Judge taints sex assault ruling by joining ‘fray’
A sexual assault conviction has been overturned by the Court of Appeal of Alberta after a judge “entered the fray” and acted like a victim’s advocate, interrupting and deflecting questions to the female complainant to such an extent it created an unfair trial.
A 2017 trial in Fort McMurray heard evidence from a woman who went out drinking with a male friend and his friend at a bar. The three then went to the home of one of the men, where she became ill and fell. She testified that the next thing she remembers is being naked on a bed in a dark room with two men. One was raping her, the other holding her arms, she said.
She fled into the cold night without her shoes, purse or jacket. Soon after, she was picked up by the two men who came looking for her in a car.
While in the car she secretly recorded them talking before the vehicle was stopped by police and she left with the officers.
The two men were arrested and charged.
The accused in this appeal had testified at his trial, saying he went to sleep in another bed that night and awoke to find her arguing with his friend. He denied assaulting her.
After giving her evidence in court by answering questions from the Crown prosecutor, the woman was next questioned by the accused man’s lawyer, a process called cross-examination, which is part of the rules of the court designed to allow an accused to make full answer and defence to the accusations.
During cross-examination, the trial judge, Stephanie Cleary, interjected almost 50 times, despite the questions covering just 30 pages in a trial transcript of 325 pages, the appeal court said.
“The trial judge entered the fray and, unfortunately and no doubt unintentionally appeared to be acting to undermine the defence with the resulting appearance of an unfair trial,” says the appeal court ruling released Jan. 18.
The net impact “made it impossible for the defence to test the complainant’s evidence.”
Cleary made interjections at other times during the trial, including during the woman’s testimony for the prosecution, but the appeal court found those interruptions were of a different tenor.
“The theme of those earlier interjections appears to be generally aimed at making the complainant as comfortable as possible, or to ensure that the (Spanish) translation was as accurate as possible,” the appeal court said.
“A review of the transcript … reveals a significant number of situations in which the trial judge prevented defence counsel from asking certain questions without having first received an objection to them from Crown counsel, or rephrasing them so that her version of the question is answered, not that of the defence.
“Many of these situations would not, alone, be sufficient to establish that the trial had been unfair, or that counsel had not been able to advance the defence. However, taken cumulatively and in the context of the many additional interjections made by the trial judge limiting cross-examination of the complainant, we conclude that the defence was compromised.”
The cumulative impact of Cleary’s interjections “created an impression of hostility toward defence which contributed to the overall fairness of the trial. These went well above and beyond interjections” needed for a well-functioning trial.
The appeal court said the cross-examination questions were not improper ones meant to demean the woman, as has been a concern at some rape trials, but often were “typical questions asked of any complainant in cross-examination.”
The appeal court said there are times when interjections by a judge at a sex assault trial are necessary, such as when the defence makes “random shots at the complainant’s reputation or groundless questions directed to discredited ‘rape myths’ to the effect that the complainant’s unchaste or aroused state made it more likely she would have consented to the sexual activity in question.”
These were not in line with that, the appeal court said.
A new trial with a different judge was ordered for the accused, Yeider Quintero-Gelvez. The name of the complainant remains under a publication ban.
The case is another example of the difficulties that can arise in sexual assault trials where the rules of the court can seem at odds with social inclinations.
In 2017, the Ontario Court of Appeal overturned a sexual-assault conviction because a judge used “intemperate and insulting language” towards the accused man and “let his personal feelings … overtake his objectivity.”
That same year, the Ontario court also overturned the sexual assault conviction against Mustafa Ururyar in a much-publicized case.
The judge had issued a bizarre, 179-page decision quoting academic studies and literature about sex assault, including three pages on Maya Angelou’s I Know Why the Caged Bird Sings.
A new trial was ordered but was not held and a peace bond resolved the charge.
Cleary was named a judge of the Provincial Court of Alberta in 2008.
Her appointment came after two years as acting chief crown prosecutor in Medicine Hat, several years as a prosecutor in Nova Scotia and two years as a defence lawyer in private practice.
When appointed to the bench by Alison Redford, then the minister of justice and future Conservative premier, she was lauded for her work setting up a Specialized Domestic Violence Court in Medicine Hat.