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Clouds pass by the Supreme Court of Canada in Ottawa, June 12, 2020.Adrian Wyld/The Canadian Press

The Supreme Court of Canada has sent a blunt message to the country’s appellate courts on sexual assault: that they have been needlessly tossing out convictions for nearly two decades, over a perception that trial judges did not sufficiently explain why they believed the complainant.

At the same time, the court has attempted to clear up confusion among judges and lawyers about intoxication and the capacity to consent, in a way that appears to make it easier to get a conviction – a difficult task in intoxication cases.

The court made its strong rebuke of appellate courts on Friday in a case in which a common-law, heterosexual couple engaged in sexual activity with an intoxicated 16-year-old girl on a camping trip in 2013, beginning when she was passed out, and continuing when she awoke and said no, before she ultimately gave in. The trial judge, believing the girl, convicted the couple in 2016. But the Ontario Court of Appeal threw out the conviction in 2019 and ordered a new trial, citing a badly worded ruling.

In Canada, trial judges assess facts and credibility, and appeal courts are generally supposed to defer to those findings. But trial judges are required to explain themselves so that appeal courts can decide if they were fair and followed the law. In a 2002 ruling, in a case called Sheppard, in which a trial judge produced all of one sentence to explain why he convicted a man of possession of stolen property, the Supreme Court said judges have to explain themselves (one sentence was deemed too little). But they warned, appeal judges should not go overboard and seek perfection.

Yet appeal judges have repeatedly done exactly that – especially in sexual-assault cases, where appellate courts too often do not accept a trial judge’s finding that the complainant told the truth, the Supreme Court said Friday.

In the case at hand, the trial judge, Ontario Superior Court Justice Edward Koke, believed the complainant’s testimony, both that she had not consented and was too drunk to consent.

The defence argued that both could not be true. The appeal court agreed there was solid evidence on which to convict, but said the judge mistakenly looked at consent and capacity together, rather than considering them separately, and appeared to imply that any intoxication nullified consent.

The Supreme Court said consent and capacity can be looked at together. And the appeal court misread the judge’s comments on intoxication; they were made in the context of the 16-year-old, who testified she had consumed eight to 10 shots of liquor, an extreme amount, the court said.

“Despite this court’s clear guidance in the 19 years since Sheppard to review reasons functionally and contextually,” Justice Andromache Karakatsanis wrote for the majority, “we continue to encounter appellate court decisions that scrutinize the text of trial reasons in a search for error, particularly in sexual assault cases, where safe convictions after fair trials are being overturned not on the basis of legal error but on the basis of parsing imperfect or summary expression on the part of the trial judge. Frequently, it is the findings of credibility that are challenged.”

From here on, the court said, where a trial judge’s reasons for convicting are open to multiple interpretations, the judge should be presumed to have gotten it right – unless the ruling as a whole is unintelligible.

The rebuke of appellate judges amplified a message the court sent last fall, in a series of one- and two-paragraph decisions delivered from the bench, on the same theme.

The court ruled 8-1 Friday that the conviction of the couple, identified only by their initials, G.F. and R.B., should be restored. Justice Suzanne Côté dissented.

Justice Russell Brown and Justice Malcolm Rowe wrote a separate, concurring judgment, asserting that Justice Karakatsanis may have created a misimpression that appellate judges should give a “once‑over‑lightly perusal.” They disagreed that where a judge was ambiguous, they should be presumed to have applied the law correctly.

On intoxication, the majority said that just because someone can walk, or talk, or retains their motor skills, or remembers an event, does not mean they had the capacity to consent. The key is whether the complainant “understood the sexual activity in question and that she could refuse to participate.”

University of Alberta law professor Peter Sankoff, who represented an intervenor, the Criminal Lawyers’ Association, said he is concerned about the presumption that ambiguities in a judge’s reasons do not suggest a legal error.

“I think that’s a really tough bar for someone facing a criminal conviction to overturn. I’m not convinced that a trial judge’s ambiguity surrounding key aspects of the law should always be interpreted as if the trial judge did it correctly,” Prof. Sankoff said in an interview.

Isabel Grant, a professor at the University of British Columbia’s Allard School of Law, who was not involved in the case, said that on intoxication, the court had created a “rigorous standard for capacity,” clarifying that “one doesn’t have to be on the verge of unconsciousness to be incapable of giving consent.” She said that standard will also benefit people with mental disabilities, who may not understand that they have a right to say no.

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