Wednesday, March 3, 1999
A feminist hijacking of justice
Claire HoyThe Toronto Star
Let's be clear. Alberta Appeal Court Judge John McClung's bizarre decision to blame high male suicide rates in Quebec on Supreme Court Justice Claire L'Heureux-Dubé's decidedly feminist judgments, was not only ``tasteless and ill-advised,'' as Reform Leader Preston Manning says, but downright stupid.
Should he resign or be fired for it? Absolutely not.
He apologized. And so he should. There is no reason to think he knew that L'Heureux-Dubé's husband committed suicide in 1979, but it was a dumb thing to say anyway because it detracts from the legitimate issue he has raised - political bias in the courts.
McClung drew the wrath of the Supreme Court by accusing it of making decisions coloured by a feminist bias. He attacked ``crusading'' and ``ideologically determined'' judges for striking down the laws of elected politicians.
The Supreme Court, of course, overturned a 2-1 decision from the Alberta Court of Appeal acquitting Steve Ewanchuk - which, in turn, had upheld a lower court acquittal - on a charge of sexual assault against a 17-year-old woman who had gone to his trailer for a job interview in 1994.
Evidence showed that the woman said ``no'' several times to his sexual advances, but each time she did Ewanchuk stopped, only to begin again later. The defendant argued successfully that she had offered ``implied consent'' by engaging in mutual massaging and other things.
The Supreme Court ruled there is no such thing in law as ``implied consent'' in a case that has come to be known as ``No means No.''
McClung argued that ``the onus is not on the accused to prove implied consent. The onus is on the crown to prove beyond a reasonable doubt that there was an absence of consent.'' He also said that the woman ``did not present herself ... in a bonnet and crinolines,'' a politically incorrect descriptive phrase that McClung's critics have chosen to interpret literally, all the better to paint the man as a sexist Neanderthal.
The Supreme Court not only ruled unanimously that McClung was wrong in law to acquit Ewanchuk - who, by the way, has a track record of sexual assaults - but, in a highly unusual move, convicted him on the spot rather than ordering a new trial.
But that wasn't enough for L'Heureux-Dubé. She wrote a separate judgment launching a blistering - and I believe, inappropriate - personal attack on McClung. That's what provoked his angry public letter. That doesn't excuse it. It just explains it.
The problem with a simple slogan such as ``No means No'' is that it is, well, too simplistic, something human sexuality is not.
Toronto criminal defence lawyer Alan Gold told The Star last week that the Supreme Court's ``radical feminist judgment ... turns (human sexuality) into a business-like formalistic affair where everything must be absolutely clear. I mean, human sexuality is governed in many cases by the height of ambiguity and nuance and all kinds of things that aren't susceptible to this kind of subsequent verbalization.''
Gold said the Supreme Court decision puts ``complainants on a pedestal'' by absolving them of any responsibility for their conduct.
It is helpful to stamp out stupid stereotypes that falsely portray women as yearning for the advances of men. But it's hardly an improvement to substitute other stereotypes, i.e. that every complainant in a sexual assault case must by definition be blameless and completely honest.
These cases - like all cases - must be judged on their specific merits , not as part of a broader, more political debate about violence against women in general. In a stinging rebuke against L'Heureux-Dubé, prominent Toronto lawyer Edward Greenspan writes that the overwhelming support from the legal community for her while ``ignoring ... her hurtful and thoroughly unnecessary'' attack on McClung, ``is a striking example of how politics has taken over the issues surrounding sexual assault.'' He says the feminist influence ``has amounted to intimidation'' and poses ``a potential danger to the independence of the judiciary....''
To demand McClung's removal or censure, writes Greenspan, ``means the feminists and their fellow travellers have created such a repressive and authoritarian world that certain words are not only unacceptable, but now constitute misconduct. The feminist perspective has hijacked the Supreme Court of Canada and now feminists want to throw off the bench anyone who disagrees with them.''
That, to me, is the real issue.
But as long as the outrage can be levelled at McClung's poor manners, nobody will have to deal with it directly, and the Supremes can continue on their merry way, reshaping society to fit their own politically inspired image.
Claire Hoy is a Toronto writer and broadcaster.