Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m M A Y 2 0 1 6 27 t I n an overview of the law of sexual assault and the need both to encourage reporting of this crime and to ensure that myths about complainants are not part of the analysis conducted by a trier of fact, Chief Justice Beverley McLach- lin made these comments: "[T]he reality is that evidence of sexual conduct and reputation in itself cannot be regarded as logically probative of either the complainant's credibility or consent . . . the old rules which permitted evidence of sexual conduct and condoned invalid inferences from it solely for these purposes have no place in our law." The statements are not recent; they were made in 1991 and form part of her majority judg- ment for the Supreme Court of Canada in R v. Seaboyer. While Seaboyer actually struck down the existing "rape shield" provisions as being overly broad, it also set out a framework for what would be admissible with respect to the sexual activity of a complainant. The majority decision written by McLachlin, just two years after she was appointed to the Supreme Court, formed the basis for future Criminal Code amendments in this area that are still the law today. Both her majority judgment and the dissent by Justice Claire L'Heureux-Dubé engaged in a thorough analysis about how to balance the rights of defendants to a fair trial with those of complainants in sexual assault proceedings. The judges agreed that the right of full answer and defence is not supposed to come at the expense of the privacy and equality rights of a com- plainant in a sexual assault trial. In a lengthy judgment that would have upheld the existing provisions, L'Heureux-Dubé detailed many of the rape myths at the time such as suggestions that women fabricate sexual activity out of spite or because they are "fickle and seeking revenge on past lovers." A quarter of a century later, in acquitting Jian Ghomeshi of all charges involving three women, their post-incident contact with the former CBC host was described by Ontario Court Justice William Horkins as "odd," "questionable," and "out of harmony" with what is to be expected of victims of violent sexual assaults. While courts must guard against "false stereotypes" in this area, it is also necessary to be vigilant against "the equally dangerous false assumption that sexual assault complainants are always truthful," the provincial court judge wrote in his March 24 decision. The acquittals were expected by most legal observers, because the complainants did not disclose their subsequent contact with Ghomeshi and were contradicted about what they told police. Yet the debate in both the daily media and on social media about the treatment of sexual assault complainants in the criminal justice system was strikingly similar in tone and content to what was before the Supreme Court in 1991. Since the release of Seaboyer, there have been a number of legislative reforms to enhance the protection of complainants. The Supreme Court has also issued other significant rulings in the area of sexual assault, especially in the area of consent. However, the reporting rate of this offence remains very low. Of the complaints that do proceed to trial, fewer than 50 per cent end up with a finding of guilty. According to annual data collected by Statistics Canada, just less than 1,400 people in the country were convicted of sexual assault in 2013-14, the most recent data available. Of the defendants, 99 per cent were male. As well, if someone is acquitted at trial, an appeal by the Crown is unlikely. A survey of Court of Appeal cases in Ontario over the past five years shows that the Crown has appealed, on average, two cases per year when there has been an acquittal of an adult sexual defendant at trial. Groups that act for women who are victims of sexual violence say the process remains unfair to complainants and is still steeped in myths about how complainants are supposed to react after being assaulted. On the flipside, defence lawyers argue that there are sig- nificant legislative protections that make these very difficult cases to win. As well, it is only proper that judges ensure the Crown has met the very high standard of reasonable doubt, because of the devastating consequences for anyone convicted of a sex offence. From Seaboyer to Ghomeshi, the debate has remained essen- tially the same. But has there been substantive progress in terms of how these types of allegations are investigated and then adjudicat- ed in the courts? T he track record of sexual assault prosecutions in this coun- try is a not a good one, says Carissima Mathen, a University of Ottawa law professor and a former litigation director of the Women's Legal Education and Action Fund. "I think there are still myths about how sexual assault victims should react. But we don't know how the Ghomeshi case would have turned out if there had not been the inconsistencies in the evidence of the complainants," she says. While there was criticism of the complainants by the judge and many in the media, there remains a lot of public support for the three women, which is a positive sign, says Mathen. "Even to have had a mixed reaction was noteworthy," she says. One aspect legal academics and those in the courts agree on in these cases is that Canada has progressive sexual assault laws. "The laws are not the problem," says Elaine Craig, a professor at Schulich School of Law at Dalhousie University in Halifax, who has written extensively on the treatment of complainants in sexual assault trials. The problem, she suggests, is that the laws are not strictly applied during what are often wide-ranging cross-examinations designed to intimidate complainants rather than test evidence that relates to the alleged incident before the court. "The subtext is still stereotypes about women," says Craig. Judges, Crown attorneys, and defence lawyers all have an obligation not to cross the line with questions that are irrelevant and aimed only to denigrate an alleged sexual assault victim. Craig highlights examples of these types of cross-examinations in an upcoming academic paper to be published in the Univer- sity of Toronto law journal. Transcripts of one Toronto-area trial where a woman was choked and savagely raped show the defence lawyer repeatedly asked about how her injuries affected her bodily functions in the days after the assault. On appeal, one of the main grounds was that the judge interjected too frequently and curtailed some of these kinds of questions. The Court of Appeal rejected that MARK BLINCH/REUTERS

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