How an Innocent Man Can Easily Be Convicted of Sexual Assault in Canada

Coddling Accusers with Laws Based on Misguided Ideology

Starting in 1983 with removing the term ‘rape’ from the criminal code as an offence and replacing it with three levels of sexual assault that do not include the terminology ‘sexual intercourse’ or ‘forced penetration’, we are now left with definitions of sexual assault that seem to be left open to interpretation. Particularly level 1 (s271). See sections 271, 272 and 273 of the criminal code (note the previous versions of each). This has opened the door to a series of ever-changing criminal code definitions that serve to persecute accused men while adding layers of protection for any accuser making a claim of sexual assault, particularly women.

In 1985 two crucial forms of defence were taken away from men accused of sexual assault on any level – the requirement for corroboration (s274) of the accuser’s story and the common law rule of recent complaint (s275) in alignment with removal of the statue of limitations on sexual assault (see Limitations Act Ontario).  One other defence taken away from men is evidence of the accuser’s sexual history, including other complaints of sexual assault against other men, (see complete definitions s276-277). And lastly, severe restrictions on admissibility of third-party evidence of a personal nature against the accuser; such as mental health records, doctors notes, therapist notes, diaries, etc. (see s278.2-278.91).

All of these were implemented under the basic ideology that women have the right to maintain their personal dignity during the trial as victims and it is in society’s interest to encourage the reporting of sexual offences. Yet the accused man is unfairly rendered defenceless against any and all attacks against his own personal dignity while he steadfastly claims his innocence. It is now considered discriminatory and prejudiced against the accuser for the court to give warnings of lack of corroborating evidence and potential reliability issues in sexual assault cases, while nowhere in Canadian law is the same to be considered discriminatory or prejudiced against the accused and his entitlement to make a full answer and defence to the charge.

The Low Standard of Evidence Required to Press Criminal Charges

Without the requirement for corroboration in sex offence cases, this means that police need only to perform the minimum investigation requirements to build a thin foundation for the Crown to proceed with legal action. The police are not required to investigate the accuser’s personal history to evaluate credibility and reliability of their story. The police are trained to believe all claims of sexual assault brought to them. Charges can still be pressed without forensic evidence or evidence of probative value, such as in an historical offence or offence without documented injury or DNA evidence. The police are also not required to interview witnesses that can provide information supporting the accused’s claim of innocence. The investigating police officer’s role is essentially reduced to the minimum of taking and recording two statements. Thus, a He-said-She-said case. The accuser is being treated as the victim from the moment she makes the complaint, while the accused is being treated as a guilty criminal from the moment he is arrested.

Sufficiency of Evidence Becomes Moot at the Preliminary Inquiry

The preliminary inquiry (or pre-trial) in a sexual assault case is also reduced to its minimum requirement of defining how the accuser will be cross-examined by the defence in abidance of all laws protecting a woman claiming to be a victim. Finding sufficiency of evidence to determine if the case shall proceed to trial is not a requirement because the police investigation produces the low standard of evidence to begin with. Thus the purpose of the preliminary inquiry to determine sufficiency of evidence becomes moot. This stage is essentially an automatic and expensive step on the way to trial. The accuser is still treated as the victim, while the accused is still treated as a guilty criminal.

The Low Standard of Evidence Continues At Trial

The ‘trier of fact’ (or the trial judge) hears many of the same questions and answers as heard in the preliminary inquiry. Since there is little to no evidence, other than two police statements and accompanying testimony, it becomes less of a trial of facts and more of a kangaroo court, or an unfair proceeding subject to bias and incompetence. With only statements as evidence, a judge gets to decide who’s story they believe and reject other testimony that contradicts the story they consider to have a ring of truth. If viewing the accuser as a victim from the moment they start the trial already biases a judge, then they are likely to find the accused guilty. These kangaroo courts often take place in closed courtrooms without juries and no members of the public observing the proceedings. The public is largely unaware of these injustices taking place because of the full publication bans – not allowing media to report on the case, and forbidding any parties of the case to discuss it with any other member of the public.


The Improbability of Overturning a Sexual Assault Conviction on Appeal

After a judge orally announces their verdict, their next task is to write their reasons for conviction within a framework that confirms their bias. This framework includes citing previous case law confirming why they do not have to justify rejecting the accused’s evidence, and why sexual assault victims stories are often vague and inconsistent. It also includes citing how the burden of proof is never shifted to the accused. This is laughable since this is exactly where the burden gets shifted from the moment the accused is named. The nail in the coffin is that any laws available to the man that can help him exonerate himself are restricted in favour of protecting the accuser’s integrity and reputation in a case of sexual assault.  By the time an appeal argument makes it in front of an appeal judge panel of one to three judges, the only things they look for, aside from a recantation or other new exonerating evidence, is if a judge made an error anywhere in their reasoning framework. As long as the judge met the legal requirement for the framework, the appeal judges may not find reason to overturn the conviction. If they have a chance to read all of the transcripts and the appeal factum before the hearing, and truly felt the accused was wrongfully convicted they could find reason to justify overturning that conviction, just as the trial judge found reason to justify finding guilt. However the appeal process can still be subject to bias and intellectual dishonesty on the part of the appeal judges, resulting in a quick and unfortunate appeal dismissal, rendering the man at the mercy of the law and under cruel scrutiny for the rest of his life.

Conclusion

While the various women’s rights groups and child advocates may have had, in theory, good intentions in creating these new laws to encourage true victims of what we still perceive as rape or molestation to come forward, the same ideology has resulted in the unintended and extremely dangerous consequences of encouraging false accusations and wrongful convictions. Innocent men go to prison solely on the word of one accuser and some are never exonerated due to a variety of underestimated factors such as drained finances, lack of support from family/community, guilty plea in exchange for lighter or fast-tracked sentencing, or the improbability of reversing conviction due to the low standard of evidence allowing for conviction in the first place.

The implementation of these victim protection laws should not excuse trial or appeal judges from exercising the utmost competence in forming life-altering judgments without bias or sufficient evidence in cases of sexual assault. This is just a basic fundamental principal of law that desperately needs to be restored and upheld in our courts for the sake of not only men, but also their families and loved ones, including women and children – all people that make up the very fabric of our society.