N.W.T. judge calls out 'he said-she said' approach to sexual assault cases

The sad reality is that sexual assault investigations are often mainly limited to interviewing the complainant and the accused."

Judge Donovan Molloy says there were ‘unpursued avenues of investigation’ in case

In his written reasons for an aquittal decision, judge Donovan Malloy says many sexual assault investigations are limited to interviewing the complainant and the accused. (Submitted photo)

A Northwest Territories judge is calling out the "he said-she said" approach to investigating sexual assault cases, saying it trivializes the crime and contributes to less robust investigations by police.

"Sexual assault trials are often referred to as challenging because of the so called 'he said-she said' dynamic," wrote territorial judge Donovan Molloy. "The sad reality is that sexual assault investigations are often mainly limited to interviewing the complainant and the accused."

Molloy's comments were part of his written reasons for decision in the acquittal of Edward Frank Albert on June 12.

Albert had been accused of sexual assault against a woman after he "exposed his penis" near her face, according to Molloy's decision, but "did not touch her with it."

Albert's defence attorney Baljindar Rattan told CBC she argued there was reasonable doubt about what had happened that night, including whether the exposure occurred.

The woman in the case, whose identity is protected by a publication ban, testified she and her mother had been drinking in Yellowknife on Sept. 7, 2018. They were turned away from a local shelter because they had been drinking, the woman said, and were invited to Albert's mother's home to sleep. The woman said she woke up to his exposed penis.

Molloy concluded there was no evidence Albert did anything other than stand close to the complainant with his penis near her face. He wrote that "while repugnant," such an act is not legally an assault.

'They don't see the system as very just'

According to the head of the Yellowknife Women's Society, cases like these reflect the difficulties that sexual misconduct victims face when they turn to the justice system.

"Many of the women I've worked with have decided not to report at all," Bree Denning said. "Many have said they don't see the system as very just."

In his decision, Molloy also said it was "unclear" if  RCMP Const. Olivier Charbonneau visited the shelter to speak to staff about what happened to the complainant that evening. He said the evidence only confirmed that the constable had received a complaint, interviewed the woman and visited the home where the incident occurred. 

"Some unpursued avenues of investigation could assist the Court in its efforts to determine whether the offence of sexual assault has been proven," Molloy wrote.

Speaking to shelter staff may not be directly related to the sexual assault accusation, he noted, but it could have confirmed other parts of the woman's testimony.

"While legally no corroboration is required, any sources of evidence ... enhance the ability of the Court to get at the truth."

An up-close picture of an RCMP shoulder patch.
Judge Donovan Malloy said 'unpursued avenues of investigation' by the RCMP could have helped the court make its decision. (Jeorge Sadi/CBC)

The RCMP declined to comment on questions about the investigation, but said the police service "remains committed to investigative excellence in all types of investigations."

"Our investigators work to determine the circumstances, identify and preserve evidence and conduct a thorough investigation," they said in an emailed statement. "The RCMP is taking public expectations, current standards and practices in place seriously when engaged in sex assault investigations and providing support to survivors."

Crown prosecutor Travis Weagant also declined to comment on the RCMP's work on the case, citing their professional relationship. But he said that prosecutors pursue cases when they believe there is a reasonable prospect of conviction and doing so is in the public interest.

Weagant added that an indecent exposure charge wasn't pursued because the incident happened in a private home.

"You don't always know what decision the court is going to make," he said, adding the Crown has 30 days from the date of the decision to decide if it wants to appeal.