A judge who acquitted a man of sexually abusing his stepdaughter over a six-year period because the girl did not avoid being in his presence applied a discredited stereotype about how victims behave, the Supreme Court has ruled.
The court released a brief written decision on Wednesday after issuing an oral ruling from the bench during a hearing last Friday. A teenage girl had testified that, when she was between the ages of 11 and 16, her stepfather touched her sexually about 50 times and simulated a sex act once. But Justice Terry Clackson of the Alberta Court of Queen's Bench ruled in 2016 that, based on "logic and common sense," he would have expected the girl to avoid the perpetrator and there was no evidence she had done so. The Alberta Court of Appeal overturned that ruling in a 2-1 decision last year, saying Justice Clackson had employed myths and stereotypes about victims. In a 7-0 ruling written by Chief Justice Richard Wagner, the Supreme Court said it agreed with the two appeal court judges and that a new trial should be held.
"In considering the lack of evidence of the complainant's avoidance of the appellant," Chief Justice Wagner wrote, "the trial judge committed the very error he had earlier in his reasons instructed himself against: he judged the complainant's credibility based solely on the correspondence between her behaviour and the expected behaviour of the stereotypical victim of sexual assault."
Although trial judges are entitled to deference on their findings of fact, Chief Justice Wagner said the stereotyping was "an error of law."