Friday, February 25, 2011

On Judicial Accountability...

Today I got into a debate on Twitter with the Ottawa Citizen’s Dan Gardner over a Manitoba judge’s failure to sentence a rapist to prison because of his victim’s “promiscuous” behaviour and “suggestive” attire. The judge, Justice Robert Dewar, determined that “sex was in the air” because the victim had been flirtatious and dressed provocatively. This rather disgusting logic has long been repudiated, which is no doubt why the case has received a lot of coverage today.

Gardner’s original tweets about the story focused on the news coverage of the case, and he quite rightly pointed out that: 1) this decision is likely to be overturned on appeal, and 2) the outraged news coverage about the original decision won’t come close to being matched by any coverage (if it’s covered at all) of the backwards, dangerous decision being rectified by the appellate court. Gardner was correct that controversies – particularly ones implicating the justice system – often garner wide attention but decisions that are later fixed rarely receive similar amounts of coverage. And his point is important. He expressed concern that when the media emphasizes controversy and all but ignores subsequent corrections by the justice systems, it damages the reputation of the system itself.

It was here that I interjected and our debate began, as I felt this judicial decision is by itself bad enough to damage the justice system because the judge is unlikely to face professional consequences like suspension or dismissal (although he is facing the temporary consequence of public outrage). I argued that the judge ought to face discipline - I would go so far as to argue for his dismissal so long as the news reports of his reasoning is accurate (I’m thus far unable to find a copy of the decision itself) – but Gardner, without defending the decision itself, argued that would be overly harsh for a single “mistake” or human error.

There is no doubt that judges are human beings who will make mistakes in law, in logic and even in common sense. Courts make a lot of decisions that many people would disagree with, though these tend to involve disputes over policy ideas or competing values or rights. But in my view some decisions are so egregiously bad that judges ought to be held accountable for flagrant violations of justice.

Indeed, I would argue that calling this decision a “mistake” or “controversial” is far too generous. If the person you hired to build your house misses a shingle on the roof and it leaks, that’s a mistake. If he uses sand for the foundation instead of cement, then it’s incompetence.

The Supreme Court of Canada spent much of the 1980s and 1990s itself struggling with the blatant misrepresentations and prejudices involving victims of sexual assault. Ultimately, however, the Court addressed the backwards, infantile and sexist notions that would lead a judge to describe a rapist as just a “clumsy Don Juan” like Justice Dewar allegedly did. Most importantly, the Court’s decisions – like in the Ewanchuk case, which explicitly repudiates the notion of “implied consent” in sexual assault cases – have established a precedent that such considerations have no place under Canadian law, and I would argue that includes sentencing determinations.

The judge in this instant has ignored – whether purposefully or through incompetence – what the highest court has held on such matters. The idea that a woman is somehow less of a victim because of how she dresses or that rape is less of a crime because the man thinks prior actions make “no” mean “yes” isn’t just offensive, it’s dangerous and completely contrary to basic notions of justice in contemporary Canada. This isn’t just a matter of a judge having a bad day, committing an error, or getting “the law” wrong. This is a serious breach of his most basic duty.

I’m not arguing that judicial accountability should mean judges can’t make mistakes, which they undoubtedly will. But gross incompetence by a member of the judiciary should be treated no differently than the HR rep who refuses to hire visible minorities or the babysitter that loses your kid. In other words, a judge who evidences such hopelessly appalling judgment should not be allowed to hold onto the job.


  1. Hi Emmett,

    George here. Nice discussion. Help me out here. There is a process to have judges removed if they demonstrate misconduct (I assume incompetence would be considered a form of misconduct but maybe not) is there not? Two questions (1) how is the process actually started and (2) how is evidence gathered and evaluated in determining such an action? Come to think of it, here's a third: when was the last time a judge was actually removed?

  2. Hey George,

    Yes, the Canadian Judicial Council investigates complaints regarding judicial conduct - but my understanding is that this does NOT include complaints about actual decisions (just conduct) which is why I doubt the judge in this case is going to face any professional consequences (though I doubt he'll ever be appointed to a higher court).

    There have been complaints about judges' behaviour (sexual harassment, etc.) or about public comments they make that people perceive as demonstrating bias (the first 3 female Supreme Court judges have been subject to complaints from the conservative group REAL women, for example).

    These complaints can be made by members of the public or the Attorney General of a given province or the federal government.

    The process itself is governed by the central idea of judicial independence - in other words, it's a council of judges who evaluate complaints about judges (this has been criticized). They produce a report, and make recommendations, including for dismissal, which is ultimately up to the Canadian Minister of Justice.

    I'm pretty sure there has only been one judge who's been removed by the process, and fairly recently - but off the top of my head I can't recall the details.