May 17, 2023 – For Immediate Release
Ottawa, unceded Algonquin Anishinaabe territory – Tomorrow, West Coast LEAF and LEAF are jointly intervening at the Supreme Court of Canada (SCC) in HMK v Tsang, a case that will have far-reaching impacts on how courts approach the credibility analysis in sexual assault cases where a trial judge has relied on a common-sense assumption in their decision.
At stake is consistency in the law related to sexual assault and the clarity of an appeal court’s approach to reviewing a trial judge’s decision. The approach taken by courts reviewing common-sense assumptions could have significant impacts on survivors of sexual assault who may face an increased risk of intrusive, traumatic experiences in the trial process – which already presents a real barrier to survivors of sexual assault.
“This case is extremely important to survivors, since credibility is already a complicated central aspect of sexual assault cases,” says Humera Jabir, staff lawyer with West Coast LEAF and co-counsel in this case. “Survivors face enormous barriers when trying to access the criminal justice system. We should be working towards ensuring a safer space for survivors in the trial process, not placing additional burdens on their testimony.”
In this case, the complainant alleged that she was sexually assaulted by the accused when she was affected by alcohol consumption. At the BC Provincial Court, the accused was convicted of sexual assault. The accused then appealed the decision to the BC Court of Appeal on the basis that the trial judge improperly made common-sense assumptions not grounded in evidence and relied on those assumptions when assessing the complainant and accused’s credibility. The Court of Appeal agreed with these arguments, overturned the conviction, and ordered a new trial. The Crown is now appealing the decision to the SCC.
“This case has significant and concerning impacts for sexual assault survivors, especially those who are racialized, trans, Indigenous, or experience other forms of marginalization. Without the SCC’s clarification of the so-called ‘rule against common-sense assumption’ in sexual assault cases, survivors’ equality and dignity in the trial process are at risk,” says Roxana Parsa, staff lawyer with LEAF and co-counsel in this case.
“The rule against common-sense assumption, as it stands now, lacks structure and consistency, and opens the door to appeal courts substituting their own assumptions for those made by the trial judge,” says Megan Stephens, pro bono counsel in this case. “This could lead to inconsistencies in sexual assault verdicts and risks reintroducing harmful sexual assault myths and stereotypes into decisions.”
This case is being jointly heard with HMK v Kruk, a sexual assault case that also engages the issue of how appeal courts are to review a trial judge’s common-sense assumptions.
The hearing is at the Supreme Court of Canada, May 18, 2023, 9:30am EDT. Livestream is available on the SCC’s website.
interim manager of communications, West Coast LEAF
604-684-8772, ext. 226
About West Coast LEAF
West Coast LEAF is a non-profit organization formed in 1985, the year the equality guarantees of the Canadian Charter of Rights and Freedoms came into force. West Coast LEAF’s mandate is to use the law to create an equal and just society for all women and people who experience gender-based discrimination in BC. In collaboration with community, we use litigation, law reform, and public legal education to make change. For more information, visit westcoastleaf.org.
The Women’s Legal Education and Action Fund (LEAF) is a national, feminist, non-profit organization that works to advance the substantive equality rights of women, girls, trans and non-binary people in Canada through litigation, law reform and public legal education. Since 1985, LEAF has intervened in more than 100 cases that have helped shape the Canadian Charter of Rights and Freedoms. To find out more, visit www.leaf.ca.