiate sexual contact with another person.

[59]   Parliament also included for the first time ever (in s. 273.1) a statutory definition of consent in sexual assault cases. “Consent” now means the voluntary agreement of the complainant to engage in the sexual activity in question. By defining “consent” to mean the voluntary agreement to engage in sexual activity, Parliament signalled that the focus should henceforth be on whether the complainant positively affirmed her willingness to participate in the subject sexual activity as opposed to whether she expressly rejected it. Parliament understood very well that a definition of “consent” was required to overcome the historical tendency by some judges to treat a complainant’s silence or non-resistance as “implied consent”. It followed in the minds of those who took this view that the Crown could not meet its burden of proving lack of consent by showing that the complainant did not give her affirmative consent. This was not enough. What the Crown had to do, according to those who endorsed this approach, was to prove that the complainant had expressed her non-consent. In other words, did she say “No” or give the accused a slap in the face or a well-placed knee in the groin or some other incontrovertible overt “No” signal? If she did not, then her consent to what transpired could be presumptively implied by the judge as well as the perpetrator — and often was.

[60]   How this theory operated in practice in some courtrooms prior to the 1992 amendments has been well-explained by R. Cornaviera in “The Reform of Sexual Assault Laws”, (1993) 2 Crown’s Newsl. 1 at 18-19:

“The inquiry into whether a complainant consented to sexual acts is vulnerable to sexist stereotypes. Rape mythology thrives in the absence of a statutory definition of consent through the vehicle of “implied consent”. The judicially created “theory of implied consent” is commonly applied in the context of sexual assault offences. The use of “implied consent theory” permits the perpetuation of rape mythology by presuming that consent to sexual touching exists ab initio and continues to exist until the woman successfully persuades the aggressor that she does not consent. Thus, consent may be implied in the absence of clear and unequivocal non consent (usually resistance) … [Footnotes omitted.]”

Under this theory, because women were treated as being available at all times for sexual activity, because the “default” position was assumed to be consent, the focus was — wrongly — on whether the woman expressed her dissent rather than on whether she gave her assent: See J. McInnes & C. Boyle “Judging Sexual Assault Law Against a Standard of Equality” (1995) 29 U.B.C. L. Rev. 341 at 353 n. 30, 357 n.38.

[61]   Not all judges took this view of the law: see R. v. M. (M.L.) 1994 CanLII 77 (SCC), [1994] 2 S.C.R. 3 which is based on the law as it existed prior to the 1992 amendments. But sufficient numbers did that Parliament saw fit to put the matter beyond doubt in 1992 by expressly defining consent to mean “voluntary agreement” to engage in the sexual activity. Thus, it follows that it is no longer appropriate to simply ask whether the woman said “No” or actively resisted sexual advances (here the trial judge concedes that the failure to resist was driven by genuine fear and that the woman did say “No” more than once). The real inquiry is whether she said “Yes” (or its equivalent), either expressly in words or in writing or impliedly by her conduct. Viewed in this light, the positive definition of consent contained in s. 273.1 of the Code, stressing as it does the equality of responsibility in sexual relations, is in keeping with several academic articles urging that the law recognize and protect women’s sexual autonomy: See e.g. R. Cairns Way, “Bill C-49 and the Politics of Constitutionalized Fault” (1993) 42 U.N.B. L.J. 325; M.T. Kasubhai, “Destabilizing Power in Rape: Why Consent Theory in Rape Law is Turned on its Head” (1996) 11 Wisc. Women’s L.J. 37; G. MacDonald & K. Gallagher, “The Myth of Consenting Adults: The New Sexual Assault Provisions” (1993) 42 U.N.B. L.J. 373; H.M. Malm, “The Ontological Status of Consent and its Implications for the Law on Rape” (1996) 2 Legal Theory 147; and J. McInnes & C. Boyle, “Judging Sexual Assault Law Against a Standard of Equality” (1995) 29 U.B.C. L. Rev. 341.

[62]   What must be emphasized is that while a complainant’s consent may be expressed or implied, it still must be her actual consent. And in order to determine whether she gave either her expressed or implied consent, one must have regard to the state of mind of the complainant only. That this is so is evident from the fact that the definition of “consent” refers to the voluntary agreement of the complainant to engage in the impugned activity. Thus, it is to her state of mind that the inquiry must be directed. That inquiry into voluntariness must focus on the impact of the accused’s behaviour on the complainant at the relevant time and in the situation in which she found herself. […]

[66]   One of the difficulties here is with the use of the term “implied consent” itself. Providing that the term is being used as a shorthand way of saying actual consent implied through conduct, it is a legitimate use of the term. But the problem is that the term has an unfortunate history, meaning therefore that it is capable of being misinterpreted. As noted earlier, there was a time when some were willing to “imply” a woman’s consent even in the absence of any evidence of actual consent on the basis that she did not resist or scream or scratch or do whatever else the trier of fact thought a true victim should have done. Thus, to the extent that this term suggests that judges can “imply” a complainant’s consent to sexual activity even where the evidence establishes that there was no actual consent, it is an inappropriate use of the term. Indeed, I would suggest that judges avoid the use of the term “implied consent” in sexual assault cases so long as the lingering myths of victim resistance continue to find a welcome greeting in some courtrooms in this country.

[67]   What this all means is that while it is possible to speak of a complainant’s actual consent being implied or inferred through actions, as opposed to expressed through words, in both cases, the words or actions, taken in their context, must evince a voluntary agreement by the complainant to engage in the impugned sexual conduct. Simply, it must be real consent. It also means that it is wrong in law to assume that a woman gives her “implied consent” to sexual activity unless and until she overtly signals her non-consent. With the 1992 Code amendments, Parliament rejected this discredited theory of “implied consent”. It recognized that to presume that such “implied consent” exists denies women’s sexual autonomy, not to mention their Charter equality rights. Women in Canada are not walking around this country in a state of constant consent to sexual activity unless and until they say “No” or offer resistance to anyone who targets them for sexual activity.

[…] [70]   When one looks at the evidence here, the suggestion of implied consent is based on what the complainant did not do. The trial judge focuses on the complainant’s failure to “properly” express her fear, the implication being that this was necessary so that the accused could thereby deduce that she was not consenting to his sexual advances. In other words, the trial judge erred in assuming that in order to prove lack of consent, the Crown had to prove that the complainant had expressed her opposition to the conduct in which Ewanchuk was engaged.

[71]   The flaw in this approach is obvious. It presupposes that Ewanchuk was otherwise entitled to assume that the complainant was consenting until she communicated her non-consent. But Ewanchuk had no right to presume this consent absent some positive indication from the complainant that what she was interested in was sexual activity with him and not the job he purported to offer. I do not find any evidence of express consent here. Nor did the trial judge. Nor do I find any evidence, whether on the record or in the fact findings, from which consent to sexual activity by this complainant through her conduct can be properly implied. Once the trial judge here accepted, as he did, the complainant’s testimony that she was not a willing party to the sexual activity, that she submitted out of fear and in any event that she said “No” on at least two occasions before her final “No”, those findings in my view were dispositive of the issue before him. There was no actual consent by the complainant in this case, whether express or implied through conduct. Nor is there any basis in law for the trial judge to find a reasonable doubt on these facts.

Actually, the consent implied by conduct is fairly obvious here, and clearly addressed by McClung JA at para. 15. You’re entitled to disagree, but let’s not act like it’s obvious that no consent existed – it most certainly is not.

We get further derailed from there… Eventually:

[95]   Each “No” the complainant stated meant in law that any consent given (if any had in fact been given) was at an end. The complainant no longer wanted to engage in sexual activity (if she in fact ever did). There is no ambiguity in that statement. When a woman says “No” to unwanted sexual activity, she is not required to give a list, whether oral or written, of what the “No” includes. Nor is she required to utter “No” to every step of every sexual advance. One “No” will do to put the other person on notice that there is then a problem with “consent”. Once a woman says “No” during the course of sexual activity, the person intent on continued sexual activity with her must then obtain a clear and unequivocal “Yes” before he again touches her in a sexual manner. Any other interpretation of s. 273.1(2)(e) would fall prey to the rejected myth that “No” really means “Try harder”.

Clear and unequivocal yes? What happened to the consent implied by conduct that Fraser CJ appears to believe in (para. 61)? Is that only when “no” wasn’t mentioned at any point? Or does Fraser CJ merely contradict herself on a rather critical point within the same judgment? (Note, Major J. for the SCC tries to fix this disaster, as follows – para. 51: “I take the reasons of Fraser C.J. to mean that an unequivocal “yes” may be given by either the spoken word or by conduct.” Frankly, I take her words to mean something quite different.) Later, positive assent (rather than consent either express or implied) is suggested as required (emphasis in original):

[109] Those amendments make it clear that the mens rea for sexual assault includes touching a complainant in a sexual manner without having first received her positive assent to the activity. In this regard, I agree with Madam Justice Claire L’Heureux-Dubé’s analysis in R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836 at 864 which addresses the transformative nature of the 1992 amendments as they relate to mens rea: […]

Note the disturbing statement in the recent SCC pronouncement on consent in R. v. Goldfinch, 2019 SCC 38 (CanLII) (incidentally, I would argue, the “low-water” point for the SCC to date since Ewanchuk) at para. 44 (emphasis added): “Today, not only does no mean no, but only yes means yes. Nothing less than positive affirmation is required” – also, mantra repeated in para. 73. It’s not surprising that we’ve ended up here, given the trajectory we’ve careened down since Ewanchuk.

The SCC case (cited some 1203 times on CanLII – unlike the ABCA decision cited a mere 18 times):

6-person majority (per Major J.)

The absence of consent, however, is purely subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred.  While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trier of fact in light of all the evidence.  It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place.  If, however, the trial judge believes the complainant that she did not consent, the Crown has discharged its obligation to prove the absence of consent. The accused’s perception of the complainant’s state of mind is not relevant and only becomes so when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry.

Per L’Heureux‑Dubé and Gonthier JJ (generally concurring with majority):

This case is not about consent, since none was given.  It is about myths and stereotypes. The trial judge believed the complainant and accepted her testimony that she was afraid and he acknowledged her unwillingness to engage in any sexual activity. However, he gave no legal effect to his conclusion that the complainant submitted to sexual activity out of fear that the accused would apply force to her.  The application of s. 265(3) requires an entirely subjective test.  As irrational as a complainant’s motive might be, if she subjectively felt fear, it must lead to a legal finding of absence of consent.

The question of implied consent should not have arisen.  The trial judge’s conclusion that the complainant implicitly consented and that the Crown failed to prove lack of consent was a fundamental error given that he found the complainant credible, and accepted her evidence that she said “no” on three occasions and was afraid.  This error does not derive from the findings of fact but from mythical assumptions.  It denies women’s sexual autonomy and implies that women are in a state of constant consent to sexual activity.

The majority of the Court of Appeal also relied on inappropriate myths and stereotypes.  Complainants should be able to rely on a system free from such myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions.

Finally and bizarrely, McLachlin J. adds brief separate concurring reasons, agreeing with L’Heureux Dubé.

Major J.:

29 While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence.  It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place.  If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent.

30 The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct.  The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct is consistent with her claim of non-consent.  The accused’s perception of the complainant’s state of mind is not relevant.  That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry.

31 Counsel for the respondent submitted that the trier of fact may believe the complainant when she says she did not consent, but still acquit the accused on the basis that her conduct raised a reasonable doubt.  Both he and the trial judge refer to this as “implied consent”.  It follows from the foregoing, however, that the trier of fact may only come to one of two conclusions:  the complainant either consented or not.  There is no third option.  If the trier of fact accepts the complainant’s testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of consent is established and the third component of the actus reus of sexual assault is proven.  The doctrine of implied consent has been recognized in our common law jurisprudence in a variety of contexts but sexual assault is not one of them.  There is no defence of implied consent to sexual assault in Canadian law.

(b)      Application to the Present Case

32 In this case, the trial judge accepted the evidence of the complainant that she did not consent.  That being so, he then misdirected himself when he considered the actions of the complainant, and not her subjective mental state, in determining the question of consent.  As a result, he disregarded his previous finding that all the accused’s sexual touching was unwanted.  Instead he treated what he perceived as her ambiguous conduct as a failure by the Crown to prove the absence of consent.

44 The defence of mistake is simply a denial of mens rea.  It does not impose any burden of proof upon the accused (see R. v. Robertson, 1987 CanLII 61 (SCC), [1987] 1 S.C.R. 918, at p. 936) and it is not necessary for the accused to testify in order to raise the issue.  Support for the defence may stem from any of the evidence before the court, including, the Crown’s case-in-chief and the testimony of the complainant.  However, as a practical matter, this defence will usually arise in the evidence called by the accused.

L’Heureux Dubé:

85 I agree with Major J. that the application of s. 265(3) requires an entirely subjective test.  In my opinion, as irrational as a complainant’s motive might be, if she subjectively felt fear, it must lead to a legal finding of absence of consent.  Accordingly, I agree with Fraser C.J. that any objective factor should be considered under the defence of honest but mistaken belief.

89 Even though McClung J.A. asserted that he had no intention of denigrating the complainant, one might wonder why he felt necessary to point out these aspects of the trial record.  Could it be to express that the complainant is not a virgin?  Or that she is a person of questionable moral character because she is not married and lives with her boyfriend and another couple?  These comments made by an appellate judge help reinforce the myth that under such circumstances, either the complainant is less worthy of belief, she invited the sexual assault, or her sexual experience signals probable consent to further sexual activity.  Based on those attributed assumptions, the implication is that if the complainant articulates her lack of consent by saying “no”, she really does not mean it and even if she does, her refusal cannot be taken as seriously as if she were a girl of “good” moral character.

Since we’re being generous with interpreting the ABCA jurists’ words, I “take” McClung J. to have meant that the complainant was not a victim – she was essentially a willing participant, and her conduct and the entirety of the circumstances does not lead to the conclusion that she was afraid nor that she lacked consent to any of the activity.

I would suggest that wrongful convictions these days are at more than double-digits in terms of percentage of sexual assault convictions in Canada. We have the legacy of Ewanchuk, and the subsequent 20+ years of Supreme Court (and Alberta Court of Appeal) jurisprudence to thank.