Chris MacLean's picture
It's okay as long as you believe it's okay
Posted on Nov 15, 2017

A government initiative called It's Never Okay: An Action Plan to Stop Sexual Violence and Harassment was brought into effect in 2015, and yet Ontario's judges are not taking that statement to heart. The following case is evidence that it certainly is okay, as long as you think it is.

A man and woman are brought up to believe that a man's right to have sexual relations with his wife supercedes her right to say no. They settle Canada where the law says every woman has the legal right to have her wishes respected each time she says "no" – regardless of whether there have been consensual relations in the past or will in future.

During a dispute over child access, the ex-wife finds out that she indeed had the legal right to refuse sexual relations with her then-husband. A court case is initiated when she complains to police. Of course it will be messy.

Fast Forward to the court decision. Justice Robert Smith finds the woman's testimony to be credible, while the husband was argumentative and evasive, concluding that "I find his evidence in this regard does not accord with common sense to a reasonably informed person.”

And yet the husband is acquitted. The judge rules he is not guilty of sexual assault because the Crown had failed to prove that he knew his behaviour was criminal.

The ruling ignores Canadian legal principle that clearly says ignorance of the law is not a defence. If this decision is left unchallenged by appeal, this is a very dangerous precedent that will easily lead to the downfall of the Canadian Justice system.

As of 17 Nov 2017, the Crown has still not filed to appeal this case.

The following is part of the official transcript in the Legislative Assembly on 16 November 2017:

Ms. Laurie Scott: My question is to the Attorney General. This afternoon, the Legislature will be debating my private members bill, the Mandatory Sexual Assault Law Training for Judicial Officers Act. As the minister knows, I've been pushing this issue for quite some time. The minister has told me before, in this House, that he is satisfied with the status quo. Unfortunately, the status quo does not go far enough.


Hon. Yasir Naqvi: Let me be absolutely clear: Sexual assault is a very serious issue that demands attention from all levels of government and all our institutions. Supporting survivors is really important to me because I know, as they move through the justice system, that these processes have the potential to re-traumatize the victims, and we want to do everything we can to ensure that that does not happen.

That's why we have dedicated legal supports. That's why we have specially trained crowns and free legal advice for survivors of sexual assault. That is why I'm also pleased as I have said before that the Chief Justice of the Ontario Court of Justice has informed me that the court has expressly mandated that sexual assault education be mandatory for new judges. The education plan has been updated and is available on the Ontario Court of Justice website. I'm confident that the action that has been taken by the Chief Justice will serve to increase public confidence in our justice system.

The Speaker (Hon. Dave Levac): Supplementary.

Ms. Laurie Scott: The only reason the government even did anything on this issue in the first place is because we brought it up. It's not like it's a new issue. Now it looks like the government treated this as a public relations problem that they just wanted to get rid of by hiding behind the argument of judicial independence. The bill doesn't tell them what form this training should take or how they should deliver it. That's up to the judges.

The fact is that mandatory training will build trust in our justice system that is lacking as a result of so many incidents reported in the media. Since the minister doesn't look like he's going to be supporting this bill, what is he going to tell survivors who have been begging for this change?

Hon. Yasir Naqvi: The Minister of the Status of Women.

Hon. Indira Naidoo-Harris: I want to thank the member opposite for this question. Sexual violence is a brutal and traumatic crime. The reality is that it's far too widespread in our society and has a devastating and lasting impact on survivors and their families.

I want to commend the Chief Justice's efforts in implementing mandatory sexual assault training for new judges. This is an important step. But I want you to know that our government has been working on this issue for some time. As a government, we have done a lot through our sexual violence and harassment action plan to change societal behaviours, because that is where the work has to start. Training is always an important step, and that's why we've invested $1.7 million into training for front-line professionals.

We are taking action across government through It's Never Okay: An Action Plan to Stop Sexual Violence and Harassment, which we brought into effect in 2015. We have been working on this issue for many years.


Apparently "It's Never Okay" doesn't mean the same to me as it does to the judiciary, which currently legally accepts that it is okay as long as YOU think it's okay.

– Chris MacLean

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