By: Jennifer Koshan

PDF Version: Reflections on Week One of the Ghomeshi Trial

I posted on ABlawg last Monday on the legal consequences of choking in the sexual assault context, which I suggested would be a likely issue in the Jian Ghomeshi trial. The testimony at the first week of the trial indicates that the question of whether one can legally consent to sexual activity involving choking is less likely to be the focus than whether the sexual assaults actually occurred and / or whether there was consent to the sexual activity in fact. Much ink has been spilled on the scope of the cross-examinations of the two complainants (so far) by defence counsel Marie Henein and the consequences of her tactics for the rights of sexual assault victims and their willingness to come forward. I want to add my two cents worth by focusing on the scope of the rape shield provisions, the relevance of the relationship between the complainants and the accused, and the possibility of expert evidence in this trial.

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By: Jennifer Koshan

PDF Version: Sexual Assault and Choking – Making Sense of the Legal Consequences

Case Commented On: R v White, 2016 ABQB 24

The Jian Ghomeshi trial gets underway today and there is likely to be intense coverage of this event in the media and blogosphere (for earlier ABlawg posts on Ghomeshi see here and here). Ghomeshi is charged with 4 counts of sexual assault as well 1 count of overcoming resistance by choking. Choking is not uncommon in sexual assault cases, although its legal significance is still somewhat murky. For example, in R v JA, [2011] 2 SCR 440, 2011 SCC 28, the Supreme Court declined to rule on whether choking that leads to unconsciousness amounts to bodily harm so as to vitiate consent (at para 21). A recent Alberta case, R v White, 2016 ABQB 24, considered the relevancy of choking in the context of sentencing for sexual assault offences. As I will discuss in this post, White suggests that choking should be seen as equivalent to bodily harm in this context, which may have implications for sexual assault matters more broadly.

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By: Alice Woolley

PDF Version: When Judicial Decisions Go from Wrong to Wrongful – How Should the Legal System Respond?

Case Commented On: R v Wagar, 2015 ABCA 327 (CanLII)

Introduction

Judges make wrong decisions. As I discussed in a recent ABlawg post, errors in judicial decisions are to be expected given the human frailty of participants in the judicial system – the judges, the lawyers and the parties. But at some point can the quality of an error in a legal judgment change – can it go from wrong to wrongful? That is, at some point does the error go from being a product of the judge’s humanity to being a product of a moral or ethical failure?  And if a judicial decision crosses that line, how ought the legal system to respond? In particular, how can it respond so as to respect judicial independence while also ensuring public confidence in the administration of justice?

In this blog I explore these questions through Judge Robin Camp’s decision and conduct in R v Wagar, a decision overturned by the Court of Appeal (R v Wagar 2015 ABCA 327 (Canlii) and summarized and commented on by my colleague Jennifer Koshan here. I argue that legal decisions go from being wrong to wrongful when they demonstrate both disrespect for the law and a failure of empathy in regards to the persons who appeared before the court.   In my opinion, Judge Camp’s decision falls within this category; it demonstrates both disrespect for the law governing sexual assault and a pervasive inability to understand or even account for the perspective of the complainant.

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By: Jennifer Koshan

PDF Version: Judging Sexual Assault Cases Free of Myths and Stereotypes

Case Commented On: R v Wagar, 2015 ABCA 327 (CanLII)

I am spending the fall term at the University of Kent’s Centre for Law, Gender and Sexuality, where I am working on a couple of projects related to the legal regulation of sexual assault. One of these projects has me immersed in the sexual assault laws of England and Wales, and in the course of doing some research in this area, I have learned that judges here routinely warn juries in sexual assault trials of the need to dispel any myths and stereotypes that they may bring in to the adjudication process. A recent judgment from the Alberta Court of Appeal in R v Wagar, 2015 ABCA 327 (CanLII), suggests that trial judges in Canada would do well to actively caution themselves in the same way. The trial decision of Judge Robin Camp in Wagar, overturned on appeal, is replete with sexual assault myths and stereotypes that influenced his decision to acquit the accused.

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