One of the interesting things about appellate court benches that consist of a large number of judges is that a few dissenters can produce a convincing judgment.
A split of 7-2 in the Supreme Court of Canada in R v T.W.W., 2024 SCC 19 illustrates this.
There are procedural points addressed in this case that are of great interest to Canadians, but that I will not discuss here.
Rather, it is the difference over whether the defendant’s claim, that a sexual encounter was not rape because the complainant consented, could be supported by evidence that he and she had had consensual sexual intercourse the previous day.
Everyone agrees that it is wrong to reason that prior consent of itself supports present consent. And it is wrong to reason that prior consent of itself shows that the complainant’s denial of present consent is a lie.
But what if a complainant says that there was no relevant relationship with the defendant before the alleged rape? For example, as in this case as assessed by the dissenting justices Côté and Moreau JJ, although they had been married for 20 years and they still lived in the same house, but now separately, the complainant claimed that their relationship had broken down to the point where she no longer consented to sexual conduct with the defendant. The complainant had implied that she would not have consented to sex with him during their separation [140].
To show that this denial of sexual conduct was incorrect, the defendant should - perhaps you agree - be able to adduce evidence of their having had consensual sexual intercourse the day before the alleged rape [122], [127]. Indeed, the complainant had told the police of that consensual occasion, so it was unlikely to have been a disputed occurrence if it had been disclosed in evidence at trial [127].
The evidence would not be used in this situation to support one of the “twin myths”, namely that here the occurence of sexual intercourse the previous day made it more likely that she would have consented on the present occasion, or that it made her less likely to be telling the truth. Instead, it contradicted her claim of what one might call sexual separation.
Why couldn’t the Supreme Court correct what might appear to be the serious error of not admitting evidence of the previous day’s consensual sexual intercourse?
The majority said that the pre-trial application to adduce the evidence had lacked sufficient specificity [27]-[28], [36], [38]. And that at trial the defence was that the alleged act of intercourse, the rape, had not occurred at all [8]. If it hadn’t occurred, no question of its being consensual could arise. And further, the complainant had not been inconsistent because her denial of a continuing romantic relationship was not a denial of a sexual relationship [40], so evidence of the consensual act of intercourse during the separation would have had little probative value [42]. Appeals to the Supreme Court against conviction have limited scope [46], and here the question whether the trial judge should have re-visited the pre-trial ruling is not an issue for consideration on this appeal [48], but in any event the issue would not have called for reconsideration at trial in this case [53].
Overall, the majority seem to be framing the relevant issue according to what they consider the defence position was at trial, while the minority frame the issue according to what they perceive the complainant to have been saying.
I have the impression that this was one of those trials where, because of the background of a long-standing romantic relationship, both the complainant and the defendant were having difficulty in being clear about what they were saying.
