The trouble with sex assault trials

In an overview of the law of sexual assault and the need both to encourage reporting of this crime and to ensure that myths about complainants are not part of the analysis conducted by a trier of fact, Chief Justice Beverley McLachlin made these comments: “[T]he reality is that evidence of sexual conduct and reputation in itself cannot be regarded as logically probative of either the complainant’s credibility or consent . . . the old rules which permitted evidence of sexual conduct and condoned invalid inferences from it solely for these purposes have no place in our law.” The statements are not recent; they were made in 1991 and form part of her majority judgment for the Supreme Court of Canada in R v. Seaboyer.

While Seaboyer actually struck down the existing “rape shield” provisions as being overly broad, it also set out a framework for what would be admissible with respect to the sexual activity of a complainant. The majority decision written by McLachlin, just two years after she was appointed to the Supreme Court, formed the basis for future Criminal Code amendments in this area that are still the law today. Both her majority judgment and the dissent by Justice Claire L’Heureux-Dubé engaged in a thorough analysis about how to balance the rights of defendants to a fair trial with those of complainants in sexual assault proceedings. The judges agreed that the right of full answer and defence is not supposed to come at the expense of the privacy and equality rights of a complainant in a sexual assault trial. In a lengthy judgment that would have upheld the existing provisions, L’Heureux-Dubé detailed many of the rape myths at the time such as suggestions that women fabricate sexual activity out of spite or because they are “fickle and seeking revenge on past lovers.”

A quarter of a century later, in acquitting Jian Ghomeshi of all charges involving three women, their post-incident contact with the former CBC host was described by Ontario Court Justice William Horkins as “odd,” “questionable,” and “out of harmony” with what is to be expected of victims of violent sexual assaults. While courts must guard against “false stereotypes” in this area, it is also necessary to be vigilant against “the equally dangerous false assumption that sexual assault complainants are always truthful,” the provincial court judge wrote in his March 24 decision.

The acquittals were expected by most legal observers, because the complainants did not disclose their subsequent contact with Ghomeshi and were contradicted about what they told police. Yet the debate in both the daily media and on social media about the treatment of sexual assault complainants in the criminal justice system was strikingly similar in tone and content to what was before the Supreme Court in 1991.

Since the release of Seaboyer, there have been a number of legislative reforms to enhance the protection of complainants. The Supreme Court has also issued other significant rulings in the area of sexual assault, especially in the area of consent. However, the reporting rate of this offence remains very low. Of the complaints that do proceed to trial, fewer than 50 per cent end up with a finding of guilty. According to annual data collected by Statistics Canada, just less than 1,400 people in the country were convicted of sexual assault in 2013-14, the most recent data available. Of the defendants, 99 per cent were male.

As well, if someone is acquitted at trial, an appeal by the Crown is unlikely. A survey of Court of Appeal cases in Ontario over the past five years shows that the Crown has appealed, on average, two cases per year when there has been an acquittal of an adult sexual defendant at trial.

Groups that act for women who are victims of sexual violence say the process remains unfair to complainants and is still steeped in myths about how complainants are supposed to react after being assaulted. On the flipside, defence lawyers argue that there are significant legislative protections that make these very difficult cases to win. As well, it is only proper that judges ensure the Crown has met the very high standard of reasonable doubt, because of the devastating consequences for anyone convicted of a sex offence.

From Seaboyer to Ghomeshi, the debate has remained essentially the same. But has there been substantive progress in terms of how these types of allegations are investigated and then adjudicated in the courts?

The track record of sexual assault prosecutions in this country is a not a good one, says Carissima Mathen, a University of Ottawa law professor and a former litigation director of the Women’s Legal Education and Action Fund. “I think there are still myths about how sexual assault victims should react. But we don’t know how the Ghomeshi case would have turned out if there had not been the inconsistencies in the evidence of the complainants,” she says.

While there was criticism of the complainants by the judge and many in the media, there remains a lot of public support for the three women, which is a positive sign, says Mathen. “Even to have had a mixed reaction was noteworthy,” she says.

One aspect legal academics and those in the courts agree on in these cases is that Canada has progressive sexual assault laws. “The laws are not the problem,” says Elaine Craig, a professor at Schulich School of Law at Dalhousie University in Halifax, who has written extensively on the treatment of complainants in sexual assault trials. The problem, she suggests, is that the laws are not strictly applied during what are often wide-ranging cross-examinations designed to intimidate complainants rather than test evidence that relates to the alleged incident before the court. “The subtext is still stereotypes about women,” says Craig. Judges, Crown attorneys, and defence lawyers all have an obligation not to cross the line with questions that are irrelevant and aimed only to denigrate an alleged sexual assault victim.

Craig highlights examples of these types of cross-examinations in an upcoming academic paper to be published in the University of Toronto law journal. Transcripts of one Toronto-area trial where a woman was choked and savagely raped show the defence lawyer repeatedly asked about how her injuries affected her bodily functions in the days after the assault. On appeal, one of the main grounds was that the judge interjected too frequently and curtailed some of these kinds of questions. The Court of Appeal rejected that argument and upheld the conviction and sentence. The obligation to defend your client does not extend to this type of cross-examination, Craig suggests.

A pilot project in Ontario, where in addition to the right to counsel if there is a third-party records application a complainant will also have up to four hours of government-funded legal services, is a good first step to protect the rights of sexual assault victims, says Craig. While the funding is not sufficient to act for a client in a civil action, it is a positive development, says Amanda Dale, executive director of the Barbra Schlifer Commemorative Clinic in Toronto, which provides legal and counselling services to female victims of violence (the clinic is named after a lawyer who was murdered the same day she was called to the bar). “The Crown is not representing a complainant’s interest. She needs independent legal advice,” says Dale. “This will give women concrete advice about their options” at an early stage. For example, a lawyer can outline the process in going to police, or other options such as the types of civil actions that can be filed, claims to criminal compensation boards, or where to go to receive counselling.

This does not mean that Dale thinks the criminal justice system should be abandoned despite the low rates of conviction. “It is the only way we have to make perpetrators accountable. Do we as a society want to agree to grant criminal immunity for sexual assault? My answer is no,” says Dale. She suggests it may be time to lobby the federal government to enact laws to grant standing to complainants in sexual assault trials. As well, she echoes Craig’s views that lawyers and judges in these proceedings need to rein in improper questioning of witnesses.

In the Ghomeshi trial, the cross-examinations were not unusually graphic or lengthy, yet they may still have run afoul of statutory provisions in place to prevent sexual history stereotypes being used to impeach the credibility of complainants. Section 276 of the Criminal Code states that evidence that a complainant has engaged in “sexual activity” with the accused or another person is presumed not to be admissible to support an inference that the complainant “is less worthy of belief” or more likely to have consented to the incident that is before the court. The activity can be before or after the alleged sexual assault. For a defendant to try to put forward this type of evidence, a written application is required to explain its relevance and a voir dire is held in camera by the trial judge.

The term sexual activity has been given a broad definition by the Ontario Court of Appeal, including evidence that a complainant and accused slept together on another occasion without sex and there was a goodbye kiss in the morning.

The cross-examinations of the complainants in the Ghomeshi trial by defence lawyer Marie Henein were replete with e-mails and photos her client had saved, about followup conversations of a sexual nature, a bikini photo, and cuddling in a park. All of the electronic communications were apparently saved by Ghomeshi and brought out in cross-examination by Henein. Crown attorney Michael Callaghan did not ask the defence to prove the authenticity of any of the documents or provide any context to the communications to show why there were admissible.
Callaghan, an experienced and well-liked prosecutor in Toronto, also did not ask for s. 276 applications to be brought when the defence put this type of content to the witness. Nor were the Criminal Code requirements raised by Horkins. The only time it came up  was when Callaghan consented to the defence asking the third complainant about a sexual act she admitted to performing on Ghomeshi not long after she said she was assaulted by the then-CBC host.

In his verdict ruling, Horkins singled out the content of the e-mails, including the bikini photo, as evidence the complainants were not credible and did not meet what he described as their disclosure obligations. Under a section entitled “the flirtatious e-mails,” Horkins said this undermined the first complainant’s assertion that she was traumatized by Ghomeshi. “The negative impact that this after-the-fact conduct has on L.R.’s credibility is surpassed by the fact that she never disclosed any of this to the police or to the Crown,” the judge wrote. “The expectation of how a victim of abuse will, or should, be expected to behave must not be assessed on the basis of stereotypical models. Having said that, I have no hesitation in saying that the behaviour of this complainant is, at the very least, odd.”

The way the judge determined that the complainants were neither reliable nor credible, based on their “after-the-fact” actions and lack of disclosure about that conduct, was appropriate, says Michael Edelson, a partner at Edelson Clifford D’Angelo Friedman LLP in Ottawa, who has conducted numerous sexual assault trials in his career. “It goes to the veracity and the accuracy” of their testimony, says Edelson. He says Henein did exactly what a defence lawyer should do. Criticisms of the focus of her cross-examinations are “off base,” says Edelson. The need to assess the credibility (truthfulness) and reliability (accuracy) of a witness was set out more than 20 years ago by Ontario Court of Appeal Justice David Doherty, in a case called Morrissey, recounts Edelson. “Some things are so important that, if the witness lies at trial, that is the death knell of the Crown’s case,” he points out.

As is common in sexual assault trials, much of the cross-examinations of the complainants was about actions or incidents not directly related to the allegations. “You may go around the edges or you may directly confront the complainant,” says Edelson. “It’s all about context. It is dominated by the context in which the events took place. There are many things that may seem peripheral to the observer sitting at home but are actually very relevant.”

In his assessment of the first complainant, Horkins also highlighted the fact the woman testified that she thought Ghomeshi owned a Volkswagen Beetle, although the court heard it was not purchased until months after the alleged incident. “This demonstrably false memory weighs in the balance against the general reliability of L.R.’s evidence as a whole,” wrote Horkins.
The trial judge was entirely correct to make that finding, says Edelson. “She did not say, ‘I am not sure.’ She said she was ‘positive,’” he notes.

Throughout his ruling, the trial judge stated a number of times that he was guarding against being influenced by stereotypes of how sexual assault victims are supposed to react. These stereotypes do seep into many trials though, says an experienced Canadian prosecutor who has conducted a number of sexual assault prosecutions. “The laws are positive. The way they are applied in court is a different story,” says the Crown attorney, whom Canadian Lawyer has agreed not to identify. “We still believe victims are supposed to act a certain way. Women often minimize, ignore, or repress physical or sexual abuse. The denial story is the best way to get on with your life,” the prosecutor explains. If a case does come to trial though, that could impact the memory of the witness about the incident. If a defence lawyer can show the witness has been contradicted on a “collateral matter,” that suddenly becomes relevant. “But nobody listens to the explanations [for the contradiction],” says the Crown.

Much was made in the media coverage of the Ghomeshi trial about the willingness of the complainants after the alleged assaults to meet with Ghomeshi, engage in romantic acts, and send flirtatious communications. “That is not unusual,” says the prosecutor. “You might try to pursue a relationship because you liked him, and if one ensues, that legitimizes what happened. He really liked me, he did not rape me.”

 One of the other myths still put forward regularly is that if it was a “one-night stand,” the woman went to police because she regretted what happened, says the Crown attorney. “We still believe she has ulterior motives. But if it was about regret, you wouldn’t go to the police. You wouldn’t want anyone to know.” Despite the legislative protections, the average sexual assault trial remains “an all-out attack on the complainant,” says the prosecutor.

Not surprisingly, this is not a view shared by prominent defence lawyers such as Edelson or Peter Royal, who has also acted for clients in a number of sexual assault proceedings. “I can tell you, in my experience in Alberta, the application of [s. 276] is very strictly applied,” says Royal, who heads Royal & Co. in Edmonton. “I think that courts are increasingly protective of complainants, especially if the complainant is a young person.”

The defence lawyer is no stranger to high-profile cases that attracted protests and opinion pieces about sexual assault law. “We had to go in the side entrance of the Supreme Court” for security reasons, remembers Royal, when in the fall of 1998 he represented Steve Ewanchuk. The Supreme Court rejected the concept of a defence of “implied consent” and substituted a conviction for Ewanchuk’s acquittal at trial.

“Times have changed completely,” says Royal about the nature of sexual assault trials and the way defence lawyers question complainants. “There is a broad right of cross-examination and there should be. The downside for your client is potentially life-destroying. Still, you don’t want to bully the complainant. You will lose any sympathy from the court,” he says.

At the same time, he agrees these can be difficult cases for Crown attorneys if there is no corroboration or forensic evidence and only the testimony of the complainant and the defendant.
“That leaves room for an acquittal,” he says.

The so-called W.(D.) test, set out by the Supreme Court in 1991, allows for an acquittal if a court has a reasonable doubt based on the totality of the evidence, even if the trier of fact does not believe the testimony of the accused. This has resulted in scores of trial judgments over the years, where judges say in written reasons that the defendant is “probably guilty,” but they must acquit.

The application of W.(D.) is about fairness to the defendant, says Edelson. “Judges were constantly choosing from one version or the other,” which, he says, is not an appropriate way to determine if the Crown has proven its case beyond a reasonable doubt.

Comments that Edelson made at a seminar more than 25 years ago, about the need to “whack” a complainant in cross-examination at a preliminary hearing, were back in the spotlight again in the public discussion about the Ghomeshi trial. The statement, made in 1988, has been taken out of context, says Edelson. It was about the need for a vigorous cross-examination at that stage. “If the complainant stands up to the scrutiny, you will have to go back to the client and have a serious discussion [about a guilty plea],” he says.

If the tenor of a cross-examination is simply to embarrass the complainant, then a line has been crossed and the court should step in, Edelman agrees. However, a criminal defence lawyer’s professional obligation “is to be fearless in the defence of our clients. That is the nature of the beast,” he says.

Any discussion about sexual assault law must also take into account the impact on someone convicted of such an offence, says Edelman. “The accused will be labelled a sex offender on a registry. That is fatal to job prospects. DNA samples will be taken. He could lose access to his children,” he points out. Convicted sex offenders “wear the Scarlet Letter” in contemporary society, he suggests. “That is why the evidentiary standard [for a conviction] has to be high.”

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Sexual assault by the numbers

3,002 total number of sexual assault cases with a disposition in court in Canada in 2013-14
•           45 percent of those cases with a finding of guilt.
•           44 percent of those cases that were withdrawn or stayed by the Crown.
•           63 overall percent of cases of all offences in 2013-14 that ended with a finding of guilt.

99 percent of sexual assault cases in which the accused was male.

55 percent of individuals convicted of sexual assault who received a custodial sentence.
•           300 Median number of days imposed for those who did receive a custodial sentence.

Sexual assault legislation in Canada

1892 Rape is defined in the Criminal Code as the carnal knowledge of a woman who is not his wife without her consent, by fraud, or with consent extorted by threats or by personating her husband. Carnal knowledge is complete upon penetration “even without the emission of seed.” The maximum penalty is life in prison or death.

1919-1921 Whipping is added as a punishment (along with a prison sentence) to anyone convicted of rape or attempted rape.

1953 The wording of the relevant sections is changed slightly (carnal knowledge is changed to sexual intercourse) although the elements of the offence are the same. Rape now carries a maximum penalty of life in prison, instead of the death penalty, as well as whipping. The maximum sentence for attempted rape is increased to 10 years from seven, as well as a whipping.

1982 Major changes were made to the sexual assault provisions in the Criminal Code. A man could now be prosecuted for the sexual assault of his wife. The maximum sentence for a sexual assault prosecuted by indictment was reduced to 10 years, or 14 years if a weapon was involved. Aggravated sexual assault carries a maximum of life in prison. Mistaken belief in consent can be put to a jury if a judge believes there is sufficient evidence. A so-called “rape shield” provision is also enacted to say that evidence of a complainant’s sexual reputation is not admissible.

1992 Changes are made to restrictions on admissibility of evidence of a complainant’s sexual history, after the provisions enacted a decade earlier were struck down by the Supreme Court of Canada.

1995 If the Crown proceeds summarily in a sexual assault prosecution, the maximum sentence is 18 months in jail.

1997 Changes are made to the Criminal Code to deal with requests by the defence for third-party records of complainants.

Sources: Criminal Code of Canada; Supreme Court of Canada; professor Constance Backhouse.

Major Supreme Court of Canada decisions in the area of sexual assault

Pappajohn v. The Queen (1980)
A defendant can rely on an honest but mistaken belief there was consent as long as there is evidence to support this belief beyond that of the accused’s own assertion.

Sansregret v. The Queen (1985)
The mistake of fact defence is not available when an accused is wilfully blind to whether or not there was consent —— refining what was said in Pappajohn.

R v. Chase (1987)
Sexual assault is defined as an assault that is sexual in nature, where the sexual integrity of the victim is violated, based on an objective interpretation of the circumstances. The offence is not limited to certain acts or specific parts of the body.

R v. Seaboyer (1991)
Criminal Code provisions that restricted evidence about a complainant’s other sexual activity is found to be too broad and a violation of the Charter. At the same time, trial judges are instructed that evidence of this nature should only be admitted if it is tendered for a legitimate purpose and logically supports a defence.

R. v. O’Connor (1995)
A framework is established for trial judges to follow when an accused seeks medical, therapeutic, or other third-party records of the complainant. Judges are reminded that the right to full answer and defence must co-exist with other rights, including privacy and equality.

R. v. Ewanchuk (1999)
The defence of “implied consent” does not exist and is not available in sexual assault cases. Consent must at all times be freely given, the court stresses.

R. v. Mills (1999)
The Criminal Code is amended following O’Connor to set up a formal procedure when defendants seek third-party records of complainants in sexual assault proceedings. The procedure is upheld by the court as being constitutional.

R. v. Darrach (2000)
Changes made to the Criminal Code about restrictions on the admission of evidence related to a complainant’s sexual history, since the decision in Seaboyer, are upheld by the court. An accused does not have the right to put forward misleading evidence to support illegitimate inferences, the court says.

R v. J.A. (2011)
An individual must always have the capacity to give consent. The court rejects the concept of “advanced consent” in that a person can agree to have sexual acts performed on them after being rendered unconscious by a partner.