Debriefing R v Rhodes: Roundtable Discussion

R v Rhodes caused several media uproars and made national news. Better known as the “Justice Dewar case”, Rhodes encapsulates much of the systemic discrimination that remains in sexual assault law. You’ve heard about the case in the news, now you have the chance to learn more about the decision and the fall-out and to discuss your thoughts on the issues. Join the Feminist Legal Forum on Thursday December 1st from 12 -1 in room 308 for “Debriefing R v Rhodes“. Leading Manitoba feminist sexual assault law scholar Karen Busby will be facilitating the discussion.

For those who are interested, the Manitoba Court of Appeal will be hearing the Rhodes appeal on November 30th at 9:30. As the Crown and defence have agreed there should be a new trial, the appeal is likely to be quite short.

If you’d like to do a bit of thinking about the case in advance of the roundtable, we recommend you read Prof. Busby’s blog post, which includes links to the conviction and sentencing transcripts, media reports, and LEAF’s motion for leave to intervene. The blog post can be found here

Karen Busby worked with the Women’s Legal Education and Action Fund on their motion to intervene in the Rhodes case. She has been with Robson Hall’s Faculty of Law since 1988. She researches in the area of sex, sexuality and violence.  She was an active participant in cases and other law reform efforts directed at the recognition of same-sex relationships and has worked on challenges to the bawdyhouse/indecency laws, reform of age of consent laws and gender identity issues. She has worked on numerous research projects on gendered violence including sexual assault, girls involved in prostitution, sexual expression, and the implementation of civil domestic violence legislation. She appeared as counsel in the Supreme Court of Canada in Little Sisters, a case about the discriminatory treatment of LGBT bookstores by Canada Customs. She teaches constitutional law, administrative law and gender and the law.

She has received numerous awards recognizing her human rights work including the YWCA Woman of Distinction Award (2007); Man. Bar Ass’n “Pro Bono” Award (2005); Can. Bar Ass’n’s Sexual Orientation and Gender Identity Conference “Hero” Award (2004); LAMBDA Magic “Community Changer” Award (2002); UofM Community Outreach Award (1996). Prof. Busby was inducted into the Q (Queer) Hall of Fame in the summer of 2011.

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The Rhodes Case: Thirty Years of Law Reform Ignored

By Professor Karen Busby

In early 2011, a police officer in Toronto advised a group of law students that women who dress like sluts should expect to be victimized. Soon afterwards, Mr Justice Robert Dewar of the Manitoba Court of Queen’s Bench gave sentencing reasons from the bench that invoked similar beliefs. He found that mitigating factors in sentencing in a major sexual assault included that the complainant provoked the assault because she wore high heels, heavy make-up and a tube top.  He found that “sex was in the air” and that the defendant was a “clumsy don juan”. The defendant and the complainant, a much younger and smaller aboriginal woman, had known each other for about 20 minutes before the assault occurred. She had rebuffed his sexual advances; picked up a stick to use in self defence; and asked him in the course of the assault if he was going to kill her.  She had bruises on her backside and legs as well as cuts from running through the forest half dressed following the assault. Yet even after making these findings and rejecting the defences of consent and mistaken belief in consent, Dewar was obviously of the view that the complainant bore some responsibility for what had happened.

As happens in most sexual assault cases, the reasons on conviction and sentencing were not issued as formal reasons and therefore would have escaped any public scrutiny except that a Winnipeg Free Press reporter happened to hear about them. (He may or may not have been in court–this is not clear to me.) When the paper published the story, it was picked up across the country in a wave of indignation. Three weeks later, the newspaper received the sentencing transcript and posted it to their website.

Complaints were made to the Canadian Judicial Council about Dewar’s comments in the sentencing decision by various individuals including the Manitoba minister responsible for the status of women. The Crown filed an appeal against sentence. In August an appeal date of November 30 was set.

LEAF monitored the proceedings and in mid-October, upon seeing the Crown’s appeal factum, realized that the sentencing appeal had been abandoned and that the Crown had conceded that a new trial was necessary because of WD problems. (The SCC has recognized that WD’s complex formula for assessing credibility is a fertile ground of appeal in mistaken belief cases.)  The defendant’s position was that a directed acquittal was required.  LEAF filed an application for leave to argue that

• There was no air of reality to the defendant’s assertion of mistaken belief that the WD credibility assessments did not need to be made.  The judge found an air of reality to the claim only because of his mistaken reliance on discreditable stereotypes.
• Expose how discriminatory beliefs operated in the case.
• Examine how these beliefs present additional barriers for indigenous complainants.

Like the sentencing decision, the conviction transcript(which LEAF received finally on October 21) reveals that the trial judge made his decision in reliance on stereotypical beliefs about women who alleged that they have been sexually assaulted.  In fact, the conviction transcript is in some ways more problematic than the sentencing decision. The opening line is “After a night of drinking when four people decide to climb into a car around 2:30 am to continue to party rather than head home to their own beds, something bad is bound to happen.”

The Winnipeg Free Press under a front page banner headline wrote an story outlining LEAF’s position. It also published a sidebar on Statistics Canada data on the dismissal prosecution of sexual assault cases in Canada and even more dismissal record in Manitoba—figures set out in the LEAF factum.    Only 31% of sexual assault cases on Manitoba result in a guilty verdict (Compared to 43% Canada wide) ad 67% if sexual assault cases in Manitoba are stayed before trial (compared to 46% Canada wide.) This paper then published an editorial calling for an explanation for the dismissal record. This story was picked up by other media including newspapers across the country. The Crown lashed back stating that the Statistics Canada figures were wrong. Its protestations are unconvincing–but the technical details of that story are for another blog.

The intervention hearing did not go well. The motions judge was critical of the media coverage and suggested that LEAF had activated its media machine. The defendant abandoned the appeal for an acquittal.

In mid-November, the CJC issued its decision. It found that Dewar’s conduct fell short of what was expected of a judge. However in light of his sincere apology and his willingness to take gender sensitivity training, no formal sanction was necessary. The CJC made no comments on the sentencing decision stating that this matter was before the Court of Appeal.  This assertion was, by the time it was made, inaccurate as the Crown had already abandoned the sentence appeal.  A few days later, the motions judge denied LEAF intervenor status on the ground that it was raising new issues.

It will be interesting to see what the Court of Appeal now does on November 30. In light of the Crown defence agreement that a new trial is necessary, it is possible–perhaps likely–that the court will simply issue a short decision making such an order.  One can only hope that they will take this case as an opportunity to comment on the trial judge’s appalling comments in the two Rhodes decisions and perhaps to acknowledge that judges, prosecutors and the police need to do more to address systemic discrimination in sexual assault cases in Manitoba.

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Karen Busby is a professor in the Faculty of Law at the University of Manitoba and is the Academic Director of the Centre for Human Rights Research. On Thursday December 1 from 12 -1, Prof. Busby will be joining the FLF to facilitate a roundtable discussion on the Rhodes case.

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Herman Cain and the RCMP make it clear: Workplace sexual harassment persists

There have been two big stories in the news recently about sexual harassment:

* American presidential hopeful Herman Cain

* Allegations of members of the RCMP, especially  Catherine Galliford

It would be easy for those of us lucky enough to work in respectful environments to be under the impression that workplace sexual harassment was rapidly (and happily) becoming a thing of the past. These stories, however, make it clear that the problem persists; while allegations in both stories have taken some time to come to light, all of the incidents in question are by no means ancient history. And they both raise a lot of questions: Why do these incidents and allegations persist in what is supposedly an increasingly enlighted and egalitarian world? Is a para-military, rigidly hierarchical structure partly (or mostly) to blame? Are the women involved being too sensitive, or are the men involved being too insensitive? What’s the best way to deal with these kinds of allegations?   

 The Globe and Mail published a somehow simultaneously pointed and yet tongue-in-cheek opinion piece this weekend by Tabatha Southey that we enjoyed and thought we should share. It’s called “Lighten up, ladies! Sexual harassment, sexual shmarassment, right?“, and it begins with Herman Cain’s comment, “I do have a sense of humour — some people have a problem with that.” Check it out here.

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Update: Here‘s another opinion piece, this one from the New York Times, written by Katie Roiphe and taking a very different approach workplace sexual harassment. It’s called “In Favour of Dirty Jokes and Risque Remarks.”

Give them both a read and let us know what you think!

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Chair of the Canadian Human Rights Tribunal Speaking at Robson Hall

The Faculty of Law Distinguished Visitor Lecture presents:
SHIRISH P. CHOTALIA, Q.C. Chairperson, Canadian Human Rights Tribunal
Thursday, Nov. 24
Noon to 1 p.m.
Moot Court Room, Robson Hall, University of Manitoba
Public Event – all welcome to attend

Shirish P. Chotalia, Q.C. was appointed Chairperson of the Canadian Human Rights Tribunal effective November 2, 2009.

Ms. Chotalia obtained her Bachelor of Arts in 1983, her Bachelor of Laws in 1986 and her Master of Laws in 1991 from the University of Alberta. She was admitted to the Bar of Alberta in 1987.

Ms. Chotalia practiced with the law firm of Pundit & Chotalia LLP in the areas of immigration, human rights and employment litigation. She successfully litigated many high profile cases. She was a Commissioner with the Alberta Human Rights Commission from 1989 to 1993, an adjudicator with the Canadian Human Rights Tribunal from 1999 to 2005 and served as an elected Bencher, Law Society of Alberta, from 2008 until her appointment to the Tribunal.
Ms. Chotalia was an instructor at the University of Alberta’s Law Faculty since 1995, intermittently, teaching courses in Human Rights Law as well as Terrorism and the Law, and was also appointed as a Special Advocate in 2008 to address terrorism cases. She has written several books and many articles about human rights law and immigration law. Other professional service included Chair of the Canadian Bar Association Immigration Section, Northern Alberta, and Member, Selection Advisory Board of Canada. Ms. Chotalia speaks several languages including French, Hindi, Marathi and Gujarati.

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Justice Dewar apologizes… Is that enough?

The Canadian Judicial Council has finished reviewing the extremely controversial remarks made by Manitoba Court of Queen’s Bench Justice Robert Dewar in his decision in R v Rhodes this past February. Those remarks sparked major protests and much discussion.

 

CBC Manitoba reported today that, as a result of the CJC’s review, Dewar will not face any penalty. However, he has issued an “unequivocal apology” to the victim in Rhodes, and also expressed “regret” for “trauma” caused to those who “have worked directly with past victims.”

In that decision, Dewar said or referred to the following: the complainant and the accused met in “inviting circumstances“; the accused was a “clumsy Don Juan“; he put emphasis on what the complainant was wearing on the night in question; and of course, perhaps his most infamous comment, that “sex was in the air.”

In his apology, he noted his “poor choice of words,” and the CJC found upon completing their review that his comments “were also seen as reflecting negative and outdated gender stereotypes, as casting blame on the victim and showing unacceptable gender bias against women.”

What do we think? Is this enough? Some members of the FLF have been talking, and it seems that a few of us are feeling a little conflicted.

On one hand, there’s the view that having Dewar removed from the bench altogether would have been too harsh of a punishment. On the other, there’s a pretty strong feeling among most of us that this apology, or even the notion of apologizing in general, seems trite. Dayna pointed out that, hopefully, as a result of this process, more judges will seek to educate themselves on gender equality issues.

We all feel good about that potential outcome. But it was also pointed out that it’s virtually impossible to conceive of Dewar as impartial at this point. And while some might argue that impariality itself is an indealized judicial standard that never actually exists, it does seem particularly problematic in this instance. It’s disturbing to remember that, despite any ‘senisitivity training’ he has now had, Dewar embraced these outmoded, sexist ideas and applied them to an actual case as recently as 9 months ago.

Finally, we’re troubled by the apology being presented as a “poor choice of words.” Certainly, the words chosen were unquestionably poor. But what matters more are the beliefs Dewar held that led him to choose those words. Can we take his apology to mean that, had he not used such explicitly sexist and offensive language, we wouldn’t have anything to be upset about? Dayna made the point that “Mainly I worry that when systemic discrimination against sexual assault complainants isn’t as blatant as it was in this case, it passes unacknowledged and women end up losing.”

We would really love to hear what you think about this. Was the apology sufficient? What alternative measures could or should be taken? Let us know!

And don’t forget: the topic of this month’s roundtable will be sexual assault law, and certain aspects of the Rhodes appeal. Stay tuned for more info!

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Roundtable Write-Up: A Feminist Approach to Torts Law with Dr. Schulz

On November 2, Dr. Jennifer Schulz joined us to discuss “A Feminist Approach to Torts Law”. Sporting a very fashionable FLF t-shirt, Dr. Schulz encouraged the group of students in attendance to approach the law critically. This is of particular importance in mandatory courses, where many professors will unconsciously teach from a perspective of liberalism, a perspective that treats the law as objective and neutral, even where inequalities are rampant. Although torts law may be presented as fundamentally objective, Dr. Schulz challenged us to think about ways in which torts law can benefit from feminist analysis.

A first and perhaps obvious example is the notion of the “reasonable person”. Professors and students may accept this standard as simple – the standard is simply reasonableness. We may all assume that our perspective on what is reasonable is the same, in reality, the opposite is true. This notion is sharpened when we consider that the “reasonable person” is just the “reasonable man”, the “bloke on the Clapham bus” from England. This standard was changed to reflect modern day political correctness, but has the way it is applied really changed? Feminist scholars have critiqued this approach, and we learned that two lines of thought have emerged in the literature. One approach recommends accepting that men and women do view the world differently and it might be useful to take about care in a positive way, rather than a negative duty to not to harm. The other approach is more radical as it questions the efficacy of relying on objective standards, and calls for focusing on the actual tortious event and how someone with that person’s experiences would react in the circumstances. This approach recognizes that nothing is actually objective, even if we apply that label to the standards we use, and challenges an approach that allows for conflating the reasonable person with a normative standard of behaviour. As the student discussion suggested, taking this kind of subjective approach may be beneficial to balance out the racist, classist and sexist attitudes a person faces as soon as they enter a courtroom.

Dr. Schulz also highlighted the area of damages as another aspect of torts law that can benefit from feminist perspective. The principle of compensation (putting a person back to where they would have been had the tortious event not occurred) can actually perpetuate inequality. A thought-provoking example is that of lost future wages. Because pay inequity remains rampant, the damage awards women receive for lost earnings reflect this economic inequality. Damage awards are therefore structured along discriminatory lines. We learned that, to this day, courts routinely take a percentage off a damage award for contingencies to account for women bearing and raising children. 7 percent is routinely knocked off of the damage awards women receive simply because women shoulder a disproportionate burden for child bearing and rearing in society. 

Another topic in torts that cries out for feminist critique is the treatment of mothers. The case of Dobson v Dobson, where the Supreme Court held that a mother does not owe a duty of care to her fetus, is one example. While this case is heralded as a feminist victory, the result also meant that a mother who gave birth to a disabled son as a result of her negligence was unable to collect insurance money to help her raise her child. The tension in this case is clearly worthy of further discussion. Finally, Dr. Schulz pointed to so-called “wrongful birth” cases and noted that there is judicial reluctance to ever call the birth of a child damages or harm, therefore they don’t want to compensate for these damages or harm. Yet, the burden for child raising falls disproportionately on women, thus this is another very gendered example of not acknowledging women’s damages in the way that men’s would be.

The lunch-hour discussion wrapped up with some very thoughtful comments and questions from students in attendance. Certainly, there is much to consider around the notion of standard of care. Why not utilize a concept of actual care? As Dr. Schulz posited, why do we obsess over compensatory principles to “equalize” a person, when the law could actually care about an individual and seek to help them as much as possible in a given case. I think I can speak for all in attendance in saying that we left the room challenged and encouraged to approach doctrinal law courses with a critical perspective and to ask the difficult questions, beyond facts, ratio and holding: who does this decision benefit? Who is the law really helping? What is the actual result of this? Is it really true that this is neutral?

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Dayna Steinfeld is co-chair of the Feminsit Legal Forum.

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