Women who make the decision to report a sexual assault to the police are embarking on a potentially long and always arduous journey through the criminal law system. They will be confronted with myths and stereotypes about women and sex, be forced to retell (and relive) what has been done to them, be cross-examined as though they were the person on trial. Because they are not a party to the criminal proceeding, they have no standing and no right to legal representation. They are, in effect, a piece of evidence used by the Crown in its case against the accused.
Over the past few decades, changes to both the Criminal Code and court procedure have begun to address some of the myths that continue to dog these cases. But it sometimes seems as though every step forward also involves at least half a step backwards.
Exclusion of prior sexual history
Section 276 of the Criminal Code is one such reform. It prohibits the use of evidence of prior sexual history of the complainant (victim/survivor):
“to support an inference that, by reason of the sexual nature of that activity, the complainant
- Is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or
- Is less worth of belief.”
There is an exception: the judge can permit such evidence, as long as it is not being used to support one of these inferences AND is relevant to an issue at trial AND is of specific instances of sexual activity AND has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
In making such a decision, the judge is required, by section 276(3) to consider a number of factors, including:
- The interests of justice, including the accused’s right to a fair trial
- Society’s interest in encouraging the reporting of sexual assault
- Whether there is a reasonable prospect the evidence will assist the court to make a just determination
- The need to remove any discriminatory belief or bias from the process
- The risk the evidence may unduly arouse prejudice, sympathy or hostility in the jury (if there is one)
- The potential prejudice to the complainant’s personal dignity and right to privacy
- The right of the complainant to personal security and the full protection and benefit of the law
- Any other factor the judge considers relevant.
Not home sweet home
This issue arose recently in the Ottawa case of R. v. Boyle.
Joshua Boyle first became known to Canadians in 2012 when he and his wife, Caitlin Coleman, were kidnapped by an offshoot of the Taliban in Afghanistan, where they were held hostage until their rescue in October 2017.
During that time, Coleman, who was pregnant when she was kidnapped, gave birth to that child and two more.
On December 31, 2017, shortly after the family had settled in Ottawa, Joshua Boyle was arrested by Ottawa police and charged with multiple criminal offences: one count each of criminal harassment, public mischief, administering a noxious substance, sexual assault while threatening to use a weapon, sexual assault while using a weapon, uttering a threat to cause death, three counts of unlawful confinement and nine of assault. All charges relate to the time after the family returned to Canada.
In the course of the criminal trial, which began in March of this year, Boyle’s defence lawyer brought an application under section 276(2) for permission to introduce evidence of specific incidents of Coleman’s prior sexual activity with Boyle.
The trial judge, Justice Doody, granted the application, and the lawyer acting for Colemen announced that he would bring a certiorari application in the Superior Court of Justice to quash Justice Doody’s ruling. The criminal trial was adjourned to permit this application to be heard.
A certiorari application is a court process –different from an appeal — that seeks judicial review of a lower court decision. In this case, it was the only legal option available to Coleman who, as the complainant, is not a party to the criminal trial, so has no right of appeal.
Law vs justice
The application was heard in May, with arguments made by the Crown, Coleman (through her lawyer), the defence and two intervenors, the Women’s Legal Education and Action Fund (LEAF) and the Criminal Lawyers’ Association of Ontario (CLA). Justice Laliberte issued his decision on June 11th, upholding the decision of Justice Doody.
The trial will resume on July 2, at which time the defence will be permitted to cross-examine Coleman about her prior sexual activities with Boyle.
Justice Laliberte’s first task was to determine whether the court even had jurisdiction to hear the certiorari application. Coleman, the Crown and LEAF argued that it did, while the defence and the CLA took the position that it did not. Justice Laliberte found that “Justice Doody’s section 276 ruling should not be reviewed by way of certoriari.”
While noting that the court’s ruling “is not intended to disparage a complainant’s fundamental rights and equality in cases of alleged sexual violence,” Laliberte’s decision not to find jurisdiction seems to focus more on the accused’s right to a speedy trial as well as on the possibility of opening the door to a flood of certiorari applications.
Even though he did not find he had jurisdiction, he considered whether, had certiorari been available, there was a basis to quash Justice Doody’s ruling. Once again, his decision was in the negative.
Laliberte found that the proposed evidence “has significant probative value which is not substantially outweighed by the danger of prejudice to the proper administration of justice.” He agreed with the trial court judge’s decision that the impact of the evidence on Coleman’s personal dignity and right to privacy would not be significant because the details in the proposed evidence would be limited.
Justice Laliberte wrote:
“The point of all this is not to deny the importance of a complainant’s right to privacy, dignity and equality in matters of sexual violence, but an accused person who is presumed innocent and whose liberty is at stake should not be given lesser rights.”
Not okay
It won’t come as a surprise that I don’t like this decision.
I don’t like it for Caitlin Coleman, who was held hostage for five years, during which time, she reports, her husband’s controlling and violent behaviour was “just like that of my captors.” Her rescue from Afghanistan may have freed her from her Taliban captors but, as the charges laid against Boyle indicate, left her exposed to the violence of her abusive husband.
What is to be served by subjecting her to the humiliation of being questioned about her sexual history with Boyle? No doubt inconsistencies in her evidence will be found, as they almost always are when survivors of trauma retell their stories. But it is unlikely that these will rise to a level that should throw Coleman’s credibility as a witness into question.
I also don’t like this decision for survivors of sexual violence more generally. While I believe passionately in the presumption of innocence afforded all persons charged with criminal offences in Canada, I also know that the reporting rates for survivors of sexual violence are shockingly low, as are conviction rates, and that much of this is due to a criminal law and process that are stacked against them.
This decision will not, as Justice Laliberte would have us believe, provide evidence to “assist in arriving at a just determination of the case.” Rather, it has the potential to drive even more survivors away from considering making a report to the police.
And that’s a bad thing for all of us.