Before Canadian law did away with the corroboration rule (other evidence supporting the complaint of rape), and the doctrine of recent complaint (immediate complaining of the crime), it was more difficult to convict an innocent man for an alleged sexual offence wrongfully. 

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Like cases were treated alike. If there was no evidence a crime ever occurred, aside from the complaint itself, then there was likely no case and the risks of incarcerating innocent men were significantly reduced. At the time, ensuring innocent people weren’t incarcerated was fundamental to preserving the public’s trust in the criminal justice system. However, Victim's Rights advocates of today look back on that as a time when women were not believed. 

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Where undeniable corroboration existed and the complaint fell within the statute of time limitations the case would proceed and likely result in a conviction. 

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Where there was other evidence a crime occurred, that evidence could be scrutinized by a judge or jury to determine its weight in proving the plausibility of the case against the accused beyond a reasonable doubt. 

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When those rigid safeguards were in place to protect against wrongful convictions, cases without supporting evidence of a crime were more likely to play out in a civil court context instead where the consequences of an accused person being found liable are not so insurmountable in comparison to a criminal conviction and possible life imprisonment sentence.

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Out With the Old, In With the New Laws

Those safeguards existed during a time in Canada when men convicted of rape could be sentenced to life in prison, and sentenced to death for murder. Canada abolished the death penalty in 1976 and rape as a crime was abolished in 1983. Rape was then replaced by three different degrees of sexual assault accompanied by differing degrees of sentencing, removing life sentences from the equation. And the statute of (time) limitations was lifted.

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Immediately after these major reforms in rape law, the courts and legislatures began grappling with interpretations of new laws in accordance with the Canadian Charter of Rights and Freedoms, and with reshaping the rules of evidence for proving offence elements that didn’t necessarily exist before. 

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Part of that reshaping included defining “sexual” and creating new contextual elements of offences to be proven. Elements like the capacity to consent in the context of intoxication, and consent in the context of how and what body part can be presumed to have been touched for a sexual purpose. (However, the burden has also since shifted onto the accused to prove he took reasonable steps to obtain consent for the aforementioned elements.)

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Lifting the statute of limitations meant that anybody can now report a sex crime to the police no matter how long ago the alleged crimes took place. The time of having to provide proof that a sex crime took place became ancient history. Likewise, the time of being able to preserve any exonerating evidence became ancient history. Most people don’t keep records beyond five or ten years that could potentially provide undeniable alibis against allegations of crime. 

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In short, these new laws led to the notorious ‘credibility contest’ with the scales tipped in favour of the complainant. Laws and tests for evidence around sex crime claims have become and are becoming more complex and are inconsistently applied from case to case, primarily because of the subjective reasoning used by judges in reaching their conclusions. (And a desire to prove that the legal system protects women.)

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Out with the proof of crime, and in with the morality judgments. 

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Systemic Incoherence in Sexual Assault Law

Different judges may decide differently on the same facts presented, and even the same judges may decide differently on different cases with similar facts. Circumstances of any given case may appeal to or offend the personal bias of judges and, on appeal, judges will be presumed to be unbiased unless there is clear evidence in their reasons.

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A systemic incoherence has become inevitable as a result, as Gerald TG Seniuk, Retired Chief Judge, Provincial Court of Saskatchewan, and Adjunct Professor, University of Saskatchewan, writes about in his paper for the Canadian Bar Foundation, “Systemic Incoherence in Criminal Justice: Failing to Treat Like Cases Alike”, 2016 CanLIIDocs 157.

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“Systemic incoherence – where different judges could decide the same case differently – is used by the author as a framework to examine credibility contest trials before a judge alone.”

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In 1991, the Supreme Court of Canada grappled with the ‘credibility contest trap’ in R. v. W.(D.), 1991 CanLII 93 (SCC), setting out a three-pronged test meant to help juries understand how to avoid the credibility contest trap. This test doesn’t do much to ameliorate that problem in cases where the only evidence in she-said, he-said cases is their testimony. Recent cases show that it leaves juries even more confused, and numerous appeals have shown that judges can also get confused or misled themselves when attempting to apply this test. 

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How can it not be anything other than a credibility contest when there’s no other supporting evidence to weigh and much of the defence evidence is deemed inadmissible because of the risk of offending the complainant’s “dignity”?

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Judges alone, however, are more often deciding these cases without the use of juries. Judges write reasons for their decisions, juries don’t. New case law interpretations and legal principles develop around judicial decisions when they are argued in appeal courts. Trial judges can misapprehend evidence or misapply the laws in testing that evidence and it is up to appellate courts to look for those errors. 

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When an innocent accused person appeals their wrongful conviction, the grounds for appeal available to them dwindle down to nearly nothing and the root cause is because his case was decided solely on credibility.

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“It is recognized that verdicts in such credibility contests are uncertain, subject to reasonable disagreement, and potentially wrong.”

– Gerald TG Seniuk, Retired Chief Justice, Saskatchewan

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Nowadays, one of the grounds for appeal in a she-said, he-said criminal sexual assault conviction is that the trial judge applied ‘uneven scrutiny’ in assessing the credibility of the complainant against the accused. The barrier to success with this ground is that appellate courts give deference, or leeway, to trial judges in their credibility assessments - often the primary deciding factor in ‘proof beyond a reasonable doubt’.

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Credibility Contest as the Only Determining Factor

If credibility assessments are the primary deciding factor, and appellate courts prefer not to interfere with those decisions, then the only thing left to decide is if there was any legal error applied during the credibility assessment. Therefore, according to Senuik, such verdicts always have the potential to be wrong.

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In a recent case out of British Columbia, R. v. M.P.H., 2022 BCCA 216 (CanLII), the appellant invoked the uneven scrutiny ground of appeal asserting that the trial judge “took an overly forgiving approach to frailties in the complainant’s evidence” while unfairly rejecting the appellant’s testimony by “relying on speculation and unfounded assumptions” and improperly applying W.(D).’s three-pronged framework in coming to their conclusion.

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The appeal panel unanimously agreed with the appellant’s arguments and overturned his wrongful convictions and ordered a new trial citing applicable legal precedent in the province of British Columbia. But not without discussion on an earlier case, R. v. G.F., 2021 SCC 20 (CanLII) out of the Supreme Court of Canada case that questioned whether uneven scrutiny is a valid ground for appeal. In that decision, restoring G.F.’s convictions, Justice Karakatsanis wrote:

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“I have serious reservations about whether “uneven scrutiny” is a helpful analytical tool to demonstrate error in credibility findings. As reflected in the submissions here, it appears to focus on methodology and presumes that the testimony of different witnesses necessarily deserves parallel or symmetrical analysis. In my view, the focus must always be on whether there is reversible error in the trial judge’s credibility findings.”

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Karakatsanis effectively states that the scrutiny of testimony doesn’t have to be applied equally to both the complainant’s evidence and the accused person’s evidence. 

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Justices Brown and Rowe, however, disagreed with Karakatsanis in the same decision, responding with this statement:

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“...Abstract warnings about “parsing” and “scrutinizing” are not, in our respectful view, particularly helpful as concrete guidance to appellate reviewers. Rather, the degree of scrutiny that appellate courts should bring to bear follows from the purposes of that scrutiny, which is to ensure that the trial judge’s reasons are (as noted above) sufficient to explain the verdict to the accused, to provide public accountability and to permit effective appellate review.”

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On the flip side, any time it is determined a trial judge relied on speculation and unfounded assumptions or stereotypes applied to the complainant’s evidence in order to acquit an accused person, it almost always gets relegated to the “rape myth” bucket by the Crown prosecution who then almost always successfully appeals the acquittal, winning another shot at convicting the innocent accused.

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An example of this is a case currently on its way to the Supreme Court of Canada, ​​R. v D.R, 2022 NLCA 2 (CanLII), where the appellant, in this case, the Crown prosecution, asserted that the trial judge “erred in assessing the complainant’s credibility by engaging in impermissible stereotypical reasoning” when determining how the complainant should have behaved after allegedly being sexually abused by her grandfather.

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An Opportunity for the Supreme Court of Canada to Make Some Sense

There was a dissenting judge on the appeal panel for D.R., triggering this case to proceed to the SCC, essentially asserting that the Crown misapprehended the trial judge’s reasoning in their appeal. Justice White said:

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“He did not make an error of law based on an impermissible inference, he made a credibility assessment based on the evidence before him… While a credibility assessment that is tainted by an error of law may displace the deference afforded to a trial judge's credibility assessment and warrant appellate intervention, in this case there was no such error of law.”

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It remains to be seen if or how the SCC chooses to reconcile conflicting ideals about scrutiny of evidence and perceived stereotypical reasoning with D.R. in any coherent manner.

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Ultimately, these never-ending disjointed disagreements in our high courts over credibility assessments and scrutiny of the evidence will only lead to exacerbating the very real problem of systemic incoherence and more wrongful convictions in criminal sex crime trials.

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