Voluntariness of confession comes into question in sex assault

By John L. Hill

Law360 Canada (June 8, 2022, 12:39 PM EDT) --
John Hill
John L. Hill
In the wake of the Bill Cosby scandals and the rise of the #MeToo movement, there is popular consensus that women should be emboldened to report sexual assaults and that the courts should mete out harsh punishments for those men who would take unwanted liberties with women.

In an earlier time, those women might have felt too embarrassed to come forward and continue living with the mental torment of having suffered such assaults. Nowadays, the popular mood is that the shame should rest with the perpetrator and not with the victim. Yet some accused men fear that the new norm is so prevalent that getting a fair trial is impossible.

I suspect that is what S.C. thought when he was charged with sexually assaulting a distant cousin, A.B., after a night of heavy drinking in a Yukon village. After all, the facts on first glance looked like a slam dunk for the prosecution. S.C. went on trial in Watson Lake, Yukon with a female defence lawyer and a female prosecutor (R. v. S.C.C. 2019 YKTC 36). Before trial, the usual contentious issues were admitted: identification that S.C. was the person alleged to have committed a sexual assault, the voluntariness of S.C.’s statements to police and his volunteering to provide a DNA sample that matched the DNA found upon examination of A.B. when she contacted police immediately after the assault.

Both A.B. and S.C. testified; but the Territorial Court judge found A.B.’s account “logical, credible, and did not have gaps suggestive of confabulation.” On the other hand, S.C.’s version of events was “garbled, confused, illogical and essentially incapable of belief.” The trial judge had no difficulty concluding that A.B. explicitly refused consent and repeatedly told S.C. to stop. A finding of guilt was in order.

S.C. decided to appeal. In February 2022, the three-judge panel, all women, sitting in Whitehorse, examined a litany of grounds including ineffective representation by trial counsel and the voluntariness of the “confession” to police in a transcript that was reproduced in the judgment on appeal (R. v. S.C.C.  2022 YKCA 2). One of the grounds of appeal included the statement, “The trial judge erred for failing to hold a voir dire to determine the voluntariness of the appellant’s statement to the police.”

This last-stated grounds seemed dubious. After all, the statement was given after police cautioned S.C. on his rights twice and both counsel for defence and the Crown at trial had agreed before trial that voluntariness was not in issue.

The Appeal Court then examined what appeared to be the most substantial ground for appeal by accepting the test for alleged ineffectiveness set out in R. v. G.D.B. 2000 SCC 22 that accepted the American approach set out in Strickland v. Washington 466 U.S.668 (1984), per Justice Sandra O’Connor. It was the American case that established that a claim of ineffective counsel cannot stand if no prejudice occurred.

The Yukon Appeal Court accepted evidence that S.C. is functionally illiterate and did not understand what voluntariness meant, that he could object to the statement’s admission and that he simply told police what they wanted to hear lest he be locked up for 48 hours. He just wanted to go home, so he said whatever was required for immediate release.

At trial, Crown counsel used the statement to police to attack S.C.’s credibility. Credibility of his denial of the criminal act or that he had “blacked out” due to a medical condition exacerbated by excessive consumption of alcohol was the major issue. The voluntariness of that statement was essential, and the trial judge erred in not ordering a voir dire to determine voluntariness. This meant that the appeal must be allowed. The error was caused by the trial judge; there was no prejudice resulting from ineffective counsel. The handling of the case by trial counsel passed muster but the conduct of the trial by His Honour did not. The curative proviso set out in the Criminal Code should not be used when credibility is a central issue, and it is improperly undermined. A new trial was ordered.

It is yet to be determined if the new trial will have a different result than the first. But the case demonstrates that despite the general abhorrence of sex crimes, a man so accused can still get justice even when it is women making the call.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. Contact him at johnlornehill@hotmail.com.

Photo credit / 
Anastasia Molotkova ISTOCKPHOTO.COM

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