R v Regasa: Female Victim Blaming by Judges - Devan Vercaigne

Introduction:

The case of R v Regasa comes from the Manitoba Court of Queen’s Bench, and it was one that I was quite shocked to read; not because of what happened in the case, but because of the way the trial judge came to his concerning final decision.[1] As you will see, his judgment clearly puts the administration of justice into disrepute, and it is the appellant judge who was able to restore the reputation of the court. It is also of great interest to me because the incident took place right here on the University of Manitoba campus and it involved two students. R v Regasa emphasizes the importance of the appeal process here in Manitoba, but more importantly, it highlights yet another instance of actors within the Manitoban and Canadian justice system victim blaming women complainants. This is often done by judges interpreting a female victim’s innocent conduct and choices to imply that they deserved the crime against them/were asking for it. This is most prominent in cases where women were victims of a crime committed against them by a man, especially cases where women were victims of domestic abuse or sexual assault. Many think this is an old way of thinking, and that certainly in the year 2022, after over a decade of public awareness and outcry surrounding the social justice issues women have faced for years in our society, that instances such as these are no longer an issue. Unfortunately, that assumption is far from correct, and we know this to be true based on past troubling examples from our justice system. For example, the 2011 Justice Robert Dewar controversy from the Manitoba Court of Queen’s Bench where during a sexual assault case, he stated that "sex was in the air" because of the way the victim and her friend chose their outfits for the night, implying that they were asking for it.[2] Another example of this gross misconduct by justice system actors occurred in the same year by a police officer in Toronto who said that if young female students want to avoid sexual assault, they should avoid dressing “like a slut.”[3] Even 6 years later, the problem was still persistent. In 2017, Nahanni Fontaine, MLA for the St. John’s area of Winnipeg, stated in an interview with CBC that “Dangerous and ‘shocking’ comments continue to be made by Manitoba judicial justices of the peace who paint women as the causes rather than victims in domestic and sexual assault cases.”[4] Now with the case of R v Regasa, which was heard in March, 2021, we see that this outdated and inappropriate mindset of victim blaming female complainants still clearly exists. It is true R v Regasa is not a domestic or sexual assault case (although it does contain elements of an early dating-type relationship); however, it highlights the fact that the victim blaming mentality of judges persists even outside of domestic and sexual assault cases and that it is still a current day problem that our justice system has, on several occasions, failed to overcome.

Facts:

The facts of the case are as follows. The complainant and the accused, Regasa, were two nineteen-year-old students who met each other at the University of Manitoba. They first met each other in early September for a coffee date at the engineering building. Afterwards, they exchanged phone numbers. The pair met each other on another occasion, this time at the Starbucks in the University bookstore; however, on this occasion there was a big difference in the behaviour of Regasa. The complainant states that Regasa got really upset with the manner in which she described to him the beverage she was drinking, and he accused her of disrespecting him. She states he became “absolutely livid” with her. In the following weeks, Regasa sent her texts calling her a "bitch" and a "fucking pussy ass." This background information is all important to remember because the incident resulting in the charges against Regasa occurred the next time the two came face to face with one another.

The incident occurred on November 8, 2019, at IQ’s, a popular student bar located on the University of Manitoba campus. The complainant was alone and sitting at a table doing schoolwork when she noticed Regasa walk past her table toward the bar’s exit. She looked at Regasa briefly as he passed. Due to this glance, Regasa became very visibly angry and was shaking. He started directing her to never look at him and to not disrespect him. The complainant calmed Regasa down and suggested he leave, which he then did. Approximately ten minutes later, Regasa returned to the bar and headed straight for the complainant’s table. He started loudly expressing his anger toward her from all their past encounters, and he did this while getting very close to her face. Because she felt vulnerable and scared that she was going to be hurt, the complainant grabbed her things, stood up, and attempted to leave by placing her open palm on Regasa’s chest to create enough separation to move past. Regasa immediately reacted to the complainant’s “push,” and he responded with a full forced closed-fist punch to the complainant’s left eye, which knocked her to the ground. The injuries left the complainant with injuries and headaches which took several weeks to heal. Regasa was charged with assault.

Trial Judge’s Decision:

The trial judge’s decision was delivered orally and immediately after the argument period had ended. Ultimately, he concluded that there was reasonable doubt, and he acquitted Regasa of the charge. Yes, you read that correctly. The trial judge based his reasoning on the following findings:

• "The complainant was struck in an extremely forcible manner and suffered injuries that, arguably, amount to bodily harm.

• The complainant is much smaller in stature than Regasa.

• Regasa's actions in approaching the complainant and yelling as he did were completely unreasonable.

• Regasa's actions caused the complainant to be concerned about her physical safety.

• Regasa has anger management issues.

The trial judge also found:

• The complainant had no legal justification for pushing Regasa.

• The complainant's push was not "de minimis", although he later describes it as "innocuous".

• The complainant did not articulate a basis that she was in fear.

• The surveillance video itself does not support that Regasa and the complainant were in extremely close proximity.

• Regasa's reaction was akin to a reflex action that should not be judged to "a nicety”.”[5]

The trial judge gave no clear indication of the grounds that he acquitted Regasa on, but the Crown agreed that it appears the trial judge acquitted Regasa for reasons that “either Regasa acted in self‑defence following the complainant's push, or the complainant consented to the assault.”[6]

Appellant Judge’s Analysis:

Firstly, the appellant judge found that the trial judge did not apply the law required by the Criminal Code and/or common law prior to reaching his conclusions, and that this amounted to an error in law. The appellant judge then decided to review the prior decision from a correctness standard.

Self-Defence:

When analysing the potential for a self-defence claim, the appellant judge went through the proper steps as laid out in s. 34 of the Criminal Code.[7] To assess the reasonableness of Regasa's punch, the appellant judge considered many factors as layed out in s. 34(2). Such facts considered were the size difference between the two, the aggressive manner of Regasa, and the fact that the complainant used her open palm to create a little distance between herself and Regasa, which he responded with a vicious full forced punch to her face. This all led the appellant judge to come to the logical and obvious conclusion that Regasa’s actions were not reasonable in the circumstances, which was something the trial judge failed to do.

Consent:

The appellant judge used s. 265 of the Criminal Code to find that “when the law is applied to the facts, even if the complainant's open‑palm push could be construed as consent, the consent was vitiated by the degree of harm inflicted by Regasa.”[8]

Decision:

“The appeal is allowed. I set aside the trial judge's verdict of not guilty and substitute it with a verdict of guilty.”[9]

My Analysis:

I believe this case acts as yet another reminder of the fact that this outdated and inappropriate mindset of victim blaming female complainants still clearly exists within our justice system, even outside of domestic and sexual assault cases. The trial judge used the victim’s slight push for space as a means to downplay the severity of the response, and he fed into the narrative that the female victim was somehow the cause of this incident and that the male’s actions were justified based on her conduct. Clearly, the trial judge’s decision puts the administration of justice into disrepute. Victim blaming is an old and outdated mindset that must be corrected at every instance it shows up, and it can be suppressed through education on women’s social justice problems, specifically in the areas of domestic and sexual abuse. The recency of the R v Regasa case and the fact that our justice systems across Manitoba and Canada have not been able to rid themselves of this dangerous and concerning way of thinking since their inception should be concerning to all. This problem truly demands deeper reflection into the education of judges on social justice issues. On the positive side, R v Regasa emphasizes the importance of the appeal process and the job this process has in protecting female victims from trial judge victim blaming. Ultimately, all levels of court have a duty to abandon the ideology of victim blaming female complainants. Appeal courts, when given the opportunity, must continue to ensure proper justice is met for females who fall victim to the miscarriage of justice that stems from this issue. Thankfully, the appeal judge’s decision in R v Regasa acts as a great example of fulfilling this duty, and he lays a foundation for others within the justice system to build from.

[1] R v Regasa, 2021 MBQB 53 [Regasa]. [2] CBC News, “Manitoba judge rebuked for sex assault remarks” (Nov. 09, 2011), online: CBC News Manitoba <www.cbc.ca/news/canada/manitoba/manitoba-judge-rebuked-for-sex-assault-remarks-1.1099355>. [3] Mishki Vaccaro, “Toronto cop reportedly tells students to avoid sexual assault by not dressing ‘like a slut’” (17 February 2011), online: Toronto Life <torontolife.com/city/toronto-cop-reportedly-tells-students-to-avoid-sexual-assault-by-not-dressing-like-a-slut/>. [4] CBC News, “'Shocking' comments show Manitoba judicial justices of the peace need domestic violence training, MLA says” (31 October 2017), online: <www.cbc.ca/news/canada/manitoba/nahanni-fontaine-protection-orders-1.4380023>. [5] Regasa, supra note 1 at paras 17-19. [6] Ibid at para 21. [7] Criminal Code, RSC 1985, c C-45, s 34. [8] Ibid at s 265; Regasa, supra note 1 at para 45. [9] Regasa, supra note 1 at paras 47-48.