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Ontario’s highest court is being criticized for confusing the complainant in a sexual-abuse case with the man accused of abusing her, a mistake similar to one made by a judge who also asked a complainant why she couldn’t just keep her knees together.

The Ontario Court of Appeal referred twice to a teenage complainant in a sexual-abuse case as the “appellant” – the person who brought the appeal. In this case, the appellant was the offender convicted of sexual interference by a lower-court judge. Complainants are not parties in a case and cannot bring appeals.

The court removed the case, R v R.D., from its website after being contacted by The Globe and Mail about the errors. It said it has now released (although not yet reposted) a corrected version in what appears to be a Canadian first involving this kind of error.

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During a 2014 trial in Calgary, Robin Camp repeatedly referred to the complainant as the accused. He also asked her why she didn’t just keep her knees together to thwart her attacker. He is the only federal judge whose removal was recommended by a disciplinary body over his handling of a sexual-assault trial (not specifically for his mistaken use of “the accused”). He resigned instead.

Karen Segal, counsel for the Women’s Legal Education and Action Fund, a prominent advocacy group, said she found the appeal court’s errors troubling.

“We have seen this trend, of judges confusing sexual assault complainants with the accused in sexual assault cases, in judicial decision making across the country,” she said in an e-mail.

“This kind of confusion is indicative of the tendency in sexual assault law to view complainants, particularly complainants from marginalized backgrounds, with suspicion and doubt. Too often, complainants are forced to defend themselves against a system that views them as inherently unreliable.”

The court said it acted quickly after The Globe brought the errors to its attention.

“The Court of Appeal for Ontario takes such matters seriously and we removed the judgment from our website as soon as we learned of the error,” Falguni Debnath, a senior legal officer with the court, said in an e-mail to The Globe.

“While we try to avoid such errors, we encourage people to bring such matters to the attention of the Senior Legal Officer so that action can be taken immediately.”

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The mistake turns up in two paragraphs critical to the appeal court’s ruling, in which it threw out a conviction against an adult, R.D., who had been sentenced to 15 months in jail for sexually abusing his girlfriend’s six-year-old daughter in 2005. The court ordered a new trial for him.

Under questioning from a defence lawyer, the complainant, who reported the alleged crime at 14 and testified at 18, said that, as a result of the abuse, she suffered from emotional problems and had been in trouble with the law. But the defence asserted that she had made up the abuse as an explanation for her problems.

“The defence submitted that the appellant’s conduct, which included criminality and dishonesty, placed her entire credibility in doubt,” the appeal court said in a unanimous ruling. [Emphasis added.]

The court repeated the mistake as it rejected a lower-court judge’s assertion that the complainant’s emotional problems could only have been caused by the abuse.

“It was speculation to conclude, as the trial judge did, that there was no explanation for the appellant’s emotional and psychological problems as an adolescent other than the explanation [she] offered in cross-examination.” [Emphasis added.]

The three judges who heard the case – Justice David Doherty, Justice Katherine van Rensburg and Justice Ian Nordheimer – presented the author of the ruling as “The Court.” Typically, that is done in major cases in which a court wishes to underline the authority of its ruling. This case, however, broke no new legal ground.

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Elaine Craig, who specializes in sexual-assault law at the Schulich Law School in Halifax, said it would be wrong to compare the appeal court’s mistakes with Mr. Camp’s similar errors.

“Camp’s repeated mistake was made in the context of several other statements by him which suggested a victim blaming orientation that isn’t evident in this case,” she said in an e-mail.

Ms. Segal was also critical of the ruling itself, saying the defence had used myths and stereotypes to try to undermine the complainant’s credibility and that the lower-court judge had rejected the attempt.

“One can only imagine how challenging it would be to testify about childhood sexual abuse and subsequent emotional and mental health problems, particularly when defence counsel tries to use those problems against you,” she said.

“It is disappointing that the Court of Appeal ordered a new trial, requiring this young woman to go through this grueling process a second time.”

Editor’s note: Due to an editing error, an earlier version of this incorrectly attributed criticism of the ruling to Elaine Craig. In fact, it was Karen Segal. This is a corrected version.
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