Live from the SCC: R v Bourgeois & the Importance of Deference and Procedural Fairness

On October 13th, The Supreme Court of Canada (SCC) heard arguments (and subsequently made a decision) in R v Bourgeois, 2017 SCC 49 [Bourgeois], an as of right appeal dealing with the circumstances in which it is justified for an appellate court to intervene and declare a trial decision an unreasonable verdict pursuant to section 686(1)(a)(i) of the Criminal Code. The following post examines the case and issues. In the first section, the post briefly presents the facts of the case. Next, it briefly states the findings of the trial judge and the decision from the Alberta Court of Appeal. The post then shifts to a discussion of the issue present before the SCC, the arguments of the parties at the hearing, and the decision of the SCC, which was delivered orally from the bench. Finally, the post offers some insight on why this case matters: 1) it illustrates the high level of deference afforded our trial judges; and 2) it highlights the degree to which procedural fairness is valued in our Criminal justice system.

NOTE: there is a publication ban in this case, pursuant to section 486.4 of the Criminal Code, which prohibits the dissemination of information that may identify the complainant. This post is intended to comply with the restriction so that it may be published.

The Facts

Uncontested Facts

The complainant and the appellant met through a mutual friend in a bar. Over the next two days, the two exchanged almost 700 text messages, some of which included revealing photographs. The two then agreed to see each other at a friend’s house to watch a hockey game. The appellant picked the complainant up at her house and they proceeded to the party where they socialized with other guests and drank alcohol. While at the party, an incident occurred in the bathroom in which the accused requested the complainant come up to the bathroom where she found him naked. The complainant was also informed that the accused was involved in a serious relationship. While the exact details of these occurrences are somewhat unclear, the complainant testified that these events made her less attracted to the appellant. At approximately 5:00 a.m. the next morning, the two left the party in the appellant’s truck.

On the drive, the two eventually pulled over and had sexual intercourse. The reasons for pulling over, however—as well as whether or not the sexual intercourse was consensual—are contested by the parties.

Contested Facts

According to the complainant’s testimony, the appellant pulled the car over in order to initiate sexual intercourse despite the fact that she did not consent and had simply asked him to take her home. She claimed that the appellant straddled her and pushed her onto the back seat of the truck. He then had intercourse with her. She was crying and struggling during the assault, but eventually stopped and asked him to “[j]ust get it over with.” Once the appellant had finished, he apologized and drove her home. She promised not to tell anyone what had happened. When they arrived at her home, she ran into her house and told her parents that she had been raped and needed to be taken to the hospital.

According to the appellant’s statement to police, he pulled over the car because he and the complainant had been kissing and touching (which he had initiated). He then put her in the back of the truck and had consensual intercourse with her. He described her as a willing participant. After they had finished, he drove her home. He claimed that the reason for the claimant’s distress was related to a fight she had been having with her mother about being out late and with a stranger: the claimant made a scene in order to avoid getting reprimanded by her mother (R v Bourgeois, 2017 ABCA 32, paras 2-9 [Bourgeois ABCA]; Ibid (Factum of the Appellant, paras 6-55); Ibid (Factum of the Respondent, paras 4-5)).

The Decision of the Trial Judge

The trial judge came to the conclusion that the accused was guilty of sexual assault. In his reasons, the judge listed a few things of note: i) that he found the claimant’s testimony to be credible, including that her experience after the event was one of genuine trauma and not an act; and ii) that the evidence clearly showed that the accused was interested in a sexual relationship with the claimant and was unlikely to have taken “no” for an answer. In effect, the trial judge held that, on the whole of the evidence, it was beyond a reasonable doubt that the sexual intercourse had been non-consensual (Bourgeois ABCA, paras 10, 22, 42).

The Decision of the Alberta Court of Appeal

Disagreeing with the decision, the appellant raised three issues to the Alberta Court of Appeal (ABCA):

  • Whether the trial judge erred in his assessment of the complainant and appellant’s credibility;
  • Whether the trial judge erred by making findings not supported by the record and by failing to consider evidence relevant to a proper determination of the complainant and appellant’s credibility; and
  • Whether the trial judge erred by effectively shifting the burden of proof to the appellant (Bourgeois ABCA, 3).

The majority of the ABCA moved through these issues quite quickly, holding on each issue that the trial judge had not erred in his analysis. For instance, in assessing the third issue, the majority reproduced a statement from the trial judge’s reasons which explicitly addressed the fact that “[t]he burden never shifts” from the Crown and that the “accused is presumed innocent until the Crown has proved” otherwise beyond a reasonable doubt (Bourgeois ABCA, paras 43-45). In tandem with his reasons and treatment of the evidence, this statement suggests that the trial judge did not stray from this principle. Similarly, in considering the trial judge’s assessment of the credibility of the parties, the majority found that the judge had treated the evidence carefully and, although he could have come to different conclusions, he did not ignore, over rely on, or otherwise err in regards to his analysis (Bourgeois ABCA, paras 21-23, 24-25).

In dissent, however, Justice Berger raised a fourth issue: he claimed that the trial judge had erred in his analysis and had thus come to an “unreasonable verdict” pursuant to section 686(1)(a)(i) of the Criminal Code (Bourgeois ABCA, para 52). According to Justice Berger, “a single appellate judge may in some cases be the last bastion against potential injustice. When the liberty of the subject is engaged he or she has a sworn duty to raise an arguable issue that may prevent a wrongful conviction” (Bourgeois ABCA, para 69).

In the eyes of the majority, however, Justice Berger was unwarranted in raising the issue as there was no absence of evidence nor an overt gap in the proof used by the trial judge. In effect, they argued that Justice Berger’s position was tantamount to holding that because “[he] would have come to a different conclusion on the facts, … failing to raise this new issue will create an injustice” (Bourgeois ABCA, para 49).

The SCC Hearing

At the hearing on October 13th, the SCC had only one issue to consider: Whether the trial judge erred in his analysis of the evidence and his conclusion that the appellant was guilty such that appellate intervention was necessary (Appellant Factum, 20). In essence, the SCC was tasked with determining whether or not the trial judge erred in his analysis and, if so, whether the errors were substantial enough to render his decision unreasonable and worthy of appellate intervention.

Arguments of the Parties

The main position of the appellant was that appellate intervention was required to ensure that an unreasonable verdict, arrived at through faulty reasoning and logic, is not permitted to stand and to perpetuate a realistic risk of wrongful conviction (Appellant Factum, para 5). In other words, the appellant’s counsel argued that although the trial judge’s decision is not, in itself, unreasonable or incorrect, it is unreasonable given the evidence before him that suggested otherwise.

For instance, the appellant submitted that it was incorrect for the trial judge to necessarily conclude that the complainant’s statement that she “would not tell anyone” about what had happened meant that the accused had sexually assaulted her; the statement could also have been made to reassure the accused that his partner would not find out about them having sex (Appellant Factum, paras 97-101).

Similarly, counsel for the appellant argued that the trial judge’s finding of fact that the complainant’s hysteria at her home was caused by the sexual assault was incorrect as it was also possible that she had been acting that way in order to avoid a confrontation with her mother (Appellant Factum, paras 105-106). To this point, Justice Moldaver responded by questioning the logic of such an act: why would the complainant make a scene when it would have served her purpose to simply go to bed and thereby illustrate that she was completely safe? Later on in the hearing, the respondent also highlighted that the contention that sexual assault complainants bring unfounded claims for their own benefit relies on myths about sexual assault that have been dismissed by the Court in the past (Respondent Factum, para 50).

Overall then, the appellant’s strategy rested mainly on an attempt to amass a number of minor errors in the trial judge’s reasoning in order to establish an overriding concern of unreasonable verdict.

By contrast, counsel for the respondent took the opposite approach, and argued that when looking at the evidence holistically, the reasons of the trial judge were logical, reasonable, and led to the correct verdict. A particular point of emphasis was that, despite the defence’s contention that the trial judge made “necessary” conclusions from the evidence, in actuality, the trial judge had merely taken the evidence to suggest strongly those conclusions. Of course there were alternatives, but the evidence for them was unpersuasive.

In effect, the respondent’s counsel asked the Court to remove themselves from the weeds of the defence’s submissions and to examine the case from a higher perch in order to see the whole picture.

Judgment from the SCC

Throughout the hearing, it was relatively clear which way the Court was leaning. Although by no means unconvincing, the counsel for the defence, Jennifer Ruttan, seemed to be fighting an uphill battle and never gained the momentum needed to sway the panel.

The defining moment in the hearing occurred midway through the appellant’s opening submissions when Justice Moldaver offered his opinion on the matter: while the complainant and appellant had clearly been attracted to each other initially, the complainant’s feelings soured toward the accused while at the house party. Although she agreed to a ride home, the complainant was no longer interested in having sex with the accused. His intentions towards her, however, had not changed, and he pulled the van over in order to have sexual intercourse and proceeded to sexually assault her.

After this moment, it became clear that, in the eyes of the Court, the case was relatively straightforward: The evidence as a whole suggested a logical story and, despite the efforts of the defence to poke holes in the reasoning and methodology of the trial judge, the only actual errors were of minor significance and thus unable to justify a claim of unreasonable verdict.

After a short fifteen minute recess, the Court reconvened and Justice Moldaver delivered the judgment: the Court was not persuaded that the trial judge erred or that his verdict was unreasonable, and consequently, the appeal was dismissed.

Why Does this Case Matter?

On the face of it, this case is rather meaningless. The Court heard it “as of right,” dealt with it quickly, and their decision offers no substantive legal analysis.

Why then, does it matter? Well, for me, the case is important for a number of reasons. First, it serves as a reminder of the high level of deference given to trial judges: our system trusts these individuals to make findings of fact in situations where it is not necessarily clear how actual events unfolded. In this case, the trial judge was tasked with determining the credibility of two conflicting stories that, on the face of it, are both plausible. It is only once a careful analysis of the evidence has been undertaken that a clearer picture emerges. Undertaking this analysis is a tremendous responsibility, and one that appellate courts understand and respect. As such, any issue pertaining to the errors of a trial judge, including the issue of an unreasonable verdict, must only be raised where there is evidence of a clear and evident mistake. This case is a reminder of that high standard.

Second, the case makes clear the importance our system places on procedural fairness and the attainment of justice. Where there has been a dissent at a court of appeal on a point of law, the parties have a right to have their arguments heard before the Supreme Court. Since 2006, as of right appeals have accounted for 164 of the 781 (or 21%) appeals heard by the SCC. And in 2015 and 2016, as of right appeals have accounted for 23.8% of appeals (Supreme Court of Canada, “Category 3: Appeals Heard,” online: <>). This is not an insignificant number and, given that many of these cases do not raise substantive issues of law to be advised on by the Court, it suggests that our system goes to great lengths to offer parties full access to the law where the consequences are severe.

Overall, the decision in R v Bourgeois is unlikely to greatly impact future jurisprudence. Its significance, however, lies in its demonstration of fundamental, yet often overlooked, principles of our legal system.

Devon Kapoor

Devon is currently in his his fourth year of the JD/MBA program at Osgoode Hall Law School and the Schulich School of Business. Previously, he completed his BA (Joint Honours) in English and Philosophy at McGill University. He is developing a broad interest in several substantive areas of law, including criminal, constitutional, and securities law.

You may also like...

Join the conversation

Loading Facebook Comments ...