Supreme Court Did Not Say The Word “Woman” Is Confusing
A recent decision of the Supreme Court of Canada has been mischaracterized as a comment from Canada’s highest court about the use of the phrase “a woman.” In fact, the Supreme Court was just commenting on a technical point of clarity in the trial judge's legal writing. The court was not commenting upon the appropriateness of gendered language in speech.
Commentary on the recently released decision of the Supreme Court of Canada unfairly suggests that the Supreme Court “implied” that the complainant in a sexual assault case “should be properly known as a ‘person with a vagina’.” On a careful reading of the decision, the Supreme Court of Canada was not implying this. The court was actually commenting on a lack of clarity in the trial judge’s written reasons for decision. The court was not commenting upon the appropriateness of gendered language in speech.
The Sexual Assault Case
Case: R. v. Kruk, 2024 SCC 7 (CanLII).
The case was about an alleged sexual assault involving a severely intoxicated complainant. She testified that she was certain she woke up with the accused’s penis inside her vagina. The case turned on reliability and credibility of the accused’s and complainant's testimony at trial.
The trial judge found the accused was not credible. The trial judge also found the complainant's evidence generally unreliable due to her extreme intoxication.
But, the trial judge was satisfied that the core of the complainant’s evidence was true. The trial judge was convinced that the complainant was not mistaken about her perception of her vagina being penetrated by a penis. The trial judge expressed this, in part, by saying, "It is extremely unlikely that a woman would be mistaken about that feeling."
The First Appeal
The British Columbia Court of Appeal overturned the decision on the basis that the trial judge had made impermissible generalizations about women and women’s perceptions of the sensation of penile-vaginal penetration. The Court of Appeal reasoned that expert neurological, physiological, or psychological evidence would be required for a judge to draw generalized conclusions about the likelihood of women mistaking the sensation of vaginal penetration while intoxicated.
The Supreme Court Decision
The Supreme Court of Canada reinstated the conviction and upheld the trial judge's decision.
The trial judge’s remark that, "It is extremely unlikely that a woman would be mistaken about that feeling" was the central focus of the appeal. The Supreme Court reasoned that this was not an expression by the trial judge of an improper generalization about women. Rather, the trial judge was expressing a conclusion based on the trial evidence about the particular woman in the case.
The Supreme Court says, "Viewed as a whole and in context, the trial judge did not reject the defence theory because of an assumption that no woman would be mistaken, but rather he accepted the complainant's testimony that she was not mistaken." The Supreme Court is making the point that the trial decision was properly rooted in evidence and not upon impermissible generalizations.
The Unfortunate Confusion
The Supreme Court remarks that the trial judge's use of the words "a woman" "may have been unfortunate and engendered confusion." It makes this remark because the trial judge’s choice of words gave the impression that the trial judge was generalizing about all women as opposed to drawing a conclusion about this woman in this case based on the totality of evidence. The Supreme Court was remarking upon an “unfortunate” lack of precision in legal writing and not making any apparent remark upon the appropriateness of gendered language in speech. In its own reasons for decision, the Supreme Court unobjectionably uses the phrase "no woman" to make its point and references “woman” and “women” throughout.
The Supreme Court does at one point begin a paragraph, "where a person with a vagina testifies...". But, this is likely just to emphasize the point of biology being discussed: a person with a vagina can reliably testify with certainty that they "felt penile-vaginal penetration."
Recent discussion of this case in the media unfairly attributes to the Supreme Court of Canada commentary about the use of gendered language which the court isn’t expressing. The trial process requires careful adherence to technical rules to ensure a fair trial. The Supreme Court was commenting upon the “unfortunate” lack of precision in the trial judge’s legal writing which became the basis for the first appeal court to erroneously overturn the decision. It is incorrect to treat this case as an authoritative legal pronouncement from Canada’s highest court about the use of the term “woman” in general.
It's “unfortunate” the trial judge spoke in general terms rather than specific terms (“a” woman rather than “this” woman). That's all the Supreme Court appears to be saying about the trial judge’s “unfortunate” use of the phrase “a woman.” The Supreme Court restored the conviction in a decision which allows room for judges to make common-sense assumptions in legal reasoning.
