Thursday, March 4, 1999
High court 'hijacking' a falsehoodRosemary Speirs
OTTAWA - THE NINE JUSTICES of the Supreme Court, seven of them men, must be startled by the charge that they've been highjacked by a ``radical feminist'' agenda simply because they've ordered the conviction of an Alberta man who lured a 17-year-old into his trailer and sexually assaulted her.
Steve Ewanchuk, who has a previous criminal record of three rapes, still awaits sentencing by the judge who previously acquitted him. His lawyer says he'll make a further attempt at a new trial, which means commentators should be careful about drawing conclusions about the particulars of the case.
But there is a circus going on around the case that certainly warrants a closer look. At least two prominent lawyers have now taken it upon themselves to attack Madame Justice Claire L'Hereux-Dubé for what they call her ``radical feminism'' and to suggest the whole Supreme Court has been infected by feminist ideology. L'Hereux-Dubé is their target because she wrote a side judgement, supported by two of her fellow justices, Charles Gonthier and Beverly McLachlin, in which she said the myths and stereotyping by the lower court justices explain how Ewanchuk was wrongfully acquitted in the first place.
On Feb. 25, the Supreme Court, in a unanimous judgement written by Justice John Major ruled that Ewanchuk's original acquittal on a rape charge, and the upholding of that acquittal by the Alberta Court of Appeal, erred in law by accepting Ewanchuk's defense that the woman's behavior ``implied consent.'' The Supremes ruled there is no such concept in Canadian law as ``implied consent'' and ordered a conviction--ruling out a new trial on the grounds that would not serve justice.
L`Hereux-Dubé appended a supplementary judgement going further, pointing out that both lower courts had accepted the woman's evidence that she'd said No three times but hadn't struggled harder because she was afraid to inflame a man twice her age and size. Judges who believed the woman had said No, but still acquitted her attacker, did so on the basis of ``myths and stereotypes'' about women that compromise the judiciary's impartiality, she wrote.
As evidence, she cited the wording of Alberta Appeal Court Judge John McClung that the woman had not worn ``a bonnet and crinolines'' (she wore a t-shirt and shorts) and his use of the phrases ``romantic intentions'' and ``clumsy passes'' to describe the behavior of the accused. She also quoted McClung's opinion that ``in a less litigious age'' a woman dealt with a boyfriend who went too far with a slap or a ``well-directed knee.''
L'Hereux-Dubé wrote--and Gonthier signed on too--that McClung apparently believes it is not the responsibility of the perpetrator to ascertain assent, but the victim's job to fight her way out of a situation. McLachlin concurred, writing ``I agree . . . that stereotypical assumptions lie at the heart of what went wrong in this case.''
As everyone knows by now, McClung went right over the top when he read what the Supremes had ruled. He claimed in retrospect that he hadn't known that L'Hereux-Dubé's own husband committed suicide. So it must be just a bizarre coincidence that he linked the high suicide rate of Quebec males to L'Hereux-Dubé's written opinions. Have those who have since leapt to his defence stopped to consider that McClung condemned himself out of his own mouth with his attack on L'Hereux-Dubé? What better proof that he stereotypes women?
McClung has since apologized for his ``overwhelming error''. But what about Toronto criminal lawyer Alan Gold who criticized the Supreme Court's ``radical feminist judgement'' for turning human sexuality into a businesslike affair where everything must first be made absolutely clear. Did Gold understand that this was a case where a frightened young woman had said No ?
Then there's lawyer Edward Greenspan who wrote an article saying L'Hereux-Dubé disgraced the Supreme Court by ``in effect'' labelling McClung as the ``male chauvinist pig of the century.'' Greenspan uses the words ``in effect'' to absolve himself, because he knows that L'Hereux-Dubé did not label McClung in any terms whatsoever. She confined herself to denouncing the language he used in writing his judgement, saying it ``not only perpetuates archaic myths and stereotypes about the nature of sexual assaults but also ignores the law.''
For this, Greenspan accuses L`Hereux-Dubé of ``astounding insensitivity'' and concludes that the ``feminist perspective has hijacked the Supreme Court.''
What we have here, of course, is more of the stereotyping that L'Hereux-Dubé wrote about. A Supreme Court justice who takes issue with biased language in a lower court judgement on a sexual assault case must by definition be a rigid feminist, blinkered by her ideology. And once you have labelled one justice a feminist the whole court has been ``hijacked''.
It would be laughable, if not for the possibility that this kind of inappropriate public assault by lawyers on one member of the Supreme Court might cause the prime minister to hesitate before appointing another so-called ``feminist''. That's a label that no doubt could be applied to any senior lawyer or judge who happens to be a woman. Getting there can't have been easy.
Rosemary Speirs is The Star's national affairs columnist.
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