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Joseph A. Neuberger
Neuberger & Partners LLP
Criminal Defence Lawyers
In a recent decision from the Ontario Superior Court, Justice Copeland rejected a Crown appeal of an acquittal based on grounds that the trial judge had relied on stereotypes and myths about sexual assault.
In the case of R. v. Solomon, 2020 ONSC 2640 the Crown unsuccessfully argued that the trial judge misapplied the law of consent and employed myths about how victims should behave but it was found that, when the reasons were viewed as a whole, the judge’s words had been taken out of context.
Where a Crown appeals an acquittal in any case, there must be an error of law to be successful. In sexual assault cases, reliance upon myths or stereotypes are deemed an error of law. Justice Copeland noted that “[t]o assess whether a trial judge has engaged in impermissible reasoning, one must consider the particular evidence, and the particular use of it by the trial judge, in the context of the evidence and issues at trial.” He found that where some evidence could be misused, in this case, the evidentiary value was properly assessed.
The question on the law of consent arose in connection to testimony from both the complainant and the accused that he had slipped his hand inside the waistband of the complainant’s pants a number of times after she had said no. The trial judge found that the hand movements were non-verbal requests for consent while they were engaged in kissing and that the accused had respected that boundary by removing his hand whenever she had said to stop.
While the Supreme Court of Canada has made it clear in R v Barton, 2019 SCC 33 that “testing the waters” does not constitute “reasonable steps” to obtaining consent, Justice Copeland clarified that this was “not a situation of a defendant either just persisting after being told ‘no’ to a specific sexual act, or just relying on the passage of time as the basis to find consent.”
The law currently requires affirmative, communicated consent but it still allows for that consent to take the form of both words and actions. It should be uncontroversial that most people use non-verbal communication during sexual encounters and that trial judges need to remain alive to the difference between the reckless type of behaviour encapsulated in the warning against “testing the waters” as compared to the natural, organic type of communications that comprise normal sexual behaviour.
Another issue raised was whether or not the trial judge relied on myths when he rejected the complainant’s evidence that her actions were based on her fear of the accused. Justice Copeland, while acknowledging that only complainants can testify as to their subjective state of mind, emphasized that these claims of subjective feelings are not insulated from credibility assessments.
In this case, the trial judge rejected the evidence regarding the complainant’s fear based on the whole of the evidence which was incompatible with her testimony. By rejecting her testimony about having been pinned down by the accused earlier in the evening, the basis to find her fear reasonable had been undermined and the judge was free to find her not credible.
Justice Copeland asserted that, in context, “the trial judge was entitled to consider whether the actions of the complainant were or were not consistent with her assertion that she consented out of fear, and he was entitled to make this assessment taking into consideration the full context of the situation at that time in the apartment.”
Perhaps most importantly, for all sexual assault and domestic assault cases going forward, at paragraph 42, Justice Copeland stated:
“The need to eliminate rape myths is designed to eliminate discriminatory beliefs, and to put complainants in sexual assault cases on an equal footing with complainants and witnesses in trials involving any other type of charge. But it is not designed to put complainants in sexual assault cases on a better footing than complainants and witnesses in other types of cases. As with any witness in any type of case, the evidence of a complainant in a sexual assault trial must be assessed rationally and objectively in the context of all the evidence at trial, and with regard to the burden of proof.”
Where the conduct of a complainant is “ambiguous or contradictory,” it must remain open to defence lawyers to put the subjective claims of a complainant to the test. It is possible to reject stereotypes and myth based thinking without eliminating the ability for an accused to present a meaningful challenge in cases that often rely solely on the testimony of a complainant.
We must be cautious not to grant complainants immunity from cross-examination in sexual assault trials just because of the nature of the accusation and the gender of the complainant. The presumption of innocence and burden of proof are essential to a fair trial and this decision is an important reminder that, in our rush to balance the scales, we cannot tip those scales too far.