Being questioned on sexual history the cost of justice
Lawyers’ group seeks end to trial interruption
Witnesses, even complainants in sexual assault cases, have no new right to review judges’ decisions in mid-trial despite recent amendments to the “rape shield” provisions of the Criminal Code.
So says the Ontario Criminal Lawyers Association (CLA), which is seeking intervener status in an unusual and controversial application to be heard in Ontario Superior Court in Ottawa on Wednesday.
Caitlan Coleman, the estranged wife and co-hostage of former Afghan hostage Joshua Boyle, is appealing a ruling made last month by a lower-court judge, Ontario Court Judge Peter Doody.
At the time, the cross-examination of the 33-year-old was about to resume.
But under Section 276 of the Criminal Code, the rape shield section designed to protect sexual assault complainants from invasive questioning, Boyle’s lawyer Lawrence Greenspon was required first to make an application showing that the evidence he wanted to elicit
didn’t invoke the stereotypical “twin myths,” the inference that a sexual assault complainant is more likely to have consented or is less worthy of belief because of her previous sexual history.
Then, when Doody ruled the defence had passed that hurdle, there was a separate, private admissibility hearing — closed to public and press — to determine that the evidence was relevant and had significant probative value not outweighed by the danger of prejudice.
In the result, Greenspon would have been able to question Coleman about her past consensual sexual practices with Boyle.
That’s when her lawyer, Ian Carter, brought the review application, abruptly stopping the trial and delaying it for at least several months.
Coleman had already testified that “memories can be invented and inserted” and that she wasn’t certain that some of the offences with which Boyle is charged happened on particular days or not.
The 35-year-old Boyle is pleading not guilty to 19 offences, ranging from criminal harassment to uttering a death threat to multiple counts of assault, but which include only two counts of sexual assault with a weapon.
The pair were abducted in 2012 while on a backpacking trip to Afghanistan by the Taliban-affiliated Haqqani network, and were held captive for five years before being freed by Pakistani troops. They returned to Canada in October of 2017.
The appeal was made via a certiorari application, which is a so-called “prerogative writ,” an extraordinary remedy for a superior court to quash a decision of a lower court.
But Howard Krongold and Meaghan McMahon, who represent the CLA, said when Parliament amended the rape shield laws last year it gave complainants a right to appear and make submissions on .276 applications, but only at the hearing.
“Prior to the recent legislative changes to the Code, no one ever claimed that complainants had the right to seek certiorari of a Section .276 decision, and there is nothing in the new Code provisions that creates such a right … They do not confer a new right of review,” Krongold and McMahon say in their factum.
“Criminal trials are a contest between the accused and the state, but trial judges nevertheless sometimes make rulings that affect other people,” the CLA lawyers say, pointing out that if the trial had been held in Superior Court, there would be no such right of review.
(Rather, the avenue there would have been to seek leave to appeal directly from the Supreme Court of Canada, but the trial wouldn’t automatically stop.)
“That may seem harsh,” Krongold and McMahon say, “but it is a feature of our system, not a bug. The criminal law disfavours the interruption, fragmentation and delay caused by interlocutory (or temporary) appeals in criminal matters.”
But Coleman’s lawyer Carter, and lawyers for the Women’s Legal Education and Action Fund, or LEAF, which is also seeking intervener status, argue that Doody made errors of law that compromise Coleman’s integrity and equality rights.
“No matter how it is dressed up,” Carter says in his factum, “(Boyle’s) argument amounts to this: the complainant is less credible because she may be confusing prior, consensual sex with rape.
“This kind of reasoning has no place in the courtroom,” he says.
While the case is obviously significant to Boyle, who remains on restrictive bail conditions during the delay, and Coleman both, the interveners argue it is much more important than these two people.
The CLA lawyers say that the questions — whether a witness can seek certiorari review and do the new .276 amendments give witnesses that right — “have broad implications for persons charged criminally … The issues raised in this application are important not only to the parties before this court, but to the criminal defence bar as a whole and to their clients.
“The manner in which this court resolves the issues … will affect the conduct of criminal trials and the dayto-day practice of the criminal defence bar.”
LEAF lawyers Gillian Hnatiw and Julia Wilkes say that if Doody’s decision is “allowed to stand (it) would render sexual history evidence admissible in almost every spousal assault case …. The trial judge’s decision to include this evidence is a blatant error on the face of the record.”
But Krongold and McMahon, for the CLA, argue that while testifying at trial can be “very unpleasant,” cross-examination “is intended to be a crucible of truth, but regrettably, the truth is often not pretty, and being forced to tell it — sometimes, just being asked about it — can be embarrassing and uncomfortable …
“But our justice system would cease to function if discovering the truth became subservient to each witness’s sensitivities … Discomfort, or the fact that the questions relate to deeply private or personal matters, does not mean that a witness has a substantive right not to answer those questions, and then to seek review, and then a further appeal, of every disagreeable mid-trial evidentiary ruling.
“A witness’s testimony about sexual matters is not different … This is the cost of learning the truth and ensuring that justice is done.”