Groundhog Day: A Q&A with LEAF on the Recent Rape Shield Trilogy (Barton, Goldfinch and R(V))

In 2019, the Supreme Court of Canada (“SCC”) released three decisions dealing with s. 276 of the Criminal Code, RSC 1985, c C-46, otherwise known as the rape shield provisions. R v Barton (2019 SCC 33), R v Goldfinch (2019 SCC 38) and R v (R)V (2019 SCC 41), represent the Supreme Court’s latest reckoning with an evidentiary regime that seems to be straightforward, yet remains subject to extensive criminal law litigation.

The Women’s Legal Education and Action Fund (“LEAF”), a national feminist legal advocacy organization, played an integral role as an intervener in R v Barton, first at the Court of Appeal of Alberta and then at the Supreme Court. (See TheCourt.ca’s coverage of the unique role of interveners in Barton here.) In this post, Julia Kalinina and a guest contributor speak to Megan Stephens (“MS”), the Executive Director and General Counsel at LEAF, and Nicole Biros-Bolton (“NBB”), LEAF’s articling student, about feminist advocacy in Barton. The conversation focuses on recent developments in the admissibility of prior sexual history evidence, the continuing influence of myths and stereotypes about women and girls in the criminal justice system, and how lawyers, judges and law students can work to eradicate the myths once and for all.

Contextual Note: Primer on the s. 276 (Rape Shield) Provisions

The purpose of the s. 276 regime is to prevent the admissibility of evidence of a sexual assault complainant’s prior sexual history if that evidence supports one or both of the “twin myths.” The twin myths are the notions that 1) a person’s prior sexual history means they are more likely to have consented to the alleged assault; and 2) a person’s prior sexual history means they are less credible as a witness (R v Darrach, 2000 SCC 46, para 2 [Darrach]). For more information on s. 276, see TheCourt.ca’s coverage of R v Barton here; of R v Goldfinch here (ABCA), here and here (SCC); and of R v R(V) here.

Interview

How did you get started at LEAF?

MS: I have followed LEAF since its early days. About thirty years ago, my mother told me about this organization that she said was “going to make sure our rights [as women] would actually be validated before the courts” and I’ve been following it ever since. I spent most of my legal career working for the Crown, conducting criminal appeals work for the province, and I was on secondment for the last two years working on a public inquiry when I saw that LEAF had posted about the position. The previous woman in the role [Justice Shaun O’Brien] had just been appointed to the bench. I thought, “It’s time to make a change.” I really enjoyed my work as a Crown, and I got to work on sexual assault cases that dealt with a lot of feminist issues. But in the Crown’s role, the complainants are not your clients and you don’t get the same opportunity to speak directly about the impact of sexual violence on the equality rights of women and girls. Ultimately, I decided to apply, got the position, and started in June 2019.

NBB: I began organizing feminist marches when I was 17 and counselling on a rape crisis line when I was 18. Since then, I have provided counselling and advocacy to women fleeing abusive situations and most recently managed the Advocacy and Human Trafficking Programs at Boost CYAC. As I changed my career to a legal focus, it was important for me to use the law to further women’s rights and address the issues I saw each day as a front-line worker. LEAF represents this goal in a perfect way and I am so happy to be here.

I want to discuss the work you did in Barton. LEAF collaborated with the Institute for the Advancement of Aboriginal Women (IAAW) in Barton. What was the process like for seeking leave to intervene at the ABCA?

NBB: The Barton story about seeking leave is interesting because Alberta’s statutory approach to leave to intervene is different than Ontario’s. Some courts are more or less used to interveners getting involved. Historically, however, the Alberta bench has been hesitant to allow interveners in criminal cases.

MS: Yes, the Court of Appeal for Ontario and the Supreme Court seem to be more open to interveners in criminal cases.

It seems like the historical reluctance to allow interventions in criminal matters makes sense to a certain extent because it is important to protect the integrity of the criminal process. At the same time, these barriers seem to be part of the reason why sexual assault law develops so slowly. We are not going to see the sort of change that we require for sexual assault survivors, like more trauma-informed trial practices, if the courts limit our ability to make feminist interventions.

Along those lines, can you tell us about the collaboration between LEAF and the IAAW in Barton? 

MS: LEAF has been trying to bring an intersectional feminist lens to our work for a long time. In Barton, the complainant was an Indigenous woman who worked as a sex worker and experienced multiple, intersecting grounds of oppression. It made sense for us to partner with an Indigenous women’s organization that is better able to bring the lived experiences of Indigenous peoples to the arguments, instead of keeping those arguments at the abstract or theoretical level. Partnerships with Indigenous women’s organizations are also really crucial to making sure we are not appropriating the voices of others, and to making sure that there is space at the table for everyone who ought to be there. Partnerships like these have allowed us to put forward the best possible arguments for the court.

Do you think the Supreme Court addressed the intersectional aspect of LEAF and IAAW’s advocacy in the Barton decision?

MS: I think parts of it did. The opening paragraphs from Justice Moldaver are a pretty stinging indictment about where we’re generally at in the criminal justice system. As Justice Moldaver says, “We live in a time where myths, stereotypes and sexual violence against women – particularly Indigenous women and sex workers – are tragically common” (Barton, para 1). I’m not sure we would have seen that sort of strong language unless we had interveners reminding the court about these issues.

This isn’t the first time that LEAF has intervened in a case about the admissibility of prior sexual history evidence. The admissibility of this type of evidence is governed by s. 276 of the Criminal Code. I understand LEAF was one of the advocacy groups that fought to get s. 276 drafted in the first place. Can you tell us about that history?

MS: With respect to s. 276, LEAF first got involved when it intervened in R v. Seaboyer, [1991], 2 SCR 577 [Seaboyer], the early constitutional challenge to the rape shield law regime. When Seaboyer found the section (as it was drafted at that time) to be unconstitutional, LEAF joined up with other women’s organizations to help ensure that any new law being drafted by the Department of Justice would provide appropriate protections to sexual assault complainants – and continue to include a ban on the twin myths. LEAF also intervened when the Supreme Court reconsidered the s. 276 regime in the early 2000s.

NBB: LEAF’s intervention in Darrach was another intervention done in partnership. In that case, we partnered with the Canadian Association of Sexual Assault Centres, the DisAbled Womens’ Network of Canada, and the National Action Committee on the Status of Women.

What is your perspective on the state of s. 276 now?

MS: I think the trilogy of cases that came down recently from the Supreme Court regarding s. 276 is great, but it also feels incredibly troubling that almost twenty years after Seaboyer, in which the SCC was clear that courts cannot rely on the twin myths, these myths are still permeating the justice system. For example, in the last two weeks the Court of Appeal for Ontario has ordered two new trials in cases where the trial judges seemed to rely on the twin myths in finding the complainants not credible. One of the cases was R v L(M), 2019 ONCA 945, which had to do with a 14-year-old complainant who alleged that her stepfather sexually assaulted her over a two-and-a-half-year period, starting when she was 11 years old. One of the reasons that the trial judge gave for why the complainant was not credible was that she had an interest in sex, in that she had taken sex ed classes and testified about the average size of a boy’s penis. This was enough to render her testimony not credible. That’s crazy, especially in the context of a 14-year-old complainant, who could not have consented at law. The other case was R v Lacombe, 2019 ONCA 938, which invoked other myths and stereotypes, like the fact that the complainant was dressed in a certain way. The Lacombe complainant had intellectual disabilities and was living in a group home. One of the things the trial judge deemed as relevant to that complainant’s credibility was the fact that she was wearing pyjamas and chose to have a cigarette with the accused without putting on a bra or underwear. The other myth that the trial judge relied on was that the complainant didn’t immediately report the assault. We know that incremental or delayed disclosure is not at all unusual among sexual assault survivors. I find these cases infuriating. I have days where I feel frustrated and angry that we are still here, dealing with these same issues.

It sounds like we are playing whack-a-mole with the twin myths. We keep trying to stamp them out, but they keep re-emerging in different ways.

MS: 100%. I think of it as Groundhog Day.

I imagine that’s because broader problems, like sexism and misogyny, are still percolating through our wider culture. Seeing as we have yet to resolve these issues, they continue to show up in the criminal justice system.

MS: Absolutely.

Do you see a way to correct the systemic imbalances in our society that fuel the problems we are discussing in the criminal justice system?

MS: I think part of it cries out for more education, both about the nuts and bolts of sexual assault law, and about those broader myths and stereotypes about women and girls. Those of us who come from a feminist bar feel quite strongly that those myths have been debunked for years now. But it is clear that they have not been debunked in the broader population. Judges can be incredibly well-meaning, but they get appointed to the bench from various types of practices. Some of them might not have been exposed to criminal law in twenty-five years. I was on a panel recently with someone who said that when she was in law school, her criminal law professor actually chose not to teach sexual assault law that year because the year before had been too controversial and there had been very heated debate in class. So the professor chose not to teach it. I find that very troubling. It’s possible that you could have been appointed to the bench from that year and have never formally learned about sexual assault law.

NBB: We talk about this a lot at LEAF when we discuss the impact of our interventions. Kim Stanton, the past legal director at LEAF, has made the point that rape culture in our courts is something we can intervene on and address, but to actually solve the issue, it requires systemic change. It’s so much broader [than simply intervening in court]. In order to give women equal status to start to eradicate rape culture, which is a culture based on stereotypes and sexism, we need to address the socioeconomic rights of women, like making sure they have access to education and the ability to work and have childcare, I think it’s an important point to remember in terms of our work and what we’re striving for at LEAF.

How confident are you that the s. 276 regime will be applied consistently after Goldfinch, Barton and R(V)?

MS: I wish I could say I feel confident because those decisions are very clear. But I think that until we have the ability to compel judges to confront the stereotypical assumptions they might have about how a complainant should react and testify, we will continue to see these problems. Judges need mandatory training to unpack some of the myths and stereotypes that pervade our culture, to understand how a traumatic experience like sexual assault might affect a witness’s memory or account of what happened. Even if the judges fully understand the law, they may still need to understand how a witness’s context may differ from their own.

NBB: Right. For example, in Lacombe, it was very clear that this was a trial judge who knew the law. But in its application, it’s almost like he has a list of 14 myths that he goes through, essentially accepting that each of the forbidden stereotypes is good evidence.

MS: And in the case of L(M), there was a young complainant who showed knowledge of sex that the judge didn’t expect from a 14-year-old. But there may well be good reason for why this complainant had a knowledge of sex. It could be that this was not the first case of sexual assault that she had experienced. Abusers also sometimes groom their victims, taking time to acclimatize them and normalize the sexual activity that will ensue. It’s also the case that some 14-year-olds are interested in sexual activity. A similar type of stereotyping can happen when the complainant has a disability, especially an intellectual disability, like in Lacombe. In such cases, there is a tendency to see complainants as children, to infantilize them, to think that they shouldn’t be involved in any sexual relationships, or to treat them as sexually deviant in some way. That kind of [stereotypical] thinking can influence judges.

What part of the Barton decision will you remember most? What feels like the biggest win?

MS: In the first two paragraphs of the judgment, Justice Moldaver recognizes how negative myths and stereotypes [about women and girls] have a particularly devastating impact on some of the most marginalized members of our society. I think the language he uses is very powerful. In terms of the actual law itself, I don’t think Barton moved the needle much on s. 276. I think it’s also important to recognize that many members of the Indigenous community saw this as a very disappointing decision because they really wanted to see a new trial on murder charges.

NBB: Acknowledging that it wasn’t a perfect decision and that the facts of the case were devastating, what struck me as a student of the law was that the decision itself was fuelled with emotion in a way that most other decisions I’ve read are not. I was rereading the Barton decision around the same time as reading Law’s Indigenous Ethics (2019) by John Borrows, in which he had a whole chapter on love. In that chapter, he discusses how Indigenous law uses love as a way of understanding law, and how we should incorporate that idea into mainstream law. I don’t think Barton accomplishes that fully in the way that Borrows envisions, but it struck me as a nice way to look at it – that the decision tried to honour Cindy Gladue, and that at least some of that Indigenous law influence of love came into our legal system.

What do you think about the role of defence counsel in making sure that prohibited myths and stereotypes don’t influence sexual assault trials?

MS: In my experience in the criminal justice context, I think there are some great feminist defence counsel, who put on their defence counsel hats [when necessary] but who also see their role as more than just a hired gun. Elaine Craig has a great bit in her book Putting Trials on Trial about that, that defence counsel are not just hired guns: their role is to hold the state to their burden of proof. But I do think that defence counsel need to think about how to do that in a way that is dignified and appropriate. Unfortunately, I have come to see the criminal justice system’s approach to sexual assault as generally flawed. I don’t think many people leave a sexual assault trial feeling like justice has been done.

To shift away from Barton, you recently posted about a keynote speech that Justice Karakatsanis delivered and quoted some of her words on your Twitter, when she said, “It’s hard to be what you can’t see.” What was that idea about?

MS: Justice Karakatsanis’s point was about how important it was for women to see other women in positions of power. I think the judicial appointments over the last few years have been much more open to diversity on the bench. But I would say that it’s still a very, very white bench [here in Canada]. There has never been a visible minority on the Supreme Court, and in appellate level courts across the country there is very little representation of visible minorities. That needs to change.

We have talked a lot about how lawyers and judges can help eradicate stereotypes in the law about women and girls, and about marginalized communities in general. What advice do you have specifically for our male colleagues in the legal profession to help us do this work?

MS: In general, people who have power need to make space to listen to other voices, voices they are not used to listening to: women’s voices, voices of racialized people, the voices of gender diverse people. There are a lot of people who get silenced within the legal profession. So I think one of the key things is to open your ears and listen, and that would help redress some of the stereotyping that we’ve been discussing. How do you break stereotypical assumptions about sexual assault survivors? You start by asking people to think differently about their behaviours, to open their ears.

This interview has been edited for length and clarity. An anonymous guest contributor assisted with this post.