June 20, 2025 • 22 mins
The legal landscape in Canada continues to evolve with significant implications for sexual assault cases, courtroom procedures, and sentencing guidelines.
A groundbreaking Supreme Court of Canada decision has overturned a British Columbia sexual assault conviction in a case where prosecutors introduced evidence about the complainant's sexual inexperience without proper screening. The Court established that "sexual inactivity evidence" – including statements about virginity or lack of sexual interest – must face the same strict admissibility standards as evidence about past sexual activity. This landmark ruling recognizes that just as past consent doesn't imply present consent, past abstinence doesn't imply present non-consent. The decision extends protections against "twin myth reasoning" to both sides of the courtroom, requiring voir dire hearings whenever either Crown or defence wishes to introduce evidence about sexual history or the lack thereof.
Meanwhile, the BC Supreme Court has issued a fascinating new practice direction on witness oaths and affirmations. While the Bible remains available in courtrooms, witnesses wishing to swear upon other religious or cultural items must now bring their own. The directive specifically addresses concerns about ceremonial practices that might compromise courtroom "dignity, decorum and/or safety" – a provision likely influenced by historical oath ceremonies involving chicken beheadings, candle-burning rituals, saucer-smashing, and other culturally-specific practices. This raises profound questions about the continued relevance of religious declarations in modern court proceedings and whether simply affirming to tell the truth might better serve justice.
The courts also clarified the binding nature of joint submissions in a manslaughter case involving a man whose push led to his girlfriend's accidental fatal fall from a cliff. The BC Court of Appeal emphasized that judges cannot "tinker" with sentencing agreements between prosecution and defence unless they would "bring the administration of justice into disrepute." This high threshold protects the plea bargaining system that keeps our courts functioning. These cases collectively demonstrate how Canadian courts continue to balance procedural fairness, cultural sensitivity, and practical administration of justice in an evolving society. Subscribe to hear more analysis of pivotal legal developments that shape our justice system and reflect our changing social values.
Follow this link for a transcript of the show and links to the cases discussed.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Adam Stirling (00:00):
It's time for our regular segment, joined as
always by Barrister andSolicitor with Mulligan Defence
Lawyers.
Michael Mulligan, it's LegallySpeaking on CFAX 1070.
Afternoon, michael, how are wedoing?
Michael Mulligan (00:09):
Hey, good afternoon.
I'm doing great.
Always good to be here.
Adam Stirling (00:12):
Some interesting items on the agenda this week.
I'm reading number one.
It says the Supreme Court ofCanada overturns a BC sexual
assault conviction.
Michael Mulligan (00:26):
It says, due to the Crown leading evidence
that the complainants does, thatsay virginity.
That's exactly right.
That's exactly what it says andit's the language that the
Supreme Court of Canada used wassexual inactivity evidence.
Now there's some interestingbackground to all of this.
For some time in Canada we'vehad some provisions that limit
the evidence that can be led insexual assault cases, and those
(00:47):
rules were designed.
They've changed a bit over theyears, but they've been designed
to prevent what's been referredto as twin myth reasoning, and
the rules are generally appliedto the defense.
No-transcript.
(01:25):
Somebody might have consentedto other activity doesn't mean
you've consented to theparticular activity that's being
dealt with, so that's viewed asa myth and prohibited.
And then the other myth thatthe rules intended to deal with
is a myth that if somebody ispromiscuous they are less worthy
of belief.
Now, I'm not sure where that'sgetting with anyone at 2025, but
(01:45):
that's the other part of thetwin myth reasoning those rules
are intended to prevent and whatthey mean is that if the
defense wants to lead evidenceabout some past activity that
the complainant has engaged in,there has to be what's called a
voir dire, like a hearing beforethe judge hearing the case to
decide whether that's going tobe permitted or not.
(02:06):
There are some circumstanceswhere it might be relevant and
permitted, but not to make thosearguments that you're more
likely to have consented to thisbecause you consented to
something else to the extentthat makes any sense to anyone
anyways or the argument thatyou're promiscuous, therefore
you shouldn't be believed.
Well, that's been around forsome time and, interestingly,
(02:26):
it's caused some challenges interms of the time it's taken for
trials to complete because itrequires this two-stage hearing
or voir dire, prior to that kindof evidence being allowed or
not allowed.
And sometimes even those kindof things occur unexpectedly
during a trial, which causestrials to be adjourned and take
(02:48):
longer.
And that's been a challenge.
And that was the context inwhich the Supreme Court of
Canada was dealing with thisdecision that they just came out
with, which was the opposite ofthat and it's a BC case and it
was a sexual assault allegation.
It was two people who met, Ithink, at a motorcycle
dealership and then had a seriesof social media exchanges for
(03:12):
months and then eventually gottogether at the apartment of the
accused.
The complainant alleged thatshe was sexually assaulted and
the accused said no, it wasconsensual, was consensual.
And in that context the Crownnot the defense led a whole
bunch of evidence from thesesocial media posts or messages
back and forth between these twopeople, and those messages
(03:34):
included messages from thecomplainant saying that she was
a virgin, that she was notinterested in any sexual
activity and not interested insexual activity at least at some
point with the accused.
And the judge allowed all ofthat evidence to go in without
having one of those board yearsto decide if it was allowed or
not.
Both people testified, thejudge relied upon those messages
(03:58):
in finding that the accused wasguilty, and so that's the fact
pattern.
They got appealed first to theBC Court of Appeal and then just
recently to the Supreme Courtof Canada, and the Supreme Court
of Canada concluded that whatthe Crown did in that case was
prohibited, and they referred tothat twin myth reasoning we
(04:21):
just talked about and it foundthat the same applies in the
reverse for the Crown.
And here the Crown was tryingto lead this evidence about the
complainant saying she had notpreviously engaged in sexual
activity, to argue that it'sless likely she consented to the
sexual activity in question,and the Supreme Court of Canada
(04:42):
said well, that's not permitted,that's presumptively
inadmissible, on the samereasoning that just because
somebody might have consented toother sexual activity in the
past doesn't mean they consentedto the subject matter that's
being dealt with.
The flip side of that is trueJust because somebody hadn't
consented to activity in thepast with other people or in
other circumstances does notmean they didn't consent to the
(05:05):
activity in question in the casebeing tried.
And so the Supreme Court ofCanada found that was not
permissible and that where theCrown wants to try to lead
evidence of sexual inactivity, ajudge would need to have one of
these two-stage hearings.
First of all to ask in thefirst part of this first stage
of it is it even possible thisevidence could be admitted?
(05:28):
Because it can never beadmitted for one of those myths
Like the Crown could never getaway with saying we want to lead
evidence of the person's lackof interest in sexual activities
to suggest either they're lesslikely to have consented or that
they're more worthy of belief.
Those don't fly.
And if there's to be some otherargument by the Crown about how
(05:49):
the inactivity or professedsexual inactivity is relevant to
the particular case, the judgeneeds to conduct one of those
voir dire or hearings, just likethey would need to conduct if
the defense was trying to leadthe opposite, saying the person
is unbelievable or more likelyto have consented, and so that's
now clear in the law from theSupreme Court of Canada.
(06:10):
The Supreme Court of Canadaoverturned the conviction of
this case because the judge didin fact rely upon those things
in finding that the indisbelieving the accused and
convicting him, and so there'llbe a new trial, and so it's an
interesting case, I thought,both because it deals with that
concept of that twin mythreasoning that those need for
(06:31):
those other hearings and thefact that they're now going to
be applied in cases where theCrown wants to leave some kind
of evidence like that.
And one of the worries here andthe Supreme Court of Canada
referred to it because it waspart of the argument here, but
whether this should be necessaryor not is that this will lead
(06:51):
to further delays in trials ofthis kind where, for example,
the Crown decides they want todo that sort of thing at the
last minute.
It may mean that trials getadjourned and in some cases,
cases we've seen have beenstayed as a result of taking too
long, and so that's one of theworries.
One of the other interestingthings is that in a case where
(07:13):
the defense wants to lead thatkind of evidence right about
previous activity, thecomplainant is entitled to have
their own lawyer show up incourt and argue about it,
because sometimes they have adifferent position on the Crown
right?
The Crown might say in somecase, yeah, this evidence is
perfectly reasonable and itshould be admitted, but maybe
(07:33):
the complainant wants to take adifferent position.
That leads to even furtherdelay because then you've got to
get, you've got to inject athird lawyer into the process in
order to have one of thehearings.
Interestingly, the SupremeCourt of Canada said usually
that's not going to be anelement of this.
Where the Crown's trying toevidence of sexual inactivity, a
judge will have some discretion, but generally they aren't
(07:55):
going to inject a third lawyerinto it on behalf of the
complainant.
The submissions about trying toget that kind of evidence in
would be made by the Crown.
So I guess you could have areally bizarre circumstance
where you might have the Crowntrying to get sexual inactivity
evidence admitted where thecomplainant doesn't want it but
doesn't have counsel to opposeit.
So anyways, that's the latestfrom the Supreme Court of Canada
(08:18):
.
Plainly, everyone's verysensitive about these things.
They're really sensitive andimportant cases.
But it's going to mean there'sgoing to be screening on both
sides if anyone wants to try toget into past sexual activity or
the absence of sexual activity.
So that's the latest from theSupreme Court of Canada on more
deers in sexual assault cases.
Adam Stirling (08:38):
All right, we'll take a quick break.
Legally speaking, we'llcontinue right after this.
Legally speaking continues onCFAX 1070.
Whoops, I hit the wrong buttonbecause I fell short of the
phone.
I think Michael Mulligan fromMulligan and Defense Lawyers is
on this slide.
Sorry about that, michael.
I hit a different phone linetoday and good news, it still
worked.
Where were we?
(08:58):
It says up next year.
It says a new BC Supreme Courtpractice direction.
What's a practice direction?
Michael Mulligan (09:04):
That's a great question.
So the way it works is for aset of administrative decisions
about how the court is to run.
Each of the courts in theprovince like the provincial
courts, supreme Court, court ofAppeal, the chief judge or
justice as the case might be canissue these things that are
practice directions, that aresort of rules about how the sort
(09:26):
of procedure of court shouldoperate, rather than a
particular decision in aparticular case, and so we just
had one of those it's aninteresting one out of the BC
Supreme Court and the practicedirections title is Witness,
oaths and Affirmations.
Now the first part about that.
It has three rules that are setout here.
(09:46):
One before a witness is calledto testify, the party or council
must advise the clerk whetherthe witness wishes to swear an
oath or affirm.
Now, that's interesting.
That used to be the case For aperiod of time over COVID.
We stopped asking witnesses ifthey wanted to swear an oath or
affirm for fear they would getCOVID from the Bible.
That's what.
Back in the early days we werewiping down our groceries with
(10:08):
alcohol and so they stopped that.
They just said everyone's goingto affirm.
Because we don't know how thisis getting transmitted.
We don't want people picking upBibles, so they actually took
the Bibles out of the courtrooms.
Now we're back, I should say.
In that regard, if it were forme to decide, I would just have
everyone affirm Frankly, why dowe need a religious declaration?
Is that really getting a gripon somebody's?
You know, are people going tobe telling me the truth more
(10:32):
frequently for fear that theirsoul is going to be damned if
they don't?
I don't know if that's gettingus too far in 2025, but we're
back Now.
Another interesting thing ruletwo.
Now another interesting thing.
Rule two if the witness wishesto swear an oath using a
religious or cultural item otherthan the Bible, it is the
responsibility of the partycalling the witness or their
(10:54):
counsel to make arrangements forthe appropriate item to be
available, so they're not goingto have a selection of religious
books or objects for people toswear on.
You've got to bring your own ifit's anything other than the
Bible.
That's an interesting one tothink about.
Should we have that right, orshould we have this at all?
And if we are having it, shouldthere be one option there?
That's interesting.
(11:15):
That's rule two.
Now, there's a long history tothese things, and there's a long
history and this will come torule three in a moment.
Here there's a long history ofdifferent oaths being taken by
different groups for differentreasons.
One of the ones there are awhole series of them.
They actually were set outuntil very recently in a desk
book that all the clerk said.
(11:35):
They were all listed.
You look them up.
They gave them instructions onhow to do it.
One of those oaths which wasapparently used with some
frequency was what's called thechicken oath the chicken oath
and the chicken oath, and thedesk book provided instructions
about how that was to work ifsomebody chose to take the
chicken oath.
When they asked to take thechicken oath, it specified that
(11:58):
the court clerk was required toprocure a cock like a male
chicken, required to procure acock like a male chicken.
The court proceedings were tobe adjourned to outside the
courthouse and there would alsobe a knife and a block of wood
and the witness would cut thehead off the chicken and say
some things about how they weregoing to tell the truth or
they'd be killed like thechicken and one of the
(12:21):
backgrounders for this rule.
There's a picture up in Nanaimofrom 1914 of the whole court
standing outside while somebodycuts the head off a chicken.
Now that comes to the issue ofproviding the item.
There's actually a VancouverIsland case indeed from 1895,
where there was a bill submittedto the government for several
(12:42):
chickens and a knife as a resultof witnesses wanting to testify
with they're testifying withthe chicken oath.
They thought government shouldpay for the chickens, in that
case the BC government.
They refused to pay for thechickens and the rationale was
because they were being used bythe plaintiffs in a case rather
than the defense.
So the fact that you've got tobring your own is actually to
(13:04):
the subject of some litigation,at least in that context.
There are a whole series ofother types of oaths that were
in the book and were used, andthey include things like there's
one called the candle oath,where a witness would hold their
hand over a lit candle whileswearing the oath and then
extinguish the flame, I guess,with their hands.
There's a saucer oath whereyou'd smash the saucer and say
(13:26):
that your soul shall be brokenlike the saucer if you lie.
There's a paper oath whereyou'd swear to write your name
on a piece of paper and light iton fire.
The most bizarre list is here,although this was used in some
of the colonies.
I don't know if we had a BChistory of it where there was
one group, cultural group, whowould bite the skin from a live
(13:46):
dog and then say I bite this dogso I may be eaten if I lie,
just imagine that.
So there's a long history to it.
That may explain rule three inthe practice directive.
Rule three in the event of anyconcern that a religious or
cultural item, be it a plate,dog or chicken, I guess a
(14:06):
witness intends to use, is notcompatible with the dignity,
decorum and or safety of thecourt proceedings, the court
clerk or sheriff will notify thepresiding judge, associate
judge or registrar and seekdirections.
Signed Chief Justice RonScowrod.
(14:27):
So that's the third rule, and Idon't know what prompted that
right now, because this is abrand new practice directive,
but something did.
And so if somebody purports touse a chicken or a candle or a
saucer or a live dog, forheaven's sakes, they've
specified in this practicedirection that the court clerk,
(14:50):
rather than just going out andprocuring the caulk and the
knife, is now going to have tonotify the judge, associate
judge or registrar and getdirection.
It doesn't say what directionthey shall give or what criteria
they ought to apply, but itdoes specify that they're going
to have to get direction.
It also specifies that theparty wanting to do one of these
various things is going to haveto go get the object or the
(15:13):
book.
And so I guess, again in thiswhole context, perhaps the
solution would be to just haveeveryone affirm to tell the
truth, and that way we can startwith witnesses not having to
make some, you know, religiousdeclaration.
And really, is it appropriate?
If there's some greater weightgiven to somebody who's making a
religious declaration asopposed to an affirmation, why
(15:35):
is that appropriate, you know?
Should there be some kind ofjudgment call made or some
greater or less degree ofreliability placed on a witness
because they've chosen to use aBible or a different book?
Why are we doing this?
But anyways, there we are.
It seems to me we could have,perhaps quite conveniently, just
stuck with the state of affairsthat we had as a result of the
(15:56):
you know misguided conclusionsabout how COVID spread to get
rid of the Bible, and just stuckwith every single person
getting up there and affirming,rather than worrying about
chickens and candles and livedogs and who's got to get the
book and whether we should onlyhave the Bible or not.
But there it is.
And I should say as well youknow, some of this may come as
(16:18):
recently as 93, the SupremeCourt of Canada spoke about well
, it still thinks they stillview it as a compelling reasons
to prefer statements made withthese sort of with oaths.
I don't know right.
I mean, I guess you askyourself if you're listening,
you're on a jury and you'relistening to a witness, you know
, are you going to feel moreconfident that the person's
(16:41):
telling the truth because theyswore an oath on a religious
book?
What do you think of it if youdon't agree with the religion,
should a juror be giving lessweight to it?
What if you think the ceremonythe person's performing is
somehow distasteful?
Should that affect it?
You know, really, that's kind ofwhere the rubber hits the road.
You're going to have seriouscases.
You're going to have potentialjuries or jurors or judges
(17:03):
listening to these things.
How should this have anybearing on it really at all?
And so well, I guess, in myview, it's perhaps unfortunate
that we just missed out on theopportunity to fix upon what
we've been doing, perhaps forsome mistaken reason, in terms
of why we got rid of all theseoaths.
But anyways, as of the 6th ofthis month, we've got a new
(17:25):
practice directive and if peoplewant to be using some other
cultural object or some otherbook other than the Bible,
they're going to have to bringit along and we're going to get
back to asking every witnesswhich they prefer, and then
somehow some judicial officialhas to figure out what to do if
they view the practice assomehow incompatible with
dignity or decorum.
(17:45):
So that's the latest in termsof what a practice directive is
and what's required in terms ofoaths and affirmations.
Adam Stirling (17:53):
We have three and a half minutes left and it's
the case of the push and theaccidental fall off the cliff,
and I've seen this going aroundin headlines.
Your thoughts on this one.
Michael Mulligan (18:03):
Well, the actual decision from the BC
Court of Appeal and it's atragic case.
It's a case involving a man whopushed his girlfriend.
She fell off a cliff.
It was accepted that that wasaccidental, but it was still an
assault, so he pled guilty tomanslaughter and he was assault,
(18:32):
or whether the sentencegenerally was appropriate or not
.
And it has to do first of allwith what a joint submission is.
And a joint submission in acase is where the Crown and the
defense agree in terms of whatthe sentence is going to be and
it's the basis upon which peoplewind up pleading guilty, right.
(18:54):
And you can imagine, in thiscase there could well have been
real challenges of proof aboutsort of what happened or how she
wound up over the cliff orwhatnot.
But in any case, the man woundup pleading guilty to
manslaughter on the basis ofthis push that caused the woman
to, on the basis of amanslaughter plea,
unintentionally fall off and die.
Right.
If you intentionally did that,that's murder, right.
(19:16):
But there was a joint submission.
Both Crown and Defense agreedon the fact pattern and also
agreed on exactly what sentenceshould be imposed, right down to
the calculation of time spent,and had already spent in jail.
He'd spent in jail 440 dayswaiting for his eventual trial
(19:36):
or guilty plea right, and sothat's taken into account.
Right.
It would be unreasonable to saysorry, we're not taking into
account, you spent a year and ahalf in prison.
But there then has to be adecision about how do you
calculate that, and usuallythere's some additional credit
given for the time in custodybeforehand.
Because there's no parole,you're sitting in a cell without
any programming.
It can be miserable.
And so there was the jointsubmission of this case went
(19:59):
right down to calculation oflike how many days credit should
be given for the 440 days spentin custody and what should the
results of that be in terms ofhow long this person's sentence
should be.
The sentencing judge had someproblem with that said.
Well, I want furtherinformation, I want to get a
pre-sentence report ordered andkind of delayed the sentencing
proceeding.
(20:20):
All of that is interestingbecause the Supreme Court of
Canada has said clearly thatwhere there's a joint submission
, a judge doing the sentencingdoes not have the authority to
depart from what the Crown andthe defence have agreed to,
unless what's being agreed to isso inappropriate that it would
bring the administration ofjustice into disrepute.
(20:41):
It's sort of got to becompletely outlandish or the
judge is required to accept it.
In the Supreme Court of Canadaand the Court of Appeal has said
, as is, they can't tinker withit, the theory being that if the
judges could depart from what'sbeing agreed to routinely,
nobody would plead guilty andthe justice system would
basically come to his knees.
Here the judge did tinker withit and rather than ultimately
(21:04):
imposing a provincial sentence,which is one of two years or
less, she imposed one which wasa federal sentence of just over
two years, by giving himslightly less credit in the
calculation for dead time.
That was the basis of the appeal, and the Court of Appeal
allowed the appeal and they saidlook, that's just an error of
law.
The judge does not haveauthority to do that.
They can't tinker with it.
(21:24):
The judge can assess whetherit's so unhinged from the
circumstances that it wouldbring the administration of
justice into disrepute.
But if it doesn't fail on thatvery high bar, a judge can't
then just meddle with thesentence and change it, even in
small ways.
And here this was a true jointsubmission.
They agreed right down to thecalculation of time and so, on
(21:44):
that basis, allowed the appealand imposed the sentence that
was agreed to, meaning theperson will serve it in a
provincial jail rather than apenitentiary.
Adam Stirling (21:53):
that's what's going on in that case michael
mulligan, from mulligan defenselawyers, legally speaking during
the second half of our secondhour every thursday.
Thank you so much.
Pleasure as always thanks much.
Michael Mulligan (22:02):
It's always great to be here.
Have a great day.
All right, you too, we'll takequick break.
Adam Stirling (22:05):
News is next.
It's time for our regular segment, joined as
always by Barrister andSolicitor with Mulligan Defence
Lawyers.
Michael Mulligan, it's LegallySpeaking on CFAX 1070.
Afternoon, michael, how are wedoing?
Michael Mulligan (00:09):
Hey, good afternoon.
I'm doing great.
Always good to be here.
Adam Stirling (00:12):
Some interesting items on the agenda this week.
I'm reading number one.
It says the Supreme Court ofCanada overturns a BC sexual
assault conviction.
Michael Mulligan (00:26):
It says, due to the Crown leading evidence
that the complainants does, thatsay virginity.
That's exactly right.
That's exactly what it says andit's the language that the
Supreme Court of Canada used wassexual inactivity evidence.
Now there's some interestingbackground to all of this.
For some time in Canada we'vehad some provisions that limit
the evidence that can be led insexual assault cases, and those
(00:47):
rules were designed.
They've changed a bit over theyears, but they've been designed
to prevent what's been referredto as twin myth reasoning, and
the rules are generally appliedto the defense.
No-transcript.
(01:25):
Somebody might have consentedto other activity doesn't mean
you've consented to theparticular activity that's being
dealt with, so that's viewed asa myth and prohibited.
And then the other myth thatthe rules intended to deal with
is a myth that if somebody ispromiscuous they are less worthy
of belief.
Now, I'm not sure where that'sgetting with anyone at 2025, but
(01:45):
that's the other part of thetwin myth reasoning those rules
are intended to prevent and whatthey mean is that if the
defense wants to lead evidenceabout some past activity that
the complainant has engaged in,there has to be what's called a
voir dire, like a hearing beforethe judge hearing the case to
decide whether that's going tobe permitted or not.
(02:06):
There are some circumstanceswhere it might be relevant and
permitted, but not to make thosearguments that you're more
likely to have consented to thisbecause you consented to
something else to the extentthat makes any sense to anyone
anyways or the argument thatyou're promiscuous, therefore
you shouldn't be believed.
Well, that's been around forsome time and, interestingly,
(02:26):
it's caused some challenges interms of the time it's taken for
trials to complete because itrequires this two-stage hearing
or voir dire, prior to that kindof evidence being allowed or
not allowed.
And sometimes even those kindof things occur unexpectedly
during a trial, which causestrials to be adjourned and take
(02:48):
longer.
And that's been a challenge.
And that was the context inwhich the Supreme Court of
Canada was dealing with thisdecision that they just came out
with, which was the opposite ofthat and it's a BC case and it
was a sexual assault allegation.
It was two people who met, Ithink, at a motorcycle
dealership and then had a seriesof social media exchanges for
(03:12):
months and then eventually gottogether at the apartment of the
accused.
The complainant alleged thatshe was sexually assaulted and
the accused said no, it wasconsensual, was consensual.
And in that context the Crownnot the defense led a whole
bunch of evidence from thesesocial media posts or messages
back and forth between these twopeople, and those messages
(03:34):
included messages from thecomplainant saying that she was
a virgin, that she was notinterested in any sexual
activity and not interested insexual activity at least at some
point with the accused.
And the judge allowed all ofthat evidence to go in without
having one of those board yearsto decide if it was allowed or
not.
Both people testified, thejudge relied upon those messages
(03:58):
in finding that the accused wasguilty, and so that's the fact
pattern.
They got appealed first to theBC Court of Appeal and then just
recently to the Supreme Courtof Canada, and the Supreme Court
of Canada concluded that whatthe Crown did in that case was
prohibited, and they referred tothat twin myth reasoning we
(04:21):
just talked about and it foundthat the same applies in the
reverse for the Crown.
And here the Crown was tryingto lead this evidence about the
complainant saying she had notpreviously engaged in sexual
activity, to argue that it'sless likely she consented to the
sexual activity in question,and the Supreme Court of Canada
(04:42):
said well, that's not permitted,that's presumptively
inadmissible, on the samereasoning that just because
somebody might have consented toother sexual activity in the
past doesn't mean they consentedto the subject matter that's
being dealt with.
The flip side of that is trueJust because somebody hadn't
consented to activity in thepast with other people or in
other circumstances does notmean they didn't consent to the
(05:05):
activity in question in the casebeing tried.
And so the Supreme Court ofCanada found that was not
permissible and that where theCrown wants to try to lead
evidence of sexual inactivity, ajudge would need to have one of
these two-stage hearings.
First of all to ask in thefirst part of this first stage
of it is it even possible thisevidence could be admitted?
(05:28):
Because it can never beadmitted for one of those myths
Like the Crown could never getaway with saying we want to lead
evidence of the person's lackof interest in sexual activities
to suggest either they're lesslikely to have consented or that
they're more worthy of belief.
Those don't fly.
And if there's to be some otherargument by the Crown about how
(05:49):
the inactivity or professedsexual inactivity is relevant to
the particular case, the judgeneeds to conduct one of those
voir dire or hearings, just likethey would need to conduct if
the defense was trying to leadthe opposite, saying the person
is unbelievable or more likelyto have consented, and so that's
now clear in the law from theSupreme Court of Canada.
(06:10):
The Supreme Court of Canadaoverturned the conviction of
this case because the judge didin fact rely upon those things
in finding that the indisbelieving the accused and
convicting him, and so there'llbe a new trial, and so it's an
interesting case, I thought,both because it deals with that
concept of that twin mythreasoning that those need for
(06:31):
those other hearings and thefact that they're now going to
be applied in cases where theCrown wants to leave some kind
of evidence like that.
And one of the worries here andthe Supreme Court of Canada
referred to it because it waspart of the argument here, but
whether this should be necessaryor not is that this will lead
(06:51):
to further delays in trials ofthis kind where, for example,
the Crown decides they want todo that sort of thing at the
last minute.
It may mean that trials getadjourned and in some cases,
cases we've seen have beenstayed as a result of taking too
long, and so that's one of theworries.
One of the other interestingthings is that in a case where
(07:13):
the defense wants to lead thatkind of evidence right about
previous activity, thecomplainant is entitled to have
their own lawyer show up incourt and argue about it,
because sometimes they have adifferent position on the Crown
right?
The Crown might say in somecase, yeah, this evidence is
perfectly reasonable and itshould be admitted, but maybe
(07:33):
the complainant wants to take adifferent position.
That leads to even furtherdelay because then you've got to
get, you've got to inject athird lawyer into the process in
order to have one of thehearings.
Interestingly, the SupremeCourt of Canada said usually
that's not going to be anelement of this.
Where the Crown's trying toevidence of sexual inactivity, a
judge will have some discretion, but generally they aren't
(07:55):
going to inject a third lawyerinto it on behalf of the
complainant.
The submissions about trying toget that kind of evidence in
would be made by the Crown.
So I guess you could have areally bizarre circumstance
where you might have the Crowntrying to get sexual inactivity
evidence admitted where thecomplainant doesn't want it but
doesn't have counsel to opposeit.
So anyways, that's the latestfrom the Supreme Court of Canada
(08:18):
.
Plainly, everyone's verysensitive about these things.
They're really sensitive andimportant cases.
But it's going to mean there'sgoing to be screening on both
sides if anyone wants to try toget into past sexual activity or
the absence of sexual activity.
So that's the latest from theSupreme Court of Canada on more
deers in sexual assault cases.
Adam Stirling (08:38):
All right, we'll take a quick break.
Legally speaking, we'llcontinue right after this.
Legally speaking continues onCFAX 1070.
Whoops, I hit the wrong buttonbecause I fell short of the
phone.
I think Michael Mulligan fromMulligan and Defense Lawyers is
on this slide.
Sorry about that, michael.
I hit a different phone linetoday and good news, it still
worked.
Where were we?
(08:58):
It says up next year.
It says a new BC Supreme Courtpractice direction.
What's a practice direction?
Michael Mulligan (09:04):
That's a great question.
So the way it works is for aset of administrative decisions
about how the court is to run.
Each of the courts in theprovince like the provincial
courts, supreme Court, court ofAppeal, the chief judge or
justice as the case might be canissue these things that are
practice directions, that aresort of rules about how the sort
(09:26):
of procedure of court shouldoperate, rather than a
particular decision in aparticular case, and so we just
had one of those it's aninteresting one out of the BC
Supreme Court and the practicedirections title is Witness,
oaths and Affirmations.
Now the first part about that.
It has three rules that are setout here.
(09:46):
One before a witness is calledto testify, the party or council
must advise the clerk whetherthe witness wishes to swear an
oath or affirm.
Now, that's interesting.
That used to be the case For aperiod of time over COVID.
We stopped asking witnesses ifthey wanted to swear an oath or
affirm for fear they would getCOVID from the Bible.
That's what.
Back in the early days we werewiping down our groceries with
(10:08):
alcohol and so they stopped that.
They just said everyone's goingto affirm.
Because we don't know how thisis getting transmitted.
We don't want people picking upBibles, so they actually took
the Bibles out of the courtrooms.
Now we're back, I should say.
In that regard, if it were forme to decide, I would just have
everyone affirm Frankly, why dowe need a religious declaration?
Is that really getting a gripon somebody's?
You know, are people going tobe telling me the truth more
(10:32):
frequently for fear that theirsoul is going to be damned if
they don't?
I don't know if that's gettingus too far in 2025, but we're
back Now.
Another interesting thing ruletwo.
Now another interesting thing.
Rule two if the witness wishesto swear an oath using a
religious or cultural item otherthan the Bible, it is the
responsibility of the partycalling the witness or their
(10:54):
counsel to make arrangements forthe appropriate item to be
available, so they're not goingto have a selection of religious
books or objects for people toswear on.
You've got to bring your own ifit's anything other than the
Bible.
That's an interesting one tothink about.
Should we have that right, orshould we have this at all?
And if we are having it, shouldthere be one option there?
That's interesting.
(11:15):
That's rule two.
Now, there's a long history tothese things, and there's a long
history and this will come torule three in a moment.
Here there's a long history ofdifferent oaths being taken by
different groups for differentreasons.
One of the ones there are awhole series of them.
They actually were set outuntil very recently in a desk
book that all the clerk said.
(11:35):
They were all listed.
You look them up.
They gave them instructions onhow to do it.
One of those oaths which wasapparently used with some
frequency was what's called thechicken oath the chicken oath
and the chicken oath, and thedesk book provided instructions
about how that was to work ifsomebody chose to take the
chicken oath.
When they asked to take thechicken oath, it specified that
(11:58):
the court clerk was required toprocure a cock like a male
chicken, required to procure acock like a male chicken.
The court proceedings were tobe adjourned to outside the
courthouse and there would alsobe a knife and a block of wood
and the witness would cut thehead off the chicken and say
some things about how they weregoing to tell the truth or
they'd be killed like thechicken and one of the
(12:21):
backgrounders for this rule.
There's a picture up in Nanaimofrom 1914 of the whole court
standing outside while somebodycuts the head off a chicken.
Now that comes to the issue ofproviding the item.
There's actually a VancouverIsland case indeed from 1895,
where there was a bill submittedto the government for several
(12:42):
chickens and a knife as a resultof witnesses wanting to testify
with they're testifying withthe chicken oath.
They thought government shouldpay for the chickens, in that
case the BC government.
They refused to pay for thechickens and the rationale was
because they were being used bythe plaintiffs in a case rather
than the defense.
So the fact that you've got tobring your own is actually to
(13:04):
the subject of some litigation,at least in that context.
There are a whole series ofother types of oaths that were
in the book and were used, andthey include things like there's
one called the candle oath,where a witness would hold their
hand over a lit candle whileswearing the oath and then
extinguish the flame, I guess,with their hands.
There's a saucer oath whereyou'd smash the saucer and say
(13:26):
that your soul shall be brokenlike the saucer if you lie.
There's a paper oath whereyou'd swear to write your name
on a piece of paper and light iton fire.
The most bizarre list is here,although this was used in some
of the colonies.
I don't know if we had a BChistory of it where there was
one group, cultural group, whowould bite the skin from a live
(13:46):
dog and then say I bite this dogso I may be eaten if I lie,
just imagine that.
So there's a long history to it.
That may explain rule three inthe practice directive.
Rule three in the event of anyconcern that a religious or
cultural item, be it a plate,dog or chicken, I guess a
(14:06):
witness intends to use, is notcompatible with the dignity,
decorum and or safety of thecourt proceedings, the court
clerk or sheriff will notify thepresiding judge, associate
judge or registrar and seekdirections.
Signed Chief Justice RonScowrod.
(14:27):
So that's the third rule, and Idon't know what prompted that
right now, because this is abrand new practice directive,
but something did.
And so if somebody purports touse a chicken or a candle or a
saucer or a live dog, forheaven's sakes, they've
specified in this practicedirection that the court clerk,
(14:50):
rather than just going out andprocuring the caulk and the
knife, is now going to have tonotify the judge, associate
judge or registrar and getdirection.
It doesn't say what directionthey shall give or what criteria
they ought to apply, but itdoes specify that they're going
to have to get direction.
It also specifies that theparty wanting to do one of these
various things is going to haveto go get the object or the
(15:13):
book.
And so I guess, again in thiswhole context, perhaps the
solution would be to just haveeveryone affirm to tell the
truth, and that way we can startwith witnesses not having to
make some, you know, religiousdeclaration.
And really, is it appropriate?
If there's some greater weightgiven to somebody who's making a
religious declaration asopposed to an affirmation, why
(15:35):
is that appropriate, you know?
Should there be some kind ofjudgment call made or some
greater or less degree ofreliability placed on a witness
because they've chosen to use aBible or a different book?
Why are we doing this?
But anyways, there we are.
It seems to me we could have,perhaps quite conveniently, just
stuck with the state of affairsthat we had as a result of the
(15:56):
you know misguided conclusionsabout how COVID spread to get
rid of the Bible, and just stuckwith every single person
getting up there and affirming,rather than worrying about
chickens and candles and livedogs and who's got to get the
book and whether we should onlyhave the Bible or not.
But there it is.
And I should say as well youknow, some of this may come as
(16:18):
recently as 93, the SupremeCourt of Canada spoke about well
, it still thinks they stillview it as a compelling reasons
to prefer statements made withthese sort of with oaths.
I don't know right.
I mean, I guess you askyourself if you're listening,
you're on a jury and you'relistening to a witness, you know
, are you going to feel moreconfident that the person's
(16:41):
telling the truth because theyswore an oath on a religious
book?
What do you think of it if youdon't agree with the religion,
should a juror be giving lessweight to it?
What if you think the ceremonythe person's performing is
somehow distasteful?
Should that affect it?
You know, really, that's kind ofwhere the rubber hits the road.
You're going to have seriouscases.
You're going to have potentialjuries or jurors or judges
(17:03):
listening to these things.
How should this have anybearing on it really at all?
And so well, I guess, in myview, it's perhaps unfortunate
that we just missed out on theopportunity to fix upon what
we've been doing, perhaps forsome mistaken reason, in terms
of why we got rid of all theseoaths.
But anyways, as of the 6th ofthis month, we've got a new
(17:25):
practice directive and if peoplewant to be using some other
cultural object or some otherbook other than the Bible,
they're going to have to bringit along and we're going to get
back to asking every witnesswhich they prefer, and then
somehow some judicial officialhas to figure out what to do if
they view the practice assomehow incompatible with
dignity or decorum.
(17:45):
So that's the latest in termsof what a practice directive is
and what's required in terms ofoaths and affirmations.
Adam Stirling (17:53):
We have three and a half minutes left and it's
the case of the push and theaccidental fall off the cliff,
and I've seen this going aroundin headlines.
Your thoughts on this one.
Michael Mulligan (18:03):
Well, the actual decision from the BC
Court of Appeal and it's atragic case.
It's a case involving a man whopushed his girlfriend.
She fell off a cliff.
It was accepted that that wasaccidental, but it was still an
assault, so he pled guilty tomanslaughter and he was assault,
(18:32):
or whether the sentencegenerally was appropriate or not
.
And it has to do first of allwith what a joint submission is.
And a joint submission in acase is where the Crown and the
defense agree in terms of whatthe sentence is going to be and
it's the basis upon which peoplewind up pleading guilty, right.
(18:54):
And you can imagine, in thiscase there could well have been
real challenges of proof aboutsort of what happened or how she
wound up over the cliff orwhatnot.
But in any case, the man woundup pleading guilty to
manslaughter on the basis ofthis push that caused the woman
to, on the basis of amanslaughter plea,
unintentionally fall off and die.
Right.
If you intentionally did that,that's murder, right.
(19:16):
But there was a joint submission.
Both Crown and Defense agreedon the fact pattern and also
agreed on exactly what sentenceshould be imposed, right down to
the calculation of time spent,and had already spent in jail.
He'd spent in jail 440 dayswaiting for his eventual trial
(19:36):
or guilty plea right, and sothat's taken into account.
Right.
It would be unreasonable to saysorry, we're not taking into
account, you spent a year and ahalf in prison.
But there then has to be adecision about how do you
calculate that, and usuallythere's some additional credit
given for the time in custodybeforehand.
Because there's no parole,you're sitting in a cell without
any programming.
It can be miserable.
And so there was the jointsubmission of this case went
(19:59):
right down to calculation oflike how many days credit should
be given for the 440 days spentin custody and what should the
results of that be in terms ofhow long this person's sentence
should be.
The sentencing judge had someproblem with that said.
Well, I want furtherinformation, I want to get a
pre-sentence report ordered andkind of delayed the sentencing
proceeding.
(20:20):
All of that is interestingbecause the Supreme Court of
Canada has said clearly thatwhere there's a joint submission
, a judge doing the sentencingdoes not have the authority to
depart from what the Crown andthe defence have agreed to,
unless what's being agreed to isso inappropriate that it would
bring the administration ofjustice into disrepute.
(20:41):
It's sort of got to becompletely outlandish or the
judge is required to accept it.
In the Supreme Court of Canadaand the Court of Appeal has said
, as is, they can't tinker withit, the theory being that if the
judges could depart from what'sbeing agreed to routinely,
nobody would plead guilty andthe justice system would
basically come to his knees.
Here the judge did tinker withit and rather than ultimately
(21:04):
imposing a provincial sentence,which is one of two years or
less, she imposed one which wasa federal sentence of just over
two years, by giving himslightly less credit in the
calculation for dead time.
That was the basis of the appeal, and the Court of Appeal
allowed the appeal and they saidlook, that's just an error of
law.
The judge does not haveauthority to do that.
They can't tinker with it.
(21:24):
The judge can assess whetherit's so unhinged from the
circumstances that it wouldbring the administration of
justice into disrepute.
But if it doesn't fail on thatvery high bar, a judge can't
then just meddle with thesentence and change it, even in
small ways.
And here this was a true jointsubmission.
They agreed right down to thecalculation of time and so, on
(21:44):
that basis, allowed the appealand imposed the sentence that
was agreed to, meaning theperson will serve it in a
provincial jail rather than apenitentiary.
Adam Stirling (21:53):
that's what's going on in that case michael
mulligan, from mulligan defenselawyers, legally speaking during
the second half of our secondhour every thursday.
Thank you so much.
Pleasure as always thanks much.
Michael Mulligan (22:02):
It's always great to be here.
Have a great day.
All right, you too, we'll takequick break.
Adam Stirling (22:05):
News is next.
Popular Podcasts
Bookmarked by Reese's Book Club
Welcome to Bookmarked by Reese’s Book Club — the podcast where great stories, bold women, and irresistible conversations collide! Hosted by award-winning journalist Danielle Robay, each week new episodes balance thoughtful literary insight with the fervor of buzzy book trends, pop culture and more. Bookmarked brings together celebrities, tastemakers, influencers and authors from Reese's Book Club and beyond to share stories that transcend the page. Pull up a chair. You’re not just listening — you’re part of the conversation.
On Purpose with Jay Shetty
I’m Jay Shetty host of On Purpose the worlds #1 Mental Health podcast and I’m so grateful you found us. I started this podcast 5 years ago to invite you into conversations and workshops that are designed to help make you happier, healthier and more healed. I believe that when you (yes you) feel seen, heard and understood you’re able to deal with relationship struggles, work challenges and life’s ups and downs with more ease and grace. I interview experts, celebrities, thought leaders and athletes so that we can grow our mindset, build better habits and uncover a side of them we’ve never seen before. New episodes every Monday and Friday. Your support means the world to me and I don’t take it for granted — click the follow button and leave a review to help us spread the love with On Purpose. I can’t wait for you to listen to your first or 500th episode!
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com