A judge in Alberta who was criticized by its Court of Appeal two years ago for interpreting submission as consent in a sexual assault case is retiring in January after 10 years on the bench.
A notice issued by the federal Privy Council office Dec. 9 states that Alberta Court of Queen’s Bench Justice Kirk Sisson has “elected early retirement with an immediate annuity” under the provisions of the federal Judges Act. The resignation takes effect Jan. 3 and the judge will receive an annuity of $142,392 each year for the rest of his life.
Sisson, 65, was eligible to continue sitting as a Court of Queen’s Bench until he is 75. He was a lawyer in Red Deer when he was appointed in the fall of 2006 by then-Prime Minister Stephen Harper. The current salary for federally appointed judges is $308,200.
Sissons could not be reached for comment. The executive legal officer to the chief justice of the Court of Queen’s Bench in Alberta says it is not known why Sisson is stepping down. “The Court is unaware of Mr. Justice Sisson’s reasons for choosing to retire,” says Michelle Somers.
The sexual assault case where the Alberta Court of Appeal quashed an acquittal and substituted a conviction is R v. Adepoju. Since that appellate decision in March 2014, Sisson has been overturned in three other cases.
The appellate court, in a 2-1 decision, overturned an impaired driving causing death conviction earlier this year after finding that Sisson breached a requirement to provide procedural fairness. Last fall, the Court of Appeal concluded that he made a number of legal errors in denying an application for increased spousal support following a material change in circumstances. A first-degree murder conviction in a trial presided over by Sisson, without a jury, was overturned by the Court of Appeal in 2014. The court stated that “it cannot follow the pathway to conviction of the trial judge in this case” and the reasons did not withstand appellate scrutiny.
In the Adepoju trial, the complainant testified that she knew the accused and, while at her home, he began to kiss the woman. She told him that she did not want to engage in any sexual activity. Instead, he continued to use force, grabbed the woman and pulled her pants and underwear off. The court heard that after trying to resist his advances for 15 or 20 minutes, she felt he was not going to take no for an answer so she gave in to “get it over with.” On that basis, Sisson found that the Crown had failed to prove the absence of consent, the Court of Appeal noted in its decision.
Text messages were exhibits at the trial. “I had to force you, you didn’t want it,” was one of the messages sent by the accused.
The Court of Appeal, in overturning Sisson and entering a conviction, cited the Supreme Court of Canada’s decision in 1999 in R v. Ewanchuk, rejecting the concept of “implied consent” as a defence in an assault or sexual assault trial.
“In his analysis, the trial judge considered only the sexual intercourse that took place after these protests. This is an error. Sexual assault is not confined to intercourse,” stated the Court of Appeal panel of Justices Marina Paperny, Peter Martin and Brian O’Ferrall.
“The Criminal Code makes clear that acquiescence or submission is not consent. As stated in Ewanchuk, to be legally effective, consent must be freely given,” the Court of Appeal wrote. “The trial judge erred in defining sexual assault to include only sexual intercourse and in failing to consider all of the previous acts as assaultive and sexual in nature,” the court added.
The decision of the Court of Appeal received some local media coverage in 2014 when it was issued. It was highlighted again in an article in September of this year in The Globe and Mail. That article was about the Canadian Judicial Council hearing into the conduct of Federal Court of Canada Justice Robin Camp, as well as reviews ordered of two provincial court judges in Alberta as a result of findings in sexual assault cases. A Canadian Judicial Council panel concluded last month that Camp was unfit to serve on the bench as a result of his conduct and comments in a sexual assault trial in 2014 when he was a provincial court judge in Alberta.
