Enabling sexual predators? Enabling Canadian judges revictimizing sexual assault victims? Enabling Canada’s demented abusive legal system? Threatening sexual assault victims to keep silent? Galling, throw-women-back-into-the-cave statements to Criminal Lawyers’ Association by Canada’s Chief Justice Beverley McLachlin

2017 11 02: Government consultation hears women in workplace under-report harassment for fear of retaliation

2017 11 01: More than half of adult women in Canada have experienced ‘unwanted sexual pressure,’ online survey suggests

2017 11 01: The Yukon government has spent $2.5 million settling sexual abuse cases since 2000, ‘Approximately’ 40 cases have been launched against the government since 2000, justice minister says

2017 10 14: Why is the Yukon government quietly settling lawsuits alleging sex abuse by a former school principal?

2017 10 31: David Peterson receives apology as sexual harassment lawsuit thrown out, Pan Am Games employee apologized to David Peterson for launching her lawsuit but says she is not apologizing for her allegations

A one-time Pan Am Games employee who filed a now-dismissed $3-million sexual harassment claim against former premier David Peterson apologized for the lawsuit but not for the allegations.

“I never apologized for the allegations,” Ximena Morris said of her claims, which Peterson consistently denied and that were never proven in court.

“In order for me to move on with my life, I had to apologize for instituting the lawsuit,” Morris said in a statement Tuesday night.

“I could not continue with the cost of litigation,” she said. [How many Canadian women can pay the horrific costs, financially and otherwise, of being in Canada’s only for the rich and powerful legal system?]

… “I stood up for myself and for women in the workplace and I do not regret it for one second, no matter the cost.”

McLachlin misses the mark with sexual-assault comments by David Butt, Special to the Globe and Mail, October 31, 2017

David Butt is a Toronto-based criminal lawyer.

At a ceremony on the weekend, retiring Supreme Court Chief Justice Beverley McLachlin received a richly deserved award from the legal community. But her acceptance speech, in which she weighed in on the current turmoil around sexual assault and criminal courts, was tone-deaf.

The Chief Justice’s speech only exacerbated the crisis of confidence afflicting the courts she symbolically speaks for.

By now, it is well known that only three in every 1,000 sexual assaults result in a conviction. No one can rationally call this an acceptable level of service to sexual assault survivors. It is instead a profound failing. Chief Justice McLachlin could have addressed this serious problem in constructive ways, but she missed the boat.

The key takeaway for sexual assault survivors from her speech was simply this: ratchet down your expectations. This is perplexing. With the conviction rate already dismally low, how much ratcheting down is left? And why ratchet down, not up?

Chief Justice McLachlin justified her stance by asserting that no one is entitled to a particular verdict. This is true, trite and unhelpful. Of course judges should hear each case with an open mind and decide it based on the evidence. [Fat chance of that.  Evidence and facts are not needed in Canadian courts! In the Supreme Court of Canada’s ruling in Ernst vs AER, Rosalie Abella relies on privately fabricated fairy tale shit.] Nobody seriously suggests that the appalling level of service delivery to sexual assault survivors should be fixed by assuming guilt without hearing evidence. The hashtag #Ibelievesurvivors is a rallying cry, not a policy prescription. Yet by deploying this straw-man argument, Chief Justice McLachlin implicitly denigrated thoughtful reformers, endorsed an indefensible status quo, and skated around the vexing question that those thoughtful reformers are already pondering: How do we dramatically – yet fairly – improve sexual assault outcomes?

Chief Justice McLachlin’s foray into this important social issue was problematic in another respect as well. She suggested the national debate is too polarized and hostile to be helpful. This sounds like code for “anger is inappropriate here.” But wait a minute. Nobody on the offender side of the ledger is angry about a 99.7 per cent success rate in escaping liability for sexual violence. So the Chief Justice’s coded disparagement of anger is really directed only at sexual assault survivors. This shades uncomfortably close to victim-blaming. Ugly as this truth may be, sexual assault survivors and their loved ones have every good reason to be angry at the current system’s profoundly unacceptable service delivery rates. The last thing survivors need, and the last thing that could build greater confidence in justice processes among survivors, is for the Chief Justice to wag her finger at them.

But we should not be surprised the Chief Justice’s speech was so disappointing. Members of the judicial branch of government are sworn to apply the laws as fashioned by elected legislators. Basic principles of democracy insist that unelected judges must never go off on social reform frolics of their own. They are faithful implementers of the law, not change agents. As a result, deeply embedded in the judicial mindset is small-c conservative aversion to radical change, even necessary radical change, and strong fealty to the status quo. Reformers make bad judges, and judges make bad reformers. 

So while we need not be surprised at the Chief Justice’s tone-deafness on sexual assault reform, we certainly need not give it the weight her office normally commands. Chief Justice McLachlin stepped outside judicial confines to offer views on a reform issue. She is a fantastically accomplished judge, but as a reformer, she has much to learn.

What should she have done? Chief Justice McLachlin should have started with the obvious: the justice system can and should do far, far better than it is doing now for sexual assault survivors. That recognition would have brought on board the key survivor constituency in this debate. Then she could have laid the groundwork for productive discourse by alluding to the universally shared values of presuming innocence and proving guilt only through credible evidence, and ended by inviting everyone to pursue improvement in service delivery by re-examining everything short of those basic principles.

On a topic calling for brave honesty and commitment to improvement, we got status quo-oriented bromides and finger-wagging.

We deserve better. [Emphasis added]

A few of the comments:

openwater2010
51 minutes ago
I’ve seen worse. Back when the Criminal Offence was Rape, rather than Sexual Assault a standard tactic for Criminal Defence lawyers was to ask the victim “how do you know it wasn’t his thumb, a booze bottle, a broom stick, … since the rape statute required penetration with a penis.

The Sexual Assault Offence did away with that Red Herring, but Criminal Lawyers have been very creative in trying to find other ways to get criminals off without convictions.

Criminal Courts are not about Justice, they are about process. We need to limit the number of scams they can pull.

A common bogus defence tactics in criminal assault trials is to claim that the victim somehow provoked the assault. …

The Work Farce
1 hour ago
Very well-said.

That any of these obvious facts needed to be said in 2017 is a testament to our medieval injustice system, making justice almost impossible to obtain for survivors of sexual abuse, extremely difficult for victims of various kinds of abusive power.

The system is rigged against women and people on the lower half of the income ladder. That’s been the case since forever.

Calls for more democracy, inclusiveness, and equality have been met with doubledown defense of the injustice status quo from Establishment elites like Beverley McLachlin.

All the political correctness from feminists, anti-racists, gay rights advocates, transgender supporters, ethnic minorities, indigenous people defenders hasn’t changed that lack of democracy one iota.

***

Emailed comment to the article below by Helen Rezanowich, University of Victoria, BC, October 30, 2017:

Most survivors don’t report assault, because if they do, they’re subjected to more horrors. Of those that do make a complaint to the police, only a tiny number of cases make it to the courts. The Jian Ghomeshi trial and other sexual assault cases illuminate how the complainants are (mis)treated under the Canadian (in)justice system. Now we have a highly respected judge from the Supreme Court of Canada saying that we must protect the accused against wrongful convictions: “No one has the right to a particular verdict but only to a fair trial on the evidence.”

This begs the question, can a survivor of sexual assault actually get a fair trial in this country? It seems not even remotely possible, given the number of Canadian judges who have been reprimanded and more for their shabby treatment of complainants, the number of accused men (especially high-profile, powerful men) that have been acquitted, and the fact that “more than 50 police forces in Canada have announced they are reopening sexual-assault cases previously deemed ‘unfounded.'”

What Chief Justice McLachlin should have said is that the Canadian legal/court system is broken and we need to fix or replace it.

Chief Justice Beverley McLachlin on sex assault cases: ‘No one has the right to a particular verdict’ by Sean Fine, October 29, 2017, The Globe and Mail

Supreme Court Chief Justice Beverley McLachlin has waded into the national debate on sexual-assault trials, telling complainants that while they have a right to be treated fairly and with dignity, they also need to be realistic in their expectations of a justice system that needs to protect against wrongful convictions.

“Complainants and witnesses need to understand what is required of them in a trial and what they can realistically expect from it,” she told an audience of about 200 lawyers and judges, during her acceptance of the G. Arthur Martin Medal for lifetime achievement from the Criminal Lawyers’ Association in Toronto on Saturday. “No one has the right to a particular verdict but only to a fair trial on the evidence.”

The Chief Justice’s comments come as Canada continues to be roiled by controversy over fairness to all sides in sexual-assault trials. In some cases, judges have been the subject of disciplinary complaints over how they talked to, or about, the complainants. In others, judges have acquitted high-profile accused men while accusing complainants of trying to purposely mislead the court. On social media, public campaigns have urged that victims be believed.

Meanwhile, federal legislation on mandatory training in sexual-assault law for candidates for the federal bench, and for a redrawing of certain trial rules, is before Parliament. Allegations of sexual harassment and assault are swirling around powerful men such as Gilbert Rozon, founder of Montreal’s Just for Laughs comedy festival, and U.S. film producer Harvey Weinstein. And more than 50 police forces in Canada have announced they are reopening sexual-assault cases previously deemed “unfounded,” after an investigation by The Globe and Mail.

Chief Justice McLachlin, 74, who is set to retire in December, is no stranger to controversy over the law of sexual assault. In 1991, not long after joining the court, she wrote the majority ruling striking down a federal rape-shield law that, with narrow exceptions, barred questions about a complainant’s past sexual behaviour. (The federal government rewrote the shield law, broadening the exceptions.)

Canada’s longest-serving chief justice reminded the lawyers’ group that while the system seems focused on the accused, “complainants and victims are also part of the process,” and the integrity of the system demands that they be taken seriously and that their interests be reconciled with the rights of the accused.

But she also stressed the importance of protecting the accused individual’s rights. “Because of the Draconian consequences, the criminal law has long demanded high standards for conviction for a crime. If convicted a person may be in prison for a very long time and lose that most precious thing without which everything else is worthless: his or her liberty. The potential for wrongful conviction always waits in the wings.

“So the law for centuries has rightly insisted on credible evidence, a vigorous defence right of cross-examination and proof beyond a reasonable doubt. There is an obvious tension between the rights that are essential to a fair criminal trial and the expectations that may sometimes arise on the part of complainants. And the criminal law must navigate this tension.”

She also said that the national debate is too polarized and hostile to be productive. The justice system can achieve a “fine but crucial balance” between protecting the right of the accused and the dignity of complainants, but “we must not divide ourselves into warring camps shouting at each other over an abyss of misunderstanding. We have to talk to each other, we have to sit down with each other, we have to make our criminal-justice system for everybody.”

The Globe sent a transcript of the Chief Justice’s remarks to Isabel Grant, a professor at the University of British Columbia’s Allard School of Law, who specializes in criminal law and violence against women. She replied that the Chief Justice appears to be setting up a false dichotomy between rights of the accused and expectations of the complainant.

“Once you set up the framework this way, it is pretty clear what the outcome will be. Rights trump expectations,” she said in an e-mail. “This way of asking the question assumes complainants themselves are not rights bearers and that the right to equal protection and benefit of the law under section 15 of the Charter [the equality clause] is irrelevant to sexual-assault prosecutions.”

Toronto criminal defence lawyer and vice-president of the Criminal Lawyers’ Association Breese Davies, who attended the address, said she believes the Chief Justice was responding to the #Ibelievesurvivors phenomenon on social media, “which appears to want the criminal-justice system to ensure a conviction in every case by starting from the presumption that complainants are credible and reliable witnesses and the accused is guilty. Chief Justice McLachlin’s comments are an important reminder that, because of the devastating consequences of a criminal conviction and the risk of wrongful convictions, an accused’s right to a fair trial must not yield to social pressures.”

Another lawyer who attended, Michael Edelson of Ottawa, said the Chief Justice was trying to lower expectations among complainants. “She’s saying, ‘Look, the criminal-justice process is a difficult one and because of the consequences, and the very high standard of proof required constitutionally, many witnesses and complainants are not going to be satisfied.’ And I think she’s quite correct.”

Hilla Kerner, a spokeswoman for the Vancouver Rape Relief and Crisis Centre, disputed the Chief Justice’s assertion that complainants’ expectations are unrealistic.

“Complainants expect nothing but a fair trial, and too often they do not get it.”

[Emphasis added. Does the Chief Justice know how many sexual assault cases in Canada have been gagged, ordered so by judges? Negotiated by lawyers supposedly paid to seek justice for their clients? ]

Watch!

Women shouldn’t have to change their behavior to avoid sexual assault by The United State of Women, October 26, 2017

2017 03 23: MUST WATCH! ‘This Hour Has 22 Minutes’ Sketch: “Judges: a danger to Canadian women”

2017 03 This Hour has 22 Minutes ad 'Coalition of Women Against Canadian Judges'

[Refer also to:

2017 10 30: MP sex pest scandal: 36 Tories named over sexual misconduct allegations in Tory spreadsheet of shame

The allegations include harassment of both male and female staff and claim on minister “paid women to keep quiet” and accused another of having “sexual relations with a researcher”.

2017 10 29: Challenge to all frac harmed citizens that settled & gagged, especially if ordered so by judges: Break your gag order! Weinstein scandal puts nondisclosure agreements in spotlight, sparks criticism that such gags allow powerful companies and individuals to stave off scrutiny to continue abusive practices “down the street” as AER’s outside counsel Glenn Solomon so aptly puts it]

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