One Year Later: How we have been holding our judges accountable

July 24, 2018

By Stephanie Stella

Protesting the Jian Ghomeshi trial outside of Old City Hall in 2016

Without a doubt, the Jian Ghomeshi trial sparked a shift in the public’s awareness of sexual assault law and the treatment of complainants on the stand.

Since then, we’ve seen cases like the one judged by Gregory Lenehan, who proclaimed “a drunk can consent.” Or judged by Robin Camp, who asked,  "Why couldn’t you keep your knees together?” In the case of a young woman raped in Calgary.

Even in cases where there is clear evidence of the victim saying “no,” there was no guarantee of a conviction. Judge Michael Savaryn decided a particular victim in court did not dissent enough. Her lack of consent was disproven by the Judge, despite her having said “no” multiple times, because at one point in her assault she smiled and laughed her attacker off.

In the rare instances we saw a conviction, the criminal was shown sympathy and given a minimal sentence, so as not to ‘interfere with’ or ‘ruin their life.’

These cases continue making news, not because they are a new phenomenon, but because the public is more interested and aware of the prevalence and pattern of disregard to sexual assault complainants in the justice system.

Past cases are now being brought back from the dead to scrutinize the sitting judge. For example, a 2015 ruling by Judge Pat McIlhargey is being challenged because his acquittal of the accused was based upon apparent disparities between the victim and a host of rape myths. Another ruling, delivered by the Honourable Keith Yamauchi in 2013, is up for appeal, on the grounds that the acquittal hinged on the accusation that multiple complainants did NOT report sooner.

In another case, R v. Ururyar, in which Mandi Gray- the complainant waived her publication ban, and publicly denounced the judicial system’s mistreatment of her, the case ended in a conviction in July 2016. It was immediately challenged, both by the appellant’s lawyer and the internet. The appeal posited that Justice Marvin Zuker, the judge presiding over that case, suffered from a feminist bias toward the complainant.  The appeal was heard by a new judge in March- Judge Michael Dambrot.

Mandi Gray testifying during the R v Ururyar trial in 2016

I sat in the courtroom to listen, as I had done during the trial. Within ten minutes, the judge was already agreeing with the appellant’s attorneys, talking in a familiar, jovial tone, and openly insulting Judge Zuker’s verdict. When the complainant’s side stood up to speak, the change in the judge’s tone was palpable. Every comment Judge Dambrot made was criticizing, condescending, or outright rude to the Crown and the intervener. Multiple times, he interrupted or actually shushed them as they were speaking. He seemed to have already decided which direction he was going to rule, before hearing any arguments.

Remember, this was the appeal hearing for a trial judge’s verdict, on the grounds that the trial judge was biased. The irony would be comical if the consequences were not so serious.

Judge Dambrot showed little knowledge or understanding of what actually happens during a rape trial, and was dangerously resistant to correction by people with knowledge of the process. According to Judge Dambrot, rape myths aren’t used in court; if they become apparent, the judge will simply reject them. He claims that these myths do not influence the verdict, and they certainly are not used as the basis for a ruling. According to Dambrot’s fantasy world, the biases of Pat McIlhargey and Keith Yamauchi trials never happened.

We already know rape myths have no place in court, Mr. Dambrot, but a glimpse into any current rape trial reveals that we have not yet reached a point where they are not there at all. In the meantime, pretending these myths don’t influence people - including lawmakers and judges - is just plain naive.

One of Dambrot’s freshly minted myths is actually an already-established myth gone meta: that sexual assault complainants report their assaults to push their own secret agenda. It was one of the many myths repeated in the Gomeshi trial as well as in the R vs Ururyar trial, and one that men’s right’s activist of the social media love to toss around. The new version? That myth doesn’t even exist.

After the judge decried the existence of rape myths again, a group of survivors walked out of the R v Ururyar appeal, and the complainant announced that she will not testify again, in the clearly inevitable event that the original conviction verdict is overturned. One year later from the Ghomeshi verdict, we have a still-too-common sight: a judge who demonstrates a concerning lack of knowledge of the basic facts of rape and power dynamics.

So I will ask again, a year past the Gomeshi trial, has anything changed?

Are society and the justice system ready to make the shift from blaming victims to believing survivors and listening to their stories? Are we ready to hold our judges accountable for their prejudices and mistakes? Did we need to see it play out publicly in the Gomeshi scandal before we could collectively accept that the systematic injustice is indeed real?

The difference between a year ago and now is that survivors are feeling more empowered than ever to go public and speak out, both against their attackers and against the courts who demonize them in the witness box.

Yes, victim witnesses are mistreated in the system. This is happening, and it is absolutely unacceptable. And yes, we do have more options other than being forced to ‘lie back and take it’.