Posts Tagged ‘LEAF’

We encourage everyone to check out this amazing event! Always really fun, interesting and inspiring. FLF members should check their email for a very generous and exciting opportunity to attend for free, courtesy of RH’s own Dean Turnbull.

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Earlier this week, the Supreme Court released its judgment in R v D.A.I. LEAF and the DisAbled Women’s Network of Canada (DAWN) jointly intervened in the case. In a majority ruling (the Court split 6 – 3 ), Justice McLachlin clarified that adults with mental disabilities need  not demonstrate an abstract understanding of the obligation to tell the truth to meet the test for testimonial competence.

D.A.I. involves a 23-year old complainant with intellectual disabilities such that her mental age was between 3 and 6 years old. The Crown is alleging that the complainant’s step-father repeatedly sexually assaulted her over a period of four years. The Crown sought to call the complainant to testify, but the trial judge held on a voir dire that the complainant had failed to show that she understood the duty to speak the truth. In a separate voir dire, the trial judge also excluded out-of-court statements made by the complainant to the police and her teacher, holding that the statements were unreliable. Despite the existence of other evidence that raised serious suspicions about the accused’s conduct, the case collapsed and the accused was acquitted. The Ontario Court of Appeal affirmed the acquittal.

The majority decision is a feminist victory that ensures the equality rights of all women. As Joanna Birenbaum, Legal Director of LEAF, stated in a press release on the day of the decision,  “In today’s Supreme Court of Canada decision, Chief Justice McLachlin writing for the majority described sexual assault as “an evil” and acknowledged that women with intellectual and other disabilities are targeted for this offence at alarming rates. The Court confirmed the importance of hearing the voices of women with mental disabilities in court. The Court acknowledged that the testimony of women with mental disabilities is essential to stopping sexual abuse and ensuring that sexual offenders are brought to justice.”

As an aside, the FLF seems to recall the Court splitting in the exact same way in R v J.A. Some interesting sexual assault jurisprudence trivia…

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Now that exams are wrapping up, everyone has more time to enjoy the finer things in life… such as stimulating intellectual discussion on important, difficult issues! Hooray! Take for instance, the following: on December 8th, the Supreme Court heard arguments in the much-talked about R v NS case. Counsel for each side argued whether a complainant in a sexual assault case should be permitted to keep her face covered by niqab during testimony. Here’s a really great article from rabble.ca with two significant Robson Hall connections:law student Maria Kari authored the article, which features snippets of an interview with our very own Professor Karen Busby. It also includes a link to the factum submitted by LEAF, who had intervenor status at the hearing. Check it out! Great food for thought to accompany your turkey, latkes, 5 kilo box of mandarin oranges, etc.

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Below is LEAF’s press release regarding their intervention before the Supreme Court in R v N.S.

December 7, 2011 – Ottawa: On Thursday, December 8, 2011, the Supreme Court of Canada will hear the appeal of a niqab-wearing sexual assault complainant who was ordered to remove her niqab as a precondition to testifying at the preliminary inquiry of two male family members charged with sexually abusing her as a child.

N.S. is asking the Supreme Court of Canada to affirm her right to testify wearing the niqab.

“Women who have been sexually assaulted should not be shut out of the justice system just because they wear the niqab”, says LEAF Legal Director and co-counsel, Joanna Birenbaum.

“The accused are asking the court to forcibly remove a deeply personal article of religious clothing worn by a sexual assault complainant. This demand must be seen in the context of the discriminatory treatment of women who report sexual assault” Birenbaum explains. “The sexual assault preliminary inquiry has a long history of being used to degrade, humiliate, intimidate and re-victimize sexual assault complainants, to get women to drop sex assault charges or discourage them from reporting sex assault in the first place.”

Susan Chapman, LEAF co-ounsel, says “niqab-wearing women are already a stigmatized racial minority in Canada, subjected to heightened scrutiny and stereotyping. If niqab-wearing women believe that they will be ordered to remove their niqabs if they seek the protection of the Canadian legal system, will they ever report sexual assault? The message will be that these women can be sexually assaulted with impunity. This is clearly unacceptable.”

The Ontario Court of Appeal quashed the lower court order requiring N.S. to remove her niqab, but left open the possibility that N.S. could be ordered to remove her niqab at the preliminary and at trial.

LEAF’s Supreme Court factum argues that the preliminary inquiry judge has no jurisdiction to order the removal of the niqab. LEAF further argues that while the trial judge has jurisdiction to order the removal of the niqab, such an extraordinary order would violate the Charter rights of sexual assault complainants and should rarely, if ever, be made.

“The constitutional rights engaged by an order stripping a sexual complainant of her niqab are profound” says Birenbaum. “These rights include: the right to be free from state-imposed psychological trauma, physical and psychological integrity, equality, and a justice system which operates free of discrimination and prejudice.”

Chapman explains that “mere access to “demeanor evidence”” (which may include the facial expressions of a witness) is “insufficient to justify the intrusive order requested. Put simply, the accused have no constitutional right to demeanor evidence.   Moreover, demeanor evidence has a proven history of subverting the truth-seeking function of the criminal trial, particularly in the sexual assault and cross-racial contexts. Stereotypes and discriminatory assumptions deeply influence judgments of credibility.”

Even the Ontario Court of Appeal recognized the unreliability of demeanor evidence. “The Court of Appeal noted that allowing the complainant to wear her niqab could advance the truth seeking function of the criminal trial” says Chapman, “The Court recognized that a complainant who normally wears the niqab and is unveiled cannot be expected to “be herself” on the stand.”

“LEAF takes no position on the practice of wearing the niqab”, says Birenbaum. “LEAF is very concerned, however, that women who wear the niqab are not excluded from basic democratic institutions.”

LEAF is also concerned that racist and other stereotypes of Muslims not influence the public discussion of this sexual assault complainant’s right to access the justice system and participate in a fair trial.

“Almost all of the focus has been on the impact of the veiled-witness on the rights of the accused. But the disadvantage at trial will almost certainly be experienced by the niqab-wearing woman. In the current political climate in which veiled Muslim women are feared and distrusted, how will the evidence of a niqab-wearing witness be received? A Muslim woman who covers her face in court faces significant prejudices that she is hiding something and cannot be believed.”

LEAF’s Supreme Court of Canada factum in R. v. N.S. is available at:



LEAF’s Backgrounder on R. v. N.S. and Quebec Bill 94 is available at: http://leaf.ca/wordpress/wp-content/uploads/2011/12/LEAF-Niqab-Backgrounder-May-11-2010.pdf

For more information, please contact:

Joanna Birenbaum

(LEAF Litigation Director/Co-counsel)

(416) 595-7170 ext. 223 (office) – (647) 500-3005 (cell) – j.birenbaum@leaf.ca (e-mail)

Susan Chapman

(LEAF Co-counsel)

(416) 969-3061 (office) – (416) 509-7121 (cell) – schapman@greenchercover.com (email)

LEAF is a national, non profit organization committed to confront all forms of discrimination through legal action, public education, and law reform to achieve equality for women and girls under the Charter of Rights and Freedoms. For more information, please visit us atwww.leaf.ca

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Many of our readers will be familiar with the well-known sex discrimination case of Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252. A Manitoba case, it established that sexual harassment is sex discrimination, and thus illegal in Canada. Further to that, it also recognized the vicarious liability of employers in instances of sexual harassment perpetrated by employees. Finally, it provided a somewhat expansive and flexible definition of sexual harassment. The Supreme Court decision can be found here: http://www.canlii.org/en/ca/scc/doc/1989/1989canlii97/1989canlii97.pdf.

The female complainants in the case, Dianna Janzen and Tracy Govereau, endured degrading and humiliating treatment at the hands of cook Tommy Grammas. The restaurant owner refused to intervene or address the harassment. They were both 21 years old when they filed their complaints with the Manitoba Human Rights Commission. They would enter their 28th years before the matter was resolved in the Supreme Court.

Recently, B.C. lawyer and author Stephen Hammond wrote and recorded an interview with Dianna Janzen. She is now 50 years old, and has developed a profound and fascinating persepctive on her experiences as a victim of sexual harassment and a human rights crusader. Nearly 30 years after the incidents that led her to make a complaint, she still perfers not to discuss the details of the abuse. The interview describes the “emotional rollercoaster” Janzen experienced during the years her case was before the courts, noting the dejection she felt following the decision of the Manitoba Court of Appeal (which held that sexual harassment was not sex discrimination). When the Supreme Court finally found in favour of Janzen and Govereau, overturning the Court of Appeal, Janzen said she initially  “didn’t feel anything, actually”. After enduring the extreme stress of not only the harassment, but also the extended legal proceedings, Janzen’s sense of personal vindication took time to develop.

The interview is fascinating. Now the mother of two nearly-full-grown children, Janzen’s relfections on her experiences as a younger woman are measured but profound; she speaks of her transformation from “victim” at 21 to “success” at 50. She now wishes to share what the experience taught her with young people, wanting them to know their rights and feel empowered to stand up for themselves if they face discrimination, based on sex or otherwise.

You can read or listen to the interview here: http://www.stephenhammond.ca/dianna-janzen.php#.


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On May 27, the Supreme Court handed down its decision in J.A. In a 6 – 3 decision, the Court ruled that an individual cannot give advance consent to sexual activity while unconscious. J.A. was charged with sexual assault after he choked his partner, K.D.,  into unconsciousness during an act of autoerotic asphyxiation and she awoke to find her self bound and being anally penetrated with a sex toy. K.D. testified that the asphyxiation was consensual but gave conflicting answers on cross-examination as to whether she had consented to the penetration. The issue thus became whether a doctrine of advance consent to unconscious sexual activity exists in law. J.A. was convicted at trial after the judge found the victim’s conflicting testimony to be “typical of a recanting complainant in a domestic matter” and that as a result of existing jurisprudence, there can be no advance consent. The sentencing decision revealed that J.A. had a long history of violent and weapons convictions, including 3 prior convictions for domestic violence, 2 of which involved K.D.

The conviction was overturned by the Ontario Court of Appeal, which split 2 -1 in ruling that a doctrine of advance consent protects the sexual autonomy interest of individuals and that if one consents to the autoerotic asphyxiation and then passes out, the only state of mind that person ever experiences is one of consent. Justice LaForme disagreed: “In both the common law and statute law applicable to sexual assault, choice and autonomy are active and oriented to the present; to the here and to the now.  Consent is the autonomous choice of the individual.  Consent ends when the active independent personal operating will ceases.  Indeed, this is precisely what is being expressed in the jurisprudence, in my view.  Thus, I must respectfully disagree with my colleague when she holds that consent in advance to sexual activity expected to occur while unconscious or asleep is entirely consistent with this principle.” The court split on the issue of advance consent, and thus the case was appealed as of right to the Supreme Court of Canada.

The Supreme Court ruled that “an individual must be conscious throughout the sexual activity in order to provide the requisite consent” and that “the definition of consent…requires the complainant to provide actual active consent throughout every phase of the sexual activity.  It is not possible for an unconscious person to satisfy this requirement.” The majority’s decision follows the existing jurisprudence and uses statutory interpretation to hold that ultimately, if there is to be an exception for advance consent, it must be Parliament who allows for it, not the Court.  The Court also firmly rejects arguments that advance consent is legitimate because it is allowed for in medical intervention cases involving unconscious surgery where doctors are prevented from assault charges due to the advance consent of the patient. The Court rejects this argument, noting that surgery and sexual activity involve entirely different contexts and that while Parliament has enacted legislation that specifically exempts doctors from criminal liability flowing from surgical intervention, the same cannot be said for advance consent to sexual activity. The Court also dismisses arguments that without advance consent, awakening a sleeping partner with sexual touching becomes subject to criminal liability. Here the Court notes that advance consent would only offer a defence where the sleeping partner did in factspecifially consent in advance of falling asleep. Further, advance consent is inappropriate because the advance wishes of an unconscious partner could easily be misinterpreted or exceeded, leaving them vulnerable and open to abuse. Finally, the sleeping partner hypothesis is rejected because evidentiary and jurisprudential difficulties. The majority concludes by stating “In the end, we are left with this.  Parliament has defined sexual assault as sexual touching without consent.  It has dealt with consent in a way that makes it clear that ongoing, conscious and present consent to “the sexual activity in question” is required.  This concept of consent produces just results in the vast majority of cases.  It has proved of great value in combating the stereotypes that historically have surrounded consent to sexual relations and undermined the law’s ability to address the crime of sexual assault.   In some situations, the concept of consent Parliament has adopted may seem unrealistic.  However, it is inappropriate for this Court to carve out exceptions when they undermine Parliament’s choice.  In the absence of a constitutional challenge, the appropriate body to alter the law on consent in relation to sexual assault is Parliament, should it deem this necessary.” J.A.’s conviction was restored.

This decision has important implications for protecting those who are most vulnerable to sexual assault. As LEAF counsel Elizabeth Sheehy states “Women who are unconscious because of drugs or alcohol, whether taken voluntarily or involuntarily, or because of disability, are sexually assaulted at shockingly high rates, often with impunity for the offenders.  This decision ensures that predatory men cannot rape unconscious women and then say “well, she said it was OK before becoming unconscious.”” The decision affirms the right of every individual to be able to withdraw consent at any moment. Consent must be ongoing and active at all times.

Beyond the decision on advance consent, the case raises interesting issues about how a domestic violence context should be raised at a criminal trial and how BDSM practices should be dealt with. Notably, the Court appears to leave open the possibility that someone could consent to bodily harm during sexual activity, stating “I take no position on whether or in which circumstances individuals may consent to bodily harm during sexual activity.  In my view, it would be inappropriate to decide the matter without the benefit of submissions from interested groups.” It is interesting to note that the judges at the upper levels (and indeed, the news media) fail to understand that the purpose of autoerotic asphyxiation is not unconsciousness, and none are alive to the fact that strangulation in wife abuse cases is extremely common. Professor Karen Busby is working on a paper that will address these issues.

Read the decision:


Read more about the decision:



Read LEAF’s press release:


Read LEAF’s intervenor factum:


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France’s no-niqab law comes into effect tomorrow. This international context is important, both in terms of international equality concerns, and as Quebec continues to move ahead with its own no-niqab legislation.

Read more about France’s law:


And read LEAF’s excellent backgrounder on equality and niqabs here:


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