Joanna Birenbaum, a Toronto lawyer who has appeared before the Supreme Court on behalf of the Barbra Schlifer Memorial Clinic. Tijana Martin / The Globe and Mail
The Supreme Court of Canada has ruled against 34 accused of sexual assault in a row, dating back more than four years, making it more difficult to overturn these convictions on appeal as the cases accumulate during the Me Too era.
The Globe and Mail reviewed all cases of sexual assault heard by the Supreme Court since 2014. Thirty-six cases have reached the court since early 2018, and 19 in the previous four-year period, almost twice as much as reflected a quick -change the realm of law in which lower court judges struggle to keep up. The last case won by the defense was in February 2018. (Figures do not include a handful of resolved cases on other people’s legal issues, such as delay; all of these issues have been decided in favor of the Crown since 2018 ).
Defendants’ streak of losses has led some criminal defense lawyers to question whether the Supreme Court is committed to balance, fairness and the presumption of innocence in cases of sexual assault. Some feminist observers, on the other hand, see the sentences as a direction correction for a system still steeped in myths and stereotypes.
Many of the cases highlighted the credibility of the complainants. The Supreme Court has repeatedly ruled that if the presiding judge finds a whistleblower, the appellate courts should not uphold a conviction. While not a new law, the court has reinforced the message by reprimanding some of Canada’s most experienced appellate judges, who believe they have ignored the principle.
In all cases over the past four years in which the provincial higher courts have dismissed a conviction for sexual assault for perceived injustice against the accused, the Supreme Court ruled that those courts had been wrong. There were 14 such cases out of the 34 consecutive defense losses.
Even when a trial judge’s explanation of his or her sentencing is ambiguous, which in the past has left the door open for a successful appeal, the court has established the presumption that the judge understood the law and applied it correctly. The court has also questioned the existence of “unequal scrutiny”: a notion often advocated by defense lawyers that judges were tougher on inconsistencies on one side than the other.
Defense attorneys say it is now very difficult to overturn a conviction on appeal, even when fairness with the defendant is questioned.
There is a lot at stake for the defendants, said Mona Duckett, former president of the Alberta Bar Association and co-author of a textbook. Trial for Sex Offenses.
“The system cannot move from the presumption of innocence to an undeclared presumption that one must always believe in the whistleblower of a sex crime, therefore the accused must be lying,” he said. “Sometimes it seems like we’re going in that direction.”
Toronto attorney Matthew Gourlay, co-author of Modern criminal evidence, a textbook for litigants and judges, said the Supreme Court has repeatedly affirmed the importance of surveillance to protect itself from illicit convictions. “However, several judges appear to have a blind spot where sex crimes are at stake.”
Women’s groups do not fully agree that the Supreme Court has a blind spot or is heading towards a presumption of belief in the complainants ’testimony.
“Myths and stereotypes and the unique distrust and discount of sex offenders have been in our justice system for hundreds of years,” said Joanna Birenbaum, a Toronto lawyer who has appeared before the Supreme Court. to defend the equal rights of whistleblowers on behalf of the Barbra Schlifer Memorial Clinic. The tendency in the Supreme Court “is not in any way a dilution of the standard of reasonable doubt or a reduced scrutiny of convictions in cases of sexual assault, it is a correction of course.”
Both groups, however, agree that the large number of sexual assault cases reaching the Supreme Court highlights the uncertainty in the lower courts in an area of law that is changing rapidly due to new legislation and evolving laws. public attitudes.
Constance Backhouse, legal historian and former chair of sexual assault law at the University of Ottawa. Tijana Martin / The Globe and Mail
Daniel Brown, co – author of Prosecution and defense of cases of sexual offenseshe said the 2017 edition of the textbook was completely rewritten for 2020, to reflect the rapid changes in the law.
Both defense attorneys and women’s groups see the need for more training for judges on sexual assault law. “There is evidence from all over the country that judges seem to be struggling with these issues. I see it every day,” Mr. Brown.
Of the 36 cases since 2018, of which only one was won by the defense, they accounted for a third of all criminal cases decided by the Supreme Court during this period, and approximately one in six of all cases resolved. (The defense won three of the 19 in the previous four years).
Constance Backhouse, a legal historian and former professor of sexual assault law at the University of Ottawa, said the figures may be related to the Me Too movement, which first caught fire on social media in late 2017. .
“I think there is a lot of integrated pressure not to mention sexual assault. This is the biggest problem that the legal system has seemed unable to address. The Me Too movement started a big change where a large number of women, many of them, called celebrities, came out and said, “I’ve experienced this,” and many, many women followed, “she said.
The large flow of cases is directly related to disputes in the lower courts. The Supreme Court usually chooses the cases it hears from a wide range of petitions, based on its view of what legal issues need to be resolved in the national interest. But most sexual assault cases came to court as “automatic” appeals (for which no court permission is required), when the appellate court judges disagreed. with a conviction or acquittal was dismissed by an appellate court.
Because the court often ruled directly “from the bench” in such cases, after a brief rally of about 30 minutes, and usually in statements of only two or three paragraphs, the sentences do not usually draw the public’s attention.
Most included the basics of sexual assault trials (issues of consent, credibility, and intoxication) rather than new legal concerns. Unlike cases where DNA or an alibi can help wipe out a defendant, Mr. Brown said, “It is very difficult to establish a person’s innocence. There is no objective marker of innocence in these cases.”
A defense attorney may focus the trial on inconsistencies in a whistleblower’s testimony, to question his or her credibility. And if the defense loses at trial, they can try to persuade an appellate court that a trial judge did not explain enough why the complainant believed, or that the judge gave more scrutiny to the defendant’s testimony than to the complainant.
In 13 of the 14 cases in which the courts of appeal had overturned convictions, the The Supreme Court reinstated the sentences; in the only exception, he returned the case to a court of appeal to consider other unresolved issues. The court overturned sentences by veteran judges such as Ontario Chief Justice George Strathy; of Judge David Paciocco, whose books, articles, and sentences the Supreme Court has often cited in other cases; and Judge Marc Monnin of Saskatchewan, who is an experienced judge as a former Chief Justice of the Queen’s Bank Court.
“Are all the provincial courts of appeal very wrong?” asked Mr. Gourlay. “Do they have a systematic bias in favor of defense? Unlikely and inconsistent with my experience. The best explanation is that the Supreme Court has become too willing to overlook significant flaws in court proceedings in order to uphold convictions where experienced judges of the appellate courts have identified serious grounds for concern. “
A key precedent that worried Mr. Gourlay and other defense attorneys arrived last May in a case called GF (the initials are to protect the identity of the complainant) in which a man and a woman were charged with sexually assaulting a 16-year-old, intoxicated. hiking girl. He stated that he woke up with sexual acts that were being performed on him and finally accepted because he felt he had no choice; the accused man described her as an enthusiastic participant.
The judge overseeing the trial found the complainant credible and convicted the couple. But three judges of the Ontario Court of Appeal with 78 years of combined experience at the bank unanimously ruled that the judge had not correctly explained his decision, especially regarding the complainant’s ability to consent when he was intoxicated.
This was one of the few cases of sexual assault that the Supreme Court decided to hear (unlike those that came to court as automatic appeals), and the court’s decision included a strong disapproval of the appellate judges. .
Writing for herself and five other people, Judge Andròmache Karakatsanis said that the appellate judges had rejected convictions for sexual assault for credibility, “not on the basis of a legal error, but on the basis of of the analysis of an imperfect or summary expression by the trial judge “. Two other judges, Judge Russell Brown and Judge Malcolm Rowe, said the judge’s explanation of the trial was weak, but that there was enough evidence to convict it anyway. Judge Suzanne Côté said she had acquitted the couple.
The Supreme Court of Canada has sided with prosecutors in 34 consecutive sexual assault cases, a streak that began four years ago. Spencer Colby / The Globe and Mail
In all 14 cases, Judges Côté, Brown and Rowe were the only ones to disagree several times with the defendant. Judge Nicholas Kasirer was the only other judge in …