In a series of sexual-assault rulings this fall, the Supreme Court has sent a message to appellate courts that they should listen to lower-court judges who believe the complainant.
The court has ruled in seven sexual-assault cases this fall, and in all seven, it has taken the side of the complainant and prosecution. In five of those cases, appeal courts had thrown out convictions registered by trial judges, saying their decisions had been unfair to the male defendants. In the other two, trial judges convicted the men and appeal-court majorities upheld the convictions.
The rulings, all within a six-week period with the most recent on Friday, have largely flown under the public’s radar. Even in the legal profession, the rulings are only beginning to draw notice. In each case, the court ruled from the bench, usually just minutes after hearing from both sides. In each, the court provided only a paragraph or two of explanation.
But the rulings, taken together, suggest that in the Supreme Court’s view, the top courts of provinces are making missteps on sexual assault, particularly when it comes to how credibility is being assessed by the judges who presided over the trials.
In an era of heightened consciousness about sexual assault, the sheer volume of cases before the Supreme Court this fall – 10 in total, with three yet to be decided – suggests a criminal-justice system grappling with how to do right by victims while also maintaining the courts’ commitment to convict only when the state has proven guilt beyond a reasonable doubt. (The sexual-assault cases made up a majority of the 16 criminal-law appeals the court heard this fall.)
One case involved a developmentally delayed woman whose accuracy of recall was at issue because of her disability. Another involved an intoxicated woman whose reliability was in question because she blacked out twice during an incident.
Lower-court judges believed the women (and in one case, a young girl).
“Perhaps the increase in judicial education and training on sexual-assault law for trial judges is beginning to have positive effects,” Elaine Brooks-Craig, a professor at Dalhousie’s Schulich School of Law, said in an e-mail to The Globe and Mail.
But appeal courts said the trial judges hadn’t properly explained why they believed the women, or had used improper reasoning. In a Saskatchewan case, the province’s appeal court said the trial judge scrutinized the male accused’s testimony more strictly than that of the female complainant. (The woman said she fell asleep at a party and woke to find a man on top of her; the man said she had been conscious and enthusiastic.)
In a B.C. case, the appeal court said the trial judge should not have used a woman’s “prior consistent statements” to support her story, because repetition does not make a statement true. (The woman said she had been sleeping and did not know she had been penetrated until two months later, when she discovered she was pregnant, and sent angry texts to the man who had been with her that night. The texts were the prior statements at issue.)
While there can be many reasons for a brief oral ruling from the bench, rather than a written one of dozens of pages that is the product of months of deliberation, the Supreme Court at times implied the proper ruling should have been obvious.
The case of Monty Shane Kishayinew is one example. The complainant, who had been intoxicated, testified she was held in a basement, where she rebuffed Mr. Kishayinew’s advances and tried to escape. She blacked out and, when she awoke, discovered he had had intercourse with her. He said she had been awake and consenting.
“The evidence reasonably permits only one inference: that the complainant did not consent to any touching from Mr. Kishayinew,” the Supreme Court ruled last month. “This finding is sufficient to support the conviction for sexual assault.” By a 4-1 count, it threw out the appeal-court ruling (a second from Saskatchewan involving a sleeping or unconscious complainant) and restored Mr. Kishayinew’s conviction.
The trial judge had found the complainant’s memory of events reliable. But the Court of Appeal ruled 2-1 that the judge had failed to explain why, given the complainant’s intoxication, her memory of events should be trusted.
At moments, during the hearings, Supreme Court judges have appeared incredulous at majority rulings of the appeal courts.
In R v Slatter, the Ontario Court of Appeal had ruled 2-1 that a developmentally delayed young woman may have been “suggestible” when voicing sexual-assault allegations to police and others about a neighbour.
But Justice Michael Moldaver, the Supreme Court’s leading voice on criminal law, said in the hearing (shown on a court webcast) that the evidence revealed the opposite was true – that the idea of the complainant’s suggestibility was made up “out of whole cloth.”
Soon after, the Supreme Court issued a short, sharp, 7-0 reminder to the appeal court: “Overreliance on generalities can perpetuate harmful myths and stereotypes about individuals with disabilities, which is inimical to the truth-seeking process, and creates additional barriers for those seeking access to justice.”
The Supreme Court restored Thomas Slatter’s conviction.
Criminal-defence lawyer Joseph Neuberger of Toronto, who writes a newsletter on developments in sexual-assault law, said the Supreme Court failed to address appeal-court concerns about unfairness.
“This is very troubling,” he told The Globe. “To me, this seems to suggest an ethos in favour of complainants.”
He added: “Any defence lawyer defending a sexual-assault case has to be exceptionally vigilant and must get the correct verdict at trial as chances on appeal are dim, especially when it comes to the Supreme Court.”
Women’s advocates say the Supreme Court is maintaining its fairness.
“I really don’t see this in any way being about a loss of objectivity and fairness or jumping on the MeToo bandwagon,” Megan Stephens, the executive director and general counsel for the Women’s Legal Education & Action Fund, said in an interview.
The court, she said, is sending a message to appeal courts not to second guess trial judges on credibility and reliability assessments. “The primary message coming out of the Supreme Court is ‘don’t forget, you owe deference to those trial judges,’ ” she said in an interview.
Assessments of credibility (honesty) and reliability (accuracy) are central to the trial judge’s job. Appeal courts generally defer to these assessments because it is the trial judge who sits in court and hears directly from the witnesses. Witnesses do not testify at appeal courts. But if an appeal court believes the trial judge made a legal error in their approach to assessing credibility, it can throw out a conviction and order a new trial.
The seven cases reached the Supreme Court because when an appeal-court judge dissents on a question of law, the losing side has the right to be heard by the country’s top court.
Five of the sexual-assault cases decided by the Supreme Court of Canada this fall:
R v Kishayinew, Nov. 5
The accusation: A woman testified she was drunk and crying on a curbside. A stranger, Monty Shane Kishayinew, brought her against her will to the basement where he lived. She rejected his advances, she testified, and then blacked out, waking to discover he had had intercourse with her. Mr. Kishayinew said she was awake and consenting.
What the trial judge said: Complainant was credible, forthright, honest and consistent in her testimony.
What the appeal-court majority said: The trial judge had not reconciled his finding that the complainant was too drunk to consent and yet was able to tell an accurate account of events.
What the Supreme Court said: “As the trial judge’s reasons … make apparent, this evidence reasonably permits only one inference: that the complainant did not consent to any touching from Mr. Kishayinew. This finding is sufficient to support the conviction for sexual assault.” Ruling was 4-1, with Justice Suzanne Côté dissenting.
R v Langan, Nov. 5
The accusation: A former couple arranged to spend the evening together. The woman texted him to bring a sleeping bag, and told David Roy Langan she would not have sex with him. He said he could not find a sleeping bag. She said he could sleep in the same bed as long as he did not act like a “jerk.” Two months later, she found she was pregnant, and texted him accusingly. He said he left her alone while she slept, but added that conception could have occurred when he was trying to have sex before she refused and went to sleep.
What the trial judge said: The texts before and after show the woman’s expectations and reactions. Mr. Langan’s texts were not consistent with his testimony that, after she said no once, he stopped trying to have sex with her.
What the appeal-court majority said: The trial judge may have used the text messages improperly as “prior consistent statements” to corroborate the complainant’s credibility. (That is, repetition does not enhance truthfulness.) A dissenter on the appeal court said the timing and circumstances of the texts were part of the overall narrative of the case and made their use permissible.
What the Supreme Court said: It agreed with the reasons of the dissenting judge. The count was 3-2, with Justices Rosalie Abella, Sheilah Martin and Nicholas Kasirer in the majority. Dissenting, Justices Côté and Russell Brown said they agreed with the majority reasons of the appeal court.
R v Slatter, Nov. 6
The accusation: A developmentally delayed young woman told police and others that her neighbour, Thomas Slatter, molested her over a period of years. An expert testified that intellectually disabled people tend to be more suggestible in some circumstances. The accused neighbour denied having any sexual contact with the complainant.
What the trial judge said: Complainant’s testimony was compelling. It set out details over years. Specified locations corroborated by others. He found Mr. Slatter guilty of sexual assault.
What the appeal-court majority said: Trial judge did not explain his reasons for rejecting expert evidence on suggestibility of complainant.
What the Supreme Court said: “Overreliance on generalities can perpetuate harmful myths and stereotypes about individuals with disabilities, which is inimical to the truth-seeking process, and creates additional barriers for those seeking access to justice.” Ruling was 7-0.
R v Delmas, Dec. 2
The accusation: Michael Christopher Delmas, while high on meth, tried to force the complainant to have sexual intercourse with him. He said she was high too and consented. She denied being high. The Crown, by contrast, said she’d been too high to consent.
What the trial judge said: The complainant was not high, and painted an accurate picture of events. Mr. Delmas, because of his drug use, did not have a reliable memory. The judge also was skeptical that Mr. Delmas would consider himself in a boyfriend-girlfriend relationship with the complainant while also considering himself in a relationship with another woman. He convicted Mr. Delmas of sexual assault.
What the appeal court majority said: It upheld the conviction, saying that while the judge may have made a faulty assumption about how men behave in relationships, it was not the reason for the guilty verdict. A dissenting judge said the trial judge had applied an unwarranted stereotype to the accused. “The law is clear that stereotypical reasoning given by the trial judge, when it applies to a complainant in a sexual-assault trial, amounts to an error of law. What is perhaps less clear in the case-law is how such reasoning is to be treated when it is applied to the alleged offender,” Justice Brian O’Ferrall wrote.
What the Supreme Court said: “The trial judge did not engage in stereotypical reasoning in his assessment of the appellant’s evidence.” The ruling was 6-1, with Justice Côté in dissent.
R v Mehari, Dec. 4
The accusation: The complainant testified that she went to a bedroom during a party and fell asleep. The next thing she knew a man was on top of her. Awet Mehari testified she was a conscious and enthusiastic participant.
What the trial judge said: The complainant testified honestly and in detail, and where she could not remember, said so. The accused provided “a minimum of detail” in his testimony. And his description of the complainant storming out hysterically from the bedroom did not make sense if the sex had been consensual.
What the appeal-court majority said: The trial judge was “tolerant and relaxed” in her scrutiny of the complainant’s testimony, and stricter with the accused.
What the Supreme Court said: The court ruled 5-0 that the trial judge did not make the error of uneven scrutiny. The court sent the case back to the appeal court, which had ruled only on one of Mr. Mehari’s grounds of appeal, as success on that ground was enough to toss out the conviction. Now the appeal court must hear the other grounds of appeal. The case could wind up back at the SCC.
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