National Post

Thursday, March 11, 1999

Judge Kozinski, I beg to differ

Edward L. Greenspan
National Post

While surfing the Net on a "judges only" chat line, a California federal court judge, Alex Kozinski, presumably with little else to do, learned about the public debate surrounding Justice L'Heureux- Dube and Justice McClung and decided to weigh in by providing a separate, concurring opinion to Justice Claire L'Heureux-Dube's judgment. I confess that my initial reaction was "Yankee Go Home," but on second thought, I was delighted that he decided to enter our country to take me on.

Judge Kozinski begins his column by referring to me as "the celebrated criminal defence lawyer." So far, I like what he has to say. But I don't believe we agree on anything else. Let me list some of my difficulties with Judge Kozinski's piece. (If I dealt with all our differences, this reply would occupy two pages of the Post.)

- Judge Kozinski calls the debate a "verbal battle which was launched 10 days ago by Judge McClung." I beg to differ. The verbal battle was launched by Madam Justice L'Heureux-Dube, who delivered a gratuitous separate opinion that added nothing but an ideological and political dimension to a majority judgment in which she could have concurred without writing a single line. Her judgment was not a legal analysis but a political one.

- Judge Kozinski calls the Ewanchuk case the "now famous 'no means no' case." For the life of me, I cannot understand how that expression applies to this case. For the information of Judge Kozinski, in Canada nobody has a problem with 'no means no.' Except sexual offenders. The problem is with "yes" (and perhaps also "maybe") meaning "no." The problem is that if a woman decides in retrospect that her demeanor, actions, and words that suggested "yes" or "maybe" ought to be disregarded, and that what she really meant was "no" in her mind, that is enough to convict someone of sexual assault. According to Justice L'Heureux-Dube, the issue is determined by a purely subjective test of what is in the complainant's mind. The judge has the option of finding: (a) the woman consented in her mind; or (b) the woman didn't consent in her mind. To choose, the judge must be a mind reader. If a trial judge believes the woman had "no" in her mind, the trial judge must disregard the woman's demeanor, actions and words, which suggest the opposite. That is no longer an objective test. It is not even a test based on basic common sense.

- Replying to my comment that Justice L'Heureux-Dube in effect labelled Justice McClung as the male chauvinist pig of the century, the chief yahoo of Alberta, the stupid, ignorant, ultimate, sexist male jerk, Judge Kozinski says that Justice L'Heureux-Dube said nothing of the sort. In case the judge missed the English lesson where the words "in effect" were explained, they denote the writer's intention to describe what was the effect of words expressed. Yes, she didn't use those exact words but as sure as God made little green apples, that was her meaning.

- Judge Kozinski says I neither quote Justice L'Heureux-Dube's judgment nor describe it. I am glad he noticed this. Analyzing the Ewanchuk case was not the subject of my article. If I completely agreed with the majority decision written by Justice Major, I would have still written a similar article on Justice L'Heureux-Dube's separate concurring opinion. I wrote to question the appropriateness of an opinion that had no discernible aim other than to deliver (a) a personal attack on a lower court judge and (b) a sermon of feminist theology disguised as a legal opinion. So forgive me for not citing the facts of the case. But it is quite baseless for the California judge to suggest I didn't read Justice L'Heureux-Dube's opinion. If I hadn't, I would have had no reason to write my piece.

- Judge Kozinski paraphrases Justice L'Heureux-Dube's paraphrasing of what they both think Justice McClung meant in his judgment. But this meaning, like a complainant's consent, is entirely in their subjective minds. Nowhere did I read in Justice McClung's judgment that not being a virgin makes a complainant less worthy of belief. Nowhere does he suggest that dressing in short pants is an invitation to groping. Nowhere does he say that responding to hormonal urges is a defence to sexual assault. What Justice McClung suggested was that a trier of fact is entitled to take into account all surrounding circumstances in order to determine the veracity of anyone's testimony. Putting the matter into context is something that occurs in all trials, except sexual assault trials, which have now been isolated in a class of their own. If this is not ideological, I don't know what is. Incidentally, if a judge acquits someone of sexual assault, that doesn't mean that he approves of sexual assault.

- Judge Kozinski says Justice McClung's judgment puts a large share of the blame on the victim. An objective assessment of both parties' behaviour does not amount to blaming the victim. That's just common sense. In Canada, common sense is supposed to have a place in the courtroom. All Justice McClung did was to look at two people's conduct to determine whether one of those parties could be found guilty of a crime beyond a reasonable doubt. Only in a world of abstract ideology are female complainants immune to ordinary methods of inquiry and analysis. Only in such a world does applying common sense run the risk of being accused of blaming the victim -- a charge only slightly less serious than sexual assault itself in the lexicon of ideological feminism.

- Justice Kozinski says most conscientious judges would not let pass, without comment, sexist, racist, anti-Semitic or similar statements in a lower court judgment. Since six Canadian Supreme Court judges let Justice McClung's comments pass without comment, they are either not conscientious, according to Judge Kozinski's view, or they belong to a minority of conscientious judges who would let such comments pass. There is a third possibility, that the judges did not believe, as I did not believe, that Justice McClung's statements were sexist or racist, even if they may have been mistaken in law or poorly worded.

- Judge Kozinski sets up a hypothetical of a lower court judge saying "The complaining witness deserves to be robbed because all Jewish shop keepers cheat their customers." He says in such a case the Supreme Court would be obliged to point out that this reflects stereotypes, not reality. Yes, if Justice McClung had said everyone knows Jews are greedy and cheat their customers, then a Supreme Court Judge would have been justified in commenting on that. Except Justice McClung said nothing of the sort. Even if one makes allowances for rhetorical exaggeration in the heat of a debate, one cannot equate Judge Kozinski's hypothetical about Jews with Justice McClung's attempt to assess the totality of a witness' story. In any criminal case, such an assessment fairly includes evidence of personal background, demeanor, and appearance, all of which a finder of fact will be instructed to take into account, when considering all of the evidence.

Judge Kozinski once said in an interview, "I don't see why judges shouldn't be criticized just like everyone else. Even the president can't make us resign." First, what is Judge Kozinski's problem since all I'm doing is criticizing? Second, he misses why I am criticizing. When I chose to write on this subject, the National Council of Women and other feminist pressure groups were on their way to mau mau the Canadian Judicial Council, to censure, remove, or otherwise sanction Justice McClung, not for his intemperate letter for which he apologized and which was merely an excuse, but for his refusal to internalize feminist thought into his legal analysis. He had to go because of his refusal to accept feminist dogma. Apparently, in this area in Canada, there can be no differences of opinion. That's why I weighed in to the debate.

In Canada, sexual assault trials still occur in the courtroom, not in the well of the Senate. In this country, we still believe that justice is supposed to be blind. Legal debates should not be politicized. In Canada, the meaning of sexual assault isn't decided by Republican or Democratic agendas, or feminist or sexist agendas for that matter. Politicizing legal issues of sexual assault can only give rise to gender warfare. After the Anita Hill/Clarence Thomas hearings, it seemed that the United States chose not to completely subordinate legal thought to the battle of the sexes, yet that seems to be Judge Kozinski's specialty. If for this reason, Judge Kozinski does not make it to the United States Supreme Court, perhaps there will be a place for him on ours.

Edward L. Greenspan, is a senior partner with Greenspan, Henein and White Barristers.

Related Sites

R. v. Ewanchuk

The Supreme Court decision handed down in the "no means no" sexual assault case.

Jurist Canada

The leading judicial website.

R.E.A.L Women Canada

Another entrant into the fray.

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