Judging sexual assault trials: Best put it in writing

By Yves Faguy September 6, 20176 September 2017

Judging sexual assault trials: Best put it in writing

In her recent Canadian Bar Review article, Dalhousie Associate-Professor Elaine Craig reviews the trial record in R v Al-Rawi, in which a provincial court judge found the accused not guilty of sexually assaulting a highly intoxicated woman, found partially naked in the back of his cab. In his oral judgment, Judge Gregory Lenehan said the Crown hadn’t proved beyond a reasonable doubt her lack of consent. His widely reported comment that “clearly a drunk can consent” drew strong criticism across the country.  To be fair, Craig pins some of the responsibility on legal counsel, whom she suggests failed to uphold some legal protections that should have been afforded to the complainant under Canada’s rape-shield provisions. But she makes a strong case for writing as a thinking process, when making the case that judges in sexual assault cases should be required to provide written decisions (in addition to undergoing more rigorous sexual assault training):  

Written decisions provide a degree of transparency and public accountability not available with oral decisions. This case, like other recent sexual assault cases, came to light because a journalist happened to be in the courtroom and decided to report on the decision.  Indeed, absent the Crown’s decision to appeal or a journalist’s decision to report, sexual assault cases involving oral decisions provide no opportunity for scrutiny by researchers, legislators, or the public. The provision of written reasons promotes the open court principle. Given the ongoing difficulties with the criminal justice system’s response to sexualized violence, there are compelling reasons to ensure that, in the sexual assault context, judicial reasoning is as accessible and assessable as possible.

Requiring written decisions also has the potential to ensure more careful, thorough, and well-reasoned judgments in what is a sensitive and difficult area of law—an area of law in which the legal profession and the judiciary have struggled to maintain public confidence in the administration of justice. While Judge Lenehan’s statement that “clearly a drunk can consent” was not legally incorrect, it was carelessly included in an oral judgement that, at a minimum, clearly had the potential to be highly controversial. It is possible that, in a written decision, he would have taken more care in wording his legal conclusion that it is only at a certain level of intoxication that a complainant will be found to lack capacity to consent. From the perspective of those interested in encouraging the public to engage in cautious and attentive ascertainment of consent when contemplating sex with an intoxicated person, a more carefully crafted decision by Judge Lenehan would have avoided the unhelpful phenomenon of headline after headline that read: “Clearly a drunk can consent.”

The Nova Scotia Court of Appeal is scheduled to hear the Crown's appeal in the case in November.

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