According to the Attorney General of Ontario, everybody is wrong about sexual relationships. Arguments recently made to the Supreme Court of Canada suggest that partners in a ongoing relationship are no more likely to consent to sex than complete strangers.

In trials with juries, judges need to give instructions at the end of the trial to assist the members of the jury in understanding how to apply the law. In sexual assault trials certain kinds of evidence are blocked from the jury completely because the risk of prejudice to a complainant outweighs the value of the evidence.

In this case, that controversial evidence was that the accused and the complainant had an ongoing casual sexual relationship at the time of the incident.

The Supreme Court was told that juries can not be trusted with this type of “contextual” evidence. The juries will wrongly assume that the complainant was more likely to have consented.

Of course, it is wrong to assume that because a person has had sex with someone in the past that they will always agree to sex in the future. Every sexual encounter needs to be consensual and people are free to change their minds at any point. How this consent is obtained is usually where the trouble begins.

Human sexuality is complex. We don’t usually sign contracts and initial the fine print. Unfortunately, this natural ambiguity creates a problem in the courtroom and the law is now being interpreted through an ever more rigid point of view.

The Supreme Court of Canada only hears a small percentage of cases which ask for leave to appeal. Primarily, the SCC steps in when dispute over interpretation of the law can’t be resolved by the lower courts. In sexual assault cases one of the ongoing issues is whether or not evidence of a sexual nature is corrupting the trial process.

Prosecutors and women’s advocates tend to interpret any acquittal as a failure by a judge or jury to understand the evidence. As such, the objections are escalating from blatantly prohibited evidence to claims that relationship evidence for context must have infected the brain of the trier of fact.

Given the characterization of juries by the Crown and the Attorney General, Justice Moldaver raised the question, if these arguments were to be believed, of whether or not the jury system should be done away with completely.

Speaking for the Attorney General of Ontario, Karen Papadopoulos told the court that despite explaining prohibited lines of reasoning about consent to jurors, they can not be stopped from coming to the wrong conclusions. She rejected the idea that the problem could be addressed by better instruction.

But if jurors can’t be trusted with a simple background regarding how two people ended up together one night, how can they come to a fair verdict in a vacuum of information? Papadopoulos said “there is an inherent negative impact which flows from this evidence, and so you can’t just say to them; you can’t engage in this twin myth reasoning.”

The “them” in question are wrongheaded jurors like you and me. We are apparently so filled with bias that we cant be trusted to think clearly.

Where is the line between common sense and faulty reasoning? And how does that explain the volume of cases under appeal in which it’s a judge accused of engaging in myths?

There is a growing push from feminist law professors and Crown prosecutors to accept a standard of active ongoing consent that requires enthusiastic feedback from both parties. Part of this trend builds from the agreement that silence or lack of resistance to sexual advances does not constitute consent.

So while a complainant is not required to verbally say “no,” they wish to have the accused required to produce evidence of a verbal “yes.” Setting aside the standard that an accused is not suppose to have to prove innocence, the bigger problem exists that normal human sexuality doesn’t work that way. And juries know it.

Despite this demand that all evidence of behaviour prior to or after a sexual encounter be disregarded, judges have noted that “in considering the issue of the credibility of the complainant’s assertion of non-consent, the Court may consider what the complainant said or did leading up to, during, and following the same”

Perhaps, when the Supreme Court of Canada delivers their decision we will see a restoration of trial rights for an accused. Perhaps the Canadian public will be given credit for not being completely stupid, or bigots who can’t be taught to reason.

More importantly, if the jury system continues, perhaps the members of the jury will once again be allowed to hear all the evidence before they decide whether or not to send a person to prison.

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