Reasonable Doubt in Credibility Contests: Sexual Assault and Sexual Equality
| Date | 01 November 2009 |
| Author | Christine Boyle |
| DOI | 10.1350/ijep.2009.13.4.329 |
| Published date | 01 November 2009 |
| Subject Matter | Article |
REASONABLE DOUBT IN CREDIBILITY CONTESTS Reasonable doubt in
credibility contests:
sexual assault and
sexual equality
By Christine Boyle*
Professor of Law, University of British Columbia, Canada
Abstract Sexual assault prosecutions present particular challenges in making
credibility determinations in ‘he said/she said’ cases. An analysis of Canadian
law illustrates how attempts to avoid the ‘either/or’ error can be vulnerable to a
critique that the understanding of reasonable doubt in such cases is
inconsistent with sex equality. The possible ways in which accused persons may
be given the benefit of a less than reasonable doubt, and the resulting
implications for both sex equality and judicial impartiality, are discussed in this
article. A return to basic principles is suggested.
Keywords Sexual assault trials; Burden of proof; Credibility contests;
Reasonable doubt; Equality rights
he focus of this article is on the gender implications of the law relating to
burden of proof as applied to determinations of credibility in sexual
assault prosecutions. The Supreme Court of Canada has recently made
several decisions reflecting a cluster of matters inter-connected with the rule1that
the Crown must prove guilt beyond a reasonable doubt in what are often referred
to as ‘he said/she said’ cases. This cluster includes issues relating to lack of reasons
doi:10.1350/ijep.2009.13.4.329
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2009) 13 E&P 269–292 269
T
1 In Canada this rule is grounded both in common law (Woolmington vDPP [1935] AC 462, HL) and
s. 11(d) of the Canadian Charter of Rights and Freedoms Part1 of the Constitution Act, enacted by
the Canada Act 1982 (UK), c. 11, Sched. B (hereafter ‘Charter’).
* Email: boyle@law.ubc.ca. This article is based on a presentation given at a National Judicial
Institute conference called ‘Emerging Issues: Why Gender Equality Still Matters’, held in Toronto,
November 2007. Thanks are due to Alexander Budlovsky QC, Professor David Tanovich of the
University of Windsor, and research assistant Jodie Gauthier. The ideas, and any errors, contained
in it, are the author’s own.
for credibility decisions as a ground of appeal,2the significance of the absence of
any corroboration requirement,3and the standard of proof in civil actions for
sexual assault.4The case law includes discussion of some underlying institutional
concerns such as: appellate deference to the fact-finding function of the trial
judge; societal indifference to the outcome of civil actions (including those for
sexual assault) as compared to criminal prosecutions;5and attention to critical
commentary on Supreme Court of Canada jurisprudence.6Not only has there been
a dramatic run of cases touching on how to manage doubt with respect to allega-
tions of sexual assault, but also a corresponding run of commentary from both
academics and practitioners, much of which is published in the Criminal Reports.7
Thus the ink has barely been dry on the latest decision before one could read
reactions to it.
A little attention has been paid to the issue of whether the current iteration of the
law which gives the benefit of any reasonable doubt to persons accused of sexual
assault meets the constitutional commitment to sex equality. However, there has
been no discussion at all, either in the case law or commentary, of what judicial
impartiality requires in this context. I hope to contribute to what is already a
substantial body of jurisprudential and academic literature by arguing that
impartiality requires at least an aspiration to the egalitarian application of the
concept of reasonable doubt in sexual assault prosecutions.
The leading Canadian case on the burden of proof in cases involving credibility
contests remains the 1991 decision in RvW(D),8which is discussed below along
with the more recent decisions of the Supreme Court of Canada. One of W(D)’s
most active critics is Professor Gans. It is from him that I draw a more dramatic
way of describing the question addressed in this article. Does W(D) (and thus
the law on proving sexual assault in Canada) deserve to be called a ‘rapists’
270 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
REASONABLE DOUBT IN CREDIBILITY CONTESTS
2 See RvREM 2008 SCC 51.
3 See FH vMcDougall 2008 SCC 53 at [77]–[81].
4 Ibid.
5 Ibid. at [42].
6 See RvJHS 2008 SCC 30 at [10].
7 The Criminal Reports is a series of Canadian case reports edited by prominent criminal law
scholar, Professor Don Stuart, which often contains very current commentary on Canadian
developments in the fields of criminal law and evidence.
8 [1991] 1 SCR 742. There is some uncertainty about whether W(D) has won the gold or the bronze
medal for case citations. Jeremy Gans, in ‘The W.(D.) Direction: Part 1’ (2000) 43 CLQ 212 at 212, n. 3,
found that it was the third most frequently cited case in Canada and the most cited case on
criminal procedure.
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