No still means “no”: Editorial, Sixteen years after a landmark Supreme Court ruling at least one judge still does not understand that there is no such thing as implied consent for sex by Toronto Star, Friday, November 13, 2015
In a landmark, unanimous decision back in 1999, the Supreme Court of Canada ruled that there is no such thing as implied consent for sex. In other words: no means no.
In handing down its decision, it overturned the acquittal of Steve Ewanchuk by Alberta Court of Appeal Judge John McClung. That case was infamous for McClung’s shocking comment during the case that the victim, who was wearing a T-shirt and shorts at the time of the assault, “did not present herself in a bonnet and crinolines.”
For that remark, and so many more, he was smacked down by Justice Claire L’Heureux-Dubé for perpetuating stereotypical myths.
So here we are in 2015. After so many years of jurisprudence on this ruling one would expect judges to be clear on the court’s message. But alas, that turns out not to be the case.
“Why couldn’t you just keep your knees together?” and “Why didn’t you just sink your bottom down into the basin so he couldn’t penetrate you?” Justice Robin Camp, now of the Federal Court of Canada, asked a complainant when he was presiding over a case in 2014 in Alberta Provincial Court.
If that’s not appalling enough, the judge also asked the woman, “why she allowed the sex to happen if she didn’t want it,” although Canadian courts have long recognized there is no foundation to the stereotype that a woman cannot be raped against her will.
It gets worse. When the complainant testified she was in physical pain during the alleged assault, he told her that “sex and pain sometimes go together . . . that’s not necessarily a bad thing.” And he advised the accused to tell all his male friends that if they didn’t want to “get in trouble” they needed to be far more “patient and gentle” with women.
Justice Camp’s disgraceful comments came to light when an appeal court said he had fallen prey to myths and stereotypes about sex-assault victims in acquitting the man — and four law professors complained about his conduct to the Canadian Judicial Council.
Thankfully, three things have come about as a result of Justice Camp’s comments:
The Canadian Judicial Council, chaired by the Chief Justice of Canada, Beverley McLachlin, is investigating. It can order counselling or removal of the judge from the Federal Court.
While the investigation is underway the judge cannot hear any cases involving sexual conduct.
And perhaps most importantly, the case has drawn attention to a significant reason so few sexual assault victims complain to police.
Indeed, research last year by University of Ottawa professor Holly Johnson highlights how little trust women have in the system. Using Statistics Canada data, she found that 460,000 women self-reported a sexual assault in 2004, yet only 15,200 reported it to police. Of that number, 5,544 charges were laid; 2,824 men were prosecuted; and only 1,519 were convicted of sexual assault in 2006.
It’s clear many women don’t trust the justice system, and Justice Camp’s comments make it abundantly clear why not. There is no deadline for the council to reach a decision in this case, but they should make it known as quickly as possible. Women must be assured that all judges across the country understand that no means no. [Emphasis added]
[Refer also to:
Alberta Provincial Court Judge Robin Camp has been appointed to the Federal Court to replace Justice Yves de Montigny, who has been elevated to the Federal Court of Appeal.
Camp received his law degree in South Africa and successfully completed challenge exams to re-qualify to practise in Canada in 1998. He was appointed a judge of the Provincial Court, Criminal Division, in 2012. Prior to his appointment, he had been a lawyer at JSS Barristers from 2004 and a managing partner from 2008 to 2012. His main area of practice was commercial litigation. He was called to the Alberta bar in 1999. [Emphasis added]