The Ghomeshi decision: Justice Horkin earns a C on this law school exam

Tuesday, May 3, 2016

The Ghomeshi decision:  Justice Horkin earns a C on this law school exam!

There has been much written about the impact of the decision in R v Ghomeshi  on the brave women who came forward in that case, on sexual assault complainants generally and on the attractiveness (or lack thereof) of a criminal justice response to the pervasive crime of sexual assault.  At uOttawa’s Faculty of Law I teach both Sexual Assault law and first year Criminal law.  I thought it useful to look at the written reasons for judgment by Justice Horkins and assess them not for their dire consequences for sexual assault law generally, but more specifically as reasons for judgment – reasons for HIS judgment.  How did he come to the decision he did?  He had much to say about the complainants’ credibility, but how specifically did their failings affect his legal analysis? This is in other words—“Criminal law 101” of sexual assault.  Assuming Jian Ghomeshi’s actions were the hypothetical in a first year law school exam, how would I grade the effort?

The only bits of law offered by the Judge are a definition of what makes an assault a “sexual assault” and a description of what constitutes reasonable doubt. 

No where in his judgment does he lay out the constituent pieces of what makes a “sexual assault”.  That is:

The Actus Reus:
-that there was touching of a sexual nature
-without the subjective consent of the complainant;

and the Mens Rea:
-that the accused intended to touch and did so knowing, or being reckless, or willfully blind to the complainant’s lack of consent.

These are the basic, core components of a sexual assault.  None were addressed in Judge Horkin’s set of reasons.  Let us first consider his approach to the Actus Reus of the crime:  the criminal act.  He seems to accept that the touching was, at face value, sexualized.  He never suggests outright that sexualized touching did not happen.  Therefore, the first step in establishing the criminal act of sexual assault is present.  But he never addresses whether in his mind the complainants’ (any of the three of them) were subjectively consenting to the touching.  He comes to no conclusion on whether the criminal act occurred (or not) because he does not consider the second part of the test. 

I assume—and it is not good when one has to make assumptions from a written set of reasons, but still, I assume that the Judge had reasonable doubt around the complainants’ subjective lack of consent to the touching.  That makes the most sense given his obsession with their post-incident conduct with Ghomeshi.  It is worth emphasizing that while many other instances of sexualized contact were referred to by the judge (and elicited from the complainants in cross-examination), the Judge should NOT have considered whether the complainant’s subsequent sexual contact (for example the “hand job” performed by complainant SD) had any bearing whatsoever on whether she consented to the subject-incident of the charge—ie. Whether Ghomeshi choked her while kissing her on a bench at a baseball diamond). 

If the judge had forced himself to stick to the incidents that were the subject of the charges, he should have directed his mind to the subjectivity of their consent to the specific allegations:

-that SD was choked while also being kissed on a bench at a baseball park
-that Lucy DeCoutere was choked and slapped after an “out of the blue” kiss
-that LR’s hair was yanked both in Ghomeshi’s car and on a different occasion she was punched in the head several times and pushed (Or pulled) to her knees at Ghomeshi’s home. 

Only once in the judgement does the Judge offer any opinion as to whether the complainants were credible on the specific descriptions they offered.    At paragraph 106 of his reasons, he reviews the description offered by SD, specifically illustrating her “lack of precision, in responding to a question about how long Ghomeshi’s hands were around her neck, she offered “Seconds, A few seconds, Ten seconds…It’s hard to know.”  To Judge Horkin’s this was damning “imprecision”. 

That is all that the Judge had to say in questioning the complainants’ specific descriptions of their assaults.  Does he doubt either that they had been struck or pushed or pulled; or does he doubt that they objected to it??  Does he have reasonable doubt that if they consented to this conduct, it did not therefore rise to a level of bodily harm that one cannot legally consent to?   We don’t know from this set of reasons.
All of them described that the acts happened suddenly, randomly, “out of the blue”, in a flash of rage—ie. In a context where they could not have been given a chance to object or consent.  The Judge does not address this issue.

I acknowledge that the entire set of reasons is ultimately based on the judge’s decision the women are liars.  The cumulative impact of the 24 pages is a devastating indictment of the woman as deceptive, insincere media hounds.  He thinks they are liars and so therefore, they could have lied about the attacks.  It is true that they could be women who have lied—haven’t we all.  But I think that it was incumbent on him to point to the lies they told about the specific allegations.  As far as I can tell, no one ever shook them from their stories of violence at the hands of Jian Ghomeshi.  Not even Marie Heinan was able to get them to recant the core allegations that formed the basis for the charges. This means that the actus reus of the charge should have been substantiated.  If it wasn’t, the Judge should have specifically raised his doubts about what elements of the violence he believes did not happen. 

It also concerns me that in discussing the flowers Lucy DeCoutere sent Ghomeshi, Judge Horkin’s admonishes that this was “clearly relevant and material information in the context of a sexual assault allegation”.   Relevance and materiality are at the core of a Court’s definition of admissible evidence.  How do we define these concepts in law?  
As follows:
Relevance: “does the evidence make a fact in issue more or less likely to be true?”
Materiality: is the evidence “directed at a matter in issue in the case?”

I think it is certainly legally debatable whether it is relevant and admissible to whether Lucy Decoutere was choked and slapped that she sent him flowers after the fact.  How do the flowers make the “fact at issue”—ie the choking or hitting, more or less likely to be true?  How does that go to her subjective consent to that act at the time such that it is material to the issue of actus reus?  But even if a good defence lawyer argued it, the Judge insists that Decoutere herself should have known the flowers were relevant and material (even as he acknowledges it might not be “unusual” behaviour to have sent them).  How could she be presumed to know about admissibility of evidence standards?  If it isn’t something he is willing to call “unusual” (which he is careful to avoid for fear of being accused of stereotyping victims), than how could she have known it was “relevant and material”. 

There are many other objectionable pieces in the judgment that I would have criticized in a law school exam—the focus on animus for example is disturbing and suggests the judge thought the women should not have hated Ghomeshi for what he did to them.  I find it odd that given the Judge’s obsession with the complainants’ post-incident conduct, he did not come to the opposite conclusion that animus proved Ghomeshi must have have assaulted them!  If after-the-fact they hated him that much, by the Judge’s reasoning, that should have been probative. 

I would also argue that had the judge come to the conclusion that the criminal act occurred—ie. that the elements of the actus reus were proven—he should then have turned his attention to the state of mind of the accused.  Did Ghomeshi know he did not have consent to hit, push and pull the complainants?  Did he take reasonable steps to ascertain whether the women were consenting to his violence?  And is it even possible, in law, for someone to consent to violence that causes bodily harm?  These are important legal questions that should have been answered in the set of reasons.   Justice Horkins is fuzzy enough in terms of Criminal law doctrine to have earned at best a C from me on a law school exam. 


Protecting Defenders of our Socio-Economic Rights

Monday, April 25, 2016


Cross-posted from the CBA's  The National

Last week, the Supreme Court of Canada heard an appeal relating to the contempt of court order made against the Quebec student activist, Gabriel Nadeau-Dubois. The legal dispute at issue arose in the context of the 2012 student protest which received international attention. Lead by two student groups, l’Association pour une solidarité syndicale étudiante and la Fédération étudiante collègiale du Québec with broad support from the general public, the movement commonly referred to the ‘’Printemps érable’’ (Maple Spring) was triggered by former Premier Jean Charest’s proposal to increase tuition by 75 per cent over the course of five years. Hundreds of thousands of Quebecers from across the province took to the streets, wearing le carré rouge and banging casseroles to protect what is widely regarded in the province as a fundamentally core value: universally accessible post-secondary education.

In the course of the protest, another university student, Jean-François Morasse, obtained an interlocutory injunction to enable him to cross the picket line and attend class. When asked to comment on the injunction during a television interview on RDI, Radio-Canda’s news network, Nadeau-Dubois expressed his disappointment regarding the judicialization of what he considered to be a political protest and stressed that students had the right to strike. The Quebec Superior Court found Nadeau-Dubois guilty of contempt of court since his statement could be taken as an invitation to disregard the court’s injunction and, accordingly, sentenced him to community service. The decision was overturned by the Quebec Court of Appeal which emphasized in obiter the importance of respecting the freedom of expression in accordance with both the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms. This argument was again reiterated before the Supreme Court by the two intervenors that were granted leave to make oral submissions.
  
An added consideration in this case is Nadeau-Dubois’ particular legal status as a human rights defender. Under international law, all persons who act to promote or protect their own human rights or those of others ought to be accorded a heightened degree of protection from the State. To that end, there are specific international instruments and mechanisms aimed at protecting human rights defenders. By way of example, the 1998 UN Declaration on Human Rights Defenders provides, amongst other things, that everyone has the right to freely publish and disseminate their views and information on human rights and fundamental freedoms. Moreover, the UN Special Rapporteur on the situation of human rights defenders works to ensure that States afford appropriate protections to human rights defenders. Regional human rights instruments, such as the European Union Guidelines on Human Rights Defenders, also urge States to ensure that those who act to promote and protect their human rights or those of others are supported by the State and free from harm.

In Canada and internationally, socio-economic rights are often seen as the ‘’poor cousin’’ of civil and political rights. But they are human rights and those who protect them deserve protection. The International Covenant on Economic, Social and Cultural Rights provides that states must protect and promote everyone’s rights to education. States are also required to ensure that higher education is accessible to all and must work toward the progressive realisation of free secondary and post-secondary education. The Committee on Economic, Social and Cultural Rights has also commented that higher education must be culturally appropriate. In the context of a province in which the French speaking majority was largely excluded from post-secondary education for generations and the survival of the language depends on one’s ability to study in one’s mother tongue, the accessibility of higher education is all the more crucial. Though the demands made by the student movement in Quebec in 2012 were articulated as politician ones, they were in line with Canada’s international human rights obligations. As such, Nadeau-Dubois was a human rights defender and his case ought to be treated in accordance with relevant international human rights standards.

Canadian courts must play their part in ensuring that those who have the courage to speak out to protect our fundamental rights can do so freely, safely and without fear. This is not just an issue of concern for citizens living under repressive regimes. In recent years, many Canadians were shocked to learn that Dr Cindy Blackstock, an internationally respected children’s rights advocate who filed a human rights complaint against the government of Canada alleging that it was racially discriminating against First Nations children, was being spied on and monitored by nearly 200 government officials. While the Canadian Human Rights Tribunal found that Canada had retaliated against Dr Blackstock and awarded her 20 000$ in damages, it remains unclear whether the government surveillance continues to this day. Government officials and lawyers have refused all requests to confirm that the conduct has ceased.  Likewise, as the spokesperson for student movement in support of the right to accessible education, Nadeau-Dubois faced personal attacks, frequent death threats and cyber-bullying.


Canada can boast having some of the world’s strongest constitutional and legislative human rights protections. But those rights are weakened if we do not ensure that our union leaders, academics, feminists, Indigenous activists, students, environmentalists and other human rights defenders who seek to assert and advance human rights in Canada are appropriately protected. It is in through this lens that courts must see their duty to protect Nadeau-Dubois’ freedom of expression.  

Local Feminist Organisation: WISE

Friday, April 22, 2016

WOMEN’S INITIATIVES FOR SAFER ENVIRONMENTS-----------------------------------------------------------------------INITIATIVES DES FEMMES POUR LA SÉCURITÉ ENVIRONMENTALE



Helping to make communities

“Safer for Women, Safer for All!!”

Back in 1990, there were a series of sexual assaults reported in the downtown core of Ottawa.  Needless to say, this drew outrage and a deep concern regarding women’s safety.  It was determined that the issue of women’s safety required a political voice, so two university professors decided to form an Urban Safety Committee, and requested funding from the government to start a non-profit organization that would address the issue.

The organization was called Women’s Action Center Against Violence (WACAV), and the charity operated under that name for ten years.  Due to the fact that many women who contacted WACAV thought that it was a shelter for abused women, it was decided that a name change was in order, so Women’s Initiatives for Safer Environments (WISE) was born.

WISE is a small, dynamic, registered charity promoting women’s safety and working to prevent and end violence against women. WISE works directly with individuals, diverse communities, local government and agencies in order to create safer physical and social environments. WISE has two specific programs it offers the community:

A community safety audit, which includes attending a site; assessing safety issues; creating an action plan to address deficiencies and then following up with stakeholders to monitor and encourage implementation of recommendations.

Personal safety workshops – they provide women the opportunity to share their stories and learn a variety of safety strategies for different environments, and there is always a basic self-defense component at the end.
WISE also partners with different businesses and agencies, such as OC Transpo and the Ottawa Police/Crime Prevention Ottawa, in order to maintain safety standards and protocol for women.

In order for WISE to continue doing this very important work, the organization is taking part of this year’s Ottawa Race Weekend as a fundraising initiative. The funds raised will not only help to carry out regular services and programs, but also to provide enough funding to get new programs off the ground, such as a legal education workshop and an auto-mechanic workshop for women.  Potential runners (or walkers) are being sought so that their network of people (friends, family, coworkers, etc) can sponsor them during the race.  Donations can also be made directly to WISE by contacting info@wiseottawa.ca, or through the racing website – simply google Scotiabank Charity Challenge-Run Ottawa, click on the Scotiabank Ottawa Marathon logo on the right hand side towards the bottom of the page, click on “Find a Charity” in the middle of the page, click on W under “Official Charities”, select WISE and click on donate.


We thank all runners and donors for their support, as WISE tries to make Ottawa “safer for women, safer for all”. 

Comprehensive Reform Needed to Achieve Substantive Equality for First Nations Children

Wednesday, April 13, 2016


By Anne Levesque and Sarah Clarke

This is a cross post from the Canadian Human Rights Reporter View Point Column

On January 26, 2016, the Canadian Human Rights Tribunal (“CHRT”) released a historic decision finding that Canada is racially discriminating against 163,000 First Nations children by providing flawed and inequitable child welfare services ("FNCFS Program") and failing to implement Jordan's Principle to ensure equitable access to government services available to all other Canadian children.1 While the CHRT requires further clarifications from the parties before making any specific remedial orders, the decision provides that a reform of Canada’s FNCFS Program is needed in order to ensure that the services provided to First Nations children are in their best interest and meet their cultural, historical and geographical needs.2

The ink on the CHRT’s decision was not yet dry when further allegations of discriminatory conduct by Canada against First Nations children came to light. This time they related to discrimination in the context of health services. On February 21, 2016, CBC News reported that Health Canada has denied several requests for coverage of braces to correct a handicapping malocclusion of Josey Willier, a First Nations teenager from Alberta who is experiencing several headaches and chronic pain as a result of her condition.3 Such essential medical services ought to be covered by the Non-Insured Health Benefits Program (“NIHB”), a program administered by Heath Canada  aimed at helping First Nations people and Inuit reach an overall health status that is comparable with other Canadians.4  Though Josey’s braces were deemed to be medically necessary by her doctor, and her requests were accompanied by all necessary medical evidence, Health Canada has denied her multiple requests for coverage.  A judicial review application was commenced on March 24, 2016, challenging NIHB’s decision to deny the child coverage.

As it turns out, Josey’s story is just the tip of the iceberg. Shortly after Josey’s mother spoke out publicly about her daughter’s situation, shocking statistics relating to the NIHB’s rejection rate were released. Of the over 534 requests for essential medical services coverage by on behalf of First Nations children to Health Canada, 80 percent were rejected in the first round. The few that went to the second round had a 99 percent rejection rate. On the third round, 100 percent of requests were denied by Health Canada bureaucrats.5 

While the CHRT’s decision calls for reform to address its numerous findings of discrimination, the scope of its application is limited to child welfare and, as such, does not strictly apply to Josey’s case which relates to health services.  This is because complaints filed under the Canadian Human Rights Act must relate to only one specific service area. Of course, as any social worker will tell you, child welfare cannot be seen in a silo and requires a holistic approach also involving adequate housing, education and health for children. While the CHRT decision does not specifically require reform in these service areas such as health, the expensive definition of discrimination adopted by the CHRT in its decision relating to child welfare services – one that requires Canada to offer First Nations children services comparable to other children, that are in their best interest and that consider their historical, cultural and geographic needs – may be indicative of how the CHRT will rule when adjudicating further allegations of discrimination against First Nations children relating to services areas linked to child welfare.  Given that Minister Wilson-Raybould has recently stated that any form of discrimination is disgraceful and that change is needed in order to honor the respect of reconciliation, it is hoped that Canada will implement the CHRT’s calls for reform holistically and across all services its provides to First Nations children rather than spending years and millions of Canadian tax dollars in legal fees fighting a long chain of human rights complaint relating health, housing and education.6   

Anne Levesque and Sarah Clarke7 

 

1.     First Nations Child and Family Caring Society of Canada. v. Canada (Attorney General), 2016 CHRT 2, CHRR Doc. 16-3003.

2.     Ibid at para 463–65 (emphasis in original decision).

3.     Go to http://www.cbc.ca/beta/news/politics/mother-fights-for-daughter-medical-1.3456562 for the CBC article.

4.     For more information relating to the Non-Insured Health Benefit Program go to:

        http://www.hc-sc.gc.ca/fniah-spnia/nihb-ssna/index-eng.php

5.     42nd Parliament, 1st Session, Edited Hansard, Number 020, February 18, 2016 available online at: 

        http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&Parl=42&Ses=1&DocId=8105393 

6.     In 2014, the Canadian Human Rights Commission reported that it had referred 26 complaints lodged by First Nations Peoples against Canada. See “Special Report to Parliament on the Impacts of Bill C-12” Canadian Human Rights Commission (September 15 2014) Available online at:

        http://www.chrc-ccdp.gc.ca/sites/default/files/special_report_to_parliament_on_the_impact_of_bill_c_21_2014.pdf 

7.     Anne Levesque and Sarah Clarke both represented the First Nations Child and Family Caring Society of Canada in its historic complaint against the government of Canada regarding its discriminatory child welfare services and its failure to implement Jordan’s Principle. Sarah Clarke is representing Josey Willier’s mother in her efforts to obtain the essential medical services for her daughter. 

The Black Law Students' Association at the University of Ottawa, Faculty of Law is standing in solidarity with Black Lives Matter Toronto

Monday, April 11, 2016

·    
March 30, 2016



The Black Law Students' Association at the University of Ottawa's Faculty of Law is standing in solidarity with Black Lives Matter Toronto, alongside a growing list of anti-oppression groups, organizations, and unions. The Black Lives Matter tent city protest stands against anti-Black racism, police violence against our communities and advocates the need to overhaul the Special Investigations Unit. We support the Black Lives Matter Members because our members are directly impacted by everything that they are fighting for. We are aware of the intersection of systemic discrimination and the law, and believe that action must be taken in order for there to be change. The tireless work of Black Lives Matter, and its allies, has already led to Afrofest being restored to two days.

Like many organizations, we are calling on Chief Mark Saunders, Premier Kathleen Wynne and Mayor John Tory to respond to the other demands made by Black Lives Matter, namely:

        The immediate release of the name(s) of the officer(s) who killed Andrew Loku

        Charges to be laid against the officers who killed Mr. Loku.

        The immediate and public release of any video footage from the apartment complex where Andrew Loku was murdered.

        The adoption of the African Canadian Legal Clinic's demand for a coroner's inquest into the death of Andrew Loku.

        An overhaul of the province's Special Investigations Unit, in consultation with families of victims of Police violence, the Black community, and the community at large.

        A commitment to the full elimination of carding, including: the deletion of all previously recorded data, reframing of regulations to prohibitions, consistent implementation policy amongst different police boards, and concrete disciplinary measures for officers who continue to card.

        The immediate release of the name(s) of the officer who killed Alex Wettlaufer, and charges to be laid accordingly.

In Solidarity,

The BLSA Ottawa Executive.
(Chelsi Bonair, Thelma Essibrah, Samantha Peters, Jenelle McCalla, Beverly Sarfo, Winnie Phillips-Osei, Jeff Akomah, Zain Dar, Sarrah Coulibaly, Alexandra Oli, Angelina Mbuyi and Regina Bah).

The Trial of Jian Ghomeshi has Confirmed....

Tuesday, April 5, 2016


Rosemary Cairns-Way

The trial of Jian Ghomeshi has confirmed, in a very public way, the continuing incapacity of the criminal justice system to respond to the justice needs of sexual assault survivors.  There is nothing particularly surprising about the structural failures the Ghomeshi trial illuminated … what makes the case potentially significant is the national scale of the exposure, which has been fuelled by intense media scrutiny and by voracious social media.  I have been teaching about sexual assault for more than a quarter century.  I have watched, applauded and sometimes participated in changes to the law – the re-definition of the crime of sexual assault, the codification of consent, the imposition of limitations on mistaken belief claims, the elimination of misogynistic procedural rules, and the introduction and fine-tuning of evidentiary rules intended to protect complainants from re-victimization on the stand and to enhance the search for truth.   Sadly, these changes, though progressive on-paper, seem to have accomplished little.  

I think this is because the problems are structural.  The primary culprits are the very ground-rules of the system itself: adversarialism, and proof beyond a reasonable doubt.   Aggressive adversarial cross-examination is a core feature of criminal trials.  In the he-said, she-said world of much sexual violence this means that it is the victim who must endure public re-victimization.   The defence cross-examiner is entitled, and arguably required, to go beyond the accuracy of the assault narrative itself, and into the debatably relevant pre and post assault conduct of the victim-witness … and in doing so to destroy her.  This process of witness destruction is rooted in both enduring myths and evolving stereotypes which inform our cultural understandings of sexual behaviour. Attempting to control the exploitable myths has been a decades long process of plugging a leak in one place (past sexual conduct) only to have another leak emerge (third party records).  In Ghomeshi, it was the post-offence conduct of the complainants, documented, discussed and displayed in a world where the line between private and public has been dismantled that was manipulated by the defence.  

Proof beyond a reasonable doubt, an offshoot of the presumption of innocence, is, at least rhetorically, an essential safeguard against the conviction of the innocent.  Of course, the presumption of innocence seems to be routinely ignored in our systemic reliance on plea bargaining as a method of charge resolution, and, in the fact that a majority of those incarcerated in provincial detention centres in appalling conditions are detained pre-trial, that is when they are still legally innocent.  When a case does get to trial, proof beyond a reasonable doubt requires a judge to acquit an accused who probably committed the crime.  And, although not the case here, the burden of proof may well require the judge to acquit even when she believes the victim.  As one commentator has written:

What perverse illogic deludes us into believing that a sexual-assault survivor would ever wish to seek justice by placing herself, unprotected, in a well-armed opponent’s crosshairs?

I am left wondering whether it is time to abandon criminal law … or at least to explore alternate remedial responses.  I am intrigued by the suggestion that complainants be given a real choice about the justice services available to them, and that these services include the option of having the state carry forward a civil suit on their behalf where proof would be on a “balance of probabilities” and the alleged perpetrator could not invoke the right to silence.

What is clear is that the status quo is not acceptable.   I hope that the Ghomeshi trial galvanizes a productive public conversation which listens seriously and constructively to survivors.  If that happens, it might not have been an utter waste.  



The thorny question of equality in the context of physician-assisted dying

Sunday, April 3, 2016

By Jennifer A. Chandler

Respect for the principles and legal requirements of equality and non-discrimination raise particular challenges in the context of physician-assisted dying (PAD). 

Throughout Canada’s long national conversation about PAD from the Supreme Court’s decision in Rodriguez to the recent Carter decision declaring that the criminalization of PAD was unconstitutional in certain circumstances, a continuous theme has been the human rights of people with disabilities.  Arguments for and against PAD have both relied upon claims to the equality of persons with disabilities in different ways. 

Claims to self-determination of those with disabilities have been raised in favour of decriminalizing PAD.  The Alliance of People With Disabilities argued before the Supreme Court in Carter that the right to equality of persons with disabilities who are of sound mind but unable to end their own lives is violated by the criminalization of PAD.  Unlike others who are able to choose and control the circumstances of their own deaths, people with certain disabilities are precluded by law from doing so because they cannot access the necessary assistance.  The Alliance pointed to the psychological suffering of those with progressive diseases who face the knowledge that they will eventually become physically unable to end their own lives without help.  The Alliance rejected as paternalistic the idea that PAD should be withheld to protect people with disabilities from being coerced into consenting to it:

“An absolute prohibition on physician-assisted dying that rests on the concern that such a practice would threaten people with disabilities, due to their particular potential vulnerability and susceptibility to coercion, denigrates and is paternalistic of the disability community. To contend that the mere fact of physical disability renders otherwise autonomous decisions less than fully autonomous not only perpetuates prejudice but also fails to correspond with the actual circumstances of persons with disabilities.”

At the same time, the fear that vulnerable people with disabilities, whose quality of life is often undervalued by others, will be encouraged to consent to PAD has led to contrary arguments.  The Council of Canadians with Disabilities and the Association for Community Living argued against decriminalization, citing the undeniable fact that “people with disabilities are vulnerable to society’s ‘prejudice, negative stereotypes and societal indifference.””

“The common law paradigm of individual autonomy and self-determination to characterize the “choice” made by a person who is dependent on others for treatment and care is problematic and misleading.  Because of the nature of the decision and the circumstances in which it would be made, the CCD/CACL agree that “It would be next to impossible to ensure that all acts of euthanasia were truly voluntary.””

The problem of respecting individual autonomy within a broader social context in which that individual choice is often unfairly constrained, is at the heart of this disagreement.  This same problem plays out when one considers the recent discussion of whether PAD should be available to people who are suffering from psychiatric illnesses alone (i.e. without an accompanying “physical” illness).

The federal government’s Special Joint Committee looking at physician assisted dying released its long-awaited recommendations in February to much debate.  It recommended that competent adults suffering from psychiatric illnesses should also have access to PAD, and questioned how a person “could be denied a recognized Charter right based on his or her mental health condition.” 

Indeed, refusing access to PAD by those who are competent and otherwise fit the eligibility criteria on the basis that their illnesses are psychiatric rather than physical would seem to contravene the Supreme Court’s position in the Battlefords and District Cooperative Ltd. case.  In that case, a woman successfully challenged an employer’s disability insurance policy that provided inferior terms of coverage for mental as opposed to physical disabilities that precluded resumed employment.  The Supreme Court found the policy to be discriminatory, citing the “abundant support for the view that the mentally disabled have suffered from historical disadvantage and negative stereotyping,” and treatment that “sets them apart from disabled persons generally.”

On the other hand, it is clear that the public is gravely concerned about opening access to PAD for people with mental illnesses.  A poll released on April 1, 2016 showed 78% of Canadians are opposed to allowing this.  Public attitudes do not settle the question of the scope of human rights and guarantees – one of the points of constitutional guarantees such as those set out in the Charter is to ensure that the majority is required to respect certain basic individual rights and freedoms no matter how much the majority disagrees.  Whether there are justifications for limiting this Charter right specifically for people with mental health disabilities rather than other kinds of disabilities remains to be seen.

The broader context of PAD for mental illness is also worth noting.  Inequality in access to health care resources is an important part of the context of debates over PAD.  If alternatives to PAD – such as good quality palliative care, mental health care and social supports – are unavailable or inadequate, it may be that the best option facing a person is to seek PAD.  In this way, inequities in access to care and support, reflecting the imbalances in political power of the relevant patient groups, would form an important part of the context.   On this point, wait times to access psychiatric care for serious mental illness in Canada are unknown, but are thought to be too long.  The Mental Health Commission of Canada has argued that we have had “years of underfunding of mental health” in Canada.  In 2007, the Wait Time Alliance and the Canadian Psychiatric Association proposed benchmark wait times for access to psychiatric services for people with serious mental illnesses.  Yet according to their 2015 report, provinces have yet to even publish wait time data for psychiatric care.  In the meantime we have worked hard and succeeded in reducing wait times for hip and knee replacement, cataract and bypass surgery, radiation therapy and diagnostic imaging.  If we do not even have data about psychiatric care, it is difficult to make progress in assessing and improving care.

Another important question from the perspective of equality is why it appears that  women form a majority of cases of PAD for psychiatric purposes where this is practised.
An article published earlier this winter in JAMA Psychiatry reviewed 66 cases of medical aid in dying provided to people with psychiatric illnesses in the Netherlands between 2011 and 2014.  The review found that most of these cases were women (70 percent) with chronic severe conditions, and 56 percent were described as socially isolated or lonely.  As Dr. Paul Appelbaum commented in an editorial accompanying the article, these results raise “the concern that physician-assisted death served as a substitute for effective psychosocial intervention and support.”  There are various reasons why women may be over-represented.  Men have a much higher suicide rate than women, and it is possible that those who wish to die will commit suicide themselves instead of resorting to the assistance of physicians.  Another possible explanation is a difference in access to the care and social support that might offer a viable alternative to suicide. 

Ultimately, the issue of access to adequate care and support shows that arguments based on equality emerge as factors that complicate the more straightforward autonomy-based argument about access and choice.  This is the case for both physical and mental health disabilities.  Respect for autonomy is vital regardless of the nature of the disability, but the broader context in which choices are exercised also has important equality-related implications and must be considered.

Jennifer A. Chandler is the Bertram Loeb Research Chair and Associate Professor at the Centre for Health Law, Policy and Ethics, Faculty of Law, University of Ottawa.



After Ghomeshi

Wednesday, March 30, 2016

This is the first of nine blog posts tracking feminist reaction to the Ghomeshi verdict. They are based on a panel held yesterday, March 29th, 2016, at the University of Ottawa Faculty of Law.



A case of she said, she said, she said


The judge said:  “My conclusion that the evidence in this case raises a reasonable doubt is not the same as deciding in any positive way that these events never happened. “

She said:

charming and charismatic
smitten
PLAY
sweet and humble
funny, intelligent, charming and nice
Love Bug not a Hummer
softness, kindness, safe
flirting, kissing

hair grabbed and yanked “really, really hard”
“what have I gotten into here?”
painful
do you like it like that?

confusing
unsure what to think
doesn’t know his own strength?
really intended to hurt?

uneventful
flirting
pub
at his home
music playing
drink, charming

“out of the blue”

hair pulled
head punched
pulled to her knees
like walking into a pole
fear of passing out

rage gone
“you should go”
thrown out like trash

never considered calling the police
who would listen?

BUT:

didn’t consistently mention kissing in all reports
hair extensions or not?
head smashed against the window or not?
thrown to the ground or pulled to the ground?
yoga moves or not?
and no Love Bug at the time
failed to disclose her after-the-fact conduct
flirtatious emails, bikini shot, watching Play – traumatized or not?

The judge said:  “The expectation of how a victim of abuse will, or should, be expected to behave must not be assessed on the basis of stereotypical models”.  [However, her behaviour is]“at the very least, odd”.   

Verdict:  not reliable.

Next, she said:

Banff Film Festival
playful, flirtatious, fun to be with
dinner, conversation
wanted to “just hold her”
“cheesy” and a “put on”
awkward attempt at a kiss
house tour, organized, well kept
a kiss

hand on the throat, pushed against the wall, choking, slapping
shocked, surprised, bewildered
act calm
as if nothing happened

listening to music
playing his guitar
a kiss good night

a mistake?  a one off event?

more socializing
moody but not violent

Gemini awards
touched her neck
a reminder?

didn’t report 
thought it wasn’t serious enough
she wasn’t “beaten to pieces … broken and raped”
came forward when police asked

BUT:

awkward attempt at a kiss or not?
late disclosure of love letter, sending flowers, karaoke, proposition
choking and then slapping or vice versa or push, slap, slap, pause, slap?

The judge said:  “It is difficult for me to believe that someone who was choked as part of a sexual assault, would consider kissing sessions with the assailant both before and after the assault not worth mentioning when reporting the matter to the police. I can understand being reluctant to mention it, but I do not understand her thinking that it was not relevant.” 

The judge said:  Sending flowers is “an odd behaviour” if a man has just choked you.

The judge said:  “I acknowledge that the Court must guard against assuming that seemingly odd reactive behaviour of a complainant necessarily indicates fabrication. However, this is an illustration of the witness’s actual behaviour, evidenced by her own written expressions.”

The judge said:  “It may be entirely natural for a victim of abuse to become involved in an advocacy group. However, the manner in which Ms. DeCoutere embraced and cultivated her role as an advocate for the cause of victims of sexual violence may explain some of her questionable conduct as a witness in these proceedings.” 

Verdict:  not reliable.

And finally, she said:

“making out” on a park bench
neck squeeze, hands, teeth, uncomfortable, hard to breathe
nothing said
imprecise description, still “trying to figure it out”
came forward later in response to police request

BUT:

claimed not to have discussed with other complainant, but 5000 emails
wanted to “sink the prick” – revenge or “legitimate feelings of victims of abuse”?
late disclosure of her after-the-fact conduct
said she kept her distance, but later admitted “messing around” with him in her home, emailing him to go for a drink

The judge said:  “Playing chicken [with the justice system.  Hoping to get by with] half truths.”

Verdict:  not reliable.

presumption of innocence … fundamental right of every accused
proof beyond a reasonable doubt ... not absolute or scientific certainty, but close to this
not enough even if you believe the accused is probably guilty or likely guilty
historical complaints triggered by scandal – no presumptive adverse inference
incremental disclosure – nothing presumptively suspect

similar act evidence inadmissible – each charge has to be determined on its own
that is, it doesn’t matter that she said, she said, and she said

no need for corroboration
here, “Nothing in addition to the complainants’ word”
here, no “smoking gun”
credibility is key

But she said, she said, and she said.

The judge said:  “I have a firm understanding that the reasonableness of reactive human behaviour in the dynamics of a relationship can be variable and unpredictable. However, the twists and turns of the complainants’ evidence in this trial, illustrate the need to be vigilant in avoiding the equally dangerous false assumption that sexual assault complainants are always truthful.”

According to the judge:

impossible to have faith in reliability and sincerity of complainants
reasonable doubt
acquittal
not the same as deciding that these events never happened

Criminal law isn’t about what happened.  It’s about proving that it did.

Beyond a reasonable doubt.

I wonder, “who is law for?”





Designed by Rachel Gold.