Jordan Donich on sexual assault law post-MeToo

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Roughly three years after the MeToo movement, Canadian courts are making changes. Judges and Crown attorneys throughout the country are attending and participating in continued education related to sexual offences at increasing rates. This, among other things, has led to a better understanding within the justice system of sexual offences and how they should be handled.

The Canadian justice system has taken several important steps forward, offering more and more protection to the victims of sexual assault. In 2020 alone, 10 of the 16 criminal law cases the Supreme Court of Canada presided over were related to sexual assault.

In 2019, the Supreme Court delivered its decision in R. v. Friesen. The decision outlined appropriate sentencing ranges for sexual offences against children including child pornography offences, sexual interference, sexual assault, and child luring. In that case, the defendant was found guilty of sexual interference and sentenced to six years in prison after molesting a four-year-old child. On appeal, the court reduced the sentence to four-and-a-half years in prison.

The Supreme Court ultimately restored Friesen’s six-year sentence, arguing that four-and-a-half years simply was not enough for the crime that had been committed. The court went on to opine that the appropriate sentences for those convicted of sexually based offences against children should be upper single digit to lower double digit prison sentences. The court made it clear that there must be an upward departure from the sentences previously imposed on those convicted of sexual offences against children.

The court provided several reasons for why this range is appropriate. After gaining a deepened understanding of the lifelong impact of sexual abuse, Parliament recently increased the maximum penalties for many sexual offences against children. The court reasoned that the average sentence imposed should reflect this change and increase.

Further, the court stated that lower courts must consider a list of non-exhaustive factors relevant to sentencing to promote uniform sentencing throughout the country. For example, where an offender lacks insight into their crimes or is high risk to reoffend, there is an emphasis on separating the offender from society for a longer period to ensure a safe society for children.

Finally, the court reasoned that those convicted of sexual offences against children should be punished more severely than other offenders due to the gravity of these type offences. The penalties outlined in the Criminal Code for sexual offences against children are among the most severe and so the penalties imposed on those convicted of such offences should be of the most severe.

In late 2020, the Supreme Court of Canada presided over seven sexual assault cases. In all seven cases the Supreme Court sided with the complainant and the Crown. The decisions sent a strong message to lower courts throughout Canada; errors are still being made in how sexual assault cases are being handled and deference is owed to trial judges who believe the testimony of the complainant.

The Supreme Court stated that the appeal court judges should have afforded more weight to the credibility and reliability assessments of the trial judges. In many of the cases, the appeal courts had overturned the convictions, stating that the trial judge had not provided sufficient reasoning for why the complainant should be believed or trusted.

In many sexual assault cases, there is little to no physical evidence and often no third-party witnesses to the offence. This means that, in many cases, the only evidence the trial judge has to consider is the testimony of the complainant and of the accused. In these situations, trial judges must assess the reliability and credibility of each witness to determine who they believe. If the judge believes the complainant’s testimony and is convinced beyond a reasonable doubt that the complainant’s version of events is accurate, they must convict the accused.

The Supreme Court, however, has made it very clear with these decisions, deference must be given to the reliability and credibility assessments made by trial judges. While some feel as though this sends a message that judges should side with complainants, others believe this is a step in the right direction for our justice system. The decisions show a step towards taking a more contextualized approach to sexual assault and disbanding harmful myths, ultimately resulting in a more equitable justice system.

Jordan Donich and Carley Reynolds are both lawyers at Donich Law.