Supreme Court of Canada could turn trials into a mockery of justice

If witnesses aren’t allowed to openly answer questions under oath anymore then our courts will have truly become mere show trials

Diana Davison Montreal QC

On January 16, 2019 the Supreme Court of Canada engaged in debate about whether or not a witness should have to tell the truth, the whole truth and nothing but the truth. While those may not be precisely the words used in real courtrooms, the purpose of a witness taking an oath remains fairly clear.

A trial is meant to ferret out the truth through vigorous cross-examination. That relies on a witness being able to testify both openly and honestly.

The case being discussed, R v Goldfinch, was a sexual assault trial in which the accused had an acquittal overturned in Alberta and his lawyers appealed that decision. The question of law is whether or not the judge should have allowed the jury to hear evidence of “prior sexual activity.”

The impugned evidence is so basic and simple it should be shocking to find it in question. The accused wanted to be able to say he and the complainant were in a casual sexual relationship at the time of the allegation. The prosecutor insisted that the jury should only be told the two adults had occasional “sleepovers.”

The last time I had a “sleepover” I was about 12 years old.

The Supreme Court’s Justice Moldaver seemed the most vexed. He denounced the double standard that prosecutors have for what evidence they find acceptable. Moldaver pointed out “the Crowns are only too eager to develop that evidence when it’s a stranger or when it’s a platonic relationship.” He went on to say “I don’t know how it’s relevant for them but not relevant for the other side.”

The Criminal Lawyers Association agreed. Acting as an intervener, they suggested a two part test regarding evidence including the question “could the Crown introduce evidence to support the opposite inference?” The next question was whether or not an accused in a trial other than sexual assault would be able to use the same evidence.

The hypocrisy of the Crown is disturbing. For example, it is extremely common for prosecutors to imply that a virgin is less likely to consent to sex. In fact, in one bizarre case going to Supreme Court soon the prosecutor argued that because a 15 year old pregnant girl believed she was a virgin it supported her allegation that she had been previously raped. The accused was not allowed to question the girl about other boys or men she may have encountered on that fateful camping trip.

So why is it acceptable for the prosecutors to ask the complainant if she’s a virgin and completely prohibited for an accused to offer evidence that she is not?

In the Goldfinch case, why was the prosecutor willing to tell the jury the complainant carried on a friendly relationship with "sleepovers" but not confirm what it means when an adult woman often goes to a man’s house and doesn’t leave until the morning? It’s like we’re back in Victorian times where we can’t admit that women sometimes have sex when they aren’t married.

The most astonishing part of the hearing was the intervener submission from the Attorney General of Ontario. The proposed solution to “controlling evidence” in sexual assault trials was that “counsel should be permitted to lead the evidence.” This means the lawyers would basically tell the witness what they are supposed to say and the witness merely answers yes or no.

Why can’t complainants be trusted to tell their own story?

The Attorney General of Ontario argued that we need to guard against “ inadvertently eliciting evidence” that would “open the door” for the accused to bring in evidence that would otherwise be successfully blocked from trial. What wasn’t explained was why we should bother having trials at all in sexual assault case if the “witnesses” are simply told in advance what their testimony should be.

The suggestion of “context” was laughed at. The fact that people who are engaged in an ongoing sexual relationship speak to each other differently was seen as “irrelevant.” The reality that all defence evidence in a consent based sexual assault trial is going to attempt to prove consent didn’t seem to resonate with Ontario Attorney General’s representative.

And the problem seems to come down to a question raised by the Criminal Lawyers Association: “Is it logic or is it myth?”

That two people who have a prior sexual relationship are more likely to have sex than perfect strangers isn’t a myth. Of course every sex act needs to be consensual, but eliminating all context around how two people ended up being naked together seems Orwellian.

If a complainant says something inconvenient for the prosecutor, what probably happened was that she told the inconvenient truth. And at what point would our society stop wanting people to tell the truth, the whole truth, and nothing but the truth in a trial where an innocent person could go to jail?

If witnesses aren’t allowed to openly answer questions under oath anymore then our courts will have truly become mere show trials. I hope the Supreme Court of Canada decides not to let that happen.


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