Appeal goes forward with NWAC submission

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The Saskatchewan Court of Appeal has received a submission from the Native Women's Association of Canada (NWAC) in an appeal involving the sexual assault of a 12-year-old Cree girl.

The judge granted the organization intervenor status in November. The women's association submission will stress gender equality rights under Section 15 of the Charter of Rights and Freedoms.

"It was never applied at the trial level so we want to make sure that they do take it into consideration," said Beverley Jacobs, NWAC president.

The Crown is appealing the June 2003 acquittals of Jeffery Brown and Jeffrey Kindrat and the sentence of Dean Edmondson, who in September 2003 received a two-year conditional sentence after he was convicted of sexually assaulting the girl. Edmondson is appealing his conviction.

The three men were charged following an incident in September 2001 near Tisdale, Sask. The men are alleged to have been drinking and driving near the community when they saw the girl, offered her a ride, gave her beer, and then tried to have sex with her.

Judge Fred Kovach presided over both trials. Critics of the sentence say the punishment in the Edmondson case did not fit the crime and needs to be tougher.

In a written statement to the Court of Appeal regarding the Brown and Kindrat cases, Crown prosecutor Dean Sinclair said the judge made so many errors of law "that a true and proper verdict was not possible in this case, no matter how hard the jury worked."

Jacobs said "The judge ignored the fact that this young girl wasn't legally able to consent and that the judge had also had seemed to ignore the fact that these three young men plied her with liquor. So basically, what the judge was saying was that there was implied consent by this 12-year-old, but that's totally impossible. Especially when there's this statutory issue that he totally ignored."

Rosalind Prober, president of Beyond Borders, a group that advocates against the sexual exploitation of children, called the case a complete failure of the justice system. Prober said the age of consent issue was mishandled because the law allows it. A jury can consider a person not guilty of statutory rape if that person took reasonable steps to assure the person is of age.

"The age of consent in this case sort of came into play for both the complainant and the accused in the oddest fashion. It was used as if the child, this 12-year-old, knew the age of consent was 14 so she sort of conned these guys into being involved with her by telling them she was 14, knowing that she's got in her pocket the Criminal Code of Canada, looks it up and says, 'Oh, look at this, 14. So I'll just tell them I'm 14,'" said Prober, who added that if the age of consent had been 16, the case would have had an entirely different outcome.

Both the Native Women's Association and Beyond Borders are upset that the judge allowed the girl's history as a victim of sexual abuse to be used by the defense. A doctor testified at the Brown and Kindrat trial that sexually abused children often become sexually aggressive. The judge also allowed in both trials the submission of DNA evidence implicating a family member as the girl's abuser.

"What these three men were saying was that this 12-year-old was the aggressor, and so the judge had taken that into consideration and so it doubly penalized her," explained Jacobs.

"But certainly a person who comes into the courtroom, who's potentially someone who has a sexual abuse history, that shouldn't be used against them, and that's what happened. The carpet got totally pulled out from beneath this child," said Prober.

Beyond Borders has criticized Judge Kovach in a complaint to the Judicial Council. They specifically cite the use of his language in the case. The men were in their 20s at the time of the incident. Kovach often referred to them as boys, and referred to the girl as Ms.

"Using that language of calling the accused men the 'oys' and calling the complainant Ms. totally blurs the power of balance that was going on there, totally reverses ...her status with them. They become the children and she becomes the enlightened empowered adult with that language, which is hardly the situation," said Prober.

Beverley Jacobs and Rosalind Prober also say the trials ignored the fact the girl was provided alcohol.

"These individuals cannot profit ... for having sexual activity with a 12-year-old as a result of them getting her drunk, and that's what happened in this case," said Prober.

Jacobs believes that systemic racism may have played a part in this case.

"We're talking about a whole legal system that has never worked for Aboriginal people and it seems to work for white people," Jacobs said. "Maybe that's a bit of a broad statement but what I'm saying is that these [are] three white men who are getting away with it. They're getting away with something that has been done to an Aboriginal girl."