A third Alberta judge is facing a review after being criticized by a higher court for using "myths and stereotypes" about sex-assault victims to acquit a 16-year-old boy of raping a 13-year-old girl in a park.
The repeated reliance on stereotypes has raised questions about fairness toward sexual-assault complainants in the Alberta Provincial Court and sparked concerns about the judicial appointments process in Alberta.
On Aug. 3, Court of Queen's Bench Justice Sheilah Martin said in a ruling that Justice Pat McIlhargey had used a "discredited line of reasoning," and "myths and stereotypes" in a case known as R v CMG. Justice Martin threw out the acquittal and ordered a new trial.
A spokesman for Provincial Court Chief Judge Terrence Matchett said the court had not been aware of the case until contacted on Wednesday by The Globe and Mail.
"A review on the decision in R v. CMG has commenced today," Ron Hewitt, executive director of the Provincial Court, said in an e-mail. Chief Judge Matchett is conducting the review, and will not comment until it is complete, he said.
In his June, 2015, ruling in the sexual assault case, Justice McIlhargey wrote of the complainant: "She did not scream, she did not run for help. She ran to the Co-op and called her friend and told her she could not meet her friend."
At no point did she ever mention this to a friend, no complaint to a friend. There was no change in her, her aunt with whom she was living, did not notice any change in her demeanour in her at all, in fact she said it was a great summer they got along very well. She did not confide in her aunt."
Justice Martin (who has been promoted to the Court of Appeal since hearing the Crown's appeal of the CMG case) said each line relied on a myth or stereotype: "The comment that she did not scream or run ties into the idea that true victims of sexual assault will resist their attack. The comment that she did not tell her friend or her aunt resurrects the abrogated doctrine of recent complaint, and noting how she appeared normal to her aunt, as well as all the other comments, suggests that there is a particular way in which real victims of sexual violence would behave." She allowed for the possibility that each line was relevant to a fact at issue, but said the judge had not explained that relevance.
In the more notorious of the two other cases under review involving the Alberta Provincial Court, Justice Robin Camp, now of the Federal Court, asked a homeless, 19-year-old complainant in a rape case why she did not keep her knees together. He is now facing the possibility of dismissal after a public hearing convened by the Canadian Judicial Council. Justice Camp's case is before the judicial council because Alberta's Justice Minister made a complaint. Mr. Hewitt said the Alberta Judicial Council has not received any complaints about the other two cases.
The other case under review involved Justice Michael Savaryn of Calgary, who acquitted a teenage boy in April of sexually assaulting a 15-year-old girl in a high school hallway, ruling that she had not clearly expressed her objections. A higher court substituted a conviction for the acquittal, and directed that a different judge handle the sentencing. Chief Judge Matchett is conducting a review to determine what the judge's education needs are, Mr. Hewitt told The Globe earlier this week.
In the CMG case, Justice Martin ruled that Justice McIlhargey made other errors, too. The accused boy said during the trial that he had had consensual sex with the 13-year-old three times, which on the face of it was evidence of sexual interference, because the girl was underage. But Justice McIlhargey said federal law protects against self-incrimination. Justice Martin said the self-incrimination rule applies when compelled statements in a separate forum might be used in a criminal court.
"That was unbelievable, a glaring basic error," University of Alberta law professor Steven Penney told The Globe. He said Alberta and other jurisdictions must ask "whether we are doing enough to ensure that the most talented and knowledgeable people are being appointed to provincial courts and other courts in this country, and whether there's still too much weight being put on personal and political connections."
Jan Reimer, a former Edmonton mayor who is now executive director of the Alberta Council of Women's Shelters, said the three cases show "that we really need a change in how the legal and judicial system approaches violence against women – a systemic change and an accountability change, for people's actions."