Mr. Muvunga was charged with three counts of sexual assault. He chose to be tried before a jury of his peers. The central issue to be determined was whether the complainant consented to the sexual activity.
Prior to closing submissions defence counsel brought an application to be allowed to use a visual prop in their closing, namely a replica of a Boticelli’s masterpiece “Calumny of Apelles”. He wished to present the painting as an allegory to make the point that a false accusation is not the invention of criminal defence lawyers.
In rejecting this application, Pomerance, J. found that while the painting was of great interest to art historians and scholars it had no place in a modern Canadian criminal trial. At paragraphs 8 & 9 the court held:
The difficulty is that the very features that make the painting striking and memorable are the features that make it inflammatory. The painting depicts women as symbolic representations of slander, ignorance, suspicion, fraud, conspiracy and repentance. These women are turning their back on truth, who is also depicted as a woman, but appears in naked form. The accused individual is seen as an innocent young man being dragged by the hair toward the King. Ignorance and suspicion -- two women -- are whispering into the King's ears, which are depicted as the ears of a donkey, in an effort to corrupt the decision maker.
Against these graphic images, asking the jury to disregard depictions of gender is like asking Mrs. Lincoln whether, aside from everything else, she enjoyed the play. It is impossible to divorce gender from the images depicted by Boticelli and it is impossible to divorce the images from the artwork. If the images are truly beside the point, then they should not be presented. To have them placed before the jury is to risk undermining the integrity of the fact finding process [paras 8-9].
The court concluded by finding that the messages the painting conveys were inappropriate for a jury to consider. The potential for prejudice and distortion of the fact finding process was simply too great.
Perhaps the court was also mindful of the quote by Edgar Degas “Art is not what you see, but what you make others see”.