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The Feminization of Canadian Jurisprudence


Alberta Report, August 9, 1999, page 36

Reach for the top


The gap between lower and upper court philosophies widens

by CARMEN WITTMEIER


cartoon about feminist jurisprudenceJustice Peter Clark considers kidnapping children a "heinous, depraved and reprehensible" offence.  On June 12, the Medicine Hat Court of Queen's Bench justice sentenced Hughes Michaud, 39, to 12 years in prison for his 1998 abduction and sexual assault of a four-year-old Brooks girl.  Similarly outraged, Alberta Provincial Court Judge Albert Chrumka declared a pedophile's sexual assault of a 13-year-old Edmonton girl in 1997 so horrific that even a 100-year sentence would be insufficient.  Unfortunately it was not available to him, so he hammered James Gracie, 39, with what amounted to a 17-year sentence.  And Montreal municipal court Judge Louise Baribeau's moral indignation was obvious when she convicted swingers club owner Jean-Paul Labaye of running a common bawdy house on July 22.  Calling the public sexual acts "dehumanizing," she wrote that they predispose "people to act in an antisocial fashion, as if such sexual acts were socially acceptable in public and constituted normal behaviour, as if we lived in a society bereft of moral values."

   Equally outspoken—but with a definitely divergent view of society—B.C. Appeal Court Justice Mary Southin recently supported a pedophile's quest to possess kiddie porn, declaring that "it is not a crime to possess that which is obscene."  In the 2-1 ruling on June 30, the appeal court upheld a January ruling that declared Canada's criminal sanctions against John Sharpe unconstitutional.  "We have to recognize that our views about these matters might change radically," Madam justice Southin said during the first day of the appeal.

   Critics have noticed a growing philosophical gap between lower and upper courts.  "The lower courts clearly have a better grip on reality," says Ted Morton, a political scientist at the University of Calgary, and a senator-elect for Alberta.  Prof.  Morton says interest groups and intervenors with feminist gay agendas deliberately place pressure on appeal courts and the Supreme Court.  "They know that if they can influence the higher courts, lower court judges will be forced to comply as well."

   Swingers club owner Labaye may find a sympathetic audience if Judge Baribeau's ruling is appealed.  Labaye was charged after his three-story club was raided in March 1998.  Police found 16 people engaged in group sex on the top floor.  All but three of the 44 individuals arrested were charged with being found in a bawdy house.  Pre-sentencing arguments for the club will be conducted September 23.

   Investigations conducted by undercover officers between November 1997 and March 1998 revealed that the club offered a sexual smorgasbord.  For a $200 fee, customers could participate in unprotected cunnilingus, fellatio and group sex.  Undercover officers testified that they witnessed a young naked woman having sex with four partners, while onlookers masturbated around them.

   The defence claimed that the acts were performed by consenting adults and did not involve prostitution or minors, Mr. Labaye, who later declared Judge Baribeau's ruling a "big, big, step backwards," said club members who wanted sex were confined to his private third-floor apartment.

   Unconvinced, Judge Baribeau said a room available to 800 potential customers during business hours clearly constituted a public place.  Furthermore, she said that the consent of participants does not prove "that Canadian society is tolerant, irrespective of the type of acts and the circumstances."

   Addressing the current inconsistencies in judicial opinion, Jacob Ziegel, University of Toronto professor emeritus, of law, blames the adoption of the Charter of Rights and Freedoms in 1982.  Numerous critical questions, he says, were ignored.  "Politicians didn't want to be confused by difficult problems or real-life situations," Prof.  Ziegel argues.  "They didn't question how much power judges should be given or the extent to which judicial interpretation of the charter could differ."

   Peter McCormick, a political scientist at the University of Lethbridge, sees a general shift in values that does not necessarily involve a top-down process.  However, he warns, in the past decade, many "progressive" judges have been appointed to higher positions.  These individuals, he says, continue to break boundaries, pushing society into new permissive depths.

   Justice Anne Russell is a case in point.  The Alberta Court of Queens Bench judge was elevated to the Court of Appeal in 1995 after her 1994 ruling in favor of homosexual Delwin Vriend.  The Appeal Court, which then refused to make special provisions for gays in provincial human rights laws, was reprimanded by the Supreme Court, which upheld jurist Russell's original ruling.

   Discrepancies in judgments may also indicate generational differences, Prof. McCortnick says.  The government replaces aging judges, he says, with younger liberals.  "We're watching a generation of judges fade away," Prof. McCormick argues.  "A point of view is gradually losing out."

Alberta Report


The article leaves no doubt that traditional moral values are losing out to liberalism.  It illustrates to what extent the law depends on the prevailing thoughts in jurisprudence.

    If our laws were based on absolute truth and objective moral standards, then a change from one political trend to another would have no impact on justice.  Prof. McCormick's statement and the variances in the application of the basic premise of the law (there is a wrong and a right) illustrated in the article show beyond any doubt that justice isn't meted out according to any absolute standards but rather according to the discretion of individual justices who, due to the vagueness of the Canadian Bill of Human Rights and Freedoms, can bend the law according to their liking.

    Today's justices can freely pick any decision straight off the wall.  There are no more universal legal standards in this country.  There is only "judicial discretion."  The justices know it and act accordingly; capriciously would be a better term.  Justices no longer determine whether anyone broke the law.  They determine according to their individual changing moral values what is wrong and what is right and then find the specific law that fits their particular moral value-du-jour.

    The article presents the view that the decisions of our justices are to some extent influenced by minority groups.  What it ignores is that the justices themselves are members of the minority groups that are re-engineering our society.  They are thus not neutral but act as political activists.

    No wonder that so many Canadians feel the justice system is utterly broken and don't trust it anymore.

    Here is a thought about the caricature of a feminized Justice by Shane Hill.  I case you didn't notice, Shane Hill's depiction of modern Justice shows her to be sans sword.  That too is an accurate assessment of how our justice system works today.  Sentences for all crimes are becoming more lenient, and of the reduced time to be spent incarcerated, less time is being served.  Exceptions to this are usually made when men commit crimes against women, while women generally can with impunity commit crimes against men.

Walter H. Schneider

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Posted 1999 08 13
Updates:
2001 01 31 (format changes)