The Defence Toolkit – January 27, 2019

This week’s top three summaries: R v Thompson, 2019 BCCA 1, R v Stoliker, 2019 ABPC 5, and R v Zora, 2019 BCCA 9.

R. v. Thompson (BCCA)

[Jan 2/19] Judicial Use of Impermissible Stereotyping – 2019 BCCA 1 [D. Smith J.A., w Frankel J.A., D. Griffin J.A. Concurring]

AUTHOR’S NOTE: Knowingly or unknowingly, there appears to be a rift forming between the courts on the issue of stereotypes.  When an assumption about normal human behaviour is attached to some form of socially prohibited reasoning about an identifiable social, racial, or gender group, the courts tend towards calling it “impermissible stereotyping.”  That is, it is not a permissible part of judicial reasoning.  When the assumptions about normal human behaviour are less clearly identified with an identifiable group, they seem to be permissible.  Sometimes the impermissible assumptions are tied to social science evidence, sometimes they are not.  There is certainly no requirement that the new orthodoxy forming around certain “impermissible stereotyping” be attached to current social science evidence.  The dangers of armchair psychology finding its way into the courtroom is ever present in these situations.  The concern of this author is that the courts are replacing social science or psychological evidence with doctrinal orthodoxy based on political correctness.  The question of whether a court did or did not do something correctly then becomes transformed from: did they get the law and facts right to did they apply the correct value judgement.  Some of this disagreement appears in the difference between the majority and minority in this case.  This matter showcases the issue of impermissible stereotyping of domestic violence victims (in this case, an accused).  Defence counsel can use the impermissible value judgements of trial judges to overturn their decisions.

Pertinent Facts

“Faye-Ann Thompson appeals her conviction for breaking and entering a dwelling house and committing theft therein, contrary to s. 348(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46.” (Para 1)

“Ms. Thompson’s fingerprints were found on the inside of a sliding window to the master bedroom of the residence.” (Para 3)

“At trial, Ms. Thompson testified on her own behalf. She admitted she had entered the house through the window but denied entering it for the purpose of committing the theft. She said she had been invited to enter the house by a man who was present in the yard and whom she assumed lived there.” (Para 4)

Ms. Thompson’s account of how this transpired: “In August 2014, she and her boyfriend decided to go touring in Manning Park. After turning off onto a forestry road, they drove awhile into a remote area of Manning Park. She could not identify their exact location. At some point, she and her boyfriend got into a “huge fight”. During the fight, her boyfriend dragged her out of the vehicle by the hair causing some of her hair to fall out, punched her in the back of the head, pushed her down a hill, and then drove off leaving her alone in a remote area. She was hurt, bleeding from her scrapes and scratches, frightened, and crying. Eventually, she started walking down the forestry road they had driven up.” (Para 7)

“Upon her arrival, Ms. Thompson saw a man standing beside a ladder that was leaning against the house. The man identified himself as “Jason”. She was still crying and in a distressed state. She told the man about the fight she had with her boyfriend. She asked him if he could give her a ride to Manning Park where she worked. The man told her he would give her a ride, but he needed her assistance to get into the locked house where he had left the keys to the car and that he had tried but could not get himself up to the partially open window. She agreed to help him.” (Para 8)

The Trial Judge’s Ruling:

The Minority Factual Highlights:

“Turning first to Ms. Thompson’s evidence, the judge found that it did not raise a reasonable doubt. She rejected Ms. Thompson’s version of what occurred, finding it did not accord with common sense. In particular, the judge stated:

I have considered the entire testimony of the accused and I do not believe her version of events. Considering her testimony in the context of the evidence as a whole, I am unable to believe her testimony that the events she says happened actually happened. I find that many of the actions the accused took after allegedly being assaulted resulting in injuries, particularly an aggressive pulling of the hair which resulted in some loss of hair, the punch to the back of the head, some scrapes and cuts, do not accord with common sense.” (Para 18)

Further portions of the ruling included the following statements:  (Para 19)

“The accused never called the police or anyone for help even though [her boyfriend] had assaulted her and left her in an isolated area.”

“Thompson did not ask the stranger she met at the residence to take her back to the closest location where she stays when she is working, that being Manning Park.”

“I find it implausible that a person, who was just assaulted and injured and after walking for two hours, would veer off a major forestry road to a dirt road with no indication of what was at the end of the road, and continuing walking for a kilometre.”

The Majority Factual Highlights:

“In the judge’s twenty-paragraph judgment, she referred three times to the fact that Ms. Thompson did not call the police after the purported assault: (Para 51)

“she “never called the police despite being assaulted and abandoned in a remote area”.

Ms. Thompson “never called the police or anyone for help even though [her boyfriend] had assaulted her and left her in an isolated area”.

“she was fearful as she was out in an isolated area not knowing where she was, but she did not attempt to call for help, including the police”.

Majority Analysis of Impermissible Stereotyping

“It can be an error of law to assess a sexual assault victim’s credibility based solely on expectations as to how a stereotypical victim will react: R. v. A.R.J.D., 2017 ABCA 237, aff’d 2018 SCC 6; R. v. A.D.G., 2015 ABCA 149; and R. v. D.D., 2000 SCC 43.” (Para 52)

“As held by the Alberta Court of Appeal in A.R.J.D.:

‘The Supreme Court of Canada, and this Court, have held that relying on myths and stereotypes in assessing the credibility of sexual assault complainants invokes impermissible reasoning that is often, if not always, an error of law. This Court recently said in R v ADG, 2015 ABCA 149 at para 33:

No inference should be drawn regarding a complainant’s credibility that is based on assumptions about how a victim of sexual assault is supposed to react to the assault.” (Para 53)

“The same can be said for impermissible reasoning as to how a stereotypical domestic assault victim will react.” (Para 54)

“The admonition against the use of stereotyping as to how a victim of sexual or domestic assault behaves cannot be limited to the assessment of the evidence of a complainant in a sexual assault case. It must certainly apply equally to the assessment of the evidence of a person accused of a crime who is entitled to the benefit of reasonable doubt.” (Para 56)

This is not to suggest that a person accused of a crime who claims to be a victim of an assault receives a free pass and is immune from any critical assessment of credibility. Rather, it is to say that the critical assessment of any witness’s credibility should not be based on dated assumptions including that, as a matter of common sense, a typical person would call the police soon after being assaulted by someone close to them such as a boyfriend.” (Para 57)

“The judge’s reasoning on the evidence before her could only be this: that a victim of domestic assault, would, as a matter of common sense, call the police within hours of the assault. The judge reasoned that Ms. Thompson’s failure to do so was an important factor that made her story incredible. This was erroneous reasoning.” (Para 60)

“It is true that the judge had additional reasons for rejecting Ms. Thompson’s evidence.” (Para 62)

“Nevertheless, I conclude by the judge’s repeated emphasis of the fact that Ms. Thompson failed to call the police after being assaulted, and using this as the first example of actions that did not accord with common sense, that this point was a matter of substance that was essential to the judge’s reasoning.” (Para 63)

“Given the predominance of this factor in the judge’s reasons, it cannot be said that the judge would have assessed the credibility of Ms. Thompson the same way absent consideration of the fact that she did not call the police after the purported assault.” (Para 64)

“I come back to the point that, while typically a finding on credibility is a finding of fact, a finding of credibility based on impermissible judicial stereotyping as to how a victim of sexual assault or domestic assault typically reacts is an error of law, as explained in A.R.J.D.:

[28] Whether a witness is credible is a question of fact, not law. But, if an assessment of a witness’ evidence is based on a wrong legal principle, or the judicial conclusion about the witness’ evidence is derivative of a misapprehension of a legal principle, these are errors of law. Further, “… presumptive adverse inference[s] based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse” constitute reversible error: R. v. D. (D.), 2000 SCC 43 (S.C.C.) at para. 63, [2000] 2 S.C.R. 275 (S.C.C.). (Para 67)

“In my view, the judge’s assumption that, as a matter of common sense, a victim of a boyfriend’s assault would call the police soon after, meant that the judge erroneously gave weight to an impermissible factor when assessing the credibility of Ms. Thompson.” (Para 68)

“There was evidence in this case that could support a conviction. However, the judge’s reasoning unfortunately relied, as the basis for rejecting Ms. Thompson’s evidence, on impermissible stereotyping about how domestic assault victims typically react. Accordingly, I would allow the appeal, set aside the conviction and order a new trial.” (Para 70)

R. v. Stoliker (ABPC)

[Jan 10/19] Sexual Assault – Consent Can be Communicated by Actions – 2019 ABPC 5 [H.A. Lamoureux Prov. J.]

AUTHOR’S NOTE: No can never mean Yes, but sometimes it does not mean No. In this case, the prior sexual history between the complainant and the accused lead the judge to consider that the actions of the complainant spoke louder than her words.  Her words included repeated use of the word “No” in relation to the sexual advances of the accused.  Despite that, in the context of the facts of this case, her actions appeared to be consistent with a prior history of foreplay between the parties which the accused relied upon to support his defence of honest, but mistaken belief in consent.

Pertinent Facts

“At one point, the complainant and the accused entered into a relationship that both describe as “friends with benefits”. Webster’s Dictionary defines friends with benefits in the following terms:

Friend with benefits. Noun. (used as a euphemism): a friend with whom one has sex without a romantic relationship or commitment.

Both the complainant and the accused agree that for a period of time they were in the category of interaction which each described as “friends with benefits”.” (Para 6-7)

The complainant and accused had an argument and then… “The complainant tells the Court that she and the accused were in his bedroom on his bed during the course of the apology and after the apology was delivered she and the accused began to kiss one another. The complainant testified that she didn’t want to do anything beyond kissing as she was interested in another boy at this point in time. The complainant testified that the accused put his hand “down my pants”. The complainant told the Court that it was a “stop/start kind of thing”. The complainant said that at one point the accused “flipped” her on her stomach with her hands crossed and held down at the top of her head. She told the Court that “he ended up pulling my shorts down to, like, right below my knees and, like, attempted to like have sex with me. I was telling him that, no, like, stop it. I already said that is not why I am here.” (Para 8)

“The complainant informed the Court that the act of the accused placing his penis into her vagina, followed by her statement to stop that activity, continued in a cycle of 10-15 repetitive times, lasting 5-10 minutes.” (Para 9)

“In cross-examination, the complainant is again questioned about the manner in which she indicated her reluctance to engage in sexual intercourse on the date in question, and on previous occasions during the course of their “friends with benefits” relationship. The complainant testified as follows:

A In response to if I wanted to continue to have sex, I would say yes. You’re asking me if I have ever not wanted to before. I said yes. I said that I would say no, and then he would convince me, and then I would say yes or I would convince myself….

Q On the previous 15 or so occasions before January 29th, 2016, when you had indicated that you wished to refuse

A M-hm.

Q — and continued anyway to complete sexual intercourse

A M-hm.

Q — did you ever complain about that to Jack?

A No, because I would end up saying yes. If I am saying yes, then I’m consenting.

Q So, on

A He never previously continued after I had said no.” (Para 10)

“The complainant testified in cross-examination that the final occasion of sexual intimacy was different from the previous occasions. The complainant testified that on this final occasion, she did not say yes to the act of penetration of her vagina by the accused’ penis.” (Para 11)

“In summary, the accused testified that on the day in question, the parties followed a similar pattern of foreplay after the apology had been issued. The accused testified that it was the complainant who initiated the foreplay by kissing, and that the foreplay included caressing and contact between their bodies as they were on the accused bed. He denied that the complainant was ever just “giving in”. The accused said that the foreplay between the complainant and the accused was consensual and reciprocated. The accused testified that the activities followed a similar pattern of foreplay that had been undertaken on approximately 15 prior occasions of sexual activity. It is equally clear from the accused testimony that he and the complainant never did expressly use the words: “would you like to have sexual intercourse”, followed by “yes”. Rather, consent to sexual activity including foreplay occurred through reciprocal physical interaction between the complainant and the accused in their acts of foreplay followed by sexual intercourse. The accused agreed that he and the complainant did not at any time engage in a conversation about the nature of their foreplay. The accused indicated that the parties agreed to sexual activity through mutual acts of reciprocation. The accused also testified that there was some form of banter between the complainant and the accused in which the complainant would utter the words “no, no, no” in a playful tone but sexual activity would continue and would be reciprocated on both sides. … However, he is clear to say that when the complainant uttered the words no when he inserted his penis into her vagina, that he immediately withdrew.” (Para 18)

The Law – Honest but Mistaken Belief in Consent

“…significant in this case is R v Ewanchuk, [1999] 1 SCR 330. This decision, issued by the Supreme Court of Canada, governs the law in all trials involving allegations of sexual assault including the issues of proof of mens rea, proof of the actus reus, legal issues associated with consent between two parties who engage in sexual interaction, and applicable defences that the accused might raise in answer to the charge of sexual assault. There are many significant points of law contained within the decision in R v Ewanchuk, supra. A summary of the relevant points of law which apply to this case arising from the decision is as follows:

  1. There is no defence of implied consent to a charge of sexual assault.
  2. The actus reus of sexual assault incorporates three components, two of which are objective and third of which is subjective. The actus reus is proved by evidence proving touching, by one individual of another, the touching being of a sexual nature, and the absence of consent. While the touching and the sexual nature of the touching are objective, the absence of consent as it relates to the actus reus of sexual assault is subjective determined by reference to complainant’s internal state of mind at the time. When the complainant testifies and asserts that there was no consent to the sexual activity, the subject matter of the charge, the Court must focus on the issue of consent from the complainant’s subjective state of mind. The complainant’s assertion of lack of consent is a matter of credibility to be weighed in light of all of the evidence.
  3. The mens rea of sexual assault analyzes consent in accordance with common law and section 273.1 and 273.2 of the Criminal Code. If the accused raises the defence of honest but mistaken belief in consent, there must be plausible evidence provided by the accused in order to give such defence an air of reality. Further, if the accused was reckless, willfully blind, or failed to take reasonable steps in the circumstances known to the accused at the time to ascertain that the complainant was consenting, the accused may not rely on honest but mistaken belief in consent. Silence, passivity, ambiguous conduct, do not constitute consent from the perspective of the analysis of the mens rea of the accused. Further, the accused cannot argue that the complainant expressed lack of agreement to sexual touching, in fact “constituted an invitation to more persistent of aggressive contact”…

“I take the reasons of Fraser C.J. to mean that an unequivocal “yes” may be given by either the spoken word or by conduct.” Ewanchuk at para 51 (Para 4)

“This Court recognizes the important principle that once a complainant has expressed unwillingness to engage in sexual contact, the accused should make certain that the complainant is consenting before proceeding with further sexual contact. This applies whether the accused has engaged in sexual intimacy with the complainant with consent followed by a revocation of consent by words or actions and in the situation where sexual contact between the accused and the complainant has yet to begin. The Court instructs itself that silence, and equivocal conduct cannot constitute consent. Further, the accused cannot rely on past sexual activity with the complainant to establish a likelihood of consent to the current sexual activity. At most, evidence of the past relationship between the accused and complainant may provide historical detail to the nature of their relationship. It is not indicative of consent from the perspective of either the actus reus or the mens rea of the offence with which the accused was charged.” (Para 5)

“In this case, the evidence of the complainant and the accused as to the nature of their relationship (friends with benefits) the locations of their interactions, the type of sexual activity engaged in on frequent sexual interactions, the casual nature of the friendship and the sexual relationship appears to be ad idem. During the course of foreplay there was a historical pattern of interaction in which the complainant would utter the words “no, no, no” or “no, no” in a playful manner while reciprocating and continuing with sexual activity.” (Para 30)

“These were parties who had significant familiarities with one another. The Court does conclude that they relied upon actions as well as words to demonstrate consent to sexual interactions with one another. Consent can be communicated by words and/or actions. This is not a case of strangers having sexual interactions, this is not a case of a first sexual interaction. This is a case of an ongoing relationship in which the parties were well familiar with one another. The Court finds that the foreplay in this case was similar to the foreplay on prior occasions. The parties began with kissing, they proceeded to hugging and caressing. The Court is left in a state of reasonable doubt as to which party to believe in connection with the utterance of the words “no” or “no, no, no” in terms of whether they meant no to sexual intercourse on that day or whether the words were part of the parties normal pattern of playful banter in foreplay.” (Para 33)

R. v. Zora (BCCA)

[Jan 10/19] Breach of Bail Conditions – Mens Rea =  – 2019 BCCA 9 [Reasons: Madam Justice Stromberg-Stein, w Mr. Justice Willcock, Mr. Justice Savage, Madam Justice Fisher Concurring, and Madam Justice Fenlon Dissenting]

AUTHOR’S NOTE: As a Defence lawyer, this author can only describe the majority’s reasons as an unfortunate decision that may lead to a significant amount of small injustices as it gets applied to accused persons in British Columbia.  This will lead to more people being detained pre-trial overall.  Due to a strong dissent by Justice Fenlon, this matter will head to the Supreme Court and hopefully, a different result.  

In summary, the majority found that an objective standard governs the mens rea for breaches of bail – an accused has to show that a reasonably prudent person could have done as they did.   A marked departure from that standard will support a conviction.  In the case, of Mr. Zora, if his evidence was believed, this standard would result in his conviction even if his action of non-response to the police at his door was completely involuntary (ie. he was asleep in his home at the time). Mr. Zora, was however aware that he might not hear the police before he went to bed on both occasions – the Minority decision would have found him to be reckless and therefore guilty on a subjective standard.  However, the result might not have been the same if Mr. Zora was unaware that he might not hear the police at his door while asleep.  The standard imposed by the Majority in those circumstances would support a conviction nonetheless.  Breaches of bail charges occur frequently in the lower courts and in an almost infinite variety of factual circumstances.  The lowered standard will find many more persons guilty despite their complete lack of intention to break the law. 

Pertinent Facts

Mr. Zora was charged with a number of drug offences and released on bail.

“On October 9, 2015, Friday of the Thanksgiving long weekend, a police officer went to Mr. Zora’s residence at 10:30 p.m., two-and-a-half hours after the commencement of his curfew. The officer rang the doorbell three times and knocked loudly on the front door with his fist. There was no response. He waited for more than five minutes. There was no activity at the residence, no lights were on, and he heard no dogs barking.” (Para 4)

“On October 11, 2015, another police officer went to Mr. Zora’s residence. He saw a sign on the door that read “use the doorbell,” which he did. He waited for more than five minutes and observed no activity at the residence.” (Para 5)

Mr. Zora was charged with breaching his conditions to comply with his curfew and present himself at the door.  (Para 7)

“Mr. Zora, his mother, and his girlfriend testified that they were at the residence over the Thanksgiving weekend and celebrated Thanksgiving together on October 11, 2015. They confirmed that two dogs were usually at the residence and would bark when someone rang the doorbell or approached the residence.” (Para 8)

“Mr. Zora explained that he may have been sleeping during the two police checks. He said it was difficult, if not impossible, to hear the doorbell from where he slept. He was undergoing methadone treatment and withdrawal from his heroin addiction, which made him sleepy, so he often went to bed earlier than usual.” (Para 9)

“After learning of the breaches, Mr. Zora set up an audio-visual system to help alert him to future police checks and he changed where he slept in his residence. He had no further problems complying with his bail conditions.” (Para 10)

Mens Rea for Breaching Bail Conditions

“In my view, the duty-based nature of s. 145(3), combined with the risk-based nature of bail provisions, support Parliament’s intention for the application of an objective fault standard. This is consistent with the plain language, context and purpose of the offence. An objective fault standard requires proof of a marked departure from what a reasonable person in the same situation would do. If there is a reasonable doubt that a reasonably prudent person would not have foreseen or appreciated the risk or could have done something to prevent the breach, an acquittal must follow. This is sufficient to ensure only the morally blameworthy will be convicted.” (Para 2)

“An objective fault standard does not punish the morally blameless. It does not punish acts of simple negligence. It requires proof of a marked departure from the standard of care that a reasonable person would observe in the circumstances.” (Para 61)

“Section 145(3) does not give rise to sufficient social stigma or penalty to require a subjective mens rea as evidenced by the maximum sentence of two years.” (Para 63)

“The statutory breadth of s. 145(3) supports the duty-based nature of the provision.” (Para 64)

“In my view, the trial judge’s findings of fact, which are not disputed, support the convictions in this case because Mr. Zora’s failure to present himself at his door for two curfew compliance checks demonstrates a marked departure from what a reasonable person would have done in the circumstances. A reasonably prudent person in the circumstances would have foreseen or appreciated the risk or could have done something to prevent the breach. His explanation does not amount to a lawful excuse for the breaches.” (Para 68)

The Dissent

“Further, I note that Professor Roach includes s. 218 in the list of duty-based offences — the duty not to abandon a child — which the majority in Naglik found to be a subjective fault offence. In other words, the fact that an offence may be described as duty-based does not lead to the inexorable conclusion that it imports an objective standard of fault.” (Para 85)

“In my view, there is much to recommend a subjective standard of fault in relation to breach of bail conditions. An objective standard of fault does not permit consideration of the inexperience, lack of education, youth, cultural experience, or any other circumstance of the accused: Creighton at 58-74 (per McLachlin J.), 38-39 (per La Forest J.); Naglik at 148 (per McLachlin J.), 149 (per L’Heureux-Dubé J.). Under an objective fault standard, only incapacity or virtual inability to comply with a bail condition — such as a severe illness or severe weather preventing travel — would prevent conviction. Some have argued that “[j]udging everyone by an inflexible standard of a monolithic reasonable person, where an accused could not have measured up” may in effect amount to absolute liability: see Stuart, Canadian Criminal Law at 280; see also Creighton at 26 (per Lamer C.J.). Further, the addition of a defence of “lawful excuse” does not address all of the circumstances in which an objective standard could work an injustice — which in part explains, in my view, the reluctance of trial judges to adopt it.” (Para 87)

“To the extent that it might be argued that an objective standard makes for the more orderly administration of justice, that could be said of all Criminal Code offences, and yet the subjective standard remains presumptively and firmly in place. The fear that an accused will be able to avoid conviction for breach of a bail condition by simply asserting “I forgot the date”; or “I did not hear the police knocking” is in my opinion overstated. That fear underestimates the intelligence and common sense of triers of fact. As the Alberta Court of Queen’s bench observed in R. v. Loutitt at para. 17, “The sky will not fall if the Crown has to prove a mental element.”” (Para 90)

“In summary, I see no basis in the context or language of s. 145(3) to displace the presumption of subjective intent. It would follow that, to prove the mental element of breach of a bail condition, the Crown must prove that the accused person knew their conduct would infringe a condition of release, was reckless, or was wilfully blind.” (Para 91)

About the Author:

Pawel is a partner at Sitar & Milczarek. When he's not litigating he writes the Defence Toolkit blog.