The Globe and Mail
Published
A man acquitted of sexually assaulting his daughter and two stepdaughters will be retried in December, after a higher court in Alberta ruled that the judge relied on myths about how real victims react.
The judge questioned why the girls did not tell anyone for several years.
It is the fourth case to come to light in the past 16 months of Alberta judges being criticized by a higher court for using myths and stereotypes in assessing the credibility of sexual-assault complainants.
The repeated use of stereotypes has sparked concerns about how sexual-assault complainants in the Alberta court system are treated and whether abusers are getting away with sex crimes.
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The newest case to be revealed appears to rely on the long-discredited doctrine of “recent complaint,” which says that actual victims complain promptly, the Alberta Court of Appeal said in May, 2015, in a case known as R v ADG. Parliament removed that doctrine from the Criminal Code in 1983. In the three previous cases, trial judges were criticized by higher courts for using discredited approaches such as insisting that real victims resist or clearly object, rather than holding the aggressor accountable for not seeking consent.
“It appears as though the trial judge compared the reaction of these victims to a reaction that might be objectively expected of them,” the appeal court said in a 3-0 ruling in which it threw out the acquittal of ADG and ordered a new trial.
Three teens had alleged that as small children, they had been sexually abused on multiple occasions, in one girl’s case for seven years. All of them were about 5 when the alleged abuse began. The two stepdaughters didn’t tell each other until they were just reaching their teen years, according to their testimony. They then went to their biological father, and from there to the RCMP. The biological daughter also went to the RCMP. They were in their late teens when they testified in 2013.
Court of Queen’s Bench Justice Keith Yamauchi, a former University of Calgary law professor who was appointed by Stephen Harper’s government in 2007, said the three complainants’ credibility suffered by their delay in reporting.
“With the alleged number of sexual assaults that the accused allegedly committed over a period of time, one would have thought that any one of the complainants might have mentioned the incidents to someone in passing,” the Calgary-based judge wrote in 2013.
“None of them testified that the accused threatened them if they said anything. Nor did any of them testify that the accused said not to tell anyone. Accordingly, one might have reasonably thought that something might have come out. If they thought it was a game (or playing), or if they were confused, or if they were uncomfortable, one would have thought they might have mentioned this to their mothers or some other care giver. They said absolutely nothing to anyone while these events were allegedly happening.”
The appeal court said it is fair for judges to review the reasons for delayed reporting of abuse, and to try to determine on the basis of all the facts, including delayed disclosure, how credible the complainants’ testimony is. But the court also admonished the judge: “No inference should be drawn regarding a complainant’s credibility that is based on assumptions about how a victim of sexual assault is supposed to react to the assault. The Supreme Court of Canada has made clear that sexual assault cases should be decided ‘without resort to folk tales about how abuse victims are expected by people who have never suffered abuse to react to the trauma.’ … There is no inviolable rule on how victims of sexual assault will behave.”
The appeal court also criticized the trial judge for making too much of the complainants’ inability to recall precise details; the girls could not recall where they lived or went to school at certain times, for instance. Although Justice Yamauchi cited the correct principles for assessing children’s evidence – not putting too much weight on the accuracy of small details – he failed to apply them, the appeal court said.
ADG is the first of the four cases to involve the conduct of a sex-assault trial by a federally appointed judge; the other three judges were appointed by provincial Progressive Conservatives. In the most notorious case, Provincial Court Justice Robin Camp (later appointed to the Federal Court), faces dismissal for asking a complainant why she did not keep her knees together; two other Provincial Court judges, Michael Savaryn and Patrick McIlhargey, are under review by the Chief Judge of the Provincial Court. In the case of Justice Yamauchi, Court of Queen’s Bench Chief Justice Neil Wittmann said it was not appropriate for him to comment.
Two weeks have been set aside for the trial, beginning Dec. 5.
With a report from Stephanie Chambers