R. v. W.L.S. – Misapplication of the Law in Sexual Assault Cases and the Need for Judicial Training
In May 2019, the Supreme Court of Canada (“SCC”) affirmed that “the act of dragging the complainant while asleep and drugged is inconsistent with any sort of consent” R v W.L.S, 2019 SCC 27 [W.L.S. SCC] (para 5).
Why did we need the Supreme Court, the highest court of the land, to rule on what seems like a rather obvious notion?
Following the initial trial in R v W.L.S. the accused was acquitted on one count of sexual assault and one count of unlawful confinement.
The trial was heard at the Alberta Provincial Court (decision unpublished). At trial, an 11 year old boy testified that on the evening of February 5, 2017 he witnessed his father drag his sleeping (maternal) aunt, from one room to another, take her clothes off and perform sexual acts on her several times. The boy testified that his aunt’s eyes were closed, “she wasn’t really doing nothing”, and that he had to forcefully wake his aunt and assist her back to her room R v WLS, 2018 ABCA 363 [WLS ABCA] (para 2). The boy also testified that his aunt had been drinking and “possibly forcefully” consuming pills (WLS ABCA, para 2). Evidence was also given that on at least one occasion the aunt asked for help and said words to effect of “leave me alone” (WLS ABCA, para 7).
The defence’s argument was that the boy was not a credible or reliable witness and, on this basis, the judge should not find the accused guilty. His counsel conceded that if the boy’s evidence was accepted then some convictions would follow (WLS ABCA, para 6).
At the end of the trial, the trial judge found that the 11 year old’s testimony was “clear and compelling” and that he testified as to “sexual activity that was beyond his vocabulary” (WLS ABCA, para 3). However, the trial judge acquitted the accused on both charges finding that although “one inference… is that [the complainant] was not consenting to the sexual activity involving the accused” (trial reasons (Alta. Prov. Ct.), December 1, 2017, as cited by W.L.S. SCC, para 4)),it was not the only reasonable inference. The trial judge, however, does not provide any suggestion of what the other inferences may have been. The trial judge also acquitted the accused on the charge of unlawful confinement because there was some evidence that the complainant had an opportunity to leave but did not (trial reasons (Alta. Prov. Ct.), December 1, 2017, as cited by W.L.S. SCC, para 4).
The trial judge’s decision was overturned at the Alberta Court of Appeal (“ABCA”) where the accused was found guilty on the count of sexual assault which he appealed to the Supreme Court of Canada.
After briefly reviewing the case, the SCC found that “there was no evidence, or absence of evidence, to support any reasonable inference other than non-consent” (W.L.S. SCC, para 5). The SCC’s judgment is seven short paragraphs and was delivered orally. In it they note that the trial judge did not provide any alternative inferences in her reasons and based on the evidence provided by the witness, which the trial judge accepted, the “complainant was statutorily incapable of consenting” (para 6). The SCC therefore concludes that the trial judge misapplied the law of circumstantial evidence and the law on consent and therefore uphold the Court of Appeal’s decision (para 7).
Misapplication of the law on capacity and consent
Where the trial judge found lack of consent was not the only plausible inference, the SCC found the complainant was statutorily incapable of consenting – meaning lack of consent was the only plausible inference, on the facts.
The Supreme Court of Canada has previously ruled on the issue of capacity and consent. In R v J.A., 2011 SCC 28, the SCC considered whether a person can perform sexual acts on an unconscious person if the person consented to those acts in advance of being rendered unconscious. The Supreme Court noted:
Section 273.1(2)(b) [of the criminal code] provides that no consent is obtained if “the complainant is incapable of consenting to the activity.”… It follows that Parliament intended consent to mean the conscious consent of an operating mind. (para 36)
So why this distinction between J.A.and the trial judge’s ruling in W.L.S? Applying J.A.to cases like W.L.S.–where the testimony provided by the 11 year old witness was accepted as “clear and compelling” ” (WLS ABCA, para 3)–should be rather straightforward. Based on the law, the complainant in W.L.S could not have provided conscious consent of an operating mind.
Yet cases where judges misapply the law when considering capacity and consent – do not occur in isolation.
Consider R v Al-Rawi, 2018 NSCA 10 [Al-Rawi] a case where circumstantial evidence was completely ignored. In Al-Rawi the complainant was found unconscious in a taxi,
“far from the complainant’s home or any address she was familiar with….in the rear seat, naked from the waist down, with her breasts exposed…. [legs] propped over the front seats…. The respondent was seen turned in his seat, between the complainant’s open legs. [and] The police saw him trying to hide the complainant’s urine-soaked pants between the console and front seat” (paras 4-6).
The trial judge acquitted the accused based on his finding that “the Crown has provided absolutely no evidence on the issue of lack of consent” (Al-Rawi, para 93).
The Nova Scotia Court of Appeal ordered a new trial noting “there was ample circumstantial evidence that would permit the inference to be drawn that either the complainant did not voluntarily agree or lacked the capacity to do so.” (Al-Rawi, para 94) and it was an error in law for the trial judge to dismiss this evidence (Al-Rawi, para 95, 103)
So, why are judges in cases like W.L.S and Al-Rawi getting the law wrong? One theory may be that lawyers are not presenting enough supporting caselaw in their arguments to fully flesh out the issue of capacity and consent. In Al-Rawi it was noted that “neither the Crown nor the defence provided any guidance to the trial judge as to what the appropriate test is to determine the question of capacity to consent” (Al-Rawi, para 31).
When judges get the law wrong this requires appellate courts to reconsider the issue in an already overburdened system. It is my view that W.L.S. is yet another example of a systemic problem with respect to the adjudication of sexual assault cases: judges need training.
While we can and should require lawyers to ensure relevant precedents are presented to the judiciary, there may be a more proactive to reduce these kind of errors in law.
In recognition of high-profile cases, like the ones mentioned above, in 2017 Parliament introduced Bill c-337, The Judicial Accountability through Sexual Assault Training Act or the “Just Act” in 2017 (Bill C-337, The Judicial Accountability through Sexual Assault Training Act, 1stsess, 42ndParl, 2017 [Bill C-337]). The Just Act aimed to resolve some of these tensions biases by mandating:
“judicial education in respect of matters related to sexual assault law and social context should include, among other significant issues, intimate partner violence, gender-based violence, and the unique circumstances of Indigenous women” (Canada, Legislative Assembly, The Standing Senate Committee on Legal and Constitutional Affairs, “Thirty-Third Report” in The thirty-third report of the committee, No.64 (5 June 2019)).
through three mechanisms:
- Mandatory sexual assault training for new judges
- Annual report on how often current judges are receiving training and education in sexual assault
- Amend criminal code so judges have to provide written reasons instead of verbal on decisions around sexual assault
Rona Ambrose, “The JUST Act” (24 February 2017) online: http://www.thejustact.ca/en/
The first mechanism cited would have served to reduce what the SCC in W.L.S.noted was a misapplication of the law by the trial judge, by ensuring judges assigned to sexual assault cases are familiar of the law on sexual assault and applying the facts to the law. However, this would not be the only use. Cases of sexual assault seem to also be particularly at risk of being informed by bias and training would similarly address these issues. See for example the comments of Justice Jean-Paul Braun who in a Montreal case suggested the complainant may have been a “bit flattered” by the attention (R c Figaro, 2017 QCCQ 7257, para 35, and comments from Judge Robin Camp who in a Calgary case in asked the complainant “why couldn’t you just keep your knees together” (R v Wagar, Transcript of Trial Proceedings, p 119 line 14).
The third mechanism would also have been useful. Recall another problem in W.L.S.was the trial judge, in suggesting other inferences were possible, “did not cite any alternative inference in her reasons” (W.L.S. SCC, para 5). Perhaps the trial judge did have an alternative inference but the SCC was not able to assess this because nothing of the sort was expanded on. Requiring written reasons would assist with transparency when assessing whether there was an error in law. Written reasons may also help reduce bias in judicial decision making as it forces more meaningful deliberation.
However, there was a lot of push back from Judges, who were concerned that the Just Act would infringe their judicial independence by controlling their training. At the direction of the Prime Minister, the Parliamentary session closed in September 2019 and Bill C-337 was terminated.
It is disheartening that the Just Act was not passed as law. The concern of the Act interfering with Judicial Independence is misguided. The proposed training would not have had undue influence on Judges and it certainly would not have changed the presumption of innocence. The Just Act would have been a start in working to reduce the misapprehension and misapplication of the law on capacity and consent, and other issues, by the judiciary. It would have been a start in limiting the need for appellate intervention in cases like W.L.S..
So, what does this mean for future cases? Those who are concerned with delays to the system and the heightened need for efficiency in sexual assault cases, are left hoping Bill C-337 is reintroduced in the next session. For now, it is up to lawyers to ensure judges are apprised of all relevant precedents in serving their clients’ interests, including R v W.L.S.