Sexual Assault Law Updates

In the recent decision of R. v. Reimer, 2024 ONCA 519, the Ontario Court of Appeal reaffirmed that prior expressions of consent to sexual activity can be relevant to the issue of consent and are not barred by the contemporaneity rule.
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Sexual Assault Law Updates: The Use Of Common Sense Assumptions At Trial

In the recent decision R. v. Kruk, 2024 SCC 7, the Supreme Court of Canada declined to recognize the proposed “rule against ungrounded common-sense assumptions” as giving rise to an error of law. The decision addressed trial judges’ reliance on common-sense generalisations in the fact-finding process.
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Sexual Assault Law Updates: Intoxication, Consent and Honest But Mistaken Belief

The Evidence of An Accused Must Be Weighed Properly by a Trial Judge.
In the recent Ontario Court of Appeal decision, R. v. S.B., 2023 ONCA 784, the Court came to separate concurring reasons to grant a new trial.
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Sexual Assault Law Updates: Male Accused Found To Be Akin To a Battered Spouse

In the recent, groundbreaking case of R. v. F.Z., 2023 ONSC 3159, the male accused was found to be suffering from complex trauma due to the conditions of his marriage which supported his evidence to rebut the allegations of sexual assault and coercive control.
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Sexual Assault Law Updates: Historic Allegations and Repressed Memories

Recovered memories became the subject of focus in a recent retrial, R v. S.K.M, 2023 ABKB 144. This case had previously been granted a retrial after an expert witness was denied to testify in regards to recovered memories and the reliability of what could be honestly believed but false memories.
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Sexual Assault Law Updates: Adult Witness Credibility in Historic Allegations

It is well established that the testimony of children can’t be held to the same standards as what a trier of fact would expect of an adult. At the same time, there is a difference between the language and perception skills of a child and those of a person testifying as an adult about historic events.
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Is “Context” and “Narrative” Dead Since Goldfinch?

Since the decision in R. v. J.J., 2022 SCC 28 the defence in sexual assault cases are now required to bring pre-trial applications to request admissibility rulings on all evidence in their possession. There are two Stages to these applications. The first is to determine if a hearing is warranted or required. The second is to determine the admissibility based on relevance and probative value versus possible prejudicial effect.
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Two New Supreme Court Decisions: New Rules of Evidence and “Stealthing”

On June 30, 2022, the Supreme Court of Canada ruled in R. v. J.J., 2022 SCC 28 that the Criminal Code amendments brought in by Bill C-51 after the Jian Ghomeshi trial, are constitutional, requiring the defence in sexual assault cases to reveal all “records” in their possession prior to trial.
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Sexual Assault Law Updates: The Self-Induced Extreme Intoxication Defence

When an accused testifies in a sexual assault trial it triggers what is classically referred to as a W.(D.) framework for assessing reasonable doubt. In 1991, the Supreme Court of Canada, in R. v. W.(D.) , [1991] 1 S.C.R. 742, provided a three step process to ensure that a trier of fact did not simply choose whom to believe between the competing testimony of a complainant and accused person.
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Sexual Assault Law Updates: “Doubt About Doubt”: Rethinking R. v. W.(D.)

Sexual Assault Law Updates: Honest But Mistaken Belief In Jury Instructions

The defence of “honest but mistaken belief” in consent in a sexual assault trial is not always available to an accused and can cause a lot of confusion even in trials with a judge alone. Jury instructions can get even more confusing.
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Sexual Assault Law Updates: Collusion, Burden of Proof and Proper Analysis

“Inadvertent Collusion” Is To Be Avoided… As A Phrase.
On November 16, 2021 the Ontario Court of Appeal ordered a new trial in R. v. C.G. , 2021 ONCA 809 on a number of grounds. The trial judge had accepted the Crownʼs submission that defence witnesses had “inadvertently colluded” with each other on their evidence. This can happen where people who are friends or family of the accused are witness to some or part of the events.
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Sexual Assault Law Updates: The Balancing Of Interests and The Tilting Of Scales

On October 5th and 6th, 2021, the Supreme Court will hear arguments in R. v. J.J. challenging the constitutionality of the new “reverse disclosure” legislation created by Bill C-51 in 2018. The entire records screening regime is subject of the appeal and cross-appeal, primarily focusing on the treatment of non-sexual records in the possession of the accused…
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Sexual Assault Law Updates: “Bad Reasons” Are Not A Ground of Appeal

The Courts of Appeal have responded quickly to the Supreme Court’s guidelines included in the May 14, 2021 decision of R. v. G.F. and R.B., 2021 SCC 20, citing the decision over twenty times within the first month of release.
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Sexual Assault Law Updates: Supreme Court on Intoxication and Consent

On May 14, 2021 the Supreme Court of Canada delivered their decision in R. v. G.F. and R.B., 2021 SCC 20. This was a case involving a 16 year old complainant who, aer becoming intoxicated on a camping trip, testified that aer vomiting and passing out in a trailer belonging to a common-law couple, she awoke while being sexually assaulted by the man and woman.
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Sexual Assault Law Updates: Sexual Stereotypes vs Logical Inferences

The Ontario Court of Appeal recently overturned acquittals in R. v. Steele, 2021 ONCA 186 finding that, yet again, myths about sexual assault victims had tainted the trial judge’s reasoning.
The two particular instances identified by the Crown involved speculation on why the complainant agreed to enter an abandoned trailer with the accused and why she lied about her whereabouts when her father called her cellphone.
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Sexual Assault Law Updates: Motive and The “Forbidden Question” in Sexual Assault Trials

In the Kusk case, the Crown had asked the accused why the complainant would lie when the defence had not alleged a motive. The Court of Appeal overturned the conviction, denouncing the forbidden question as “beguiling” and pointing out that it reverses the onus of proof in such a subtle way that even experienced judges can fall prey to this “false train of reasoning.”
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Sexual Assault Law Updates: The Meaning of “Control” in Prostitution

Criminalizes a very broad range of conduct in circumstances where there may be no exploitative relationship between the seller and the person assisting him or her with advertising. However, the respondent did not challenge the constitutionality of the prohibition on advertising.
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Sexual Assault Law Updates: The Ongoing Error Of Credibility Contests

Since the Ontario Court of Appeal decision in R. v. J.J.R.D., [2006] O.J. No. 4749 there has been significant movement away from following the three step process for assessing testimony, as previously outlined in the Supreme Court’s 1991 decision in R. v. W.(D.)”
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Sexual Assault Law Updates: Ontario No Longer Subject To New Rules

In August, during pre-trial applications in R. v. G.E. [2020] O.J. No. 4337, Justice Doody had commented “This would not be a complex case but for the complexity imposed by the procedural requirements of the Code and some uncertainties created thereby.”
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Sexual Assault Law Updates: The Subject Matter Of The Charge

The Ontario Court of Appeal recently issued a decision in R. v. M.R.S., 2020 ONCA 667 which took aim at how “narrative” evidence was submitted by the Crown which amounted to a volume of “similar fact” or bad character evidence at trial…..
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Sexual Assault Law Updates: Improper Crown-Led Evidence Results In Overturned Sexual Assault Convictions

“You Don’t Get Points for Not Exaggerating” There has been increased scrutiny on Crown-led evidence in sexual assault trials since the Supreme Court of Canada ruled in R. v. Barton, 2019 SCC 33 and R. v. Goldfinch, 2019 SCC 38 that the Crown-led evidence of a sexual nature should be subjected to a voir dire….
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Sexual Assault Law Updates: New Rules of Evidence to be Challenged in the Supreme Court

The Supreme Court has granted leave to appeal in a BC case, R. v. J.J., 2020 BCSC 349, which found the seven day notice requirement in s. 278.93(4) of the Criminal Code violated s. 7 of the Charter and could not be saved under…
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Sexual Assault Law Updates: Misunderstanding the Contemporaneity Rule – Advance Sexual Discussions May Still Be Relevant to Consent