The Globe and Mail by Elaine Craig 24 May 2019
Why is the Supreme Court of Canada still having to educate trial judges that a woman who has been dragged out of a bedroom asleep and drugged is not consenting to the repeated acts of sexual intercourse imposed upon her while she was in this condition?
This was the lesson given by the Supreme Court earlier this month to a trial judge in Alberta. The trial judge acquitted a man who dragged the complainant into his living room by her arms and legs or used a choke hold, removed her clothing, and then sexually violated her repeatedly while she was asleep or resisting. He threatened to “stomp on her head” if she left. How could anyone think it would be reasonable to infer that this was consensual sexual activity?
In a decision released on May 7, 2019, the Supreme Court upheld the Alberta Court of Appeal’s decision to overturn an acquittal in this case. The Court noted that the trial judge clearly got the law of consent wrong.
Judges are bound to make some mistakes. Our legal system allows for error and we cannot expect judges to be perfect. But we should expect them to understand the basic legal concepts at issue in a case. The law of consent should be basic legal knowledge for anyone presiding over a sexual assault trial.
The costs to both the criminal justice system and the individuals involved in a case when a trial decision is overturned are significant. Often it requires a new trial. It always creates uncertainty and distress for complainants and accused individuals. Imagine facing the possibility of having to testify at a second trial because a judge got a basic legal concept wrong the first time around.
In addition, discredited stereotypes about women and rape continue to infect sexual assault trials across Canada. Courts of Appeal, such as those in Alberta and Ontario, continue to overturn acquittals in sexual assault cases because stereotypical views about sexual assault informed the outcome at trial. Judicial decisions that reveal errors regarding the basic legal framework for sexual assault will almost certainly also involve reasoning based on legally discredited stereotypes about rape.
We can do more to avoid these harmful legal errors. Judges need better education. My research indicates that judges still require training on the law of sexual assault, the role of myths and stereotypes, and the social contexts and dynamics that produce harmful sexual behaviour. Thanks to several high profile cases, steps are being taken to encourage judges to develop this type of training, to commit to taking the training, and to being more open and transparent with Canadians about their education.
One such step is Bill C-337 – the JUST Act (Judicial Accountability through Sexual Assault Law Training Act). This law, if it is passed in the form currently proposed by Senator André Pratte, would encourage judges to develop seminars on the law of sexual assault, principles of consent and the myths and stereotypes associated with sexual assault complainants. It would also require the Canadian Judicial Council, which is responsible for training judges, to inform the government annually about the types of training offered and the number of judges who participated, making the issue of judicial education in this difficult area of law more transparent.
Bill C-337 has received non-partisan, unanimous support from our Members of Parliament. It was passed by the House of Commons unanimously at both first and second reading. Since then the House has sent two more unanimous motions asking the Senate to pass this legislation, including the most recent motion by NDP leader Jagmeet Singh.
But the Bill has sat waiting to be heard in Senate for almost 750 days. If the JUST Act isn’t passed before the House of Commons rises for the summer in June, it will disappear for good.
Many judges are open to receiving more rigorous and comprehensive education in this area of law. Our elected law makers unanimously support this effort to promote judicial education. That the Senate would stand in the way of this important initiative is unacceptable.
Elaine Craig is an associate professor at Schulich School of Law and the author of Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession.