The Supreme Court of Canada has asserted that a lower court judge should not have referred to a sexual assault victim as “a woman,” a term which they claim was “unfortunate and engendered confusion.” The ruling, published on March 8, goes on to imply that the more effective term would be “person with a vagina.”
The case being discussed was that of Christopher James Kruk, a man from Maple Ridge, British Columbia who had been convicted of sexually assaulting a woman in 2020. According to past news coverage of the initial charges, the incident occurred the night of May 26, 2017, after Kruk encountered a heavily intoxicated woman in the city’s urban center. Kruk reportedly offered to ensure the woman got home safely, and then brought her to his residence via the SkyTrain and a taxi.
At some point during the journey, he called the woman’s mother on his cellphone to let her know that he was going to bring her daughter home. But instead, the woman reportedly passed out or fell asleep at Kruk’s home. Meanwhile, her mother was frantically calling Kruk, ringing him more than 20 times over an almost two-hour period without any response from the man.
The victim testified at the first trial that she woke up to find Kruk penetrating her, and that she tried and failed to push him off through her disorientation.
At around 4 a.m., many hours after Kruk had initially called her mother and told her she would be brought home, the woman’s father and brother managed to track down Kruk’s address using information from taxi cab drivers, and arrived in his neighborhood. When the woman heard her father’s voice calling out for her from the street, the woman rushed out the door wearing only her sweatshirt and underwear. She told her brother she had been raped, and filed a police complaint.
In his defense, Kruk claimed he never penetrated the woman, and that she had simply become startled when he had tried to wake her up, misinterpreting the sudden sensation as rape. He also claimed her pants were off because she had spilled water on them and that she had removed them herself while intoxicated earlier that evening.
Finding Kruk’s defense “fanciful,” Justice Michael Tammen found Kruk guilty of sexual assault in 2020, in part because he asserted that it would have been “extremely unlikely that a woman would be mistaken” about the feeling of penile penetration.
But a 2022 appeals court overruled Kruk’s conviction and ordered a new trial, arguing that Tammen had “engaged in speculative reasoning” and “made an assumption on a matter that was not so well known as to be notorious, that was not capable of immediate and accurate proof by resort to a readily accessible source of indisputable accuracy, or that was a matter of common sense.”
The Supreme Court of Canada has now found the appeals court erred in overturning Tammen’s conviction of Kruk, determining that Tammen had acted appropriately in the case. But despite upholding Tammen’s initial arguments, Justice Sheilah Martin took issue with Tammen’s description of the victim as “a woman.”
While she disagreed with the appeals court’s argument that Tammen’s ruling relied on “speculation” as to whether the sensation of penile penetration was readily identifiable, Martin did imply that the terminology needed to be changed.
“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,” Martin wrote.
“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.”
Martin does not specify what about the word “woman” could have “engendered confusion.”
The ruling, first highlighted by Canadian journalist Tristin Hopper, comes on the heels of recent controversy surrounding an updated guidebook on general practice issued by the Federal Court of Canada which references pronoun use.
According to the guidebook, “the Court invites counsel, parties and witnesses to provide information about the correct pronunciation of their names (phonetic or syllabic spelling), titles (Dr., Mrs., Mr., Ms., Miss, Mx., etc.) and pronouns (she, he, they, etc.) prior to and at the outset of proceedings.”
While amended in late December of 2023, screenshots from the guidebook began circulating on social media in February of this year, prompting backlash from those concerned with gender ideology’s impact on Canada’s judicial system. While some feared the process may be mandatory, Reduxx reached out to the Federal Court and was informed that was not the case.
“It is important to note that this is simply an invitation. Participants before the Court remain free to proceed in the manner that they prefer,” the Office of the Chief Justice of the Federal Court stated.
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