The Canadian Bar Association

Courts are 'sensitive' in sexual assault cases

Despite a complaint about an Alberta judge's conduct and comments during a sexual assault trial, Toronto criminal lawyer Elham Jamshidi tells Law Times her own experiences in dealing with this type of matter is that the courts generally assist those involved through the process.

“I find the courts are very respectful, very empathetic, very conscientious of the fact it’s a very sensitive topic, and from my experience they bend over backwards to ensure the complainant is not intimidated or scared of the process,” she tells the legal trade publication.

Jamshidi, of Jamshidi & Associates, makes the comments in the context of the Judicial Council’s announcement that it would review the comments and conduct of an Alberta judge during a 2014 sexual assault trial. 

Jamshidi tells Law Times that she doesn’t believe judges tend to lean one way or the other in terms of being more favourable to the complainant or the defendant.

Some legal experts in the article say the case around Justice Robin Camp’s comments during the 2014 trial highlight some significant issues in Canadian courts.

Camp is now a Federal Court judge. 

The case in question relates to a Provincial Court of Alberta trial involving a 19-year-old woman who accused a Calgary man of sexually assaulting her at a house party, says the article. 

The complaint against the judge suggests Camp was contemptuous of sexual assault laws and the rules of evidence and asked the alleged victim, “Why couldn’t you just keep your knees together?” and why she didn’t have a better explanation for “why she allowed the sex to happen if she didn’t want it.”

The Federal Court released a statement on Nov. 10 that said Camp won’t be hearing cases related to sexual assault for now and has volunteered to undergo sensitivity training, says the article. 

While Camp acquitted the accused in the 2014 trial, the Alberta Court of Appeal overturned that results. The appeal court said the judge’s comments raised doubts about his understanding of the law governing sexual assault, the meaning of consent, and restrictions on evidence of a complainant’s sexual activity, says the legal trade publication.

“We are also persuaded that sexual stereotypes and stereotypical myths, which have long since been discredited, may have found their way into the trial judge’s judgment,” the appeal court stated.

Jamshidi says this hasn’t been her experience dealing with sexual assault cases in the courts at all. 

She says even when a ruling is in favour of the accused, the courts “do take the proactive steps to ensure the criminal system is not an intimidating process” for the accuser.

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