Jailing of Indigenous sex-assault victim sparks review of Alberta’s justice system

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She was jailed for five days to ensure she would testify against the man accused of kidnapping, stabbing and sexually assaulting her. She was driven to court in the same van as her assailant at least twice. Even when she asked to be released to her mother's home, a judge said no. And she testified in leg shackles, which she wore for at least two full days in court.

"She was the victim of a horrific crime," Alberta Justice Minister Kathleen Ganley said Monday, "and when she came to the justice system, we failed to treat her with the respect and dignity she deserved."

The case of the Indigenous, homeless 27-year-old in Edmonton, who was shot dead in an unrelated incident before seeing justice done, is the latest to raise questions about how judges conduct sexual-assault trials in Canada, and particularly in Alberta.

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Ms. Ganley, describing the woman's experience during a preliminary hearing in June, 2015, as the "ugly side of our system," has ordered an external review, by Winnipeg criminal lawyer Roberta Campbell, of everything that happened, from the woman's 911 call during the attack through the justice system's decision-making process.

And she raised the question of what role institutional racism played in that process.

"One of the questions that keeps me up at night is whether it would have been the case, that if this woman was Caucasian, and housed, and not addicted, whether this would have happened to her," Ms. Ganley told a news conference on Monday.

"Horrifying," lawyer Grace Auger, a former vice-president of the Indigenous Bar Association, called the woman's treatment. In an interview with The Globe and Mail, she said the victim's Indigenous background was the "elephant in the room. I do believe – and this is hard to say – that it played a big role."

The judge who conducted the trial – a different judge from the one who jailed her during the preliminary hearing – called her treatment appalling.

"She is owed an apology," Justice Eric Macklin of the Alberta Court of Queen's Bench wrote in his ruling in December, finding Lance Blanchard guilty of aggravated sexual assault and other crimes in the June, 2014, attack. "Unfortunately, no apology can be extended to her as she was tragically shot and killed in an unrelated incident."

He said the woman had grown up in Maskwacis (formerly Hobbema), a reserve in central Alberta, moved to Edmonton at the age of 14 and graduated from high school. Having listened to her on the court's audio recording, he said, "she clearly came across as an intelligent woman during her testimony. While there were times when she was clearly distraught, much of her testimony was given in a clear, cogent, coherent and articulate manner."

The woman's name cannot be published under a Criminal Code provision that protects the identity of sexual-assault victims even after death. Just five feet tall (152 centimetres) and 109 pounds, she had been able to phone 911 during the attack by a 6-foot-7 (200 cm) serial predator. Her testimony from the preliminary hearing was used to convict Mr. Blanchard during his trial, which followed her death in December, 2015. The Crown is seeking to have him locked up indefinitely as a dangerous offender.

A provincial prosecutor requested her jailing, citing a provision of the federal Criminal Code that allows for witnesses to be locked up if they refuse to testify. Provincial Court Justice Raymond Bodnarek – a former deputy minister of justice in Alberta – agreed. Justice Macklin said in his ruling that Justice Bodnarek was told incorrectly that she did not intend to show up in court. But Justice Macklin said there was never any evidence that she wouldn't appear.

Provincial Court Chief Justice Terrence Matchett told The Globe and Mail in a statement that he will conduct "a detailed examination of all of the circumstances of this case to determine what if any lessons we as a Court can learn."

Justice Bodnarek declined to comment.

The failures in the case, Ms. Ganley said, were "almost too numerous to list" – from the absence of a prosecution policy regarding the use of the Criminal Code provision in question, to the prosecutor's request to put the victim in jail, to a court-appointed lawyer's failure to oppose the jailing, to treating the victim and offender alike, and putting them together in the van.

Ms. Ganley said she knew of no precedent in Alberta for such treatment of a sexual-assault complainant, and added that any use of the provision will now require approval of the chief Crown prosecutor. "It is hard to believe there would ever be a circumstance where remanding a victim [to jail] would ever be appropriate. Other options must be considered … While bringing an assailant to justice is critical, it cannot blind us to the needs of complainants."

Lawyer Tom Engel, who represented Mr. Blanchard, said he opposed the jailing of the woman, calling it an attempt to coerce her testimony against the accused man. He told The Globe there was evidence presented at the hearing, and at the trial, that she appeared to be in a state of withdrawal from street drugs. "She was sleeping outside the courtroom; she couldn't be roused. When she did get on the stand finally, she was behaving very strangely, sometimes spinning in circles." For the first two nights, police put her up in a hotel, and they had no problem bringing her to court, he said. He said there were alternatives to jailing her, and added he had never heard of a sexual-assault victim being jailed in a similar case.

The case marks the latest sexual-assault trial in Alberta, and the country, to be put under the microscope. Three years ago, a provincial court judge in Calgary asked a complainant in a rape trial why she didn't keep her knees together. Several other judges on two levels of court in that province have been criticized by higher courts for relying on myths and stereotypes about victims in sexual-assault trials, a Globe and Mail review has found. In Halifax, a judge came under fire for acquitting a taxi driver of sexual assault in a case involving an inebriated passenger.

An Alberta MP, Rona Ambrose, drafted a private member's bill requiring that all candidates for the federal judiciary receive training in sexual-assault law before being considered for the bench. That bill now awaits Senate approval.