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Improper evidence may have swayed jury, court rules in ordering new sex-assault trial

The Supreme Court of Canada in Ottawa on June 8, 2016.

Blair Gable/The Globe and Mail

The Supreme Court of Canada has sent a strong signal that improper evidence about a woman's sexual behaviour can corrupt the fairness of a sexual-assault trial for the prosecution and the victim.

On Wednesday, the court unanimously rejected a ruling that upheld a jury's acquittal of a man accused of sexually assaulting his wife. The decision came on the same day as the appeal hearing, which is known as a ruling from the bench. This practice is infrequent, and generally means the Supreme Court has decided the issue is well-settled, and does not need months of deliberation, or a written ruling.

The court threw out the acquittal in a case called R v S.B., and ordered a new trial. In doing so, the court overturned a ruling written by its newest member, Justice Malcolm Rowe, when he was on a lower court.

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In the 2-1 majority ruling, Justice Rowe wrote that the trial judge had wrongly allowed the jury to hear evidence about the complainant's past sexual behaviour, but did not order a new trial.

(Justice Rowe did not participate in the hearing at the Supreme Court.)

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The Supreme Court ruling "sends a message that we have to be clearer about refusing to allow in history of sexual behaviour – which is a good message," Constance Backhouse, a University of Ottawa law professor who holds a chair in sexual-assault law, said in an interview.

The justice system's handling of sexual assault cases has been under increased scrutiny. More than 50 police departments have announced reviews of cases they had closed as unfounded in light of a Globe and Mail investigation into high rates in some jurisdictions of such files being dismissed.

A Federal Court judge recently resigned after a disciplinary body recommended his dismissal over his conduct of a rape trial while he was on a lower court, and a Halifax judge is in the spotlight for acquitting a taxi driver of sexual assault in an incident with a drunken passenger.

In 2014, a jury acquitted S.B. on two counts of sexual assault and other offences against his wife after the trial judge permitted his defence lawyer to introduce the transcript of a sex video they had made, and sexually suggestive text messages the victim had sent. The trial judge, Justice Robert Stack of the Newfoundland and Labrador Supreme Court, had said the video and text messages raised questions about the woman's credibility and the consistency of statements she made to the police.

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All three judges of the Newfoundland and Labrador Court of Appeal, including Justice Rowe, said Justice Stack was wrong to allow the jury to see this evidence – that it evoked the rape myth that prior sexual activity indicates a woman of "easy virtue." Under Criminal Code provisions meant to encourage women to report sexual offences, judges may permit such evidence only in limited circumstances.

But Justice Rowe wrote last May that it would be wrong to overturn the jury acquittal. Juries do not give reasons, and Justice Rowe said the jurors might have been able to acquit the accused based on inconsistencies in the complainant's testimony, even without viewing the text messages or video transcript. In dissent, Chief Justice Derek Green called the text messages and video evidence "particularly pernicious," and said the test for overturning a jury acquittal is whether evidence improperly admitted might reasonably be said to have affected the outcome.

"The use of this evidence is fraught with great dangers that the jury may use and rely on it in an inappropriate manner if care is not taken with respect to both its admissibility and subsequent use," he wrote.

Chief Justice Beverley McLachlin, speaking for the Supreme Court, told the appeal hearing it accepted the reasons provided by Chief Justice Green. The Supreme Court did not give any additional explanation.

Janine Benedet, a professor specializing in sexual-assault law at the University of British Columbia's Allard School of Law, said in an interview the ruling from the bench is "a pretty emphatic endorsement of the side that they pick."

"It's not easy to overturn a jury acquittal – it shouldn't be – but this is a case where the jury's assessment of credibility is so tainted by that wholly improper evidence and the signal from the trial judge that it was in fact relevant to know all that improper information. The only fair remedy is to start again with a new trial."

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