Supreme Court Justice Michelle O'Bonsawin (left), Justice Nicholas Kasirer, Justice Malcolm Rowe, Justice Andromache Karakatsanis, Chief Justice Richard Wagner, Justice Suzanne Cote, Justice Sheilah Martin, Justice Mahmud Jamal and Justice Mary Moreau during a welcome ceremony at the Supreme Court, in Ottawa, on Feb. 19.Adrian Wyld/The Canadian Press
Criminal defence lawyers in Canada are accusing the Supreme Court of having a double standard in sexual-assault cases after a unanimous ruling that largely closed an important avenue of appeal for defendants.
In recent years, appeal courts in several provinces and territories had accepted that stereotypes and assumptions that work against accused men should be treated as seriously as the pernicious myths about complainants that the justice system has spent the past 40 years trying to root out.
But the Supreme Court last week called that a “false symmetry,” and shot it down in a 7-0 ruling in which the judges rejected any parallel between the use of myths that undermine the credibility of sexual-assault complainants and the use of improper assumptions affecting the accused.
Lisa Dufraimont, an Osgoode Hall law professor whose writings on the subject were cited by the court, said the ruling marks a major change in the law. “It’s huge. In the last five years, there’s been an explosion of cases where convictions and acquittals have been appealed on the basis that the trial judge engaged in stereotypical reasoning.”
The ruling “seriously limits” the grounds defence lawyers can use for an appeal, she added.
Criminal defence lawyers were critical.
“The Supreme Court is apparently fine if an accused person is convicted when a judge or jury wrongly relies on myths and stereotypes to reject their evidence. The court appears to be concerned only when those same legal errors result in an acquittal,” said Daniel Brown, a former president of the Criminal Lawyers’ Association and an author of a textbook on prosecuting and defending sexual-assault cases.
Criminal lawyer Matthew Gourlay said the court has “created a double-standard whereby the accused’s testimony can be discredited on an improper basis and the appellate court is now relatively powerless to correct the error.”
Sexual-assault prosecutions often hinge on an assessment of credibility: The complainant and accused may be the only witnesses, and tell conflicting versions of events. Judges regularly make common-sense inferences to determine what happened, which they must explain in their rulings.
Appeal courts are generally supposed to defer to a lower court’s credibility assessments – though not when a myth or stereotype is applied to a sexual-assault complainant.
In two cases before the Supreme Court, trial judges in B.C. had convicted men of sexual assault on the basis, they said, of common-sense assumptions, only to have appeal courts throw out the convictions.
In one case, the complainant testified she woke from a drunken sleep to a man penetrating her. The judge said a woman was unlikely to be mistaken about having a penis in her vagina. In the second case, the judge said a man would not abruptly drive away from a woman if the sexual intercourse had been consensual. In both cases, the B.C. Court of Appeal said the judges had engaged in speculative reasoning not grounded in the evidence – a legal error the appeal court likened to the use of myths about female complainants, and one that required new trials to fix.
Ontario’s Court of Appeal had made a similar ruling in 2021 in a case in which an accused man said he always asks for consent and a trial judge, in convicting him, said his response was too “politically correct,” and therefore not believable.
The Supreme Court of Canada restored the convictions of Christopher Kruk and Edwin Tsang in the two B.C. cases.
Since 1983, federal legislators and the courts have tried to eradicate myths and stereotypes used unfairly to malign the credibility of sexual-assault complainants, the court said. Among the myths: that a woman would report a sexual assault immediately if it truly happened, or that a sexually active woman is less trustworthy and more likely to have consented.
“The prohibition against myths and stereotypes that undermine the credibility of sexual assault complainants has a unique history and a specific remedial purpose: to remove discriminatory legal rules that contributed to the view that women, as a group, were less worthy of belief and did not deserve legal protection against sexual violence,” Justice Sheilah Martin wrote for six of the seven judges. (Justice Malcolm Rowe wrote separately.)
It said the defence can still appeal if a judge made a “palpable and overriding error,” meaning obviously wrong and critical to a conviction. In Mr. Kruk’s case, involving the penetration of a sleeping woman, the court said no such error occurred, while in Mr. Tsang’s case, the error was palpable but not overriding.
Women’s groups praised the ruling.
“The decision signals a clear recognition of the ongoing harms perpetuated by the legal system against survivors of sexual violence,” said Roxana Parsa, a lawyer with Women’s Legal Education & Action Fund, which intervened at the Supreme Court.
The Supreme Court has taken a tough line on sexual-assault prosecutions. A review by The Globe and Mail found that it favoured the complainant and opposed the defence in 42 cases in a row from February, 2018, until January of this year, when the court upheld an acquittal.
Mr. Gourlay said the latest ruling “conforms to the court’s recent tendency to disregard the existence of wrongful convictions in sexual-assault cases.”
The ruling leaves defendants vulnerable to the personal views of judges, defence lawyers say.
“The difficulty with common sense is that it is rarely ‘common’ to all and is a concept that is imbued with bias or prejudice whether conscious or unconscious,” said Brent Anderson, who represented Mr. Kruk.
Editor’s note: This article has been updated to correct the surname of Brent Anderson.