This last week, Chief Justice of the Supreme Court of Canada Beverley McLachlin waded into the #IBelieveSurvivors debate. She made some startling but important and refreshing comments about the rights of an accused person in a sexual assault trial, and the rights of complainants in sexual assault cases.
Her comments that have been most quoted are these: “no one has the right to a particular verdict.” And she is absolutely right.
However, the Government has proposed a piece of legislation that seems to codify the opposite. With Bill C-51, the Federal Government is trying to make it so that sexual assault complainants are, in essence, guaranteed a verdict unless the defence shows that a sexual assault did not occur.
In Canadian criminal law, the burden of proof rests with the Crown. That burden is to prove charges beyond a reasonable doubt. In R. v. Lifchus, the Supreme Court of Canada stated: “If the presumption of innocence is the golden thread of criminal justice then proof beyond a reasonable doubt is the silver and these two threads are forever intertwined in the fabric of criminal law.” It is an intrinsic and necessary aspect of fair trial rights.
But Bill C-51 compromises these fair trial rights.
Currently, our legal system allows an accused individual to raise the defence of mistaken believe in consent. This cannot be raised in certain circumstances, like having sex with someone who is unconscious or where someone asserts that they are not consenting.
But the changes to the law make an important distinction: they now prevent the defence of mistaken belief in consent from being raised where there is no evidence of actual consent. This is problematic. Because although the case law seems to indicate that such evidence is often necessary this does not preclude the defence from being raised where there is no evidence.
This is because the mistaken belief in consent defence relates to the mens rea – the mental element – of the offence of sexual assault. It is about the state of mind not of the complainant but of the accused. Whether he or she believed that the person they were engaging in a sex act with actually consented to that. And human sexual behaviour being what it is, the absence of actual consent does not necessarily mean that there was no consent.
Further, by codifying that the requirement is that there is “evidence” of consent, this poses a practical burden for the accused. Whereas before, a skilfully conducted cross-examination could suffice to raise a reasonable doubt in this regard, now actual evidence of the accused’s state of mind and what he relied on in coming to that state of mind is necessary. This places a necessary burden on the accused in all cases of mistaken belief in consent that he or she must testify. That is inconsistent with the right to silence.
What the Government has done is taken the law one step too far.
The government is now requiring judges to convict in cases of sexual assault based on the absence of evidence. But absence of evidence is not evidence of absence.
Statistically speaking, false reports may occur as much as 10% of the time. If one in ten people accused of sexual assault is innocent but all ten are sent to jail as a result of these changes, our justice system becomes a failure.
But what is even more scary about this bill, and what Justice McLachlin’s comments strike at, is the issue of the right to make full answer and defence. It severely limits the ability of a person accused of sexual assault to tender evidence at their trial.
Essentially, what Bill C-51 purports to do is create a brand new situation known to Canadian law. Complainants in sexual assault trials will now have the right to be heard on whether the defence is permitted to introduce any record they have into evidence at the trial, through any witness. If it’s a police officer’s notes, the complainant has to be heard. If it’s a recording of the sexual interaction in question, the complainant has to be heard. And the complainant can oppose the introduction of this evidence, even where it clearly establishes the innocence of the accused.
By giving the people who are bringing the accusations forward the participatory rights in evidentiary hearings, Parliament is effectively saying “Accused persons in a criminal trial have trial fairness rights, only insofar as they fit comfortably with what those who are making the accusations wish them to have.” This is an affront to justice, and creates a two-tiered justice system. If these proposed changes are passed, sexual assault accusers will have more trial fairness rights than those who are facing the charges.
Given the strict consequences of a criminal trial, this cannot be the case. The Chief Justice is right: no one has the right to a particular verdict. What accused persons have is the right to a fair trial, the right to make full answer and defence, and the right to be presumed innocent. This bill compromises those rights seemingly to make complainants and accusers feel better.
The criminal law is not about making people feel better. The criminal law is about determining truth within the confines of the Charter and fair trial principles. And as harsh as it sounds, feelings are best left outside the courtroom.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.