The Unravelling of Canada's Justice System

In 1991-92, feminists ruled the roost, and few people realized that they represented only the views of only a small group of extremist women who didn't much care for men.

Kim Campbell, whose intellectual pretensions had not yet been exposed, was Minister of Justice. She called together a group of women lawyers for consultation on the issue of sexual assault. REAL Women was invited to the initial meetings but, very rapidly, it became apparent that we were not co-operating with the feminist lawyers who dominated the gathering. They wanted to amend the sexual assault law, once and for all, to keep men firmly in their place in heterosexual sexual encounters. Thus, REAL Women was soon dropped from Ms. Campbell's invitation list. Therefore, we were not surprised, in December, 1991, when Ms. Campbell tabled a sexual assault law, which severely limited an accused's defence in sexual assault cases. We dubbed this proposed legislation the "Despise Men Amendment." (See Reality, May/June 1998, p. 6, "Bill C-49 on Sexual Assault: The Despise Men Amendment") This legislation reflected the feminist-preferred vision of male/female relationships -- namely, to place men in a prejudicial position, with women holding power over them.

The "Despise Men Amendment" effectively buried two important legal principles in sexual assault cases. These principles had remained a part of our legal heritage for centuries: the principles of presumption of innocence and that the burden of proof lies with the Crown to prove the accused's guilt. Instead, under this amendment, the accused must prove that he had received verbal consent from the complainant before engaging in intercourse with her, and that he had taken all reasonable steps to determine her consent was a valid one -- that is, it was given with full knowledge and without fear or reservation.

According to documentation, this amendment was drafted by Sheila McIntyre, a member of the Women's Legal Education Action Fund (LEAF), a legal arm of the feminist movement, along with several others from that organization, and the radical feminist lawyer from the University of Michigan Law School, Catherine MacKinnon. The latter, incidentally, is well known for her view that in a patriarchal society, all heterosexual sex is rape. Feminists and the liberal media hailed this amendment as being a great breakthrough for women on the grounds that "no means no" in sexual assault cases. Under this legislation, as interpreted by the Supreme Court of Canada, a sexual assault occurs according to the subjective views of the complainant at the time in question, i.e., whether she consented in her mind at the time, regardless of all other evidence that might have implied to the accused that she had consented. As REAL Women pointed out (with some prescience, we might add) in our brief to the Legislative Committee on C-49 in 1992:

How an accused, whether sober or intoxicated, is supposed to determine the woman's capacity to consent is not explained. The provisions state that there can be no consent where the complainant is incapable of consenting to the activity. This provision will provide a field day for judges and lawyers.

Edward Greenspan, a well-known Toronto criminal defence lawyer, in an article in the National Post (March 11, 1999), stated about the sexual assault law:

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.

... 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.

In the recent controversial Alberta-based Ewanchuk case the Supreme Court of Canada confirmed that "implied consent" was no longer available as a defence for the accused. Moreover, in a separate judgement, feminist Supreme Court Judge Madame Justice L'Heureux Dubé severely criticized Mr. Justice John McClung of the Alberta Court of Appeal, condemning him for relying on "myths and stereotypes" in the sexual assault case. She gave as her authority for "myths and stereotypes" Catherine McKinnon, as well as other feminist writers. Mr. Justice John McClung, an independent thinker on the bench (he had soundly rejected the current practice of judicial activism in the Alberta homosexual Vriend case) was apparently indignant about this public humiliation and dressing down and by Madame Justice L'Heureux Dubé, which now forms part of the public record. In an unprecedented action, and certainly an unwise one, he wrote a letter to the National Post stating Madame Justice L'Heureux Dubé had gracelessly slid into personal invective against him based on her personal conclusions delivered from her judicial chair. He later profusely apologized for the letter.

Feminist organizations quickly defended their sister feminist Madame Justice L'Heureux Dubé by laying complaints with the Canadian Judicial Council against Mr. Justice John McClung. It is noted, however, that at least one of these organizations, the National Council of Women, was split internally over the complaint, as the Calgary Council of the organization rejected the national body's complaint and put a complaint of its own against Madame Justice L'Heureux Dubé. REAL Women also laid a complaint with the Judicial Council against Madame Justice L'Heureux Dubé. In our letter of complaint, we stated that Madame Justice L'Heureux Dubé:

... has consistently used her appointment to the Supreme Court of Canada to promote her own bias -- in particular, her personal belief in and support of feminist ideology, which has culminated in her unfortunate and intemperate personal remarks against Mr. Justice McClung of the Alberta Court of Appeal ...

We then went on to point out her close involvement with the feminist movement, notwithstanding her appointment to the Bench, which included the following facts:

• She was one of the founders, in 1976, of the feminist organization, the Canadian Research Institute for the Advancement of Women (CRIAW) and served as a member of its Board of Directors in the years 1976 - 1979. The purpose of this organization is to conduct research in order to promote feminist ideology in Canada.

• She served as the Canadian Vice President of the feminist organization, the International Federation of Women Lawyers (FIDA), which, in 1981, endorsed the feminist-inspired and directed UN Convention Against All Forms of Discrimination Against Women (CEDAW), which document Madame Justice L'Heureux Dubé quoted with approval in the Ewanchuk case.

We also said:

Madame Justice L'Heureux Dubé's judgement has subjected Mr. Justice McClung to humiliation and scorn, which now forms part of the permanent record. This is unacceptable and intolerable behaviour for any judge, and especially so from a judge of the Supreme Court of Canada, who is one of the most powerful individuals in Canada and from whose statements there is no appeal.

The legitimacy of the judicial system has always rested on its ability to remain aloof from political debate and to fairly and objectively interpret the law.

At the time of this writing, the Canadian Judicial Council has yet to meet and discuss this messy affair. If nothing else, it points out how damaging an unreasonable feminist-inspired law, adjudicated by a feminist judge, can be to the credibility of our justice system. This case has divided Canadians and loosened the glue holding our justice system together -- respect and deference for both the law and judges has been eroded.

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