The chief judge of the Provincial Court of Alberta is reviewing the conduct and education of Edmonton provincial court Judge Michael Savaryn, whose acquittal of a teenager in a sexual assault case was recently overturned by a higher court.
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In a statement to CBC, provincial court Chief Judge Terrence Matchett said comments made by Queen's Bench Justice Juliana Topolniski in her written ruling overturning Savaryn's April decision "are of concern to me and I have commenced a review of the matter.
"While as chief judge I have no authority to review the decisions of individual judges (that is the function of appeal courts), I do have the authority to address individual conduct and education issues," Matchett said in an email.
Case involved consent and 'No means no'
In April, Savaryn found a 15-year-old boy not guilty of sexually assaulting a 15-year-old girl.
In overturning the teen's acquittal, Topolniski delivered a blistering rebuke of Savaryn, saying he did not understand the law as it pertains to consent.
"It is long beyond debate that, in Canada, no means no," Topolniski wrote. "Consent means yes.
"The word 'no' does not mean 'yes.' The word 'no' coupled with fending off an attacker with a water bottle does not mean 'yes.'
"There is nothing ambiguous about it."
In her ruling, Topolniski directed that sentencing for the boy be conducted by a judge other than Savaryn. Matchett said the provincial court "must respect" Topolniski's direction.
The chief judge said he has "made no decision" on whether to review any other decisions by Savaryn in sexual assault cases.
Asked by CBC if Savaryn would be prevented from hearing sexual assault cases in future, Matchett said he couldn't comment.
'Unusual' to direct new judge for sentencing
Steven Penney, a professor at the faculty of law at the University of Alberta, said it is "somewhat unusual" but not unprecedented for an appeal court to state or recommend that sentencing be conducted by a different judge.
"I think the only inference that can be made is that Justice Topolniski was not confident in the ability of Judge Savaryn to sentence the accused in an impartial manner — at least that there would be a perception that the sentencing would not be fair and impartial," Penney said.
Penney said it's also "relatively rare" for an appeal court to overturn an acquittal and enter a conviction instead of sending the matter back for a new trial.
"I think what Justice Topolniski was getting at was this decision was so self-evidently wrong on both the law and the facts that we could take the rather unusual step — the rather extraordinary step — of directly entering a conviction on appeal, as opposed to ordering a new trial."
Video evidence may have helped appeal judge
Penney said the existence of video evidence may have been a help to Topolniski as she reviewed the lower-court ruling.
"That may have given Justice Topolniski more confidence in recognizing the errors and not needing perhaps to give as much deference to the trial judge's assessment of the facts, because she could see at least some of the facts for her own eyes, because they were captured on video."
Matchett, in his statement to the CBC, said the provincial court "places a very high priority on continuing legal education for judges and justices of the peace."
Continuing legal education is one of the key strategic priorities set out in the court's 2015-17 strategic plan, he said.
"Two years ago, we hired a judicial education co-ordinator. Since then, we have developed an education plan for our court, a specific education plan for new judges and a mentoring program for all new judges.
"The Provincial Court Judges Association organizes two education conferences per year attended by all judges and justices of the peace.
"In addition our judges and justices of the peace have professional development allowances which enables them to attend other conferences. Our Judges Association conference in mid-May 2016 involved two days of seminars on the law of sexual assault."