Michael Ford (post until Oct. 31/18)

OCA decision highlights challenges of sexual assault cases

An Ontario Court of Appeal (OCA) decision that ordered a new trial in a “he-said, she-said” date-rape case is a thorough judgment that sets out the difficulty that trial judges have in sexual assault cases, Toronto criminal lawyer John Rosen tells The Lawyer’s Daily.

“The reason that credibility is such a key part of sexual assault cases is because in the vast majority of these cases the event occurs in the intimacy of the setting that very rarely is there another person around to say ‘yes’ or ‘no’ about what did or didn’t happen,” he says.

“So it’s entirely ‘he said’ versus ‘she said,’ in that particular case.”

Rosen, founder of Rosen & Company Barristers, says this issue has long been the challenge with these types of offences.

“Trial judges have grappled with this for centuries and there are a number of strategies that trial judges use to test the evidence and this case is a good example of the court grappling with that very issue,” he says.

In the OCA ruling, the court pointed to the difficulty associated with credibility evaluations.

“In my view, the credibility evaluation in this case — one of the most difficult tasks trial judges perform — was sufficiently problematic to require this conviction to be overturned and a new trial ordered," wrote Justice David Paciocco on the appeal.

"The trial judge did not properly deal with an admitted exhibit. More importantly, he erred in the admission and use of reply evidence that related to [the accused’s] credibility. Most significantly, this is one of those uncommon cases where the conviction cannot stand because the trial judge applied different levels of scrutiny to the testimony of [the complainant and the accused],” he wrote.

The accused in this matter appealed his sexual assault conviction, raising several grounds of appeal.

The court heard that he met the complainant at a university bar in 2012 and after chatting over drinks, he offered to walk her home, which he did. Their testimonies are vastly different after that as the complainant testified there was non-consensual sex and the accused claimed he did have consent, says the article. 

On appeal, the man argued the trial judge misapplied the burden of proof and that he erred in evaluating the accused’s credibility, as well as using the complainant’s lack of embellishment in evaluating her credibility, it says. The man also argued that the judge erred in his treatment of the shirt that the complainant was wearing, which had been admitted as evidence, and in the admission and use of reply evidence from her friend.

“Justice Paciocco, with Justices Gloria Epstein and Ian Nordheimer in agreement, determined in a decision released on Feb. 26 to allow the appeal, set aside the sexual assault conviction and order a new trial,” says the article. 

In his written analysis, Paciocco said the appeal was allowed on the treatment of Exhibit 11, the complainant’s shirt, the evidence of her roommate in reply and the different levels of scrutiny used by the trial judge.

“In my view, the trial judge should either have inspected the shirt, or alerted counsel to his concerns about the propriety of doing so, so that counsel could respond. He did neither. In the circumstances of this case, this was unfair to [the accused],” wrote Paciocco.

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