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FIRST READING: Supreme Court decision says the word 'woman' is confusing, 'unfortunate'
A decision in a sexual assault case implied that the complainant should be properly known as a "person with a vagina"
nationalpost.com
Is it in yet?
The most recent case out of the Supreme Court of Canada involved the use of "common sense" assumptions by judges, and whether certain common sense assumptions were appropriate.
In R v Kruk, the complainant testified to having been sexually assaulted. The accused (Kruk) denied that he had intercourse with her at all. The complainant was adamant that she felt a penis inside of her. The trial judge accepted the complainant's testimony, and convicted Mr. Kruk on the following basis:
"She said she felt [Mr. Kruk’s] penis inside her and she knew what she was feeling. In short, her tactile sense was engaged. It is extremely unlikely that a woman would be mistaken about that feeling."
Mr. Kruk appealed on the basis that it was not appropriate for the trial judge to make the statement that "It is extremely unlikely that a woman would be mistaken about that feeling", since there was no evidence on the likelihood of whether a woman could or would have been mistaken about that feeling. The British Columbia court of appeal granted the appeal, and ordered a new trial, agreeing that such a common sense assumption was not appropriate without an evidentiary foundation.
The crown appealed. In a unanimous decision, the Supreme Court of Canada granted the appeal, and restored the conviction.
However, the Supreme Court of Canada did not stop there. They admonished the trial judge for using the word "woman", and described this word as "unfortunate" and "engendering confusion". This is an actual quote from the highest court of Canada in its concluding paragraph in the decision:
"[109] Where a person with a vagina testifies credibly and with certainty that they felt penile‑vaginal penetration, a trial judge must be entitled to conclude that they are unlikely to be mistaken. While the choice of the trial judge to use the words “a woman” may have been unfortunate and engendered confusion, in context, it is clear the judge was reasoning that it was extremely unlikely that the complainant would be mistaken about the feeling of penile‑vaginal penetration because people generally, even if intoxicated, are not mistaken about that sensation. In other words, the judge’s conclusion was grounded in his assessment of the complainant’s testimony. The Court of Appeal erred in finding otherwise."
I confess I had always understood the rationale for supporting terms like "person with a vagina" was based on inclusivity. Instead, the Supreme Court of Canada says that the word woman "engendered confusion". Are we being gaslit here? Nobody is confused by what the term "woman" meant in context in the trial judge's decision. It was perfectly understood. The Supreme Court's claim that this word engendered confusion and was unfortunate is pure intellectual dishonesty.
