4 Alberta judges under scrutiny for sex assault rulings

A fourth Alberta judge has been rebuked following his ruling in a sexual assault trial, prompting calls from legal experts for greater diversity on the bench and better education for judges.

An Appeal Court ruled that Justice K. Yamauchi relied on "discredited myths and stereotypes" about the disclosure of sexual abuse in a 2013 case.

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In his decision, Yamauchi questioned why two young girls didn't tell anyone earlier about abuse at the hands of their stepfather, a farmer in southern Alberta. The man, whom Yamauchi acquitted, was also accused of sexually abusing his own daughter.

Yamauchi also questioned why the children couldn't remember "innocuous things," such as when they lived at certain places, or where they were going to school at the time of the abuse.

In May, the Alberta Court of Appeal ordered a new trial, saying the judge "erred in law" and "misapplied" two key legal principles.

The so-called doctrine of "recent complaint" has long been struck from Canadian law, the Appeal Court noted when it overturned Yamauchi's ruling.

It also noted that the Supreme Court has recognized that there may often be "understandable inaccuracies" in evidence given by children, especially with the passage of time.

Other cases

The case follows the high-profile inquiry into Justice Robin Camp's mistreatment of a complainant in a sexual assault trial, where he asked why she didn't just keep her knees together.

There was also a third case involving a judge in Edmonton, whose acquittal of a teenager in a sexual assault case was recently overturned by a higher court.

And in August, the Court of Queen's Bench overturned an acquittal made by Justice Pat McIlhargey, in a case involving a 16-year-old boy accused of raping a 13-year-old girl in 2015.

In that decision, McIlhargey remarked that the complainant didn't scream, run for help or confide in a friend.

Steven Penney, a law professor at the University of Alberta, said he's not sure how representative these cases are of the overall justice system, but there is still a concern.

"The first issue is the use of discredited sexist myths and stereotypes in evaluating the credibility of a sexual assault complainant," Penney told CBC News.

"And the second issue is the judges' blatant misunderstanding of the law."

Penney said he doesn't believe these issues are "pervasive or rampant within the judiciary, but at the same time, it's clear that they exist to some extent."

Camp case

The most high-profile case centres on Justice Robin Camp, who asked a sexual assault complainant why she didn't keep her knees together.

Camp also accidentally referred to her as "the accused" during the 2014 trial, a mistake he repeated at a Canadian Judicial Council inquiry last week, before quickly correcting himself.

University of British Columbia law professor Emma Cunliffe said the woman in the Camp case — like many who come into contact with the justice system — suffered "compound vulnerabilities" that the judge should have understood.

For instance, the 19-year-old woman whom Camp chided is Indigenous and was homeless at the time of her alleged rape.

"The judiciary is not very diverse, and unfortunately it became less diverse in the last 10 to 15 years," said Cunliffe.

Alison Gray, a Bennett Jones lawyer who was co-counsel on the Women's Legal Education and Action Fund intervention in the Camp inquiry, said judges should also be educating themselves on issues outside their own life experience.

"I don't think that we have a bunch of judges that don't have empathy or don't have compassion. I just think that they're coming from a position where they don't understand necessarily the experience of a sexual assault complainant or they don't understand the experience of a homeless person," said Gray, who called Camp's comments "out of the norm."

Camp has apologized for the remarks and his legal team argued that he had an "education problem, not a character problem." His lawyers also argued that outdated attitudes in the judiciary won't be eliminated by firing Camp to make an example of him.

The Canadian Judicial Council is to make a recommendation as to whether Camp is fit to keep his job.

'She did not scream'

Meanwhile, reviews are happening behind closed doors into how two other Alberta provincial judges handled recent sexual assault cases.

One case centres on McIlhargey's June 2015 acquittal of a 16-year-old boy accused of raping a 13-year-old girl in a park.

Last month, in ordering a new trial, a Court of Queen's Bench judge said McIlhargey allowed "unexplained myths and stereotypes to enter his assessment of the complainant's credibility."

McIlhargey wrote in his decision that on the day of the incident "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."

The trial judge also noted that the aunt with whom the girl was living "did not notice any change in her demeanour."

In the other case, Judge Michael Savaryn acquitted a 15-year-old boy who grabbed the breasts and buttocks of a girl, also 15, in a high school hallway and tried to kiss her.

"In fairness to the accused, the complainant tried so hard to laugh it all off that I do not believe she was successful in communicating her discomfort," Savaryn wrote in his decision.

In July, the acquittal was overturned by a higher court judge. The boy was convicted and awaits sentencing.

In her decision overturning the acquittal, Justice Juliana Topolniski wrote: "The word 'no' coupled with fending off an attacker with a water bottle does not mean 'yes.' There is nothing ambiguous about it.'"