The Hellhole Spectator: Canadian Justice
Dickenson, Petra
by Petra Dick erzsor~ Canadian Justice Andrea Dworkin meets Justice Mine. Claire I Heureux-Dube. T he facts were never in dispute. All the evidence came from the witness for the prosecution....
...In doing so, it also jettisoned the Anglo-Canadian liberal tradition of impartial justice and individual rights...
...This being the official understanding of human nature, in retrospect it was naive of the accused to sit silently during his trial and to expect that a man could be judged by some objective criteria of normal conduct...
...The Crown appealed again...
...As was, as it turned out, the comment of a judge of the Alberta Court of Appeal that "in a less litigious age" the accused's advances would have been "better dealt with on site--a well-chosen expletive, a slap in the face or, if necessary, a welldirected knee...
...essary to re-examine the doctrines which PETRA DICKENSON, a former member of reflect the cultural and social limitathe Alberta Law Society, is a contributor to Lions that have preserved dominant male "Taki's Top Drawer" in the New York Press...
...As the sapphie heavyweight Andrea Dworkin and her sisters understand things, given the unequal distribution of power in a patriarchal society, heterosexual intercourse can never be truly voluntary or eonsensual...
...Far was it from him or his lawyer to even ask whether someone had ever suggested to the young woman that dressing in shorts and a tank top for a job interview and engaging in mutual body massages might give a fellow ideas...
...Specifically, "if the trier of fact accepts the complainant's testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of consent is established...
...In an injudicious letter to a newspaper editor the jurist tried to defend himself from the abuse heaped on him and all hell broke loose again...
...A defense, he subsequently learned, that was not valid anymore...
...The Alberta Court of Appeal unanimously upheld the acquittal, two judges dismissing the appeal on the grounds that it involved a question of fact--was the activity consensual?--not a question of law...
...The Crown did so...
...She said "no" when his hands neared her breasts and he immediately desisted...
...And that court's opinion is now clear about technicalities like the presumption of innocence...
...In their place it substituted the subjective approach--validating any belief held by a protected group which need not be obiectively reasonable or communicated to the outside world...
...women, like children, are inherently vulnerable and should be treated differently--even if that means institutionalizing the old patriarchal ideas of women as the weaker sex, always in need of protection and special treatment...
...Their separate, though concurring, opinion included a vituperative attack, suggesting that their brother judge was in serious need of re-education...
...The complainant was a wronged woman, the victim of a male-dominated society, their encounter a result of a power imbalance between the predatory male, who should have known better, and a helpless woman who never could...
...h a t the court has done is to embrace the "inherent power imbalance" theory concocted by American feminists...
...She further stated that she had told him that she was an open, friendly, and affectionate person who liked to touch people, to which he responded with words to the same effect...
...She was 17, the accused was 49...
...And re-examine them the Supreme Court did...
...The witness admitted that the accused never attempted to remove the shorts or the tank top she had been wearing...
...At another point, when they were lying together on the floor, he rubbed his pelvic area against hers and she reacted by telling him "no...
...In an unusual move, instead of ordering a new trial, the Supreme Court substituted a conviction...
...When she did say so, the accused opened the door for her, remarking, "See, I'm a nice guy...
...Therefore, forget the old ideas of consent between two equals...
...I stopped," and they left the trailer...
...Put simply, the Supreme Court of Canada overturned all legal precedents governing the law ofsexuaI assault and consent...
...He gave her, and she accepted, a $1oo bill...
...The new, subjective standard 60 September ~ooo " The American Spectator promulgated by the Supreme Court is that any fear on the part of the woman, which need not be reasonable nor communicated to the accused, will be enough to vitiate consent...
...At least two justices of the Supreme Court refused to contain their fury...
...The Supreme Court of Canada, also in a unanimous decision, reversed both lower courts...
...The Crown prosecutors vigorously objected to the applications for a new trial, pointing out, not unreasonably under the circumstances, that "he is asking this court to usurp the jurisdiction of the Supreme Court...
...Convicted, he is to be sentenced in mid-September...
...The prosecution has been absolved from its obligation to prove criminal intent, while the accused, no longer presumed innocent, must now always take the stand to disprove his own criminal intentions...
...Claire L'Heureux-Dube, one jurist who has never felt terribly constrained by some fusty concept of judicial impartiality, likes to explain the new approach this way: "Since our legal system is ineffective in protecting the rights of women and children, it is nec...
...He later took his flaccid penis out of his pants and placed it on the outside of her shorts, to which she again said "no...
...At no point did the young woman indicate that she wanted to leave...
...The young woman went home to her live-in boyfriend and baby, then telephoned the police and had the fellow charged with sexual assault...
...In other words ifa woman, regardless of her actions at the time, declares later that, in her mind, she did not really consent, the bloke's out of luck...
...She later testified that she had thought the door locked, although there was no evidence that it was in fact locked...
...He ruled that from her behavior the accused could have reasonably concluded that the young woman was consenting to the sexual activity, and acquitted him...
...The young woman testified at the trial, held in the Court of Queen's Bench of Alberta, that she had gone into the accused's trailer following a job interview in his van...
...At the trial, the accused, retaining one of the top criminal lawyers in the province, did not challenge the evidence and let the witnesses' version of the facts stand as given...
...He is guilty of sexual assault...
...Traditionally, there could not be sexual or other assault if the person consented to the contact or to the application of force...
...He didn't...
...The morally impeccable Canadian media demanded that he resign...
...To have done so would have been absolutely incendiary...
...She then hugged him and they chatted for a bit standing outside...
...The court found the young woman to be articulate and intelligent and accepted her argument that she was fearful but wished to convey to the accused a sense that she was not nervous or afraid...
...He's asked Alberta courts to reopen his case so that he could give evidence and base his defense on the law of honest but mistaken belief...
...In sexual assault cases, the fundamental guarantee that no man shall be convicted if there is a reasonable doubt as to his guilt no longer applies...
...They spent two and a half hours in the trailer, remaining fully clothed throughout...
...interests at the expense of women and children...
...He was charged with an indictable offense, equivalent to a felon), in the U.S., maximum penalty 18 years...
...he promised he would call her again...
...They had been together in the van and she wanted a cigarette...
...They proceeded to give each other body massages but a few things happened that she did not like...
...The judge also believed her when she stated that she had actively projected a relaxed demeanor...
...Americans, whose president has been accused of far worse behavior, might well wonder what's going on in Canada...
...The case itself, according to the high court, was about "myths and stereotypes...
...Most importantly, the country's highest court rewrote the law of sexual assault...
...He stopped...
...Supreme Court Justice Mnre...
...Given that sexual assault is now proven whenever the complainant states that she subjectively did not consent, even if at the time she conveyed "yes," the burden of proof has shifted from the prosecution to the accused...
...N The American Spectator _9 September 200 o 61...
...Obviously, fear or fraud do invalidate an otherwise valid consent...
...When they entered the trailer, the accused closed the door behind them...
...The Alberta convict, on the other hand, grasped the new realities and has made several unsuccessful applications for a new trial, arguing that when he was originally in court, he did not testify because he had relied on the defense of implied consent...
...But until this case, the question whether there has been a valid consent was assessed objectively: Can a person, given the behavior of the parties and the totality of the available evidence, reasonably conclude that consent was given...
...In Canada, the prosecution may appeal an acquittal on a point of law...
...Again, he immediately stopped...
...In fact, "as irrational as a complainant's motive might be, if she subjectively felt fear, it must lead to a legal finding of absence of consent...
Vol. 33 • September 2000 • No. 7
