Writing for the majority, Justice Sheilah Martin said no such change to the law is warranted
Supreme Court of Canada Justice Michelle O'Bonsawin, left to right, Justice Nicholas Kasirer, Justice Malcolm Rowe, Justice Andromache Karakatsanis, Chief Justice Richard Wagner, Justice Suzanne Cote, Justice Sheilah Martin, Justice Mahmud Jamal and Justice Mary Moreau are seen during a welcome ceremony at the Supreme Court, in Ottawa, on Feb. 19.
The Supreme Court noted the rule has been applied in sexual assault cases that turn on competing accounts of the accused and the complainant. Adopting the new rule “would undercut the functional and flexible approach” to appellate intervention and “create mischief” across the entire system, she added.
Otherwise, the standard of review will be “palpable and overriding error” – meaning, for instance, the assumption is obviously untrue and goes to the core of the case’s outcome. In the second case, the Court of Appeal said the trial judge had made assessments about the evidence that affected her assessment of the evidence. For example, she found a person would not ask to be spanked, out of the blue, while engaging in sexual foreplay.
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