National Post

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Thursday, August 19, 1999

Unequal under the law

Ian Hunter
National Post

The rule of law used to mean everyone was equal before and under the law. This is no longer true.

Section 718.2(e) of the Criminal Code, in effect, mandates more lenient sentences for native offenders. In sexual assault cases, Sec. 276 strips an accused (almost invariably male) of the procedural and evidentiary protections that otherwise inhere in the presumption of innocence. In R v. Lavallee (1990) the Supreme Court of Canada created a "battered woman's" defence in cases of domestic assault. Both statute law and judicial interpretation have been twisted to conform to the shifting winds of political fashion.

The question I raise today is this: Has this undermining of the rule of law affected law enforcement? Three recent cases give some cause for concern.

The first (reported by Christie Blatchford) involves a Toronto gay bar, the Bijou, that is alleged to have had a "slurp ramp" where patrons could give and receive anonymous oral sex. When police laid 19 charges for committing an indecent act in a public place, it is alleged two senior Toronto police officers went to Crown Attorney Paul Culver, to press to have the charges dropped. Why? Because of a tacit agreement at District 52 that this section of the Criminal Code will not be enforced against gays. David Boothby, the Toronto Police Chief, has denied the existence of such an agreement. An investigation has been launched. It will be revealing to learn whether the enormous influence of the gay rights lobby extends to a police exemption from enforcement of the Criminal Code.

The second case has been reported in Western Report (a weekly magazine published by father and son, Ted and Link Byfield, that serves roughly the same function in Canada as the underground press did for the Soviet Union of the 1970s). This story involves the disappearance of a 19-year-old man named Alex Sanchez on the Siksika reserve east of Calgary.

Mr. Sanchez went to visit his girlfriend on the reserve. At 5 a.m. on June 20, 1999, he telephoned his mother (who lives 30 miles away) asking her to pick him up because there was "a big fight at the house." By the time Mrs. Sanchez arrived at the reserve Mr. Sanchez had disappeared. The Siksika Nation tribal police were notified, but showed little interest. In practice, the RCMP enters reserves only by invitation.

The Sanchez family organized search parties in which as many as 115 volunteers participated. What was found were car tracks leading into the Bow River, and an oil can that resembled one Mr. Sanchez carried in his trunk. The Sanchez family believes Mr. Sanchez and his car are somewhere at the bottom of the Bow River. But no one in a position of authority seems very anxious to find out.

The third case directly involves the redoubtable Western Report.

On April 12, 1999, the magazine reported on interviews that their reporter, Marnie Ko, had with four nurses from the Foothills Hospital in Calgary; the nurses talked about late-term abortions, of babies surviving this brutal procedure, and of how they were forbidden to call in a resuscitation team or try to save the baby. Reform MP Jason Kenney demanded a police investigation.

The Calgary police have now concluded their investigation. They say they found no evidence of criminal misconduct.

Well, how could they? The police interviewed none of the nurses. They did not interview the head of obstetrics. In fact, the only person they interviewed was Marnie Ko, the reporter who had the effrontery to reveal what had happened. When Ms. Ko asked the police if they intended to interview hospital employees, or examine any hospital records, she was shouted at.

If what the nurses told reporter Ko is true, then Sec. 223 (2) of the Criminal Code was violated. But that involves abortion, and abortion is a "woman's issue"; a proper investigation might shed light into corners the authorities would prefer to leave dark.

These cases give cause for concern that it is not just the judicial system, but also our system of law enforcement that is visibly decomposing.

Ian Hunter is professor emeritus in the Faculty of Law at the University of Western Ontario.

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