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Joseph A. Neuberger
Neuberger & Partners LLP
Criminal Defence Lawyers
Throughout October, November and December 2020, the Supreme Court of Canada heard appeals in ten different cases involving sexual assault appeals. In seven of those cases the appeal was granted or dismissed after only a short recess.
In all seven rulings from the bench, the Supreme Court found in favour of the Crown and confirmed or restored the convictions.
While the final outcome in many of these cases may not be controversial, the volume of appeals indicates that the lower courts required more guidance. In five of the rulings, the Supreme Court overturned the majority from the Courts of Appeal and did not take the opportunity to explain why.
One of those opportunities, in R. v. Langan, 2019 BCCA 467, involved the correct interpretation of the recent Supreme Court rulings in R. v. Barton, 2019 SCC 33, R. v. Goldfinch, 2019 SCC 38 and R. v. R.V., 2019 41, which explicitly recommend that Crown-led sexual history evidence should be subjected to a voir dire for admissibility.
Instead, the Supreme Court endorsed the dissenting opinion which, in part, concluded that because “the Crown was obviously supporting the complainant’s testimony” the evidence would not violate the “twin myths.”
The issue is much more complicated. In Barton, Goldfinch and R.V., the Crown did lead evidence that opened up inappropriate sexual history evidence even though they were advancing a position of belief in the complainant’s testimony or, in Barton, belief in the accused’s guilt.
In paragraph 79 of R.V., Justice Karakatsanis wrote:
“[I]t would be prudent to consider both the Crown’s proposed use of the evidence and any challenges proposed by the accused at the same time. A view of how both sides intend to use the evidence would allow trial judges to more accurately assess the impact of admitting such evidence and appropriately tailor the ways in which it may be adduced. Further, the Crown’s decision to adduce evidence, or even to call a particular witness, is a matter of prosecutorial discretion. If the manner in which the evidence may be challenged is clear from the outset, the Crown can make an informed decision about whether the interests of justice are served by adducing the evidence in the first place.” (citation omitted)
A presumption, like that of the dissent in Langan, that Crown-led evidence does not require advance scrutiny, leads to confusion as to how the Supreme Court’s own previous rulings are to be applied.
The Supreme Court ruling in Langan was not unanimous, and the lack of written reasons leaves the lower courts with unclear guidance.
The majority of the BC Court of Appeal found that the trial judge had improperly used text messages as prior consistent statements, gave insufficient reasons in his W.(D.) assessment and failed to hold a voir dire to determine admissibility purposes of Crown-led evidence.
The dissent found the trial judge’s reasons to be sufficient and saw no error in the failure to hold a voir dire as Crown-led evidence is not “presumptively inadmissible.”
In the Supreme Court’s brief decision of R. v. Delmas, 2020 SCC 39, Justice Moldaver wrote that the trial judge may have drawn “an illogical inference” in his ruling but that it didn’t warrant intervention. In fact, during the hearing, Justice Brown had deemed the entire paragraph in the trial judge’s decision to be “illogical” on more than one issue.
While all of the Alberta Court of Appeal judges in Delmas agreed that the trial judge erred in failing to hold a voir dire regarding prior sexual history the majority ruled that it did not impact the outcome of the trial.
The majority also found that the “problematic generalization” concerns in his reasons were not the primary foundation of the trial judge’s rejection of the accused’s evidence. In this case, Mr. Delmas had testified that his memories of the incident had come back to him while he was incarcerated and waiting for trial thus diminishing his reliability and credibility.
The dissent found the conviction unsafe because of the use of the stereotypes and the paragraph that the Supreme Court agreed was “illogical.”
Additionally, the generalizations included assumptions that: the accused would not have considered the complainant to be his girlfriend while he was also in a relationship with another woman, that complainant would not have done drugs with the accused shortly after his arrival, and that the complainant would not have had sex with someone who she knew to be positive for Hepatitis C even though the complainant testified that she had consented to sex with the accused on two other occasions.
The Supreme Court only mentioned one of those generalizations in their decision in upholding the conviction.
The brief decision of R. v. Mehari, 2020 SCC 40 begins with the statement that “[t]his Court has not decided whether uneven scrutiny, if it exists, can amount to an independent ground of appeal or a separate and distinct error of law.”
This was not a question originally raised by the appellant or respondent, who both addressed it as a legitimate ground of appeal, if it was found to exist.
The Supreme Court has not heard an appeal based on “uneven scrutiny” in the past but numerous Courts of Appeal have accepted it as a valid ground in the past.
Since the Mehari decision, the Saskatchewan Court of Appeal has already issued another decision opining on the reasons for that statement from the Supreme Court.
In R. v. M.G.S., 2021, SKCA 1, Justice Leurer wrote:
“One reason the Supreme Court may have had for raising the question of whether uneven scrutiny should be considered its own separate ground of appeal or error of law may relate to the impact that doing so may have on appellate review of trial decisions. If uneven scrutiny is not strictly limited to a review of a trial judge’s method of reasoning, it will tend to obscure or undermine the standard of review applicable when attacks are made on findings of fact or the reasonableness of a trial verdict, or other recognized grounds of appeal such as relating to the sufficiency of trial judges’ reasons.”
Because the majority in Mehari did not resolve the other grounds of appeal, the Mehari case has been remitted back to the Saskatchewan Court of Appeal and could end up returning to the Supreme Court on other grounds.
Decisions have been reserved in the appeals of R. v. G.F., 2019 ONCA 493, R. v. R.V., 2019 ONCA 664 and a constitutional challenge in R. v. C.P., 2019 ONCA 85. Hopefully those reasons will provide some stronger guidance for future cases.
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