Supreme Court throws doubt into questions of deference

In a decision that tries to clarify consent in sexual assault cases, the Supreme Court of Canada has found that when the ability to give it is in question, trial judges should consider direct and circumstantial evidence.

That has left lawyers questioning the Court’s past insistence that deference to trial judges should be paid. 

In the case at hand, Frédéric Rioux arranged a picnic with a woman he had previously been involved with, and over the course of events, he provided her with a mixed gin drink when her wine was gone. The complainant said she lost control of her body after that and suspected she had been drugged. Sexual activity took place in the park and later at Rioux’s home.

The trial judge determined he could not prove beyond a reasonable doubt that consent had not been given at the park. He also determined that consent could not have been given at Rioux’s home, but acquitted Rioux on the basis that he may have had an honest but mistaken belief of consent. 

The Quebec Court of Appeal overturned the acquittal on the alleged assault at the park and ordered a new trial, but the second acquittal was not challenged.

Because of the split decision, the case went to the Supreme Court as of right. The majority dismissed the appeal, so the order for a new trial stands.

“A trial judge must assess and weigh all admissible and relevant evidence to determine whether the complainant consented or had the capacity to consent to the sexual activity in question,” wrote Justice Sheilah Martin for the majority in the 5-4 decision. 

“If the trial judge relied on the testimony of the appellant as direct evidence of a complainant’s state of mind, it would have been an error to do so. This is so even where the complainant does not have full memory of the sexual activity in question.”

The Court identified two errors in law. First, the trial judge misapprehended and misapplied the law of evidence by requiring direct evidence from the complainant when the alleged assault occurred. He also failed to consider the complainant’s circumstantial evidence when addressing her subjective consent to determine Rioux’s guilt or innocence.

The Court said the errors led to an “impermissibly siloed approach” to the evidence. The judge should have considered a wider range of relevant evidence, some of which contradicted Rioux’s testimony, and failed to reconcile the contradictory evidence around whether Rioux had drugged the woman.

The four dissenting judges, Chief Justice Wagner, along with Justices Côté, Rowe, and Moreau, jointly wrote that the Crown’s limited rights of appeal reflect fundamental principles of criminal law, particularly the protection against double jeopardy.

“This Court recently warned against the temptation to expand the concept of error of law, and, by extension, the Crown’s right of appeal from acquittal,” they said.

Peter Sankoff, lead counsel at Sankoff Criminal Law in Edmonton, says the decision addresses issues around the law of evidence, particularly when it comes to evidence of a lack of memory. However, it misses the mark when it applies the Court’s previous rulings on deference to trial judges in sexual assault cases, because those judges have heard all of the testimony in person and in its proper context.

“The basic rules on deference in sex assault cases have been incredibly strict, and I know that because I’m appealing a lot of these cases,” he says. “Defer, defer, defer, and suddenly that principle is out the window, and I don’t understand how.”

Sankoff says that’s something the dissenting judgment picks up on. Deference is not a concept that applies differently depending on who’s appealing. 

“In this case, I don’t think you can square what they say in those paragraphs where they’re trying to decide whether to intervene with other judgments in this area,” Sankoff says. 

“Either you take a strong position on deference that says the trial judge’s failure to spell out exactly what they’re focused on is not determinative, and suddenly in this case, they’re not.”

That lack of consistency will create problems for appellate courts as to when they should intervene. There are problems with what’s considered evidence of consent, and Sankoff says he doesn’t understand the end goal.

“What will be achieved is chaos. They are playing around with terms like ‘direct’ and ‘circumstantial,’ which really have no bearing on the core question in the case, which, in cases of this nature, is did the complainant consent?”

In particular, he says the majority cites R. v. Ewanchuk out of context, and its claim that the accused’s perception is “irrelevant” is flatly not true. That confuses questions of irrelevance with those of direct or circumstantial evidence. Sankoff says what matters is whether it bears on the question of whether consent was present in that instance. 

“The case law up until today has been resolute that yes, it does.”

He agrees with every aspect of the dissenting opinion, as it is correct on the standard of deference and its consideration of what evidence should be assessed in coming to a conclusion.

Sankoff says that while he would agree with the Court resiling itself to saying that they shouldn’t defer as much, here it looks like they’re doing it because they simply don’t like the result.

“Are they being inconsistent in the way they approach the concept of deference? I think that’s something we should be scared of.”

Jody Berkes, a criminal defence lawyer in Toronto and former chair of the CBA’s criminal justice section, also strongly disagrees with the majority and thinks the dissent was the more compelling set of reasons.

“We’re not supposed to deconstruct and view a trial judge’s reasons in isolation,” he says. 

“One wrong word doesn’t invalidate their reasoning. You look at everything as a whole — the context of the issues at trial, in the context of the witnesses’ testimony, in the context of everything.”

He went back to the trial judge’s reasons in this case and couldn’t see the error that the majority focused on to deem this an unreasonable acquittal.

“I can’t find that the judge clearly erred, that the inference he drew was unable to be drawn as a matter of law, that the inferences he drew from the facts were so unreasonable that no reasonable person could possibly draw that.”

Berkes says that to preserve the presumption of innocence, a judge must use the inferences most favourable to the accused to guard against a wrongful conviction.

“(The greater evil) the system is designed to avoid is an innocent person being deprived of their liberty or labelled as a criminal offender on less than proof of a reasonable doubt.”