On the other end of the line, Professor Anne-Marie Boisvert, from the law faculty of the University of Montreal, is incredulous and dismayed. “I can’t believe that the National Assembly trivializes its role by stooping to making motions like that. It is certain that no one there has read this judgment. »
What is this judgment which was the subject of a motion adopted unanimously on Thursday by the hundred deputies present in the National Assembly? On March 8, the country’s highest court handed down its decision R. v. Kruk regarding two sexual assault cases committed in British Columbia. Apart from certain jurists specializing in the matter, the publication of this decision did not cause much noise, especially on this side of the country.
The Supreme Court had to determine whether a trial judge made an error of law in evaluating the testimony of a victim of sexual assault committed in 2017. This judge gave a lot of credibility to the fact that the victim, a 19-year-old woman years old, claimed before the court to have “felt the penis of [son agresseur] in her “. The defense suggested that the victim may have been mistaken about the physical sensation of penile-vaginal penetration due to her state of intoxication at the time of the incident.
The judge, in light of all the evidence, rather believed the victim. “It is extremely unlikely that a woman would be mistaken about this sensation,” he determined in sentencing the accused.
Before the British Columbia Court of Appeal, the defendant’s lawyers sought to overturn the judgment, arguing that the judge had made an error in finding it “unlikely” that a woman was wrong when she claimed to have felt a penetration. The Court of Appeal agreed with them.
The Supreme Court was therefore in turn seized. Did the trial judge make an error in giving so much credibility to this element of the testimony of the victim who claimed to have felt her attacker’s penis in her vagina, even though she was intoxicated? No, decree the judges.
If a witness says that, when he was intoxicated, he is certain he was punched in the face or kicked in the shin, do we require an expert to come and support these assertions? ? No. It’s the same thing for penile-vaginal penetration.
“When a person with a vagina credibly and with certainty testifies to having experienced penile-vaginal penetration, the trial judge must be able to conclude that she is unlikely to be mistaken,” writes Judge Sheilah L. Martin , on behalf of the Supreme Court.
A question of vagina
“If there is a court that is careful about the words it uses, it is the Supreme Court,” says Anne-Marie Boisvert. And the right word to use in this specific point discussed at the Supreme Court is the one that designates this sensory organ, the vagina. “And there are people who don’t consider themselves a woman and who have a vagina,” says Mme Green wood.
Furthermore, the wording “person with a vagina” appears only once in this long judgment, in paragraph 109 very precisely. The word “woman”, for its part, appears… 67 times.
Nevertheless, the motion presented by the Minister responsible for the Status of Women, Martine Biron, proclaims that the National Assembly “dissociates itself from the use of terms or concepts that contribute to making women invisible.”
Which makes jurist Anne-Marie Boisvert jump.
The Supreme Court rendered a judgment eminently favorable to women and victims of sexual assault. To claim that this judgment makes women invisible is mind-blowing.
Anne-Marie Boisvert, professor at the Faculty of Law at the University of Montreal
Lawyer Hugo Caissy, vice-president of the Quebec Association of Defense Lawyers, is also perplexed. This passage from the judgment is interpreted “out of context”, he says. “What the Court said is more nuanced. »
QS recognizes “factual errors”
Did the deputies speak out a little too quickly on the Supreme Court’s judgment?
Contacted after the vote, Québec solidaire acknowledged having voted in favor of a motion which contained “factual errors”, but claims to have given its consent to the motion “because we are in agreement with the concept of not making women invisible. “. “We refused to be joint because the motion contained factual errors, notably the fact that the judgment in question uses the word woman 67 times,” indicated Stéphanie Guèvremont, communications director for the parliamentary wing of the party.
The motion adopted unanimously on March 14 by the National Assembly
“That the National Assembly denounces the choice of words used in a recent judgment of the Supreme Court to designate women; “That she reiterates the importance of retaining the word “woman”; “That she dissociates herself from the use of terms or concepts that contribute to making women invisible; “Let her recall the significant gains made in recent decades to advance women’s rights and the need to protect these acquired rights. »
At the Parti Québécois, a spokesperson responded to The Press that the party supported the motion “because of paragraph 109”. “The highest court in the land should call a woman a woman. »
In the office of the Minister of the Status of Women Martine Biron, who proposed the motion, it is affirmed that the Legault government “will always protect the rights of women”. “The Supreme Court used words that try to make them invisible. It was important to denounce this practice,” indicated the minister’s press secretary, Catherine Boucher.
Which hardly convinces Anne-Marie Boisvert. If they want to take care of women, they could budget something for battered women’s shelters. That’s within their competence, she suggests.
That same day at the National Assembly where the motion was adopted, Minister France-Élaine Duranceau announced that she had blocked the construction of shelters for women victims of domestic violence because they were too expensive.
With Charles Lecavalier, The Press
Read the Supreme Court judgment