BenchPress - Vol 42-4 - LawNow Magazine

BenchPress – Vol 42-4

  • SCC Stomping on Sexual Assault Myths

Recently, the Supreme Court of Canada (“SCC”) dismissed an appeal from the Alberta Court of Appeal (“ABCA”). The ABCA had overturned an Alberta Court of Queen’s Bench trial decision in a case of sexual assault.

In this case, a man was acquitted of sexual assault against his stepdaughter. The stepdaughter had complained that when she was 11 to 16 years old, her stepfather touched her sexually about 50 times and simulated a sex act. The Judge at trial, Justice Terry Clackson, found that the man could not be held liable because based on “logic and common sense” the stepdaughter should have avoided him, but she did not do so.

The Crown prosecutor appealed the decision to the ABCA. The ABCA overturned the decision saying that Justice Clackson had used myths and stereotypes about victims. This decision was split 2-1, therefore,  the man, had an “as of right” appeal to the SCC.

The SCC dismissed the appeal. In doing so, the SCC stated that Justice Clackson committed an error in judging the stepdaughter’s credibility based on the difference between her behaviour and the stereotypical behaviour of a victim of sexual assault.

R. v. A.R.J.D., 2018 SCC 6


  1. Publication Bans and Contempt of Court

In another case at the SCC, Canadian Broadcasting Corp. (“CBC”) won a victory against a publication ban. The ban was related to a first degree murder of a person under the age of 18. The Crown Prosecutor was granted a publication ban, meaning that any publication or transmission of the identity of the victim was not permitted. However, CBC had already posted the identity of the victim on its website before the publication ban. CBC refused to take down the information.  The Crown took CBC to court to find CBC in contempt of court and to force CBC to take down the information as an interlocutory injunction.

An interlocutory injunction is an order by the Judge that forces a party to do something, in the middle of a trial, even though the trial has not finished. This is often done to protect a party from potential harm while the trial is going on. The chambers judge dismissed the application according to a three part test for an interlocutory injunction which required that:

  1. The Crown show that there would be a strong likelihood at trial that the CBC would be found in criminal contempt. This means that the Crown would have strong evidence that the CBC openly and publicly defied the Crown’s orders with intent.
  2. The Crown show that irreparable harm were the injunction refused. The Crown argued that the administration of justice would be harmed and others would not want to seek justice because of the ongoing display of information and loss of anonymity.
  3. The Crown balance of convenience would favour the injunction. The balance of convenience asks if the injunction could be balanced with the injury to the defendant, which is in this case to the CBC.

The Chambers judge stated that: a) there was no case made to show that there’s a strong likelihood at trial that CBC would be found in criminal contempt 2) the objective of protecting a victim’s anonymity loses its importance when the victim is deceased 3) the injury of compromising CBC’s freedom of expression and the public interest in the freedom of expression was outweighed by any administration of justice issues.

The ABCA overturned the chambers judge’s decision and granted the interlocutory injunction. The ABCA found that the CBC was willfully disobeying the publication ban and was in contempt. Also, the ABCA found that the publication ban should be considered “constitutional” and that freedom of expression is not a defence to contempt.  The Supreme Court of Canada found that the Crown did not show that there was a strong likelihood at trial that CBC would be found in criminal contempt by intentionally publicly disobeying the publication ban.

R. v. Canadian Broadcasting Corp., 2018 SCC 5


  1. Consent Tops All

A man in Nova Scotia has been acquitted, by the Nova Scotia Court of Appeal (“NSCA”) of causing psychological harm by not disclosing his HIV status prior to having sexual relations with two women. Both women agreed that they had consented to sexual relations with the man. One said a condom was used, the others said it was not. The accused said that he told both of them of his HIV status and a condom was used with both. Neither one of the women contracted HIV. They claimed aggravated assault as well as psychological harm.

At trial, the Crown was required to prove beyond a reasonable doubt that:

  • The accused did not disclose his HIV status;
  • That they would not have consented had they known; and
  • That the sexual activity either transmitted the virus or there was a realistic possibility of HIV transmission.

The trial judge acquitted the man of aggravated sexual assault. In doing so, she relied on the detail of the accused’s anti-retroviral treatments and expert testimony. She found that the Crown did not establish a realistic probability that the HIV would be transmitted. However, she found him guilty of lesser offences, including sexual assault causing bodily harm. She made this finding based on the fact that the complainants suffered psychological harm.

At the NSCA, only the issue of psychological harm was in question. The Court relied on a Supreme Court cases R v. Currier and R v. Mabior, which stated that a person does not have to disclose their HIV positive status, unless there is a significant risk of bodily harm by transmission or realistic possibility of transmission. Emotional stress or upset, even if it causes bodily harm, is “irrelevant” according to this decision. The women had clearly consented to having sexual relations. Therefore, in a situation where there was no realistic possibility of HIV transmission, consent cannot be vitiated (corrupted or injured) by psychological harm. Interestingly, in this case, the women did not attempt to receive psychological or psychiatric treatment for their stress. The Court also noted that failure to disclose that one has a sexually transmitted disease is morally unacceptable, but it is not usually a crime.

R. v Thompson, 2018 NSCA 13



Aaida Peerani
Aaida Peerani is Staff Lawyer and Editor for LawNow Magazine at the Centre for Public Legal Education Alberta.

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