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By Professor Karen Busby

In early 2011, a police officer in Toronto advised a group of law students that women who dress like sluts should expect to be victimized. Soon afterwards, Mr Justice Robert Dewar of the Manitoba Court of Queen’s Bench gave sentencing reasons from the bench that invoked similar beliefs. He found that mitigating factors in sentencing in a major sexual assault included that the complainant provoked the assault because she wore high heels, heavy make-up and a tube top.  He found that “sex was in the air” and that the defendant was a “clumsy don juan”. The defendant and the complainant, a much younger and smaller aboriginal woman, had known each other for about 20 minutes before the assault occurred. She had rebuffed his sexual advances; picked up a stick to use in self defence; and asked him in the course of the assault if he was going to kill her.  She had bruises on her backside and legs as well as cuts from running through the forest half dressed following the assault. Yet even after making these findings and rejecting the defences of consent and mistaken belief in consent, Dewar was obviously of the view that the complainant bore some responsibility for what had happened.

As happens in most sexual assault cases, the reasons on conviction and sentencing were not issued as formal reasons and therefore would have escaped any public scrutiny except that a Winnipeg Free Press reporter happened to hear about them. (He may or may not have been in court–this is not clear to me.) When the paper published the story, it was picked up across the country in a wave of indignation. Three weeks later, the newspaper received the sentencing transcript and posted it to their website.

Complaints were made to the Canadian Judicial Council about Dewar’s comments in the sentencing decision by various individuals including the Manitoba minister responsible for the status of women. The Crown filed an appeal against sentence. In August an appeal date of November 30 was set.

LEAF monitored the proceedings and in mid-October, upon seeing the Crown’s appeal factum, realized that the sentencing appeal had been abandoned and that the Crown had conceded that a new trial was necessary because of WD problems. (The SCC has recognized that WD’s complex formula for assessing credibility is a fertile ground of appeal in mistaken belief cases.)  The defendant’s position was that a directed acquittal was required.  LEAF filed an application for leave to argue that

  • There was no air of reality to the defendant’s assertion of mistaken belief that the WD credibility assessments did not need to be made.  The judge found an air of reality to the claim only because of his mistaken reliance on discreditable stereotypes.
  • Expose how discriminatory beliefs operated in the case.
  • Examine how these beliefs present additional barriers for indigenous complainants.

Like the sentencing decision, the conviction transcript(which LEAF received finally on October 21) reveals that the trial judge made his decision in reliance on stereotypical beliefs about women who alleged that they have been sexually assaulted.  In fact, the conviction transcript is in some ways more problematic than the sentencing decision. The opening line is “After a night of drinking when four people decide to climb into a car around 2:30 am to continue to party rather than head home to their own beds, something bad is bound to happen.”

The Winnipeg Free Press under a front page banner headline wrote an story outlining LEAF’s position. It also published a sidebar on Statistics Canada data on the dismissal prosecution of sexual assault cases in Canada and even more dismissal record in Manitoba—figures set out in the LEAF factum.    Only 31% of sexual assault cases on Manitoba result in a guilty verdict (Compared to 43% Canada wide) ad 67% if sexual assault cases in Manitoba are stayed before trial (compared to 46% Canada wide.) This paper then published an editorial calling for an explanation for the dismissal record. This story was picked up by other media including newspapers across the country. The Crown lashed back stating that the Statistics Canada figures were wrong. Its protestations are unconvincing–but the technical details of that story are for another blog.

The intervention hearing did not go well. The motions judge was critical of the media coverage and suggested that LEAF had activated its media machine. The defendant abandoned the appeal for an acquittal.

In mid-November, the CJC issued its decision. It found that Dewar’s conduct fell short of what was expected of a judge. However in light of his sincere apology and his willingness to take gender sensitivity training, no formal sanction was necessary. The CJC made no comments on the sentencing decision stating that this matter was before the Court of Appeal.  This assertion was, by the time it was made, inaccurate as the Crown had already abandoned the sentence appeal.  A few days later, the motions judge denied LEAF intervenor status on the ground that it was raising new issues.

It will be interesting to see what the Court of Appeal now does on November 30. In light of the Crown defence agreement that a new trial is necessary, it is possible–perhaps likely–that the court will simply issue a short decision making such an order.  One can only hope that they will take this case as an opportunity to comment on the trial judge’s appalling comments in the two Rhodes decisions and perhaps to acknowledge that judges, prosecutors and the police need to do more to address systemic discrimination in sexual assault cases in Manitoba.

Karen Busby is a professor in the Faculty of Law at the University of Manitoba and is the Academic Director of the Centre for Human Rights Research. On Thursday December 1 from 12 -1, Prof. Busby will be joining the FLF to facilitate a roundtable discussion on the Rhodes case.

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The Canadian Journal of Women and the Law (CJWL) has published Volume 22(2), an issue titled “Ten Years After Jane Doe”. The English language CJWL is based at Robson Hall and Prof. Debra Parkes is the English editor. The journal is an excellent feminist legal resource.

What does it mean to be in a post-Jane Doe era? The current issue of the CJWL probes issues around sexual assault law and features stories on English-Canadian newspapers and sexual assault myths; the legal construct of consent in wife-rape cases in Ontario; victim blaming; and the sexual assault of intoxicated women (and more!)

Find the table of contents here

Read more about this issue of the CJWL and other Jane Doe related work here

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