The Canadian justice system is currently designed to convict and uphold convictions of sexual assault at any level. For actual violent incidents of rape, sodomy or incest this is a good thing as people should be punished. But when it's a malicious claim that's not true, or a claim based on false memory it becomes very difficult for a man to defend himself in the absence of evidence such as DNA, doctor reports, or alibi. As we learned from my previous post Prevalence of Sexual Assault in Canada: Does it Justify Rape Culture Hysteria? the majority of sexual assault cases in our courts are of a Level 1 nature - the least violent and even non-physical in some cases.
Therefore there is likely to be zero evidence of a forensic nature to support the Crown's case. Especially if it is a historic complaint (not disclosed till many years or decades later). But none of that stops a he-said-she-said case from dragging through the police charge stage, through the preliminary inquiry and into trial. It all boils down to a reduced standard of evidence specific only to sex offence cases that has been largely influenced by women's rights groups and feminist politicians writing legislation and altering the Charter of Rights and Freedoms since the offence of rape was abolished and split into three levels of sexual assault in 1983. Next came abolishing the requirement for corroboration in all sex offence cases - 1985:
An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985 (3d Supp.), c. 19, s. 11.
[Corroboration not required]
274. Where an accused is charged with an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 212, 271, 272 or 273, no corroboration is required for a conviction and the judge shall not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration.
Then comes a new rule to give the trial judge special discretion to consider third party records (personal, doctor, counselor, therapy, employment, previous claims, etc) of the complainant in cases of sex offences. This was originally introduced for the purpose of protecting prostitutes, but has since been regularly invoked to protect all complainants. This privilege can be abused to hide any issues that could affect the credibility of the complainant's story, whether true or false.
The Reduced Standard of Evidence for the Police Force
The requirement for corroboration is removed here as well, as it is with investigating the complainant's personal history to evaluate credibility and reliability of their story before deciding to press charges in conjunction with the Crown. Since both of these criteria are removed from the 'investigation' process, the investigating police officer has to do nothing more than interview the complainant and interrogate the accused. The police officer's role is reduced to the minimum of recording two statements, deciding if one story is more believable than the other if they don't get confession or retraction.
The Reduced Standard of Evidence for the Preliminary Inquiry Judge
This stage is generally thought of as a process to determine sufficiency of evidence for a case to go to trial. But with sex offence cases no evidence is needed other than witness statements. Essentially this case starts with the standard of insufficient evidence and continues this way. The preliminary inquiry is reduced to an automatic (and expensive) step everyone must take to ultimately get to trial.
The Reduced Standard of Evidence for the Trial Judge
Again all parties arrive in the trial court before a 'trier of fact' with no evidence of any real probative value presented. These cases often take place in closed courts with no juries. Judge only. The public is largely unaware of these types of cases because of the private nature of these trials, including strict publication bans not allowing any media printing any mention of the case, let alone hearing any of it. The judge hears the two stories, maybe that of another witness in support of the complainant, and essentially decides which one he/she believes. Many factors can influence this decision, including the ever so dangerous confirmatory bias. If the judge starts off by seeing the complainant as a victim of sexual abuse then that judge will reject all evidence that contradicts their bias and find the accused guilty. Simple as that. In today's social culture where feminists scream loud about rape culture it is not surprising any judge could be sympathetic to a teary-eyed complainant and form a potentially incorrect judgment at the detriment of the accused.
Appeal #1- Provincial Appeal Court
If the accused, now likely imprisoned, has any funds left or an in with Legal Aid, he has the automatic right to appeal his conviction. However these appeals rarely result in overturning the conviction. There was no little to no evidence of probative value in the case to begin with, so the only thing left for the appeal judges to decide on is if the trial judge wrote up their reasons for conviction correctly and within the required framework. If the judge did that, then the appeal judges can't find an error in judgment. It makes drafting an argument for appeal extremely difficult and expensive.
Appeal #2 - Supreme Court of Canada
The last chance to appeal is to the Supreme Court. Again, same issues in appeal #1 apply, but now the lawyer can add in the problems with the failure of #1 appeal judgment, and issues of constitutional rights, usually s.7 and s.11.d of the Charter of Rights and Freedoms. Again, extremely difficult arguments and can be very expensive. Also, the chances of the Supreme Court hearing this appeal are not automatic, they give preference to cases where there is one dissenting judge from appeal #1. Either way, it is not guaranteed they will your hear your appeal.
Post Conviction Review
This is the last avenue only available after both appeals are exhausted and can be very costly. This is the only chance left for the accused to get executive branch judicial officials to review all of the evidence. Even evidence that wasn't admissible to the case at trial for whatever reasons. If the accused truly is innocent, it should be more likely to be determined here, or the case can be referred back to a lower court. Unfortunately he has to endure all of the above to get to this phase, only to potentially have to go through it all again.
With that in mind, know there is an unknown percentage of innocent men that never had the funds or the community support to bring him to any stage of exoneration. Those men had to serve time in a dangerous and understaffed jail, are subjected to extremely strict probation conditions and are subject to lifetime sex offender registration restrictions. On top of all that, job prospects dwindle, family life is drastically altered and many of his peers and family members will have shunned him.
False accusations and wrongful convictions in sexual offence cases do happen. But we don't see accurate statistics on the prevalence because not every innocent man is lucky enough to be exonerated. While our justice system has acknowledged the problem of wrongful convictions, they haven't made the necessary changes to ensure they don't happen in sex offence cases, unfortunately, even after recommendations have been made. As far as reform of our judicial system they have only stated intent to implemented measures, such as a web site and unspecified training for judges and police officers to make it look like all is fair and well, when in fact it still is not.
"Clary Jaxon" takes a critical look at how current social theories and the efforts to instill them compare to the reality of actual social conditions. With a focus on Canadian issues. Check out the STW YouTube channel.