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Decorative scales of justice in courtroom

iStockphoto/Getty Images/iStockphoto

An internal review of two Alberta judges who used myths and stereotypes about sexual-assault victims in their acquittals is complete, but the public is not being told whether the judges have been reprimanded, given extra judicial education or left alone.

Alberta judges have been in a national spotlight over their handling of sex-assault trials. Last fall, a public hearing was held on the conduct of Federal Court Justice Robin Camp, who as a Provincial Court judge in Alberta in 2014 asked a sex-assault complainant why she didn't keep her knees together, and acquitted the accused of rape. A disciplinary body has recommended his removal from the bench.

No such public hearings were held into the conduct of Provincial Court Justice Michael Savaryn of Edmonton and Provincial Court Justice Pat McIlhargey of Calgary during sex-assault trials. But after higher courts said the two judges had used myths and stereotypes and failed to understand the law of consent, Provincial Court Chief Judge Terrence Matchett said in September that he would conduct a review of the two judges.

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Under the Alberta Judicature Act, the Chief Judge may review any conduct that comes to his attention, whether or not a complaint has been made, and may reprimand the judge, take corrective measures, refer the matter to the province's judicial council or decide that no further action need be taken. But the same act says that "the proceedings under this section are not public."

Ron Hewitt, the court's executive director, said the Chief Judge has done the reviews but cannot talk about them.

"Yes, the reviews in the JR and CMG cases have been completed," he said in an e-mail to The Globe and Mail. "The Chief Judge is of the view that all appropriate measures have been taken as a result of the cases and that no further action need be taken."

He said there were no public complaints made against either judge, and in any event, under the Judicature Act, "proceedings of this sort are not public. Therefore, no further statement can or will be made on them."

Justice Savaryn acquitted a teenage boy who grabbed a 15-year-old girl by the buttocks and breasts in a high-school hallway, though a video camera recorded her saying no. The judge said she did not call for help to a nearby janitor. In July, a higher court took the unusual step of replacing the acquittal with a conviction and directing that a judge other than Justice Savaryn handle the sentencing.

Justice McIlhargey acquitted a 16-year-old boy accused of raping a 13-year-old girl in a park, saying the girl had not screamed or run for help or confided what had happened to an aunt with whom she had been staying. A higher-court judge threw out the acquittal and ordered a new trial.

Jan Reimer, a former Edmonton mayor who is executive director of the Alberta Council of Women's Shelters, supports changes to provincial law that would let people know the results of such reviews.

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"I think, first and foremost, we need some changes in the legislation which err on the side of transparency. People in public positions have to undergo more public scrutiny."

That would help boost public confidence in the judiciary, she said. "It may be that good things are being done."

Lise Gotell, a law professor at the University of Alberta and chair of the Women's Legal Education and Action Fund, said that, unlike Justice Camp, these two judges did not show antipathy or contempt for sexual-assault law. But their decisions "clearly show how rape myths continue to reflect judicial decision-making in sexual assault."

She said she believes Chief Judge Matchett is trying to combat the problem by focusing on judicial education – including a six-hour program on sexual-assault law at the court's spring conference – and that a reprimand would show that rape myths have no place in the courtroom.

The province's NDP government is not planning any changes to the Judicature Act's protection of judges' privacy, a spokesman for Alberta Justice Minister Kathleen Ganley said. But where a member of the public complains to the judicial council, and the council considers the matter serious enough to justify an inquiry, the inquiry's report and any sanctions must be made public, he said.

Alberta is not an outlier. In Ontario, after several public complaints against a Provincial Court judge who wore a Trump campaign hat into his courtroom, the judge abruptly stopped being assigned cases on Dec. 21, and Chief Justice Lise Maisonneuve declined to say why.

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Adam Dodek, a University of Ottawa law professor and co-editor of Regulating Judges: Beyond Independence and Accountability, said the complaints and discipline process for judges across Canada lags behind what the public expects in transparency and responsiveness. "It is now a basic requirement of the justice system in Canada that reasons be given for decisions. The same rule that the judges apply in their decisions should also apply to decisions about judges."

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