Legal experts are criticizing a decision by Supreme Court of Canada nominee Malcolm Rowe to deny a new trial to a sexual assault complainant who was subjected to “gratuitous humiliation and denigration” in court.

The decision, which is being appealed by the Crown to the Supreme Court on the grounds that Rowe made several legal errors and failed to remedy an egregious breach of the rape shield law, has come under fresh scrutiny following the announcement of Rowe’s appointment to the top court earlier this week.

In the May decision Rowe, then a judge on the Newfoundland and Labrador Court of Appeal, slammed Judge Robert Stack for allowing a defence lawyer to read to the jury for no reason, sexually explicit texts between the complainant and her lover and the graphic transcript of a consensual sex tape she made with her husband.

The complainant alleged she’d been raped vaginally and anally by her husband, and assaulted several times. He was acquitted on all counts by a jury.

The three judges who heard the appeal unanimously agreed that Stack made serious errors and failed to properly apply the rape shield law that strictly limits evidence about a complainant’s sexual history.

But while Chief Justice J. Derek Green found there should be a new trial since the jury might well have reached a different conclusion if they were not exposed to the sexual history evidence, Rowe and Justice Charles White found a new trial was not necessary.

“I have reached this conclusion with reluctance given the unfair manner in which the complainant was dealt with,” Rowe wrote for the 2-1 majority. “Nonetheless, I am persuaded by counsel for the respondent that the complainant, by her untruthfulness and the inconsistencies in several areas of her testimony, gravely undermined her credibility.”

“It seems to me that to recognize in the decision that the defence gratuitously denigrates and humiliates the complainant and to turn around and not give a new trial to the Crown risks sending the message that it is acceptable to humiliate sexual assault complainants, or that it can be done without consequence,” says Lisa Dufraimont, a criminal law professor at Osgoode Hall.

“(Allowing in the evidence of the texts and sex tape) is a serious error. This particular type of reasoning has been proscribed by Parliament and is clearly recognized as a major impediment to the prosecution of sexual offences and a major injustice to sexual assault complainants.”

Elaine Craig, a law professor at Dalhousie University who specializes in sexual assault law, described the trial as one of the worst examples of “whacking” a complainant she has ever come across — a term which refers to tactics that exploit stereotypes about sexual assault to win a case — and said Rowe rightly condemned it.

In the decision Rowe wrote that the content of the sex tape fed “beyond redemption” into the first of the “twin myths” the rape shield law is supposed to prevent — that a promiscuous woman is more likely to have consented to sexual activity.

“He recognized this was a very serious misinterpretation and misapplication of (the rape shield law) . . . . In (not ordering a new trial) he undermines or fails entirely to protect the objectives of our rape shield regime,” she said.

“The test (for whether a new trial should be ordered) is, is it reasonable to assume that the mistake affected the outcome. The mistake was so bad here that it is preposterous to think it didn’t affect the outcome . . . and that conclusion reveals a fairly significant lack of understanding of the way rape mythology informs outcomes in sexual assault trials.”

University of Ottawa law professor Constance Backhouse described Rowe’s decision as somewhat incongruous.

It suggests Rowe has “quite a deep sensitivity” to the challenges facing a complainant in a sexual assault case,” said Backhouse, the holder of the university research chair on sexual assault legislation in Canada.

“He is very sensitive to the invasion of privacy and the stereotypes that underlie any decision to allow cross-examination regarding prior sexual history. So that’s great. That’s a very telling observation. Here’s a judge who seems to really understand that.”

So it is surprising that he concludes he is going to uphold the acquittals, she said.

Backhouse said the ruling is so mixed, with good and bad parts, that it’s difficult to say with certainty that the government made a mistake in appointing Rowe to the nation’s top court.

“I think, by and large, what (Rowe’s) decision shows is that the criminal justice system is really quite bankrupt when it comes to dealing with our huge social problem of sexual assault,” she said. “I think it says more about that, than it does about Justice Rowe.”

The Supreme Court of Canada will hear the appeal next year, with the Crown arguing Rowe wrongly applied the legal test for ordering a new trial, and that the violation of the rape shield law was so egregious that it can be remedied only by a new trial.

“By weighing these inconsistencies, the majority of the Court of Appeal inserted itself into the jury room in an attempt to predict the reasoning process of the jury,” Crown Iain Hollett wrote in submissions.

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Rosellen Sullivan, who represents the respondent, says that in her view Rowe, writing for the majority, appropriately found there should not be a new trial.

The Prime Minister’s Office and the Supreme Court of Canada did not respond to requests for comment.