A new legal battle is the latest skirmish in an increasingly polarized debate over the fairness of sexual-assault trials.Wesley VanDinter/Getty Images
A lawyer for a man accused of sexual assault is asking a court to reveal how judges are trained in this area of law, saying that such training may be producing judges who are biased against accused men.
Tom Engel, an Edmonton lawyer, will ask a judge to order the National Judicial Institute, which trains federally and provincially appointed judges, to disclose their educational materials and methods in the area of sexual-assault law.
Mr. Engel is representing Robert Harper, accused of sexual assault, aggravated assault, attempt to choke, unlawful confinement and making a death threat. He says the case turns on the credibility and reliability of the complainant, whom he maintains consumed drugs and then attacked Mr. Harper when he objected to her getting more drugs. The complainant cannot be identified under federal law.
"A judge must be impartial and free of bias," Mr. Engel said in his written submissions to the Alberta Court of Queen's Bench, which he intends to present on Tuesday morning. "The accused and the public cannot assess whether a judge is truly impartial and free of bias without scrutinizing his/her training."
The National Judicial Institute is fighting the application, saying in a legal filing that the requested information is irrelevant to the guilt or innocence of the accused in the trial.
"The judge's training is a red herring," said the institute, an independent, judge-run body whose board of governors is chaired by Supreme Court Chief Justice Beverley McLachlin. It said judicial training on what is known as "social context" is meant to enhance the impartiality of judges. It called Mr. Engel's application an attack on the presumption of impartiality of the entire Court of Queen's Bench. It added that the nature of its courses is spelled out in the annual reports of the Canadian Judicial Council.
Dan Laville, a spokesman for the Alberta Crown Prosecution Service, declined to comment while the case is before the court.
The legal battle is the latest skirmish in an increasingly polarized debate over the fairness of sexual-assault trials. Training of judges has been front and centre in this debate after Alberta provincial court judge Robin Camp asked a sexual-assault complainant why she didn't keep her knees together. (After a public disciplinary hearing, he eventually resigned from the federal court to which he'd been moved.)
In May, the federal government passed a private member's bill put forward by former interim Conservative leader Rona Ambrose, requiring candidates for the federal bench to receive training in sexual-assault law. The bill is still before the Senate and hasn't received royal assent. A Halifax ruling in the case of a taxi driver acquitted after being found with an unconscious, half-undressed passenger amplified the concerns of women's advocates about the training of judges. Also, in the past several months, appeal courts have overturned the convictions of accused men in Ontario and Alberta, finding that the trial judges had been unfair in their rulings.
Mr. Engel said the case he is bringing on Mr. Harper's behalf "supports the thesis that some judges are being improperly influenced by the current social atmosphere in Canada, i.e. the #ibelieveher movement." As evidence, he cites a case from Toronto in which a judge convicted Mustafa Uruyar. An appeal judge threw out the conviction and ordered a new trial, saying that in 179 pages, the trial judge had failed to explain why he rejected Mr. Uruyar's version of events. Mr. Engel also cited Ms. Ambrose's private member's bill on judicial training.
"Inappropriate reliance on biased educational materials may be grounds for an appeal," he said in his court filing.
In an interview, Mr. Engel said he was shocked that the National Judicial Institute would not make their training materials available to defence counsel. "The fact that they're fighting to keep it secret makes me more suspicious about the education and training these judges are getting."
But the NJI, in its legal filing, said Mr. Engel's "novel motion" was fanciful: "The accused wants to call evidence on what he speculates the trial judge may think, and he wants these records from the NJI to help him speculate what the trial judge may think. This is not an 'issue at trial.' The accused does not need to know how his trial judge has been trained to decide what evidence to call. He needs to know the law and the case he has to meet."
Sean Fine