Third Alberta judge faces review over handling of sex-assault case
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.
Related: Another Alberta judge facing review over handling of
Related: Judge apologizes for 'unforgivable' rape comments at
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
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
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