To 'understand equality, and make it part of our thinking': Towards Fairness and Equity in Sexual Assault Law.
T. Brettel Dawson
Department of Law, Carleton University
and National Judicial Institute
Presented at "Symposium: Redefining the Legal Issues of Sexual Assault and Abuse" as part of the Fourth Bienniel Society for the Psychological Study of Social Issues Convention: Understanding and Addressing Disparities: International Approaches, Toronto, June 28, 2002
DRAFT: Please contact the writer before quotation: email@example.com
The task of rooting out inequality and injustice from our society is now advancing to a higher stage, since increasingly we are recognizing that inequality and discrimination stem not from positive intentions on the part of any given individual, but rather from the effects of often innocently motivated-actions. This analysis requires that we understand equality, and make it part of our thinking, rather than treading heavily on it with the well-worn shoes of unquestioned, and often stereotypical assumptions."
Hon. Claire L'Heureux-Dube,
"Conversations on Equality"
(1999) 26 Man. L.J. 273 at 278-9, emphasis added
Part I: Prologue
What stories about women's and children's sexual violation are told - or heard -- in our courts? What evidence is considered 'relevant' or 'reliable'? What challenges - or alternate versions -- are permissible to "test the frailities of the evidence and the danger that a jury or lay justice may attribute too much weight to the evidence or treat the evidence as conclusive." (1) How are they constructed: whose "common sense and human experience" (2) guides the fact finder?
An article I wrote 14 years ago on the admissibility of sexual history evidence in sexual assault law left me profoundly discouraged about the potential for effective reform in sexual assault law. My purpose in that paper was "to examine the significance to legal constructions of relevance of an approach to legal issues which takes women's gender specific experience into account from the perspective of women." I argued that the institutionally recognized legal discourses were situated in a particular framework which distorted the interests and perspectives of women. My objective was to "examine the extent to which the assumptions and structures of these diverse discourses support the actual equality of women and promote effective legal sanctions against sexual violation of women." (3) I suggested that the then new equality provisions in the Canadian Charter of Rights and Freedoms offered a new way to 'see' the issues and the purpose and effect of legislation and legal process and that expansion of legal discourses to include 'women's versions' about sexual interaction was necessary to create conditions for women's equality. Finally, I noted that there were signs in some judicial pronouncements and indeed in the form of legislative reforms, that the lines might indeed be redrawn.
Nevetheless my conclusions about the state of the law were sobering. The problems faced by women in the sexual assault trial were endemic and systemic. Efforts to reform the substantive law left the underlying dynamics in the trial - the distorted telling of women's stories - untouched. The premises and world view of the legal system - including its confidence in its legal method to satisfactorily achieve "judicial truth" - were largely unquestioned, indeed 'invisible' and 'normalized' being absorbed as though through osmosis in the process of professional formation.
Then, as now, my concern was with the underlying concepts through which sexual assault law was understood and implemented. The concept of 'relevance' is a particularly foundational concept. Only "relevant evidence" is admissible in the "fair hearing and full defence" (a constitutionally guaranteed right under section 11 of the Canadian Charter of Rights and Freedoms).
In my study of the operation of evidentiary rules in sexual assault law, I realized that what was understood as being "relevant" - to tell the story of what happened - incorporated gendered and normative assumptions reflecting male concerns about allegations of sexual assault into legal process. What a male 'point of view' considered to be 'rape' or sexual violation was the standard and not what women perceived as the violation: the gender specific exercise of power, control and sex-role coercion - often by relatives or 'known' perpetrators in family, work or recreational settings -- which shattered a woman's self esteem, and denied her right to dignity and autonomy. (4)
Many years ago, Lorenne Clark perceptively commented, that the dominant world view creates an ideology of knowledge and that the "the strength of [such] an ideology lies in the extent to which its basic presuppositions remain not merely unquestioned but literally unrecognized." (5) My paper turned to an alternative knowledge system -- social scientific studies -- to see if it would help us to glimpse some of the 'basic presuppositions' about rape. These studies showed the ways in which policing, prosecuting, defending and adjudicating of sexual assault cases had been distorted by the effects of the telling - or hearing of -- 'male versions' about sexual interaction. The studies suggested that the rules of evidence and relevance -- as constituted -- had a non-neutral effect unrelated to the actual guilt or innocence of the accused. The later work of Edward Renner et al. clarified a dynamic in the courtroom: the playing out of 'scripts' in a rape trial suggests that the trial has very little as all to do with 'what happened' in the individual case, instead playing out preset 'versions'. The standards of relevance have nevertheless been clothed with legitimacy and replicated by the 'normal' operation of legal method and were examples of deep-seated systemic bias and substantive inequality -- that could not be touched within the terms of the operative paradigm in law.
A quite appalling example of this resistance could be seen in the case of R. v. Oquataq from 1985. (6) This case involved a constitutional challenge to legislative limitations on defence cross-examination of a complainant about her sexual conduct on other occasions with other people. The judge recognized that the legislative provisions limited the range of previously permissible questions. He framed the issue as being one of finding 'an appropriate test for judicial truth'. He affirmed "a full defence and full hearing of the evidence with an impartial fact-finder testing the evidence for its harmony" as the best test devised by judges and commented that this this test was "analytic" (and thus value free) rather than "normative". In a rather breathtaking passage, he continued:
(Although) relating chastity to a likelihood of consent is unfair, it has comprised part of the carefully balanced evidentiary process... The question of the proper evaluation of such evidence is a difficult one. It is a question of logic - what is relevant, what is logically probative... The question reaches to the heart of judicial reasoning. The lynchpin of the enigma... is this: is the willingness to have intercourse outside of marriage or established relationships any indication of a willingness to consent to intercourse with someone else... in logic is (such) sexual indulgence logically probative of consent on a particular occasion? Does it make consent more harmonious with all the circumstances... Does it mean the girl [sic] was more likely to have consented?... [he then concluded that indeed such matters were 'logically probative' and mused:]. The problem is that this assumption or probability... denies both autonomy and dignity to women... (but) our test for judicial truth is based on probabilities... it may show rank prejudice; but we use it." (7)
Another example of divergent male and female 'points of view' about sexual interaction can be derived in a very recent sexual harassment case in Ontario (appeal released December 2001). An Executive Director of a non-profit association had been terminated for sexual harassment and sued for wrongful dismissal. In the Simpson case, (8) the trial judge found that the alleged incidents forming the basis of the claims for sexual harassment had indeed taken place but that they did not constitute sexual harassment. Indeed, he considered the organization to have had "a working environment where the prevailing culture tolerated the sexual conduct described and a sexually charged atmosphere." [OCA: 50]. He "placed much emphasis on his finding of [the Executive Director] a credible witness with an excellent memory, in contrast to his finding that the women who complained about him were exaggerating or lying." .
The Executive Director had propositioned his young assistant ("testing the waters" according to the trial judge); attended a strip club and engaged in intimate sexual discussions with the Association's legal counsel carried on an open sexual affair with his (married) secretary; swum nude at his cottage and invited staff there for work related activities on the basis that they all knew of his habit to swim nude there; entered the hot tub naked with staff (all "consensual conduct among friends"); and also encouraged open sexual pinching in public at a hospitality suite during an Association meeting in a resortf ("The incident was brief, and forgiven".) As noted by the Court of Appeal, the trial judge had viewed "the respondent as a victim of unjustified and exaggerated complaints by the female employees and volunteers of the association, and consequently viewed the respondent's sexual conduct toward and with the female employees as benign and not warranting either dismissal or even complaint. . (9)
The Court of Appeal struck down the trial decision in a scathing rebuttal of the 'point of view' utilised by the trial judge. (10) Justice Feldman reframed the reference point in the case, noting that "there was no finding that any culture of sexual discussion, sexual harassment, or a sexually charged atmosphere existed in the CAC office prior to [the individual] becoming executive director …Instead, it appears from the evidence and from the findings of the trial judge that it was [the Executive Director] himself who introduced a sexual atmosphere or culture into the workplace and the working relationship of the staff, at least with himself. . She found that the trial judge had made errors of fact and law in a number of other areas:
in implicitly concluding with respect to the respondent's conduct which he found to be consensual and among friends, that the conduct was not "unwelcome", and that in the context of the respondent's supervisory role, it was not inappropriate; in finding that because the respondent apologized to an employee [the pinching incident], the incident was closed, when the respondent did not admit the true facts of what occurred and when the incident took place in public, was observed by another employee, and was viewed with great concern by her and others; in concluding that the respondent's conduct was unrelated to the resignations of [staff who were the objects of sexual harassment or who objected to it]; and in failing to recognize that the respondent's conduct created an atmosphere where the careers of female employees were, or were perceived to be, dependent on his sexual interaction either with them, or with other female employees; in concluding that the respondent's admitted conduct toward female employees as described, was acceptable for the executive director in charge of all staff in the organization, and that it did not warrant dismissal. [56, edited]
This case, while not a sexual assault case, (although in some ways sexual harassment and sexual assault are flip sides of the same coin) has a similar problem to that evident in R. v. Oquataq. Both are clear examples of an underlying perceptual dynamic that has influenced the way in which a judge sees evidence (or evidentiary issues), assesses credibility and understands the law and its application. That is, the story of 'what happened, how to you see or perceive it and what do you conclude in law as a result of it?'
Even in 1985 it was relatively straightforward to argue that Justice Marshall in Oquataq was wrong: how could it possibly be acceptable to retain a rule of law that demonstrated 'rank prejudice' and discriminated against women? Any doubt about this was definitively removed by the explicit framing of an approach to equality focused on human dignity by the Supreme Court of Canada in the Law (11) decision:
In general terms, the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration…. the equality guarantee in s. 15(1) is concerned with the realization of personal autonomy and self-determination. Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. (Law, paras 51 and 53)
Oquataq was decided at the beginning of what was to become an era of very active 'contestation' over 'stories' in sexual assault law. The basic issue of the constitutionality of restrictions on questioning as to past sexual history went all the way to the Supreme Court of Canada in another case (Seaboyer) and the Court in fact struck down the legislative protections leading to a period of intense 'dialogue' between Parliament, the Courts, defence counsel and equality-seeking communities and scholars expressed through a remarkable sequence of legislative amendments, constitutional challenges and academic debate in Canada.
The remarkably similar thinking about sexual interaction remains apparentin 2001 however and with it an explicit discounting not only of the seriousness of a course of conduct, but of its very meaning. Thus, the basis of the reversal of the trial decision in Simpson is important. It has been decided at what I think is also a threshold time of considerable promise, where recent jurisprudence by the Supreme Court of Canada has provided new conceptual and (solidly 'legal') tools that have the potential to address legal method at the very point at which it has been doing such harm 'below the surface'. Cheerfully, the Ontario Court of Appeal reversed Justice Colin MacKinnon at the levels of 'relevance', perception and meaning. These are the tools of 'contextual decision-making' informed by a purposive and substantive understanding of equality that has evolved over the past 15 years in Canadian law.
II: Signs of the Times
"In the past three decades, the Canadian law of evidence has undergone a virtual revolution. The use of the word "revolution" is not an exaggeration - at least in one of these senses offered by the Oxford Dictionary: "revolution" means "fundamental reconstruction". As in most revolutions, the fundamentals have by and large stayed the same. What has changed is the way we go about deciding outcomes - in this case, deciding what evidence goes into the court process." (12)
At a recent judicial education program, the Chief Justice of Canada, the Rt. Hon. Beverly McLachlin directly called upon judges to accept the implications of what she called a "revolution" in Canadian evidence law. This revolution is characterized by a movement away from the traditional rule-bound approach towards a new, principled approach which "recognizes that the rules of evidence serve to facilitate the goals of truth seeking, judicial efficiency, and fairness in the adversarial process and that evidence which serves these goals should be admitted." (p 3) The new approach, "responds to modern values and concerns and reflects a more open, contextual approach that permeates post-Charter judicial decision-making generally." (at 19)
In hearsay, the 'the twin principles" are "necessity and reliability" and "the rigid rules against hearsay and their exceptions have been replaced with an analysis in which the trial judge examines the context in which the statement was made to determine if its admissibility will assist in determining the truth" (p5). In confessions, "Voluntariness remains the linchpin of the confessions rule, but courts look at the entire context to determine if the confession was made under circumstances that raise a reasonable doubt about it. " (p6) In the area of privileged communications, "What was once a rigid exclusionary rule of evidence has become a matter dependent on policy and fairness considerations" (p 8).
In the context of sex crimes, she pointed out that "trials involving allegations of sex crimes raise very serious questions of credibility and the rules of evidence have been revolutionized to combat the myths and stereotypes that have accompanied crimes of rape, and sexual assault (at 14). In her view, "the new "principled approach" has also eroded stereotypes in the trials of sex crimes." (p. 13):
Commencing with the seminal decision in Seaboyer, courts began to reconsider the stereotypes long associated with sexual crimes. Courts began to consider studies that showed that the admission of evidence as to the complainant's past sexual history prejudices the trier of fact and affects the perceived guilt of the accused. (13) In the recent case of R v. Darrach (14) the amended language of the Code was challenged as being unconstitutional. Gonthier J., for a unanimous Court, found that the new language of the Code protected the integrity of the judicial process and respected the rights of the individuals involved. The myths that a complainant is more likely to have consented and that she is less worthy of belief because of her prior history were finally rejected. Evidence of prior sexual history was found to be admissible only if it had "significant probative value". (15)
In the area of sex crimes, context and balance, the hallmarks of the new approach to evidence, have replaced outmoded and sometimes unfair rules. A complainant's sexual history is not admissible until a trial judge considers the context in which it is proffered and balances the value of the evidence against the policy factors which militate against its admission. (p14)
Children, she urged must be able to "tell their stories" in the courtroom. She re-emphasized her earlier judicially expressed views that the "the attitude of the law toward the evidence of children in recent years had changed." . Instead of "hard and fast" rules as to when any witness's evidence should be assessed by reference to "adult" or "child" standards… "every individual [is to] be considered. '..[b]y reference to criteria appropriate to her mental development, understanding and ability to communicate'".(at 10) (16) She commented, As we all know, the practical effect of the evolution in this area is that children are now welcomed into our courtrooms." (p 11)
This speech to the country's largest court was clearly an important consolidation of themes in lines of jurisprudence. It indicates a permeation of central ideas about the need to shift our understanding of legal method in this area. Interestingly, it seemed to meet with general nods from the assembled judges suggesting that they too were familiar with this 'revolution' related to "what evidence goes into the trial process." However, what are we to make of it, as researchers who are profoundly concerned about the endemic failures of the legal system to effectively understand sexual assault of women and children?
Where my own thinking is at this point is that the 'non-questions' of 14 years ago about 'legal method' have become 'questions'. (17) There is a consistent them in the keywords repeated by the Chief Justice: an open contextual approach, recognition of distortions arising from the playing out of myths and stereotypes in the sexual assault trial, and the necessity of balance, fairness and consideration of policy factors. The touchstones remain: truth-seeking, judicial efficiency and fairness but arguable, a new opening has been created to insist upon conditions to enable us to 'tell the real story' in the trial process. Justice L'Heureux-Dube has expressed a similar hope:
The coming years will tell us whether the new framework for the prosecution of sexual assaults will be translated into greater justice for women who are subjected to violence in the home and in the streets. Although the signs are not all positive, in my view, these changes hold out significant promise, provided that all actors in the judicial system remain vigilant in ensuring that myths and stereotypes do not impede the search for truth and justice. (18)
In my view, the next phase in this evolving 'dialogue' is to work-through the implications for this profound paradigm shift in the actual practices in the trial process.
III. Contextual Inquiry: A New Tool for Fairness and Equity
I propose that over the past several years a paradigm shift has taken place in Canadian jurisprudence through the recognition that context is a necessarily present dimension in decision-making. It has of course, always been there - just as oxygen was always 'in the air'. Until oxygen was 'discovered' -- or through a paradigm shift in scientific thought could be 'seen' - it's nature and role was not understood and could not be studied. Similarly context can now be examined and used as a basis for judicial inquiry - and as a a standard of scrutiny for legal method and court room processes.
"When issues are examined in context, it becomes clear that some so-called 'objective truths' may only be the reality of a select group in society and may, in fact, be completely inadequate to deal with the reality of other groups." (19)
Judicial Decision-making has a number of elements: fact-finding; conceptualization or framing of the issues in the case; identification of relevant law; application of that law and the reaching of conclusions and disposition. These elements interact with one another. At least since the legal realists it has been a familiar equation to think of judicial decision-making in the following equation: Facts + Law = Decision and to debate how judges make the choices implicit in this process. What has come into sharp focus recently is that there is necessarily another element in judicial decision-making, a third dimension: context. In a case involving sexual assault, the 'social reality' of the offence is in play alongside considerations of facts (what happened) and the law (what is permissible). Context is about assumptions and values, understandings of 'the world', of the law, of the judicial role affecting what is seen and how it is seen. An updated equation then, becomes "Fact + Law + Context = Decision".
Judges of the Supreme Court of Canada have laid the jurisprudential basis for thinking of judging in this 'three dimensional" way and thereby introducing explicit discussion of context in judgment. In R. v. R.D.S., Justices McLachlin and L'Heureux-Dubé commented that "a conscious contextual inquiry has become an accepted step towards judicial impartiality." Indeed in R.D.S. which involved a claim that a black judge had made a racially biased statement about a white police officer, the court accepted the following propositions: The reasonable person should be taken to be aware of the traditions of judicial integrity and impartiality; The social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community. (20) In a scholarly text, L'Heureux-Dubé added:
"In addition, the Supreme Court has adopted a contextual approach, in recognition of the importance of ensuring that courts remain attentive to historical patterns of discrimination in determining whether a particular rule, inference or presumption is based on myth or stereotype and therefore violates constitutional guarantees of equality. The contextual approach recognizes that the law cannot be divorced or abstracted from social realities and that legal rules will often have been designed around the interests of those who hold power. As such, it becomes necessary to consider whether the experience and perspectives of the more vulnerable or marginalized members of society have been excluded from the law's development." (21)
Similarly, Justice Frank Iacobucci has commented, "understanding the Canadian social context and incorporating this into the process of adjudication requires that judges always bear in mind the moral underpinnings of our Constitution, and in particular the fundamental principle of equality" ("The Broader Context of Social Context" Remarks, Victoria, 2001.) As such "Awareness of the context within which a case occurred does not constitute evidence that the judge is not approaching the case with an open mind fair to all parties; on the contrary, such awareness is consistent with the highest tradition of judicial impartiality. (22)
An area where the impact of "contextual judging" in light of the requirements of an equality-based approach can be seen is family law. Justice L'Heureux-Dube, has written of the "revolution in family law" in the last decade:
"since the Charter has introduced a strong measure of [substantive] equality into Canadian family law.… The very process of legal reasoning in this area of litigation has been profoundly affected by the necessity of moving beyond formalism into the realm of substantive equality based on social framework evidence." Questions such as 'what is a family' and 'what obligations exist within a family' have been fundamentally visited. (23)
The learned judge has placed this in a much broader setting as well. She has commented:
"…the need to identify inequality is not present only when allegations of discrimination have been brought under s. 15 of the Charter or under human rights codes. Rather, in examining other areas of law, we must be alert to the ways the law's assumptions may not respect the principles of equality. This concept offers us new understandings in family law, in criminal law, and into how the law affects the poor and the elderly. It is changing the way we approach sexual orientation, sexual assault, disability, freedom of expression, and pornography. The task of rooting out inequality and injustice from our society is now advancing to a higher stage, since increasingly we are recognizing that inequality and discrimination stem not from positive intentions on the part of any given individual, but rather from the effects of often innocently motivated-actions. This analysis requires that we understand equality, and make it part of our thinking, rather than treading heavily on it with the well-worn shoes of unquestioned, and often stereotypical assumptions." (24)
As a colleague of mine, Rosemary Cairns-Way has pointed out that in the area of criminal law many areas are unsettled and there is a clear link between them and debate over the scope and application of the 'equality value'. (25) And as pointed out by the Supreme Court of Canada, equality is not trumped by (nor does it trump) other constitutional rights: they are to be interpreted in light of each other.
The question arises what does this all mean for addressing the social science findings about embedded and systemic problems in the operation of sexual assault law in Canada? From the work of Ed Renner et al, we know that there is a confounding of the elements of the offence with criteria for legal accountability: relationship, harm and danger. We know that if there is a pre-existing relationship, if it is considered that 'little harm' was done and the accused presents 'little danger' to the wider community, he will receive the benefit of a discounting process at each stage of any investigation or prosecution. Of course, as pointed out by Lenore Simon, (26) the central issue is what is considered to be sexual violation. In her study she found widespread misconceptions about the nature and prevalence of sexual violation. The 'paradigm' of a rape as a stranger offence involving other violence by a 'criminal individual' is at profound variance with the ways in which women experience sexual violation. Interestingly, the paradigm of stranger rape sits most easily within our legal system precisely because its central ideology is of the regulation of matters between individuals who are strangers in discrete interactions. (27) Yet, because most sexual violation takes place in relational contexts in private settings there are perceptual dissonances which can make it difficult for women themselves to be 'sure' that what has happened is criminal sexual violation. This suggests that the 'legal name' of rape or sexual assault somehow does not encompass the realities of sexual violation. Just as feminists 'created' an understanding that a course of unwelcome sexual conduct in the workplace was an issue of discrimination and unacceptable coercion and named it as "sexual harassment", so too, it seems that work remains to be done to 'create' an understanding that coercive, private sexual conduct is wrong. This will also imply the need for legal realignment as well.
Simon has proposes that we shift our paradigm of legal processing to models based on therapeutic jurisprudence, preventive law and/or restorative justice. In essence she is arguing that we need to take 'normal' sexual assault seriously as a crime and select it into the system. She argues that the removal of levels of dissonance will go some way towards undoing the harms created by the law itself in this area.
In Canada we begin from a strong legislative foundation. Our legislative reform has been affirmed by the Supreme Court of Canada in a trilogy of recent decisions that establish that women's equality values must be valued just as fair trial rights of the accused are valued. The court has made it clear that: "The accused is not permitted to "whack the complainant" through the use of stereotypes regarding victims of sexual assault." (Mills, para 90, McLachlin CJC).
So we stand at the crossroads of real change. Our options include:
· Judicial education on social context with: credibility of children; decoding scripts in sexual assault trials; therapeutic jurisprudence and relational law models; manuals of judicial practice with child witnesses.
· Associated review of legal education and bar admission education
· Appeals based on insufficient or incomplete understandings of context, the third dimension; including recourse to international obligations (eg. Declaration on Violence Against Women)
· Interdisciplinary involvement in sexual assault trials and in research.
· Close review of evidentiary rules and legal method in this area
· Complementary strategies of support to victims and social action (see www.napasa.org)
1. As phrased by Adrian Keane, The Modern Law of Evidence (Fourth Edition 1996), at pp.1-4, in
"Remarks of the Right Honourable Beverley McLachlin, to the Superior Court of Justice
Spring Education Seminar, Ottawa, Thursday, April 25, 2002. 2.
3. T. Brettel Dawson, "Sexual Assault Law and Past Sexual Conduct of the Primary Witness:
The Construction of Relevance"(1988) 2:2 CJWL 310 at 312.
4. For compelling accounts of the impacts of rape, see e.g., Susan Estriech, Real Rape and
Susan Brison, Aftermath: Violence and the Remaking of the Self (Princeton University Press,
2002); Michel Dorais, Don't Tell: The Masculine Experience of Sexual Abuse <trans. Isabel
Deholm Meyer> (Montreal: McGill-Queen's Press, 2002). 5.
Lorenne Clark, ""Law and Politics: The Theory and Practice of Male Supremacy" in Law
and Social Policy, David Weisstub ed. (Toronto: York University, 1975) at 35.
6. R. v. Oquataq (1985), 18 C.C.C. (3d) 440. (N.W.T.S.C, per Marshall J) at 450.
7. Ibid. 8. (1999), 41 C.C.E.L. (2d) 179 9.
The trial judge had remarked that:
David Simpson was a skilled, intelligent, dynamic and highly effective Executive Director.
But he was a man not without faults. He had a very healthy ego. He 2could be annoyingly
selfish. He enjoyed partying with his staff, perhaps unwisely. He could be coarse in language.
He had a strong libido. He enjoyed swimming "au naturel", a product of his cottage life. He
was liberal in his views, particularly in the realm of sexuality, and probably communicated
this fact too readily with those he chose to trust. [trial decision, para 363]
10. Simpson v. Consumers' Association of Canada (2001) 57 O.R. (3d) 351 11.
Law v. Canada (Minister of Employment and Immigration),  1 S.C.R. 497
12. "The Evidence Revolution", Remarks of the Right Honourable Beverley McLachlin,
P.C.Chief Justice of Canada, Superior Court of Justice Spring Education Seminar, Ottawa,
Ontario, April 25, 2002. 13. R. v. Seaboyer  2 S.C.R. 577 at p.616. See in particular the dissent of L'Heureux-Dubé J.
citing among others my 1987 CJWL article.
14. R. v. Darrach,  2 S.C.R. 443.
15. In R. v. Crosby,  2 S.C.R. 912, evidence of prior sexual activity was admitted because it had
significantly probative value and was linked to a prior inconsistent statement.
16. Citing her decision in R. v. W.(R.),  2 S.C.R. 122. See also two recent oral decisions of the
Court in which children's evidence was implicated: S.G.F. April 22, 2002, SCC No. 28692;
V.C.A.S. April 17, 2002 SCC No. 28671.
17. Compare the point made by Jill McCalla Vickers in 1976, Feminism in Canada
18. The Honourable Claire L=Heureux-Dubé, "Beyond The Myths: Equality, Impartiality And
Justice" Social Distress 2000 (MS at 13).
19. The Honourable Claire L=Heureux-Dubé,
"What a Difference a Decade Makes: The
Canadian Constitution and the Family Since 1991" (2001) 27 Queen's L.J. 361 at 364.
20. See The Honourable Lynn Smith, 2002 (Niagara) 21.
2.Christine Boyle, "Section 142 of the Criminal Code: A Trojan Horse" (1981) 23 Criminal Law Quarterly 253 at 263.
3. T. Brettel Dawson, "Sexual Assault Law and Past Sexual Conduct of the Primary Witness: The Construction of Relevance"(1988) 2:2 CJWL 310 at 312.
4. For compelling accounts of the impacts of rape, see e.g., Susan Estriech, Real Rape and Susan Brison, Aftermath: Violence and the Remaking of the Self (Princeton University Press, 2002); Michel Dorais, Don't Tell: The Masculine Experience of Sexual Abuse <trans. Isabel Deholm Meyer> (Montreal: McGill-Queen's Press, 2002).
5. Lorenne Clark, ""Law and Politics: The Theory and Practice of Male Supremacy" in Law and Social Policy, David Weisstub ed. (Toronto: York University, 1975) at 35.
6. R. v. Oquataq (1985), 18 C.C.C. (3d) 440. (N.W.T.S.C, per Marshall J) at 450.
8. (1999), 41 C.C.E.L. (2d) 179
9. The trial judge had remarked that:
David Simpson was a skilled, intelligent, dynamic and highly effective Executive Director. But he was a man not without faults. He had a very healthy ego. He 2could be annoyingly selfish. He enjoyed partying with his staff, perhaps unwisely. He could be coarse in language. He had a strong libido. He enjoyed swimming "au naturel", a product of his cottage life. He was liberal in his views, particularly in the realm of sexuality, and probably communicated this fact too readily with those he chose to trust. [trial decision, para 363]
10. Simpson v. Consumers' Association of Canada (2001) 57 O.R. (3d) 351
11. Law v. Canada (Minister of Employment and Immigration),  1 S.C.R. 497
12. "The Evidence Revolution", Remarks of the Right Honourable Beverley McLachlin, P.C.Chief Justice of Canada, Superior Court of Justice Spring Education Seminar, Ottawa, Ontario, April 25, 2002.
13. R. v. Seaboyer  2 S.C.R. 577 at p.616. See in particular the dissent of L'Heureux-Dubé J. citing among others my 1987 CJWL article.
14. R. v. Darrach,  2 S.C.R. 443.
15. In R. v. Crosby,  2 S.C.R. 912, evidence of prior sexual activity was admitted because it had significantly probative value and was linked to a prior inconsistent statement.
16. Citing her decision in R. v. W.(R.),  2 S.C.R. 122. See also two recent oral decisions of the Court in which children's evidence was implicated: S.G.F. April 22, 2002, SCC No. 28692; V.C.A.S. April 17, 2002 SCC No. 28671.
17. Compare the point made by Jill McCalla Vickers in 1976, Feminism in Canada
18. The Honourable Claire L=Heureux-Dubé, "Beyond The Myths: Equality, Impartiality And Justice" Social Distress 2000 (MS at 13).
19. The Honourable Claire L=Heureux-Dubé, "What a Difference a Decade Makes: The Canadian Constitution and the Family Since 1991" (2001) 27 Queen's L.J. 361 at 364.
20. See The Honourable Lynn Smith, 2002 (Niagara)
21.Supra note 17. See eg. Corbiere v. Canada, 1999; Law v. Canada, 1999; Egan v. Canada, 1995; Andrews v. Law Society of British Columbia, 1987). See also, S. Sugunasiri, "Contextualism: The Supreme Court=s New Standard of Judicial Analysis and Accountability"(1999) 22 Dalhousie Law Journal, 126 - 184.
22. Lynn Smith, supra.
23. (See "What a Difference a Decade Makes: The Canadian Constitution and the Family Since 1991" (2001) 27 Queen's L.J. 361 at 372.
24. See "Conversations on Equality" (1999) 26 Man. L.J. 273 at 278-9, emphasis added
25. Cite to follow
26. Lenore M.J. Simon, « Sex Offender Legislation and the Anti-Therapeutic Effects on Victims" (1999) 41 Arizona Law Review 485.
27. See eg. Hugh Collins, "Strangers and Intimates" cite to follow; Ian MacNeil, Relational Contracts, cite to follow.
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