Justice gets squeezed in full-court press
Vancouver Courier
March 7, 1999

In war, the middle ground between opposing forces is often called no-man’s land, and for good reason. Anyone who ventures into it doesn’t survive for long.

World War I soldiers who left the confines of their trenches to attack the enemy a few hundred metres away were cut down by the tens of thousands. Despite the lack of cover, the impetus to claim the middle ground is almost irresistible. War is a zero-sum game in which this unclaimed territory is unstable. You want to grab it before the enemy does. 

The middle ground separating political combatants is similarly a no-man’s land. As committed ideologues fight over it, less and less of it is left for those who want to challenge authority with reasoned argument and principled dissent. In Canada the middle ground is being squeezed by neo-conservatives and politically correct agents provocateurs to the point where any principled dissent or deviation from the received wisdom may become a punishable offence. Just look at the abominations committed by the B.C. Human Rights Inquisition in the name of equality.

One battlefield where this war is being fought is the courts, specifically the provincial and federal Supreme Courts—the middle ground between the law and interpretation of the law. It seems whenever a judgment is handed down, some interest group or other castigates or praises it and the judge who delivered it.

The great value of the courts is their independence from partisan politics and the capricious biases of the masses, but politics and public prejudice are rendering the adjudication of justice increasingly problematic. If the courts become compromised, then any notion of justice becomes moot, and the public loses respect for it. Two recent judgments illustrate this problem.

In January, Mr. Justice Duncan Shaw of the B.C. Supreme Court struck down the section of the Criminal Code regarding the possession of child pornography.

He wrote: “The detrimental effects [of the ban] substantially outweigh the salutary effects; the intrusion into freedom of expression and the right of privacy is so profound that it is not outweighed by the limited beneficial effects of the prohibition… An individual’s personal belongings are an expression of that person’s essential self…”

It should be noted that Justice Shaw upheld prohibitions against the sale and dissemination of child pornography.

This decision met with unprecedented outrage. In the Globe and Mail, a Toronto law professor went so far overboard as to call into question the fitness of our system of judicial appointments. Public reaction has been overwhelmingly condemnatory. Problem is, Shaw was probably right, notwithstanding the odium of the issue. The Charter of Rights, compels justices to favour individual rights over the public will in just this manner. In fact, the Charter places justices in no-win situations.

In an interview with the Globe, Supreme Court of Canada Chief Justice Antonio Lamer expressed deep concern that public opinion might influence judicial decisions. In particular, he cited the discomfort judges have with the Charter. “Suddenly we were asked to judge the law,” he said. “Judges were not keen to do that, especially the older ones. They had a very hard time coping with it. In the beginning, nobody knew where the heck to take this animal.”

Public anger, therefore, should be directed, not at Shaw, but at the Constitution and legislators who slant our legal system in favour of sympathetic individuals and interest groups.

The sexual assault case against Steven Ewanchuk illustrates the dangerous reductionism that comes from tailoring law to fit an ideological current. In overturning the judgment of Alberta Court of Appeal Justice John McClung, the Supreme Court Justices went beyond the usual practice of ordering a new trial. They determined that “implied consent” to sexual relations does not exist in law, and summarily imposed a guilty verdict on the accused.

When I called retired B.C. Supreme Court judge Hon Lloyd G. McKenzie for his assessment, he expressed surprise at the Court’s behaviour. “What they’re really doing is overturning the judgment of the trial judge as the trier of the facts. Ordering a new trial would be the more usual decision.”

McKenzie couldn’t comment on the specifics of the decision, but said the court’s view is consistent with prevailing attitudes here, in Great Britain and the U.S. “There’s a tendency to be more protective of women. ‘No means no’ seems to be the mantra. When a judge wants to get into trouble, he departs from that.”

McClung’s language, during and after the trial, may have been injudicious at best and daft at worst, but his decision to uphold Ewanchuk’s acquittal is more intelligent than the Supreme Court’s revisionist guilty verdict, which carries the unmistakable taint of doctrinaire feminism. Sexual interactions cannot be reduced to an exact science. To insist that “no means no” throws a straitjacket around human behaviour. “No” could mean “don’t touch me ever”; “I like you, but try later when I know you better”; or any other shade of meaning.

Following the Court’s logic, making more than one pass at a woman is an indictable offence. Does the court plan to impose formal rules of conduct for romance and courtship? Maybe they should for men’s sake, because as it stands now there’s no defence to a charge of sexual assault, real or fabricated.