Sexual assault trials involve complex issues of law, fact and social context. In recent years there have been important legislative changes, and extensive developments in the jurisprudence concerning sexual assault. These developments have occurred within a highly dynamic social context, which has focused attention on judicial decisions in sexual assault cases. Trial judges are expected to and must balance competing interests, and make fair and effective decisions about challenging issues without resort to discredited myths and stereotype. Consent, capacity to consent, honest but mistaken belief in communicated consent, appropriate lines of questioning of witnesses, and the production of records carrying privacy interests are just some of the challenging issues that present for decision. It is essential that trial judges have a thorough understanding of the law in this area, so that they deliver jury instructions and reasons for decision that are legally accurate and in understandable language.
The Superior Court of Justice is committed to maintaining the highest standards of legal excellence in judicial decisions, including in sexual assault cases.
At the direction of Chief Justice Heather Smith, Regional Senior Justice Michelle Fuerst launched the creation and implementation of this comprehensive self-study course in sexual assault law. It was developed and produced by Norine Nathanson, Senior Counsel at the Office of the Chief Justice, assisted by Natasha Donnelly, Law Clerk.
The course is designed for newly appointed judges. Ideally, each newly-appointed judge, including judges appointed to the Family Court Branch, should complete the course before beginning a sitting schedule, but at least within three months after appointment. While participants can follow the course at their own pace, it is anticipated that review of the materials will take approximately one week of dedicated time. The materials are intended to be reviewed in the order suggested.
At the end of the review, judges are required to meet in person or by conference call with their Regional Senior Judge or designate(s) to discuss fact scenarios included in the materials, and any questions they may have.
The objective of the course was to ensure all newly appointed judges have a firm foundation in the law of sexual assault, including elements of the offences, consent, and mistaken belief in communicated consent. Another objective was to provide an easily accessible educational resource for all judges of the Superior Court to refresh their knowledge of the law of sexual assault.
This educational session consisted of eight cases, papers on sexual assault, four NJI videos and course exercises (four discussion scenarios). The material was presented by Regional Senior Justice Michelle Fuerst, Senior Counsel from the Office of the Chief Justice, Norine Nathanson, and Professor Lisa Dufraimont from the Osgoode Hall Law School.