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