Happy New Year!
Wendy Cox in Vancouver this morning.
Just before the holidays, Globe reporters wrote about two recent court cases that raised serious questions about how sex assaults are treated in court.
Mike Hager highlighted a provincial court judge’s decision in October to give a lighter sentence to a man who pleaded guilty to voyeurism after he was charged for surreptitiously videotaping an international student living in his home while she was naked or partly clothed. The man had used a spycam disguised as an electric toothbrush charger in the bathroom used by the student.
Justice Joseph Galati accepted the findings of a psychiatric assessment that the man’s behaviour was partly due to an unhappy sex life with his wife.
“At bar, the offence, as I’ve already indicated, is not trivial, but it’s not at the most serious end of the spectrum either. Further, it appears that [the offender’s] actions were out of character and, as described in the psychiatric assessment, it appears that marital intimacy deficits contributed to the offending conduct,” said Justice Galati, according to an audio recording of the Oct. 26 hearing requested by The Globe and Mail.
The man, who is not named, was given a conditional discharge contingent upon him completing 30 months of probation.
B.C. Attorney-General Niki Sharma told Mike the inclusion of this reasoning is an indication the justice system needs to improve the way it treats survivors of sexual violence. But letters from the B.C. branch of the Canadian Bar Association and the B.C. Law Society, the self-regulating body in charge of upholding the standards of lawyers in the province, rebuked her decision to step into the case.
In the second case, the conduct of a high-profile lawyer defending a man accused of raping and murdering a 13-year-old girl was questioned by B.C. Premier David Eby, who called the defence’s arguments “profoundly offensive.”
On Dec. 8, a B.C. Supreme Court jury found that Ibrahim Ali had sexually assaulted and strangled the girl, then left her body on the forest floor of a park in Burnaby in July, 2017. He was convicted of first-degree murder.
During the lengthy trial, Mr. Ali’s defence counsel Kevin McCullough suggested consensual sex could have been the cause of the young girl’s injuries, argued that the Crown had wrongly portrayed the victim as an innocent child, and said it wasn’t “outlandish” to suggest she may have found Mr. Ali attractive.
The victim’s brother said in a statement after the guilty verdict that the defence lawyer’s argument left the family “shocked and revolted,” feeling “revictimized and retraumatized.” He said the family would file formal complaints against the defence lawyers, whom he said the family had come to “despise.”
The legal age to consent to sex in Canada is 16.
Mr. Ali’s lawyers did not request a hearing in the case, outside the jury’s presence, to determine whether sexual activity between the accused and his victim could be introduced as evidence under Canada’s rape shield law. In several decisions since 2019, Canada’s Supreme Court has outlined protections for sex assault victims.
“If the defence lawyer in this trial attempted to introduce evidence or make submissions regarding this girl’s supposed sexual history with the accused or anyone else without having complied with Canada’s rape shield regime, that was unlawful and unethical, full stop,” Elaine Craig, a leading authority on sexual-assault law and a professor at Dalhousie University’s Schulich School of Law, said.
Mr. Eby said his government will press for reforms in the justice system.
“For this young victim of crime, an appalling and awful crime, there’s no question she deserved better than she got in the courtroom, and her family deserved better. And the system clearly has work to do,” Mr. Eby said in an interview.
Mr. McCullough, who received death threats and was alerted that someone had brought a loaded gun into court on the last day of the trial, called the Premier’s comments “disgusting.”
“The Premier is stoking the flames of hatred, all the while undermining zealous representation, which will all lead to wrongful convictions,” he said in an interview.
He said it is up to the judge and Crown prosecutors to raise objections if the defence oversteps the boundaries that are in place to protect victims.
Richard Fowler, director of the Canadian Council of Criminal Defence Lawyers, concurred, saying that “the best defenders of the administration of justice in that context are the judge and the Crown, neither of whom raised concerns about Mr. McCullough’s closing.”
In a statement, the Law Society of British Columbia said it was aware of the “serious threats” related to the trial and noted “lawyers must not be identified with their clients or their clients’ conduct as a result of doing their job.”
Mr. McCullough has filed an appeal of his client’s conviction. Among the grounds: A dispute over the Crown’s suggestion the girl did not have a boyfriend.
This is the weekly Western Canada newsletter written by B.C. Editor Wendy Cox and Alberta Bureau Chief Mark Iype. If you’re reading this on the web, or it was forwarded to you from someone else, you can sign up for it and all Globe newsletters here.