R. v. J.A.A.: SCC Splits Over “He Said, She Said” in Sexual Assault

On April 8, the Supreme Court of Canada (“SCC”) decided in a 5-2 judgment that fresh evidence that could reasonably be expected to affect the result of a verdict was sufficient to order a new trial in “he said, she said” sexual assault cases.  The majority in R. v. J.A.A., 2011 SCC 17, found that fresh expert evidence which contradicted a complainant’s testimony in a consent case warranted a fresh trial.  The dissent, consisting of Rothstein and Deschamps JJ., maintained that the new evidence would not have reasonably affected the accused’s conviction and that the importance of trial due diligence could not be overlooked.

The Backdrop

The complainant, S.A., and her husband, the accused, J.A.A., had agreed to separate in May 2007 but continued to live together in the matrimonial home.  S.A. testified that on June 8, 2007, J.A.A. sexually assaulted her repeatedly while threatening her with a knife.  At one point J.A.A.’s hand was over her mouth and S.A. bit him “as hard as she could.”  Immediately after the incident, S.A. drove to a friend’s home and called the police.  A police officer testified that he had noticed a cut that looked like a “bite mark” on one of J.A.A.’s fingers.  On cross-examination, the officer conceded that he was not an expert in this area, but the defence did not offer any expert testimony that contradicted the officer’s evidence.  J.A.A. testified and insisted that the sexual intercourse was consensual.

In convicting J.A.A., the trial judge stated that both testimonies were credible but that other evidence, including the bite mark and the knife found in the home, corroborated S.A.’s story.  Before the Ontario Court of Appeal, J.A.A. sought to introduce fresh evidence from Dr. Wood, a forensic scientist, under s. 683(1)(d) of the Criminal Code, RSC 1985, c C-46.  The section states:

683. (1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice,


(d) receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness

Dr. Wood would have testified that the mark on J.A.A.’s finger was not a bite mark.  The majority of the Court of Appeal found that the new evidence would not have affected the result of the conviction and dismissed the appeal.  It further emphasized the importance of introducing such evidence at trial and found that the defence had not fulfilled its due diligence.

Court Says Dr. Wood Should Have His Say

The SCC’s analysis rested on four criteria laid out in its decision in Palmer v. The Queen, [1980] 1 S.C.R. 759 [Palmer].  In that case, the accused were charged with conspiring to traffic in heroin.  A key Crown witness, whose testimony had been heavily relied upon by the trial judge, later declared several times that his trial evidence had been completely fabricated.  The Palmers sought to introduce this new evidence.  The SCC dismissed their appeal, agreeing with the B.C. Court of Appeal that the witness’ subsequent statements were entirely unreliable.  In doing so, the Court was called to flesh out on the meaning of “the interests of justice” in, what is now, s. 683.  The Court introduced four principles to consider:

  1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial;
  2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
  3. The evidence must be credible in the sense that it is reasonably capable of belief; and
  4. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

In J.A.A.’s case, the issues centred on criteria (1) and (4), as the Crown had already conceded that criteria (2) and (3) had been met.

The majority, led by Justice Charron, found that the defence had not met the due diligence criterion, but essentially agreed to excuse this, given that the Crown, too, had not introduced expert evidence regarding the bite mark.  Rather, Justice Charron focused on the fourth criterion, setting up the trial judge’s decision as a “close call” between the competing testimonies of S.A. and J.A.A., with the presence of singular pieces of corroborative evidence, such as the bite mark, pushing the judge over the line beyond any reasonable doubt.  She maintained that Dr. Wood’s evidence would not merely remove a piece of corroborative evidence but could undermine the credibility of S.A.’s testimony and the segment about having bitten J.A.A. in particular.  This was sufficient to reasonably expect that Dr. Wood’s evidence would affect J.A.A.’s verdict.

Justice Rothstein, who wrote the reasons for the dissent, agreed with the majority of the Court of Appeal.  First, falling short of due diligence would not trump the other Palmer principles, but it could also not be ignored; the dissent emphasized that it played “an important role in the administration of justice.”  Justice Rothstein further asserted that it was unreasonable to expect that Dr. Wood’s evidence would change the result of the case.  In his opinion, the bite mark was only a “minor issue” in the trial judge’s decision, and S.A.’s version of the events had already been corroborated by ample evidence, including her post-event demeanour, the condition of the home and the presence of the knife, and the logic and consistency of S.A.’s testimony.

SCC Decides to Err on the Side of Caution

This judgment boiled down to the “he said, she said” scenario of many sexual assault cases, which meant that corroborative evidence was critical to the verdict.  This was particularly important here, where the trial judge found both the testimonies of S.A. and J.A.A. to be credible.  In his dissent, Justice Rothstein suggested that by allowing the new evidence, the majority’s decision really reflected a leaning towards diminishing the weight of evidence given by a sexual assault complainant in favour of evidence offered by a third party expert.  He is probably right.  At the same time, it is easy to be sympathetic with the majority and to want to err on the side of caution.  The trial judge’s verdict appeared to be a narrow call, and Dr. Wood’s evidence had the potential to contradict S.A.’s testimony.  It is also important to recall that the threshold for a conviction is exceptionally high.  All it takes to reverse it is one reasonable doubt.  And Dr. Wood might have been sitting on just that one.

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