The legal reasoning of Newfoundland Court of Appeal Justice Malcolm Rowe is front and centre in a Crown appeal in a sexual spousal assault case the Supreme Court of Canada is scheduled to hear early in 2017.
The nominee for the Supreme Court is alleged by the Crown to have made a number of legal errors in a judgment issued this spring in R. v. S.B. Rowe wrote the majority decision, which declined to order a new trial for a man acquitted by a jury of assault, sexual assault and weapons charges.
Rowe, with Justice Charles White concurring, outlined several legal errors made by the trial judge, particularly in the application of s. 276 of the Criminal Code that resulted in a number of improper questions being put to the complainant. However, in the 2-1 decision, Rowe and his colleague upheld the acquittal because of what they said were inconsistencies in the trial testimony of the complainant.
“Notwithstanding the serious errors made by the trial judge outlined above, the jury verdict should not be set aside. I have reached this conclusion with reluctance given the unfair manner in which the complainant was dealt with,” wrote Rowe in the Court of Appeal ruling issued this spring.
The Newfoundland Ministry of the Attorney General, in its factum filed with the Supreme Court, is arguing that the majority ruling applied the wrong legal test and placed itself in the jury room.
“In effect, the majority of the Court of Appeal transformed itself from the appellate court to the jury,” writes Iain Hollett, a lawyer with the special prosecutions office of the ministry.
The trial “demonstrated yet again, why section 276 of the Criminal Code was enacted,” writes Hollett. “Despite the unanimous finding that the use of prior sexual history evidence fed the first of the twin myths in a way that was ‘beyond redemption’ and that the decision to exclude evidence rebutting the allegation of recent fabrication “undermined the truth-seeking function of the trial,” the majority of the Newfoundland and Labrador Court of Appeal, refused to order a new trial because C.M.’s [the complainant] impugned credibility "could" give rise to a reasonable doubt,” argues the Crown.
At trial, Justice Robert Stack permitted the defendant to ask about text messages between the complainant and a third party with whom she had an affair. The trial judge also ruled that the complainant could be questioned about the transcript of a private sex tape of her and the accused, for the purposes of determining her “attitude” toward a specific sex act.
The jury was not permitted to see the sex tape, but lengthy and graphic passages were read out from the transcript during the trial.
Rowe, in the majority Court of Appeal judgment, concluded that the trial judge erred in permitting questions about the text messages and sex tape. However, because of the inconsistencies in the testimony of the complainant, there was not a “nexus” between the legal errors and jury acquittal. In dissent, Chief Justice Derek Green concluded that the Crown appeal should be allowed and a new trial ordered.
The Newfoundland Crown argues that by “weighing” the inconsistencies of the complainant’s testimony, the majority did exactly what the Supreme Court said in R. v. Morin that an appellate court could not do — try to predict with certainty what happened in a jury room.
Rosellen Sullivan, who represents S.B., is asking the Supreme Court to uphold the acquittal. The Crown did not meet “the high onus of satisfying the court that the trial judge’s errors might reasonably be thought, in the concrete reality of the case, to have had a material bearing on the acquittal,” says Sullivan in written arguments filed with the court last month.
“Jury decisions must be given considerable deference,” adds Sullivan, a lawyer at Sullivan Breen King in St. John’s.
Rowe will appear next week before the House of Commons Justice and Human Rights committee before he is sworn in as a Supreme Court justice. The Supreme Court is scheduled to hear the appeal in R. v. S.B. in March.