Judge reversed on sex-assault ruling retires

Justice wrongly inferred ‘consent from submission,’ Appeal Court said

A judge who came under fire from Alberta’s Appeal Court for a ruling in a sexual-assault case has decided to take early retirement.

The Alberta Court of Appeal criticized Court of Queen’s Bench Justice Kirk Sisson in 2014 for acquitting a suspect in a 2013 case.

Court heard the woman told the suspect on numerous occasions that she did not want to engage in any sexual activity.

He persisted despite her protests. After struggling and resisting his advances for 20 minutes, she realized he was not going to take no for an answer.

“She testified that she gave in because of his persistence and to get it over with. In other words, she finally decided that she had enough and gave in to him,” Sisson wrote in his ruling.

“Consequently, the Crown has failed to prove an essential element of the offence beyond a reasonable doubt, that’s lack of consent.”

But the Appeal Court set aside Sisson’s ruling and substituted the acquittal with a conviction, saying he “erred in his narrow definition of the charge of sexual assault” and by “inferring consent from submission.”

“The trial judge considered only the sexual intercourse that took place after these protests. This is an error.

“Sexual assault is not confined to intercourse,” wrote the three-judge panel.

“The Criminal Code makes clear that acquiescence or submission is not consent. Moreover, the law requires that reasonable steps be taken to ensure consent after the rejection of sexual advances.”

Sisson, 65, was appointed to the bench in 2006 and will take early retirement beginning Jan. 3. He could have remained on the job for another 10 years.

He will receive an annual pension payout of $142,000.

Danielle Aubry, executive director of Calgary Communities Against Sexual Abuse, said she doesn’t think the age of a judge is the issue.

She said the problem is with judges who have biases that reflect rape culture myths.

“They’re the ones who should be retiring,” she said.

“Let’s just make sure anyone who is sitting on the bench is doing it responsibly and with good information and good education.”

The Sisson case is just one of a number of high-profile cases that has put the Alberta judiciary in the spotlight.

A Canadian Judicial Council panel recommended last month that Justice Robin Camp should lose his job for his handling of a 2014 sexual-assault trial.

Camp called the complainant, an indigenous woman who was 19 years old and homeless at the time of the alleged assault, “the accused” throughout the trial — a phrase he repeated during a judicial council disciplinary hearing before quickly correcting himself.