The Supreme Court of Canada says a man found guilty of sexually assaulting his long-time partner was not entitled to present evidence about sexual activity they engaged in shortly before the offence.Sean Kilpatrick/The Canadian Press
The Supreme Court of Canada has upheld a sexual-assault conviction in which an ex-husband was denied the right to present evidence of a consensual encounter the night before the alleged assault – even when the complainant testified she wouldn’t have sex with him because they were separated.
The court split 7-2 in a case that raised questions about how to balance a complainant’s right to be protected from improper questioning against an accused person’s right to challenge a complainant’s credibility.
The case showed the court’s newest member, Justice Mary Moreau of Alberta, who was appointed last fall, is willing to challenge its frequently pro-prosecution stand in sexual-assault cases. She wrote jointly for the minority with Justice Suzanne Côté, the court’s most frequent dissenter on the side of men accused of sexual assault.
In 1982, Parliament passed a law to limit what defence lawyers could ask complainants in sexual-assault trials about their past sexual conduct. It was an effort to ensure that women were not treated as though they had less credibility because they were sexually active.
Anyone wishing to raise evidence about previous sexual behaviour needs to apply to a judge in a pretrial hearing, and show that it will be relevant to their defence and not present stereotyped reasoning.
But the case of T.W.W. from British Columbia posed tricky questions because trials may evolve in ways that were not anticipated when a pretrial ruling was made.
In this case, the ex-wife had told police she and her ex-husband had consensual sex on the evening of April 1, 2018, and then he’d violently sexually assaulted her the next morning. In her testimony at trial about the alleged assault, she suggested she would not have sex with him because they were separated and he had a new girlfriend. Her ex-husband said the violent attack in the morning never happened.
The trial judge, B.C. Supreme Court Justice Robert Jenkins, ruled before trial in 2021 that evidence of the evening sexual encounter on April 1 could not be introduced because its purpose would be to reinforce myths and stereotypes about the complainant. All nine judges of the Supreme Court of Canada agreed with Justice Jenkins on that pretrial ruling, saying that T.W.W. had not been specific about the permissible use sought for the evidence.
Still, when the ex-wife testified that being separated was a factor in her lack of consent, it made it appear unlikely and improbable that she consented, according to the dissenters, Justice Moreau and Justice Côté.
That should have prompted the judge to revisit his pretrial ruling, and allow the evidence of the April 1 encounter to be used, the dissenters said. They would have quashed the conviction and ordered a new trial.
“Revisiting a ruling contributes to maintaining trial fairness and avoiding a miscarriage of justice,” Justice Moreau and Justice Côté wrote. “The accused’s right to a fair trial is constitutionally protected, and the trial judge has a duty to uphold that right.”
They said this holds true, whether or not a defence lawyer asks the judge to revisit a pretrial ruling. In this case, lawyer Jaskarmdeep Mangat, while not explicitly asking for the review, tried to ask the complainant whether she had spent the night in T.W.W.’s bedroom, but the judge shut him down.
The majority agreed with the dissenters, to a point. They said some cases “cry out” for a judge to reconsider a pretrial ruling, even without being asked to do so, as evidence in a trial unfolds. But this was not such a case, Justice Michelle O’Bonsawin wrote for the majority, and the defence had ample chance to ask the judge to review the ruling and did not.
Lisa Helps, a lawyer who was part of the defence team in the case, said the ruling was an important one for revisiting pretrial rulings in sexual assault cases.
“It creates a mechanism that was not well defined that counsel can now, based on the ruling, be certain that they will be heard if an evidentiary matter brings up a new ground for the admission of evidence.”
Joseph Neuberger, a Toronto lawyer and author of a newsletter on sexual-assault law, who was not involved in the case, said the majority ruling hampers the ability of accused people to bring forth relevant evidence.
The evidence of the April 1 sexual encounter “was necessary to rebut the Crown’s theory that the sexual assault was during a breakdown in the relationship,” he said, and to ”rebut the complainant’s characterization of the relationship at the time of the alleged sexual assault.”