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.

Thursday, February 3, 2011

Fun with Polls and the Egyptian Protests

The Globe and Mail has a story on a public opinion poll conducted in Egypt last year. The results are of the type that make you wonder several things, among them how disordered and conflicting people's views can be on large issues of governance, religion and policy.

Take, for instance, the poll's results on Islam and politics: 95% of respondents say it's good that Islam plays a large role in politics, while 85% say Islam's influence on politics is good. This means that 10% of people are happy Islam has a role in politics don't think it necessarily has a positive influence. Now, this isn't necessarily contradictory, but it is one of those poll results that makes you wonder what exactly those 10% of people think.

Even more interesting are the results on "Islamist extremism": 61% of respondents are concerned or very concerned about Islamist extremism in Egypt, but 84% believe apostates from Islam deserve the death penalty and 82% that adulterers should be stoned. Clearly this suggests that there are a sizable proportion of Egyptians who view "Islamist extremism" as simply terrorism as opposed to extreme or radical views rooted in religious belief. Otherwise the results make little sense (although a case might be made they still don't).

What do these results mean for Egypt in light of the current protests? I wouldn't want to hazard a guess. But the current debate about the situation there, at least among pundits/commentators in the West, seems to be polarized among those who view losing Mubarak, a Western ally, as threatening and therefore express dismay at what's happening on the ground, and those who view the calls for democracy in an unabashedly positive light.

I don't see why we can't support the calls for democracy - after all, the Mubarak regime is undoubtedly indefensible - while at the same time have some concern about what type of government may result. Personally, these poll results only reinforce this view.