R v Wagar and R. v Al-Rawi: two sexual assault cases that have made headlines recently about the need for judicial education on sexual assault for judges.
Just who was the accused?
R v Wagar is the Alberta sexual assault case that eventually led to a complaint to the Canadian Judicial Council about Justice Robin Camp who, in the course of the trial, referred to the complainant numerous times as the accused and made several offensive comments that reflected his lack of understanding of the reality of sexual assault. At one point, he asked the woman: “Why didn’t you just keep your knees together?” At another, he commented that “sex and pain sometimes go together . . . not necessarily a bad thing.” (Justice Camp`s acquittal of the accused was appealed. The Alberta Court of Appeal threw out the acquittal and sent the case back for a new trial, at which the accused was once again found not guilty.)
After an investigation and hearing, Justice Camp resigned following the CJC’s recommendation that he be removed from the bench.
No safety in taxis
R. v Al-Rawi is the now-infamous Halifax taxi driver case, in which Justice Lenehan acquitted the accused, saying: “Clearly, a drunk can consent.” (The Crown has appealed the acquittal, so Mr. Al-Rawi’s ultimate fate is not yet known.)
While these are the cases Canadians tend to remember, there are many more. Judges comment judgmentally (there is just no other way to describe it) on how women are dressed, their state of intoxication, where they were when they were sexually assaulted, their line of work. Some have even claimed that young girls were behaving in a sexually provocative manner such that their assailant is not guilty of a criminal offence. Others have made highly racist remarks when Indigenous women are the complainants.
Getting it right
Of course, there have been good decisions in sexual assault cases, too.
R. v Ururyar, known to many as the Mandi Gray case because the complainant has been very public and outspoken throughout the process, is one that springs quickly to mind. In coming to a guilty verdict, Justice Zuker methodically challenges a number of so-called rape myths in coming to a guilty verdict. He notes that “No one asks to be raped” and then concludes “Rape it surely was.” (Justice Zuker`s decision has been appealed, and the decision of the Ontario Court of Appeal is expected shortly.)
In R. v Korostash, a less well-known case, again involving a courageous and outspoken survivor named Jennifer Leigh O-Neill, Justice McLeod makes some well-informed and sensitive comments in his reasons for sentence:
“All too often, it appears we are judging the victim of a sexual assault when assessing the appropriate penalty.. . . Whether a woman becomes intoxicated because someone slips something into her drink or whether she simply became intoxicated, as men often do, simply because she drank too much, should not make any difference at all. It does not entitle a man to take advantage of her.”
Where from here?
All judges cannot be painted with the same brush, any more than absolute generalizations can be made about police officers who take women`s reports of sexual assault, Crown Attorneys who prosecute those cases or defence lawyers who represent those who are accused of sexually violent offences.
That said, we know a lot about how poorly the criminal system deals with sexual violence. We know, for instance, that 10% of women (at most) who are sexually assaulted ever contact the police; that the percentage of reports that result in a charge is low; that not all charges are prosecuted; that a significant number of charges are dropped or pleas to lesser offences are accepted; that penalties are minimal.
Thanks to the determined work of journalist Robin Doolittle of the Globe and Mail, we know that police miscode sexual assaults as unfounded at an alarming rate. So, how to move forward? Over the next several months, I will be looking at such possibilities as judicial education, government-led initiatives, community-led initiatives and restorative justice, to name just a few.
I welcome your thoughts and ideas to this discussion because, without the voices of well-intentioned and informed people, we will not make our way to the best solutions.