Edmonton

Supreme Court finds Alberta judge used stereotypes in sex assault case, orders new trial

A man accused of sexually assaulting his stepdaughter will have to stand trial again after the Supreme Court of Canada found his initial acquittal in an Edmonton court involved a reliance on rape "myths and stereotypes."

A man accused of sexually assaulting his stepdaughter will have to stand trial again

Court of Queen's Bench Justice Terry Clackson acquitted a man on three sex-related charges. The Crown has asked for a new trial. (CBC )

A man accused of sexually assaulting his stepdaughter will have to stand trial again after the Supreme Court of Canada found his initial acquittal in an Edmonton court involved a reliance on rape "myths and stereotypes." 

The decision upholds a similar finding by the Alberta Court of Appeal from last year.

In the 2016 trial, the complainant told court her stepfather had touched her inappropriately throughout her adolescence. When asked about her relationship with the accused during that time, she said it was "OK, I guess."

The judge found the stepfather's evidence at trial unbelievable.

But in finding him not guilty, Justice Terry Clackson said he would have expected some evidence that the woman was trying to avoid her stepfather.

"As a matter of logic and common sense, one would expect that a victim of sexual abuse would demonstrate behaviours consistent with that abuse or at least some change of behaviour such as avoiding the perpetrator," he said in his decision.

While Clackson noted that not everyone reacts in the same way to abuse, he said the "incongruity" was enough to create reasonable doubt.

The country's top court, however, has found that evidence involving potential "rape myths" — such as how long it take a victim to report abuse, or the victim's post-abuse behaviour — cannot be used as a stand-alone reason to discredit their testimony.

That evidence can be considered within the context of the whole case. In this case, it appeared to be the sole reason the judge found doubt in the complainant's testimony.

Supreme Court unanimous

In 2017, Alberta's Court of Appeal said Clackson clearly made a mistake in law when he relied on an impermissible stereotype or myth about the behaviour of sexual assault victims. The decision was split two-to-one.

The decision of the Supreme Court this week was unanimous.

The identities of the stepfather and his stepdaughter are protected by a publication ban.