Content warning: this summary includes mentions of sexual assault in the ‘Facts’ section.
This case is about assessing evidence in sexual assault trials and the distinction between legitimate inferences that trial judges can make, and common-sense assumptions based on stereotypes that are ungrounded in evidence.
LEAF and West Coast LEAF are jointly intervening before the Supreme Court of Canada.
The accused and the complainant met through a mutual friend at an event; the accused later drove the complainant and the friend to a nightclub. After the friend left, the accused and the complainant left in his car, and she directed the appellant to a secluded parking lot. The complainant testified that she consented to making out with the accused, but did not want to perform oral sex on the accused and did not consent to digital penetration or vaginal sex. The accused provided an opposing account of what took place, stating that the complainant consented to performing oral sex on him and to digital penetration. He stated that no vaginal sex took place. The complainant sustained injuries which, according to the expert at trial, were the type of injuries she had seen in women after childbirth. The accused said that the complainant consented to having rough sex.
The trial judge convicted the accused of sexual assault. She found the complainant’s account that she had rejected the accused’s advances at the nightclub to be credible and an indication that she would not have consented to sex (or rough sex) with him. The accused appealed the conviction. The Court of Appeal for British Columbia set aside the conviction on the basis that the trial judge made ungrounded common-sense assumptions not based on evidence.
LEAF and West Coast LEAF’s submissions highlight the risks of facing intrusive, personal, and traumatic questions that complainants may face in sexual assault trials if the rule against ungrounded common-sense assumptions is applied without clarification. The coalition will caution against appellate courts substituting their own common-sense assumptions for those they believe informed the trial judges’ reasoning, and will argue that the rule against ungrounded common-sense assumptions, as it stands, lacks the clarity to be applied in a meaningful manner.
Click here to read their factum.
LEAF and West Coast LEAF submitted the motion for leave to intervene on April 3.
The hearing will take place on May 18.