Thanks to excellent reporting by Andrew Duffy of the Ottawa Citizen, Canadians recently learned of a disturbing decision from Ontario Superior Court Justice Robert Smith that acquitted a man of sexual assault against his former wife because the man and his then wife believed that their religion and culture entitled him to have sex with her whether she consented or not.
The decision is especially alarming as it is based on a presumption that Canada's clear criminal law that requires actual consent to sexual contact is somehow superseded by a cultural or religious belief. Further, the ruling undermines specific protections enacted in Canadian law that protect women, including those who are married, from non-consensual sexual contact.
The ruling also ignores the long standing Canadian legal principle that ignorance of the law is not a criminal defense. In summary, the ruling appears to place religious and cultural beliefs above the laws of Canada.
The identities of the people involved are withheld under Canadian law, ironically to protect the victims, but the rationale for the decision is discernible and can be commented on which is what Andrew Duffy's column carefully did. In essence, the judge concluded that although the sexual contact was done without the wife's actual consent, the Crown had failed to prove that the accused had the required criminal intent (mens rea) because of the religious cultural belief he possessed.
His wife was a Palestinian Muslim who came to Canada in 1989 with her parents at age 19. Three years later, she entered into an arranged, but not forced, marriage in Gaza with a man who was also a Palestinian Muslim. The newlyweds returned to Canada and started a family.
Justice Smith concluded that both the accused and victim believed that under their religion and culture, the wife was obliged to have sex with her husband when he wanted, regardless of whether she agreed.
"I find that the accused probably had sex with his wife on many occasions without her specific consent," Smith said, "as both he and she believed that he had the right to do so."
The incident that was the basis of the charge occurred in 2002. The wife said that her husband grabbed her by the wrist, pulled her onto the couch, pulled down her pants and had sex with her even though she asked him three separate times to stop. She testified that she only learned that this was a crime in Canada in 2013 after the marriage ended and she spoke with police about child access issues when she revealed details of their past marriage. Based on that information, the police laid the sexual assault charge and the Crown Prosecutor's office agreed it should proceed to trial.
The husband denied the allegations, but the judge expressly said he disbelieved his evidence, while he believed the wife's evidence who he found credible as a witness who gave straightforward answers. Conversely, he found the accused to be argumentative and evasive as a witness, and he rejected his account as not believable.
The decision is remarkably brief, and it fails to address existing Canadian criminal law which expressly requires consent for sexual contact (s.273.1) and defines circumstances where consent does not exist including:
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity;
Further, the ruling does not address s. 278 of the Criminal Code which specifically requires sexual consent from a spouse.
The judge does not address or even mention the s.19 ignorance of the law is no excuse issue and simply concluded that the Crown had failed to prove the husband's criminal intent. So even though he believed the wife, he dismissed the charge against the ex-husband.
The judge seems to have concluded that ignorance of applicable Canadian law, or a belief that a religious or cultural practice supersedes secular criminal law, is a defense to what is the clear crime of sexual assault.
His failure to consider existing relevant Criminal Code provisions is further grounds for an appeal, as ignoring the law is also not acceptable judicial conduct.
The question that now needs to be asked is whether the Provincial Crown (which has jurisdiction) will appeal this decision to confirm that Canadian secular law, which prohibits sexual contact without consent, including for married women, prevails over a cultural or religious practice that mandates a woman's consent to sex as a condition of marriage.
And will our self-described feminist federal government urge its provincial counterpart to launch this important appeal with the full support of the federal Crown as an intervenor in the case?
Justice Smith made his ruling Oct. 17. That means the attorney general has about a week to lift the cone of silence on this important ruling and announce the filing of an appeal on behalf of the people of Ontario, and indeed Canada, to confirm that the secular law of Canada still applies to all residents of our country.
Scott Newark is a former Alberta Crown Prosecutor who has also served as Executive Officer of the Canadian Police Association, Vice Chair of the Ontario Office for Victims of Crime, Director of Operations for Investigative Project on Terrorism and as a Security Policy Advisor to the governments of Ontario and Canada. He is currently an Adjunct Professor in the TRSS Program in the School of Criminology at Simon Fraser University.