The lack of logic and reason among the leaders of our justice system in sexual assault trials should give Canadians pause.

Canadians were feeling pretty smug as they watched Donald Trump display deeply entrenched misogynist views during the US presidential campaign. Who wants a leader who is obviously biased and illogical? What would happen to public institutions if they were not guided by reason and impartiality? Poor Americans.

In Canada, though, the lack of logic and reason among the leaders of our justice system should give us all pause.

Justice Robin Camp sits now on the Federal Court. In 2014, when he was a provincial court judge in Alberta, he asked a sexual assault victim, “Why couldn’t you just keep your knees together?” As so many Canadians said in protest and as he has since acknowledged, his question demonstrated a lack of sensitivity not only to the victim but also to the nature of sexual assaults. His question was not reasonable given the reality of sexual assault. Surely, one would expect sound logical reasoning from a judge presiding over a courtroom.

One of the basic rules of logic is that an affirmative conclusion cannot be based on a negative premise. Here’s a simple, obvious example:

Dogs are not cats.
You are not a cat.
Therefore you are a dog.

But none of you reading this are actually dogs.

Camp’s question had parallel illogic. His implied reasoning was this: “When she has consensual sex, a woman does not keep her knees together. This woman did not keep her knees together. Therefore she consented to have sex.”

The conclusion in this argument does not follow logically from the two statements that precede it and leads to false conclusions about the victim’s consent.

An inquiry that heard evidence in September will determine whether Camp stays on the bench. His removal would send a clear message that the courts must do better when hearing and considering evidence related to sexual assault.

But the problem of illogic in the courts is more fundamental than the question of whether this one judge has abandoned misogynist and otherwise problematic beliefs. Unfortunately, faulty reasoning is common in sexual assault trials. Researchers have been analyzing sexual assault testimony for decades and have found problematic reasoning in numerous trials, used by both lawyers and judges.

Recently, in a case involving two York University graduate students, the defence asked the victim whether she kept her feet on the floor or moved up onto the bed. (She had testified that the accused pushed her back on the bed where she had been sitting.) Again, the same illogical argument was laid out for the consideration of the court:

When she has consensual sex, a woman does not keep her feet on the floor.
She did not keep her feet on the floor.
Therefore she consented to sex.

The defence in this case introduced other illogical arguments, in keeping with standard practice in sexual assault trials. But in an unprecedented outcome, the trial judge, Marvin Zuker, rejected these types of questions and their illogical conclusions as “myths.” He found the accused, Mustafa Ururyar, guilty. He revoked bail and sent the accused to jail. The defence immediately appealed on the grounds that the trial judge was biased. The Ontario Superior Court judge re-established bail, released the accused and said Ururyar had “strongly arguable if not decisive” grounds for appeal.

A core issue in the appeal is whether logic is optional in the judicial process. The cases for which Zuker and Camp are in the spotlight offer opposing examples of how a judge should handle the basic problem of illogical arguments.

When the courts contribute to the very problem for which they are the only means of legal recourse, we have a serious systemic failure of fundamental justice, a crack in the foundation of a fair and just society. In this country, sexual assaults are the least reported of all crimes against another person and the least likely to result in conviction. The appeal of Zuker’s verdict will be an opportunity to finally come to terms with this country’s failure to provide sexual assault victims with the justice that results from a fair process.

None of us are dogs, and we all deserve the equal protection of the law.

Photo: Jeff McIntosh/The Canadian Press

 


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