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 31 Pappajohn v. The Queen (1980) A defendant can rely on an honest but mistaken belief there was consent as long as there is evidence to support this belief beyond that of the accused's own assertion. Sansregret v. The Queen (1985) The mistake of fact defence is not available when an accused is wilfully blind to whether or not there was consent —— refi ning what was said in Pappajohn. R v. Chase (1987) Sexual assault is defi ned as an assault that is sexual in nature, where the sexual integrity of the victim is violated, based on an objective interpretation of the circumstances. The off ence is not limited to certain acts or specifi c parts of the body. R v. Seaboyer (1991) Criminal Code provisions that restricted evidence about a complainant's other sexual activity is found to be too broad and a violation of the Charter. At the same time, trial judges are instructed that evidence of this nature should only be admitted if it is tendered for a legitimate purpose and logically supports a defence. R. v. O'Connor (1995) A framework is established for trial judges to follow when an accused seeks medical, therapeutic, or other third- party records of the complainant. Judges are reminded that the right to full answer and defence must co-exist with other rights, including privacy and equality. R. v. Ewanchuk (1999) The defence of "implied consent" does not exist and is not available in sexual assault cases. Consent must at all times be freely given, the court stresses. R. v. Mills (1999) The Criminal Code is amended following O'Connor to set up a formal procedure when defendants seek third-party records of complainants in sexual assault proceedings. The procedure is upheld by the court as being constitutional. R. v. Darrach (2000) Changes made to the Criminal Code about restrictions on the admission of evidence related to a complainant's sexual history, since the decision in Seaboyer, are upheld by the court. An accused does not have the right to put forward misleading evidence to support illegitimate inferences, the court says. R v. J.A. (2011) An individual must always have the capacity to give consent. The court rejects the concept of "advanced consent" in that a person can agree to have sexual acts performed on them after being rendered unconscious by a partner. —— SK Major Supreme Court of Canada decisions in the area of sexual assault had to go in the side entrance of the Supreme Court" for security reasons, remembers Royal, when in the fall of 1998 he represented Steve Ewanchuk. The Supreme Court rejected the concept of a defence of "implied consent" and substituted a conviction for Ewanchuk's acquittal at trial. "Times have changed completely," says Royal about the nature of sexual assault trials and the way defence lawyers question complainants. "There is a broad right of cross-examination and there should be. The downside for your client is potentially life-destroying. Still, you don't want to bully the complainant. You will lose any sympathy from the court," he says. At the same time, he agrees these can be difficult cases for Crown attorneys if there is no corroboration or forensic evidence and only the testimony of the complainant and the defendant. "That leaves room for an acquittal," he says. The so-called W.(D.) test, set out by the Supreme Court in 1991, allows for an acquittal if a court has a reasonable doubt based on the totality of the evidence, even if the trier of fact does not believe the testimony of the accused. This has resulted in scores of trial judgments over the years, where judges say in written reasons that the defendant is "probably guilty," but they must acquit. The application of W.(D.) is about fairness to the defendant, says Edelson. "Judges were constantly choosing from one version or the other," which, he says, is not an appropriate way to determine if the Crown has proven its case beyond a reasonable doubt. Comments that Edelson made at a seminar more than 25 years ago, about the need to "whack" a complainant in cross-examination at a prelimi- nary hearing, were back in the spotlight again in the public discussion about the Ghomeshi trial. The statement, made in 1988, has been taken out of con- text, says Edelson. It was about the need for a vigorous cross-examination at that stage. "If the complainant stands up to the scrutiny, you will have to go back to the client and have a serious discussion [about a guilty plea]," he says. If the tenor of a cross-examination is simply to embarrass the complain- ant, then a line has been crossed and the court should step in, Edelman agrees. However, a criminal defence lawyer's professional obligation "is to be fearless in the defence of our clients. That is the nature of the beast," he says. Any discussion about sexual assault law must also take into account the impact on someone convicted of such an offence, says Edelman. "The accused will be labelled a sex offender on a registry. That is fatal to job prospects. DNA samples will be taken. He could lose access to his children," he points out. Convicted sex offenders "wear the Scarlet Letter" in contem- porary society, he suggests. "That is why the evidentiary standard [for a conviction] has to be high." There is a broad right of cross-examination and there should be. The downside for your client is potentially life-destroying. Still, you don't want to bully the complainant. Peter Royal

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