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Defence counsel deny law on consent needs reform

Reversing burden of proof would violate Charter, lawyers say
By Cristin Schmitz
March 24 2017 issue

Anne London-Weinstein, seen at her Ottawa firm Weinstein Law, says applying a different standard to sex assault trials would risk ‘increasing the chance of wrongful conviction.’ [Roy Grogan for The Lawyers Weekly]

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The criminal justice system must eradicate persistent stereotyping and underlying biases against sexual assault complainants, say critics who are calling for better judicial education and a potential rewrite of the law of consent.

But defence counsel are warning against implementing fundamental changes — such as reversing or easing the burden of proof — that they argue would violate the Charter-guaranteed presumption of innocence and the right to a fair trial in sexual assault prosecutions.

“There is little discussion in this context about the possibility of wrongful convictions [but] wrongful convictions occur in every type of criminal case, including sexual assaults,” emphasized Anne London-Weinstein, president of the Defence Counsel Association of Ottawa. “If we apply a different standard to sex assault trials than we do to other criminal trials, we run the risk of increasing the chance of wrongful conviction.”

London-Weinstein said recent high-profile sexual assault cases attracted attention precisely because they don’t reflect the norm in a court system which is mandated by the Criminal Code to eschew rape myths and protect complainants’ dignity and privacy in the courtroom. “I would say that the law is not in need of reform, and in some cases where the law as it exists is misapplied, our courts of appeal deal with these errors,” said London-Weinstein who has defended “hundreds” of sexual assault cases over nearly 20 years. “I just don’t see the unfairness that’s being talked about, in my own experience.”

London-Weinstein defended the judiciary’s handling of sexual assault cases — including the appellate correction of occasional errors made at trial.

“You’ll see appeals being granted constantly in other areas of law, where judges have misapplied the law or there has been an error, and nobody calls out to have a complete foundational change of the laws of evidence, or how the law is applied, or mandatory [judicial] training,” she pointed out. “There’s a recognition that sometimes a judge may make a mistake and that is corrected on appeal.…And no one is crying out to then place a burden on the accused as a result of that.”

Still there is mounting political and public pressure to improve how sexual assault complainants are treated in court following the trial and acquittal of former CBC host Jian Ghomeshi; the Wagar case which this month ended the judicial career of Robin Camp (who asked the complainant “Why couldn’t you just keep your knees together?”); and other recent controversial decisions, including one this month by a Nova Scotia provincial court judge who drew public protests by observing that “clearly a drunk can consent” when he acquitted a taxi driver of sexually assaulting an intoxicated woman who had passed out in his cab.

Western University law professor Melanie Randall, who studies violence against women and sex discrimination in the law, disputes the contention that the Canadian justice system generally treats sexual assault complainants in a fair and unbiased way. “I think we can see that there is a clear crisis of confidence in the criminal justice system with regard to its ability to deal fairly with sexual assault cases in general, and sexual assault complainants in specific,” she said.

“The Canadian criminal justice system and the judiciary are not yet close to having eradicated rape myths or victim-blaming attitudes regarding sexual assault,” Randall asserted. “To the contrary, there are numerous examples of rape myths infecting judicial decision-making in sexual assault cases, some of which have been widely reported in the media in the past year.”

Recent measures that proponents say could improve how sexual assault cases are handled include: provincial government moves to limit, or eliminate, preliminary inquiries; Conservative interim leader Rona Ambrose’s federal private member’s bill (C-337) that would require written reasons for judgment in sexual assault cases and make lawyers’ eligibility for the federal bench contingent on up-to-date sex assault law training; and proposals that the Criminal Code should itself be amended to ease the burden on Crowns to prove non-consent.

The Nova Scotia Crown recently announced it will appeal the acquittal of taxi driver Bassam Al-Rawi, in part on the basis that the judge was wrong to find that the prosecution failed to prove that the complainant did not consent. Police reportedly found the accused with his pants down, clutching the urine-soaked underwear of the unconscious woman who was naked from her breasts down and whose legs straddled the two front seats, as she lay passed out in the back seat, minutes after she hailed the cab late at night. Her DNA was on his upper lip. Protesters decried not only the verdict, but what they said, in the circumstances, was the trial judge’s inapt observation that “clearly a drunk can consent” and his conclusion that the Crown failed to provide any evidence of non-consent.

The judge remarked in his oral decision that intoxication tends to reduce inhibition and increase risk-taking behaviour. “This often leads to people agreeing and to sometimes initiate sexual encounters only to regret them later when they are sober,” he reportedly remarked. “In testimony, [the complainant] could not provide any information, any details on whether she agreed to be naked in the taxi or initiated any sexual activity. The Crown failed to produce any evidence of lack of consent at any time.”

Critics queried whether it is plausible or reasonable in the Al-Rawi case to infer that the complainant instantly consented to sex with a stranger, or does that rely on the rape myth denounced by the Supreme Court in 1999 that women “are walking around this country in a state of constant consent to sexual activity”? They also queried where the line was drawn on capacity to consent — was it reasonable to contemplate that the complainant was ever capable of consent during the 11 minutes she was in the cab before the police found her there unconscious after the accused removed her pants)?

Randall said some judges have difficulty appreciating what is required in a consent analysis in law.

“We too often see the continuation of the presumption of consent, based on the idea that women are available for sex and if they don’t want to participate they will, and should, vigorously resist,” Randall remarked. “Some of the most troubling cases are those in which women are incapacitated by virtue of being unconscious or too intoxicated to consent — circumstances which obviously vitiate their consent. In particular, the affirmative consent standard articulated in our Criminal Code is still not well understood, nor is it properly applied in many of the cases.”

“I was shocked and horrified” by the Al-Rawi decision, said retired Ontario Superior Court Justice Marie Corbett. “It’s almost incomprehensible that a judge could have found that there was a doubt that the complainant…didn’t consent, and for the reason he said himself:…that the circumstances would lead any reasonable person to believe [the accused] was engaging in, or about to engage, in sexual activity with a woman incapable of consent,” she explained. “He went on, and he said the burden is on the prosecution [to show] that the complainant could not and had not consented [and] there was no evidence of lack of consent.”

Corbett said Al-Rawi and some other controversial cases led her to conclude that it might be helpful to recast the definition of sexual assault because it requires the Crown to prove that the complainant did not consent. (The code says a person commits an assault when, “without the consent of another person” he applies force intentionally to that person, directly or indirectly. “Consent” is the voluntary agreement of the complainant to engage in the sexual activity in question.)

Corbett suggests reformulating the law to situate the question of consent only in the context of an accused’s defence (thus shifting the burden to the accused).

“It’s a new way of thinking,” Corbett remarked. “It’s really to focus on a significant problem [for the Crown] which is proving a negative. Proving non-consent is extremely difficult, and logically consent is a defence, so why not cast the crime in that way? Why do we have to put non-consent as part of the crime itself?…I feel that it should be a defence, such as self-defence, or duress, or any other defence which the accused can raise, and he only has to raise a doubt.”

Implementing such a proposal “would be disastrous and unconstitutional,” Weinstein opined. “It concerns me when I see an emphasis being put on, for example, lowering the standard of proof in a criminal case in a sex assault, and distinguishing it based on the nature of the offence itself. I think that would be a terrible mistake and lead to wrongful convictions.”

Randall said she sees some merit in Bill C-337’s proposal to require lawyers who want to join the federal bench to demonstrate knowledge of sexual assault law. She also favours improving education for current judges (Wagar and Al-Rawi were both tried in provincial courts — whose judges do not always have as ready access to continuing legal education as superior court judges). “It’s a complex area of law and there has been extensive law reform and much important case law applying and interpreting the reforms, not to mention an extensive body of rich scholarship from which judges could benefit to enrich their knowledge,” Randall explained by e-mail. “Judges also need deeper and more nuanced understanding of the neurobiology of trauma and of social context, gender socialization and gender and other inequalities, all of which are relevant to sexual assault law.”

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