In principle, judges have erasers, not pencils. They cannot create law, they only interpret the law as it exists. On occasion, the constitutionality of a law is challenged and the judges can bring out their erasers.

Despite their limitations, in common law countries like Canada, the courts can become activist in the way they interpret the law. Quite recently, the Canadian government passed two omnibus bills to “update” the Criminal Code of Canada based on rulings and guidelines from the Supreme Court.

Over the last few decades, one of the big influences in the interpretation of the law has been the interventions of The Women’s Legal Education and Action Fund (LEAF).

LEAF’s mandate is to intervene in the courts of appeal on any case that advances women’s “equality” under section 15 of the Charter. These interventions target the word “equality” and they have successfully changed the interpretation of that word to mean “substantive equality” instead of “formal equality.”

Substantive equality is the concept that in order to be treated equally both before the law and under the law, oppressed groups need to be treated differently. Women are one of those oppressed groups.

The effect of substantive equality is that the symbolic blindfold is removed and “justice” can only take place when identity politics play a role in the trial process.

There is some merit to the argument that people should be treated based on their individual circumstances. This consideration has normally been left to the sentencing part of a trial. If a crime was committed, that is a factual determination. If the fact is proven, the punitive measures sought should be proportionate to the crime and the circumstances.

Unfortunately, that is not the way substantive equality is being practiced. In cases of sexual assault or domestic violence accusations, “equality” rights have successfully demanded that complainants be viewed as “victims” prior to trial. Additionally, in allegations of a sexual nature, the complainant’s rights to dignity and privacy are being “balanced” against an accused’s right to full answer and defense.

In 2020, the Supreme Court of Canada ruled “from the bench” on seven out of nine sexual assault cases. That means they said “hold my hat” and took about twenty minutes before delivering an oral decision. In every case they have sided with the prosecution to restore convictions. In five of those cases, they overturned the majority of the Court of Appeal without any meaningful reasons offered.

The absence of detailed reasons leaves an absence of ability to understand their decisions. In that void, it appears that the Supreme Court of Canada is concerning themselves with the mandate to encourage the reporting of sexual assault and will do so at the risk of wrongful convictions.

The signal to those who are facing charges of sexual assault in Canada is that they must take even greater care at trial or secure a unanimous decision in the Court of Appeal. If it goes to the Supreme Court, they will most likely uphold or restore the conviction for the sake of generic complainants.

Diana Davison is a legal researcher and contributor to the monthly Neuberger & Partners Sexual Assault Law Newsletter. For the latest decisions in sexual assault law, subscribe for monthly updates.

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