Sexual assault law is arguably the most complex area of Canadian law to navigate at present. I have conducted many trials and appeals including to the Supreme Court of Canada in sexual assault matters in what has nearly been a 20 year criminal defence career. It has never been more difficult to handle these cases than it is right now.
It is rather uniquely an area where there can essentially be both a genuinely traumatized victim AND no criminal conduct at the same time.
It is an area where conduct of an accused that is otherwise completely lawful, moral, and pro-social, can become seriously harmful in an instant if a sexual partner changes their mind. The difference between a conviction or an acquittal can sometimes depend on whether such an internal change of mind was ever communicated.
The same area of law also covers some of the most disturbing abusive conduct a person can commit against another human being. The spectrum is incredibly wide.
Criminal trials are regularly necessary to run based on no issue other than whether the accused person honestly and reasonably believed that they had received communicated consent - verbally or by actions.
Consent must be obtained to literally each and every instance of sexual touching, and can of course be withdrawn at any time. Historically and continuing to today, mythical and stereotypical reasoning has been used to unjustly discredit complainants as liars. Our appeal courts are consistently addressing repeated legal errors of this nature by very experienced defence lawyers and trial judges. And prosecutors are now also finding themselves admonished for presuming myths and stereotypes as to how accused persons are "supposed" to act. This is not easy work.
The political (legislative) responses have been far from clean and straightforward. Only last month in a 6-3 split, in a losing dissent, a highly respected Supreme Court of Canada justice wrote about Gomeshi-case-inspired defence disclosure rules [my emphasis added]:
Quote:
These limits are disproportionate and cannot be demonstrably justified in a free and democratic society. In pursuing a legitimate purpose, Parliament has proceeded in a ham‑fisted manner, without regard for fundamental rights of accused persons. The regime is not merely disadvantageous to the defence; it interferes significantly with the accused’s ability to avoid self‑incrimination, effectively cross‑examine prosecution witnesses, and adduce relevant and probative evidence during a proceeding that will decide their liberty. While the regime may advance Parliament’s objective of protecting complainants’ privacy, dignity, and equality, it does so only marginally, and at the expense of core fair trial rights.
Parliament has legislated a formula for wrongful convictions. Indeed, it has all but guaranteed them.
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He also wrote:
Quote:
This is not minimally impairing; rather, it potentially eviscerates the effectiveness of cross‑examination, particularly in sexual assault trials where the complainant will often be the only witness. And, I repeat, it raises the near certain prospect of innocent persons being convicted.
That last point deserves special emphasis. Rather than effecting a minimal impairment, this ham‑fisted measure is an instance of legislative overkill. It shows little to no regard for the rights of accused persons, some of whom will be not only presumptively innocent, but actually so ⸺ although, in many such cases, no longer provably so, since their sole tool for demonstrating their innocence has been statutorily neutered.
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https://scc-csc.lexum.com/scc-csc/sc...19428/index.do
Put all of those technicalities of the law (and a bunch of others) up against the reality of sexual activity being often less than orderly, and the opportunities for very serious injustices are everywhere.
So, while I can appreciate that many are trying to have good-faith debates of this case (of which I make no comment as I have not followed it), sexual assault trials generally, and what a jury verdict means or does not, it is somewhat maddening to see many incorrect statements being made.
So I will just offer some points that I think are important:
- A finding of "not guilty" cannot itself be said to be a finding of factual innocence. In reality, even a belief that an accused is "likely guilty" is supposed to lead to an acquittal.
- On the other hand, in Canada, a jury that unanimously finds that an accused has been the victim of a malicious false accusation cannot tell us that. All they have available to them is a finding of "not guilty". It remains a criminal offence for a juror to disclose the contents of jury deliberations (except in extremely limited circumstances that are not applicable here). So, you absolutely cannot conclude that a "not guilty" verdict just meant that a jury had a mere reasonable doubt. In any case, they can, and might actually have come to the unanimous view that the allegation was false.
- Guilty verdicts in a he-said / she-said case are not in any way uncommon or particularly difficult to obtain. The trier of fact is fully entitled to disbelieve / reject the testimony of an accused and believe the testimony of the complainant.
- Defence lawyers don't have to ask about parallel civil cases and money as a possible motive to lie. Wouldn't a truthful sexual assault victim also file a lawsuit? Without more the filing of a lawsuit seeking money for damages is not very compelling stuff for cross examination.
- I do not know percentage likelihood of false accusations but they happen. I have seen them after a complainant eventually admits they fabricated the allegations. But here's the thing about percentages. If it is a one in a million chance you will face a false accusation in the public at large, do you know how much relative prevalence matters if you are the one? Zero percent.
- A person falsely accused may choose not to sue for any number of valid reasons. To conclude that an acquitted person is probably guilty just because they elect not to sue a complainant is unwarranted. It might be accurate, unless it absolutely is not.
- The idea that a complainant wouldn't put themselves through a horrible traumatic experience unless they were making a legitimate allegation also makes multiple presumptions about human behaviour that may apply or not...and usually are based on one assuming without evidence that their own values, beliefs and experiences are shared with that of the complainant.