The Alberta Court of Appeal has abolished sexual violence after the judge "entered" and acted as a victim's lawyer, interrupting and diverting questions to the complainant to the extent that it resulted in an unfair trial.
The 2017 Fort McMurray study heard evidence from a woman who drank in a bar with a male friend and a friend. These three then went to one of the men where she fell ill and fell. She testified that the next thing she remembered was a naked bed in a dark room with two men. One of them was raped, the other held hands, she said.
She fled the cold night without her shoes, purse or jacket. Soon after, two men arrived in her car, where she secretly recorded them before the car was stopped by the police and she went to the officers.
Both men were arrested and accused. The accused in this appeal had testified at his hearing that he was sleeping in another bed at night and woke up to find him with his friend. He denied him.
After she has provided evidence to the court in response to the questions put by the Crown Prosecutor, the woman was questioned by the accused lawyer – a process called a cross-check, which is part of the court's rules designed to allow the accused to respond fully to the charges.
During the cross-check, Judge Stephanie Cleary interviewed almost 50 times, despite questions relating to only 30 pages in a 325-page trial transcript, the Court of Appeal noted.
"The trial judge came in and, unfortunately, and undoubtedly seemingly acted to reduce the defenses with the appearance of an unfair trial," says the Court of Appeal's ruling of 18 January.
Net effect "did not allow the defense to verify the complainant's evidence."
At a different time during the hearing, Cleary objected, including a woman's testimony on time, but the Court of Appeal found that these breaks were different.
"The subject of this earlier intervention seems to be to make the complainant as comfortable as possible or to ensure that the (Spanish) translation is as accurate as possible," the court of appeal stated.
"Review of the transcript … reveals a significant number of cases where a judge judge did not allow the defender to ask some questions, without first receiving a complaint from a Crown lawyer or reformulating them to answer a question, rather than a defense."
"Many of these situations alone would not be enough to prove that the trial was unfair, or that the lawyer could not defend. However, in view of the cumulative and numerous additional litigation that limited the complainant's cross-examination, we conclude that the defense is at risk. ”
The cumulative effect of Cleary's interference "created an impression of hostility to defense, which promoted universal justice in court. They were well above the interviews needed for a well-functioning trial.
Many of these situations alone would not be enough to prove that the trial was unfair
The Court of Appeal noted that the cross-checks questions were not wrong, which were meant to lower the woman, as was the case in some rape studies, but were often "typical questions put to any complainant in cross-checks".
The Appellate Court noted that there were cases where a judge's intervention in a sex offense court was necessary, for example, when the defense "randomly raises the complainant's reputation or unjustified issues directed at discredited" rape myths ", that the complainant's failure or failure caused the country to she would have given her consent to the sexual activity in question. ”
They were not in line with this, the appeal court pointed out.
The accused, Yeider Quintero-Gelvez, was ordered by a new judge with another judge. The name of the complainant remains in the prohibition of publication.
The case is another example of the difficulties that may arise in the courts of sexual violence, if the court rules may seem to contradict social trends.
In 2017, the Ontario Court of Appeal abolished the conviction for sexual assaults because the judge used an "inhuman and offensive language" against the accused and "allowed his personal feelings… to overtake his impartiality".
In the same year, the Ontario Court also abolished sexual violence against Mustafa Ururyar in the convicted case. The judge had made a strange 179-page decision citing academic studies and literature on sexual assault, including three pages on the Maya Angelou & I Know Why in the Cage.
A new trial was ordered, but it was not held and the link of peace solved the fee.
Cleary was named as a Provincial Court Judge in 2008. Her appointment two years later became the Chief Prosecutor of the Medical Captain, several years as a prosecutor at Nova Scotia, and two years as a private defense advocate.
When he was appointed to Alison Redford, then the Minister of Justice and the future Conservative Prime Minister, she was praised for her work in creating specialized domestic violence in Medicine Hat.
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