SEAN FINE - JUSTICE WRITER
The Globe and Mail
Published
A second Alberta judge is under review for his conduct at a sexual-assault trial, but unlike the public inquiry this month involving Justice Robin Camp, it is being done in private by the Provincial Court’s chief judge.
Provincial Court Justice Michael Savaryn acquitted a teenage boy in April of sexually assaulting a 15-year-old girl in a high school hallway after ruling that she had not clearly expressed her objections to him – though a camera filmed her saying no to him. In July, a higher court criticized him for that ruling, saying he had relied on stereotypes about sex-assault victims and misunderstood the law of consent.
The internal review raises questions about the transparency of courts in dealing with judges whose rulings appear to be decades behind Canada’s modern law of sexual assault.
“The public is entitled to know the nature of the review,” Lise Gotell, a professor of women’s and gender studies at the University of Alberta and a specialist in sexual-assault law, said in an interview. “There’s a fundamental issue about public confidence in the judiciary.”
In the case Justice Savaryn ruled on, known as R v. J.R., a teenage boy who cannot be named grabbed a girl’s breasts and buttocks and tried to kiss her as she tried to fend him off with a water bottle. The boy said she should just let him, and she said no.
Justice Savaryn found she did not call for help to a nearby janitor; she did not appear upset, and was smiling; she did not clearly communicate any serious objection; and she later texted a friend a smiley face with tears and acronym “lmao.”
Rather than throw out the acquittal and order a new trial, Justice Juliana Topolniski of the Alberta Court of Queen’s Bench convicted the youth, and in an unusual move directed that a judge other than Justice Savaryn handle the sentencing. Provincial Court Justice Danielle Dalton is scheduled to sentence the youth on Sept. 23.
“The word ‘No’ coupled with fending off an attacker with a water bottle does not mean ‘Yes,’” Justice Topolniski said in her written ruling. And the judge’s consideration of the girl’s behaviour after the incident reflects “sexual stereotyping about how victims of sexual assault will behave. As an example, the requirement that a complainant raise the hue and cry has long since passed into the mists of time.”
The Globe and Mail e-mailed questions about knowledge of sexual-assault law among judges on the Alberta Provincial Court to Chief Judge Terrence Matchett, who asked the court’s executive director, Ron Hewitt, to reply. He said there is extensive judicial education, including on sex-assault law, available to judges, and for the past two years a judicial education manager to assist judges in determining their needs and finding programs.
In the case of Justice Savaryn, “the concerns raised by the Appeal decision are being considered by the Chief to determine if any education or other development would be appropriate,” Mr. Hewitt said. “However, it would be an internal matter on which we would not have a comment.” In the category of “other development,” mentoring, self-directed learning and reading could be included.
He would not reveal whether Justice Savaryn, who sits in Edmonton, is still hearing sex-assault cases, or any cases, during the review. (An Edmonton lawyer, speaking on condition he not be identified, said the judge continues to hear cases, though it is unclear whether he is still being assigned to sex-assault cases.) Nor would Mr. Hewitt reveal what in particular the chief judge is reviewing – for instance, whether other sexual-assault cases, or a variety of cases, are included. He also declined to pass along The Globe’s request for a comment to Justice Savaryn. (The Globe left a voice-mail message with Justice Savaryn’s assistant but did not reach the judge.)
In 2014, Justice Camp, then of the Alberta Provincial Court (he was later appointed to the Federal Court), criticized Canada’s rape-shield law, which protects the right of complainants not to divulge their sexual history, and asked the complainant in a sex-assault case why she did not keep her knees together. An appeal court threw out the acquittal, saying it was based on discredited stereotypes. Alberta’s justice minister complained to the Canadian Judicial Council, which convened a public inquiry this month that could lead to Justice Camp’s dismissal.
Read more: Key passages from the Robin Camp transcript
Prof. Gotell said the difference in the two cases is that Justice Camp expressed disrespect for and ignorance of sex-assault law, while Justice Savaryn was merely ignorant of the law. “It’s a good thing if he’s compelled to do the work he needs to do to properly understand consent,” she said. A spokesperson for the Canadian Judicial Council said Tuesday she was out of the office and did not know whether any complaints had been made against Justice Savaryn.