National Post

Page URL: http://www.nationalpost.com/commentary.asp?f=990320/2395547

Saturday, March 20, 1999

Some more equal than others? Pshaw!
George Jonas is irked. Despite what defenders of Justice Claire L'Heureux-Dube argue,Canada has snatched the blindfold from the Goddess of Justice

National Post




Assume you're a feminist. To further your political objective, which is to secure advantages for your group, you need to replace a liberal principle, namely equality, with an illiberal principle, to wit, inequality. It would be bad form for you to say so, of course, but that's not all. In an essentially liberal society such as Canada, pushing inequality would be useless. It simply wouldn't fly.

But what if you stuck an adjective -- say, "formal" -- in front of the word "equality"? Then you could contrast "formal equality" with a newly minted concept for inequality that sounded better -- say, "substantive equality." Now you're on track. While you couldn't sell the idea of replacing equality with inequality, replacing "formal equality" with "substantive equality" might have legs.

Presto, the feminist party line.

This is the tack law professor Kathleen Mahoney takes in her attack (Feminists, Equality, and the Law, March 15) on Barbara Amiel's essay (Feminists, Fascists, and Other Radicals, March 6) in the National Post. Essentially, Ms. Amiel objects to the feminists' rejection of equality. Prof. Mahoney responds with the ploy of labelling equality (a liberal principle) "formal equality," then labelling its opposite, inequality (an illiberal principle) "substantive equality." Then she constructs the line: "Substantive equality is based on the notion that equality is achieved by ensuring the impact of laws is fair" to prove the feminist point that equality equals inequality.

I've no opinion on whether Prof. Mahoney is insufficiently intelligent to see what she is doing, or if she thinks her readers are insufficiently intelligent to notice her sleight of hand. Shades of Orwell, in either case.

In the same issue of the National Post that contains Prof. Mahoney's critique of Ms. Amiel, California District Court Judge Alex Kozinski takes criminal lawyer Eddie Greenspan to task for a different article on the same topic, i.e., the great Canadian Quarrel of the Judges: Alberta Court of Appeal Judge John McClung and Supreme Court of Canada Justice Claire L'Heureux-Dube.

Ms. Amiel and Mr. Greenspan are my friends and one-time co-authors, but I wouldn't bother booting up a computer to defend them. When it comes to a debate, they can (to put it mildly) take care of themselves. I'm writing solely because their opponents in the great quarrel irk me. There's a limit on what I can tolerate supporters of the matriarchy saying, unchallenged, in print.

For instance, Prof. Mahoney, after objecting to what she calls Ms. Amiel's "exaggeration," makes the following assertion: "Non-conformist women seeking equality were burned at the stake as witches." Coming from someone who complains about another writer's "distortions and frenzied rhetoric," this is a remarkable statement.

To suggest, even as a rhetorical device, that women persecuted as witches in the Middle Ages were "seeking equality" is no mere distortion of history. It's plain nonsense. Women used to be burned at the stake for many reasons, including superstition, envy, ignorance, or religious fanaticism. Maybe some heretics of either sex perished for questioning religious dogma, but there hasn't been a shred of evidence that the women immolated (with the possible exception of Joan of Arc) were "non-conformist" or "seeking equality" in either the liberal or feminist sense of the word.

Prof. Mahoney considers Ms. Amiel's opinion to be part of an anti-feminist "pattern of backlash." She writes that early in the century "suffragettes were attacked by the press, religious leaders, and academics who said they would be the cause of infertility, crises in the family, and increased divorce rates." Risky examples, I'd say (apart from the fact they've nothing to do with what Ms. Amiel wrote). I'd hesitate to use "crises in the family and increased divorce rates" to illustrate invalid criticisms of the feminist century.

Prof. Mahoney is right about one thing. It's true that by now "substantive equality" is -- at least to a regrettable extent -- the law of the land. In our 1987 book The Case for the Defence, Mr. Greenspan and I used the phrase "justice in high heels" to describe feminist influence on the courts. Lately I've been calling it the matriarchy's reign of terror.

I agree with Prof. Mahoney that our law is "not gender blind, or race blind" any longer. Indeed, it's not blind to many other expediencies of the result-oriented state. It's quite true that under the pressure of statist forces, including radical feminists, Canada has snatched the blindfold from the Goddess of Justice. This precisely is the problem. This is how our system is coming to resemble fascism and communism. The irony is that Prof. Mahoney, setting out to refute Ms. Amiel, ends up by freely acknowledging her point.

It's hardly a refutation of Ms. Amiel's thesis -- which is that selective inequality (or "substantive equality" as Prof. Mahoney calls it) changes a liberal society as fundamentally and banefully as totalitarianism -- to say that our Canadian society has already changed. Yes, alas, maybe it has.

Prof. Mahoney writes that preferential treatment "affirms that sometimes people must be treated differently to achieve equality." I can't make up my mind whether this oft-repeated cliche is one of the most cynical sentiments ever devised, or the stupidest. Maybe it's the former when speakers use it without believing it, and the latter when they actually believe it. You cannot treat people differently to achieve equality for the same reason you can't make an iron hoop out of wood: It's a contradiction in terms. You may treat people differently to achieve parity, but parity and equality are different concepts. This is a crucial distinction which Prof. Mahoney either blurs or cannot see.

I was waiting for Prof. Mahoney to trot out the wheelchair ramps, and she didn't disappoint me. Wheelchair ramps are perennial favourites to illustrate statist notions about "formal" and "substantive" equality. Under formal equality, the argument goes, disabled people are entitled to use stairs like everyone else, but under substantive equality they're entitled to have ramps built for them.

Even if one accepted that one person's disability puts another person under a legal obligation to build ramps for him -- a gigantic "if" -- the illustration breaks down when it comes to races and genders. In what respect does Prof. Mahoney regard races as crippled? What precisely are the moral or intellectual disabilities of women for which they need to be treated differently, in Prof. Mahoney's view?

Prof. Mahoney concedes that "there may be flaws in affirmative action" and "there are extreme forms of feminism that invite controversy." She even acknowledges, in the abstract, that "no ideas are immune from criticism," but then immediately proceeds to set out what she considers a precondition for the debate.

Her requirement is that there "must be openness to the possibility that excellence and substantive equality are not at cross purposes." But why must we be open to this? To make the world safe for radical feminism? To assure tenure for the ideas of Justice L'Heureux-Dube? It's nice to demand in a debate your opponent to concede at the outset that which is to be proven -- nice, if you can get it.

Still, it's a relief to see Prof. Mahoney call for a departure in the tone of the debate from the feminist standard. I'm especially pleased that she wishes it to be conducted without "false claims to universal truth." Normally feminists not only regard their ideas as universal truth, but call on the authorities for the removal of anyone who disagrees with them. They usually demand human rights commissions or judicial councils to censure their opponents or fire them from their jobs. It's one of several reasons why some people, myself included, have tended to confuse the matriarchy -- if "confuse" is the word -- with fascists and communists.

On to California District Court Judge Kozinski's letter (Time and Place, March 15) in response to Eddie Greenspan's article (Judge Kozinsky, I Beg to Differ, March 11) in response to Mr. Kozinski's article (An Unfair Attack on a Decent Judgment, March 8) in response to Mr. Greenspan's first article on Justice L'Heureux-Dube (Judges Have No right to be Bullies, March 2). Judge Kozinski takes Mr. Greenspan to task for allegedly suggesting that defence lawyers and judges should "be free to trash the character of a rape victim."

Except Mr. Greenspan suggests no such thing in his article.

Not all judges fancy themselves stylists, but Judge Kozinski likes to employ similes. He writes that "the meat of the coconut" is that triers of fact shouldn't be free to take the background, demeanour, etc., of victims into account. But in his article, Mr. Greenspan only states that triers of fact must take the background, etc., of witnesses into account. Not victims, but w-i-t-n-e-s-s-e-s.

There are no "victims" in a courtroom until the trial is over. It's by weighing certain information -- including demeanour and background -- that a trier of fact determines in our system who the victim is: the complainant in the witness box or the accused in the prisoner's dock.

It's possible for the complainant to be the victim of a sexual assault and for the defendant to be the victim of a false or mistaken accusation. If we knew ahead of time that the complainant was the victim, it would be a waste of time to hold a trial.

Whether Judge McClung's famous remark about bonnets and crinolines in the Ewanchuk case was wise or unwise, he didn't make it about a victim. He made it about a witness whose complaint he dismissed, as did another level of court before him. The complainant didn't become "a victim" until the Supreme Court spoke much later. In Judge McClung's judgment -- which he was as entitled to make as the court above was to reverse it -- the complainant was just a witness.

This is "the meat of the coconut," at least in our neck of the woods. We hold trials in order to find out who the victim is. It isn't something we decide ahead of time.

To determine this question fairly -- who is the victim -- does it help to consider whether a complainant was scantily clad? Does it help to consider whether she was an unwed teenage mother? Well, in a mail fraud case it probably doesn't; in a sexual assault case maybe it does. It depends on the totality of the circumstances.

Jurists of skill and learning may disagree about the relevance of certain facts in certain cases (anyone who doubts it should spend an afternoon in a legal library) but it's sheer doctrinaire, ideological nonsense to say that a trier of fact who considers dress, background, or demeanour in sexual assault "perpetuates archaic myths and stereotypes" as Madam Justice L'Heureux-Dube put it in her judicial dressing-down of Judge McClung.

I'll go further, just as Justice L'Heureux-Dube did. She wrote, with reference to Judge McClung's judgment, "It is part of the role of this court to denounce this kind of language." She wrote that the Criminal Code was amended to "eradicate reliance on those assumptions [in the Alberta court's reasons] which should not be permitted to resurface," and so on (my italics).

Denounce? Eradicate? Language like this has rarely been seen since Pravda stopped publishing minutes of the Politburo. It's hardly the language Canadian judges have customarily used in relation to each other's reasons. No wonder that after Ms. Amiel read Justice L'Heureux-Dube's judgment, she made a connection in her essay between the matriarchy and the communists.

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