Consent to sex: What happened to moral blameworthiness ?

A few years ago I sought leave to appeal from the Supreme Court of Canada in a case which was popularly referred to as "The Clergy Man and the Park". In Webb v. Waterloo Police Services Board and P.C. Gillingham I sought to recover compensation for my client who was unwittingly entangled in a police sting operation carried out by Waterloo Region Police Service in their efforts to "rid a park of homosexual activity" by having P.C. George Gillingham entice men seeking sexual activity in Kitchener's Homer Watson Park to touch him and then charge them with sexual assault.

The evil which I attempted to have the Supreme Court of Canada acknowledge was that the offence of sexual assault was not amendable to a sting-type operation like the one carried out by Waterloo Region Police because the actus reus is dependent on the complainant's subjective state of mind - in the Webb case - a police officer who admittedly concealed his identity as a police officer to Mr. Webb because "he would not have committed the offence if he knew I was a cop." I argued that the potential harm capable of flowing from allowing state actors such a broad power of discretion warranted review and censure from the highest court in the land. An innocent citizen could potentially be charged with sexual assault only because the charging police officer claims a lack of consent notwithstanding the fact that all objective indicia point to consent.

Last week the Supreme Court of Canada increased the class of potential victims of false allegations of sexual assault from gay men at the hands of the police to include common law partners who engage in erotic asphyxiation. The Supreme Court of Canada overturned a husband's acquittal by the Court of Appeal for Ontario finding that the wife could not have consented to any sexual act while she was unconscious even thought the couple had engaged in this conduct before and the wife maintained that she consented to be asphyxiated. This conclusion was arrived at in the face of the following uncontested facts:

- H and W were involved in a long-term relationship and had a child
together;
- H and W had engaged in asphyxiation during sex before;
- W complained to police two months after the act;
- W recanted at some point and stated that she brought the
allegation of sexual assault after H threatened to take custody
of their son;
- W testified that she consented to the asphyxiation.

This appeal made its way to the Supreme Court of Canada because one of the justices of the Court of Appeal for Ontario, Mr. Justice Laforme, dissented finding that as a point of law the woman could not have consented because she was unconscious. It is clear that the majority in the Supreme Court of Canada jumped on an opportunity to both confirm and expand upon the court's ruling in Ewanckuk - the so called "no means no case". While one can see the logic in the broad proposition put forward by the majority in this case that proposition fails to do justice to the specific facts of the case. One could not argue in good conscience that a person who drugs another in order to have sexual relations with that person has obtained valid consent where that party is unconscious during the act. However, clearly that situation is not what was before the Supreme Court of Canada. The parties in this case were involved in a long-term common law relationship in which they had a child together and had previously engaged in the type of sex which was the subject of the allegation. Evidence in the trial court suggested that W sought to recant the sexual allegation by suggesting that she brought it forward as a result of a threat by H to take custody of their son. If anything - consent appears to have been withdrawn two months after it was given as a bargaining chip in the custody battle between the couple.

Commentary:

The results in Webb v. Waterloo Region Police Service and R v. J.A. provide compelling evidence of the danger associated with the legal regulation of a fundamental part of human interaction. In Webb the courts determined that a police officer playing a role to invite a man to touch him so as to "rid a park of homosexual activity" did not consent to the touching of his clothed crotch even though the same officer had committed the same act on another man hours prior and on all objective criteria the officer had clearly invited and consented to the sexual touching. In Webb the courts appear to have decided to close their eyes to the mountain of evidence which called into question the police officer's claim of a lack of consent. In R v. J.A. the approach and result are strikingly similar but with a new twist. Consent it is said can only be given by a conscious mind. This is so even thought the complainant consented to being asphyxiated. Clearly the complainant was well aware that she would lose consciousness and her partner would continue to engage in sexual activity with her during her period of unconsciousness. They had done it before.

One question which arises for this ruling is this. If voluntary intoxication can not be used as a defence to a general intent crime why then should voluntary aspxyiation negate consent to private acts between consenting adults ? Surely, the law is capable of making a distinction between the husband and wife who voluntarily engage in this form of sexual pleasure with a situation where the agreement to become unconscious is lacking. To be clear - that is not to say that there may never be circumstances in which even with an agreement to aspxyiation that one may not consent to a specific act in all of the circumstances. Consent has both a subjective and objective component to it. An over emphasis on the subjective component of the analysis combined with an interpretation of consciousness which has no regard for the agreement of the actors may not be in the public interest and liable to make criminals of those who lack the necessary blame-worthy state of mind generally required for a crime.

Note: This piece is written for the sole purpose of drawing attention to an issue of public importance - namely - the regulation of consensual sex between adults.

Reporting on "Manners Trial" Failed the People

The recent coverage of the "Jordan Manners Trial" confirms my long held position that the media's coverage of legal proceedings is wanting. Media coverage in this case was primarily concerned with informing the public about the outcome of the proceeding as distinct from how the outcome was arrived at and the positions of the lawyers as distinct from what the evidence of the witnesses was. The fact that the Crown did not have a case at all was lost in the coverage.

The media coverage provided us with a lot of speculation and conjecture but very little in terms of substance. At the first trial the Crown's key witness recanted the statement which she had provided to police. The jury was unable to come to a verdict and a mistrial was declared. At the second trial the Crown called the same witness and she confirmed her recantation. This time the two young men - both of whom had been in pre-trial custody for four years now were found not guilty by the jury. There was a popular sentiment in the coverage that the star witness recanted on account of fear. However, the trial judge expressly addressed this in the charge to the jury and told them there was in fact no such evidence. It has since been revealed that the statement taken from the star witness by Toronto Police investigators suffered from serious flaws including the fact that it was not under oath and she was promised anonymity.

Reading between the lines from the evidence reported upon by the media, the recanted evidence was the cornerstone of the Crown's case. According to reports the witness informed the police in her statement that she saw one of the two defendants "dragging the deceased like a rag doll and subsequently the other defendant robbed him of some property." She did not claim to have witnessed the killing. No one did. No weapon was found and there was in fact no physical evidence linking the defendants to the killing. If this was the extent of the evidence against the defendants one must wonder why the Crown and the police brought the case to trial - not once but twice. Indeed it is debatable as to whether or not there was in fact reasonable and probable grounds to charge the defendants. Clearly, it would be a stretch to suggest that there existed a reasonable prospect of conviction following the star witnesses admissions of untruthfulness.

Could it be that the fact that the killing took place in a public school made the goal of charging someone and obtaining a conviction a priority for the Toronto District School Board, Toronto Police Service and the Ministry of the Attorney General? The answer to this question can be found in reviewing the chronology of events following the occurrence combined with the swiftness of the decision to charge the defendants in light of what we now know to be the case against them. Chief Blair took the unprecedented step of visiting the crime scene. The defendants were charged within four days or so of the event. According to reports the police promised the key witness that she could remain anonymous and failed to take a sworn statement from her. On June 7th - some two weeks following the incident The Toronto District School Board appointed a lawyer with expertise in actions against public authorities - namely - Julian Folconer to investigate the issue of school safety. By August, 2007 the School Community Safety Advisory Panel released its interim report.

Commentary:

The role of the media in a free and democratic society is as much to observe and ensure that the rule of law is adhered to in legal proceedings as it is to simply report on the outcome of these legal proceedings. In discharging the first branch of this duty the media ought not to make friend or foe with the interests involved in the prosecution. Indeed it is this first prong of the role of the media which ensures accountability. When the media fails in this aspect of their role we the people are denied. The public in Toronto were not well served by the quality of the reporting in this case. In looking back on the coverage it is a testament to the soundness of the jury system and the skill, dedication and competence of the defence counsel that the rule of law prevailed notwithstanding. Now that justice has spoken perhaps we can get some answers on some of the following questions:

1. Why wasn't the statement of the "star witness" under oath ?

2. Why was she promised anonymity and by whom ?

3. Is there any truth to the suggestion that the killer is in
fact known to police and is not one of the defendants ?


Note: This piece is written for the sole purpose of encouraging public discourse on a matter of public importance. Democracy works better when ideas are freely exchanged and state action is subject to scrutiny.

Michael Ignatieff, Jean Augustine, Privilege and the Demise of the Liberal Party of Canada

A number of years ago I wrote a piece entitled "Why Jean Why ?" effectively protesting the Liberal Party of Canada's move to oust Ms. Jean Augustine from her Etobicoke Lakeshore riding to provide the new leader in waiting Mr. Michael Ignatieff with a seat. At the time I found this to be a move which I felt would come back to haunt the party. Here was Jean Augustine a West Indian woman who came to this country as a domestic servant and worked her way up to become a school principal and ultimately an elected member of parliament giving up her seat for a gentlemen who had spent the last 35 years or so out of the country and had - in my view - no leadership credentials. There seemed to me to be something seriously wrong with this picture. By my way of thinking Jean Augustine represented both the Canadian and Liberal dream. Here was a woman who literally came to this country with nothing and with hard work and determination was the embodiment of the Canadian dream being pushed aside for a man whose only visible credential was privilege. It mattered not that he had no leadership credentials. He was from a class of Canadians who were entitled to lead by virtue of their family history and educational credentials alone.

Tonight Mr. Ignatieff led the Liberal Party of Canada to a historical low. For the first time in Canadian history the party has been relegated to third place. I expected that. It was and remains abundantly clear to me that Mr. Ignatieff was in above his head. He is plain and simply not a leader. He is an academic. He may be good at that. However, leading a political party and a nation requires a skill-set that he simply does not have. Writing books and teaching at leading educational institutions in and of itself does not make one a leader. Leaders must be effective communicators. Leaders must possess a vision and passion. Despite all his academic accomplishments Mr. Ignatieff lacks the qualities necessary to lead effectively. This is not his fault. He is what he is. The fault lies at the feet of the power structure of the Liberal Party of Canada.

I am very disappointed tonight. I am disappointed not so much because of the loss but because it was so obvious to me that Mr. Ignatieff was not up to the job. I am disappointed because it is plain and obvious to me that the choosing of Mr. Ignatieff as leader of the Liberal Party of Canada had more to do with privilege and entitlement than merit and competence. Many may say - Ernie how could you be so naive. This is how things work. To that I say. Indeed - this is how things work in the labour market for now. However, the privilege and entitlement model does not work in the political forum. It does not work in the political forum because the candidate and all his flaws are open to pubic scrutiny. A fellow with a degree from Harvard or Oxford can make big bucks in jobs which others without those specific credentials are systemically excluded from. He can perform and live a happy and comfortable life because he is supported by the power structure which allowed him to be there. The political leader who is propelled to leadership on this model without regard to skill, passion and competence is doomed to fail. The times have changed. Privilege and entitlement just doesn't cut it anymore !

Hernandez v. Texas: 57 years ago today

57 years ago today the U.S. Supreme Court released its landmark decision in Hernandez v. Texas. Until this significant civil rights ruling it was unclear whether the Equal Protection Clause of the 14th Amendment provided protection from the discriminatory impact of state legislation within racial groups. Up until this ruling state actors were of the view that the objective of this provision was limited to discriminatory applications of law as between Negros - as we were referred to then - and whites.

The facts in Hernandez were simple and powerful. Pete Hernandez, a Mexican American, was charged with first degree murder of his employer. He lived in an area in Texas, where not a single Mexican-American had been selected to sit on a jury in the past twenty-five years. He was tried by an all white jury and found guilty of first degree murder. His lawyers - all of whom were Mexican-American challenged his conviction under the 14th Amendment. Their argument was cogent and concise. Peter Hernandez was entitled to be tried by a jury of which Mexican-Americans like himself are at least entitled to participate. They demonstrated with the state's own records that Mexican-Americans were effectively excluded from jury duty. They argued that although Mexican-Americans were white they were nonetheless denied the equal protection and benefit of the law on account of their Mexican-American heritage compared to white Texans.

The State of Texas argued that Mexican-Americans are white and the 14th Amendment is limited to addressing inequality in the law as between whites and Negros. In addition, it argued that their jury selection process did not in fact rely on any racial considerations. It just so happened that Mexican-Americans were not selected to be on juries.

The U.S. Supreme Court led by Chief Justice Earl Warren rectified this narrow and most unfortunate reasoning. The court was unanimous in finding that the Equal Protection Clause of 14th Amendment was not limited to discriminatory laws affecting Negros and whites and that the exclusion of Mexican-Americans from jury duty was not accidental and was indeed a denial of their constitutional right to equal protection.

Commentary:

What lessons are we to take from this landmark decision ? The first lesson is that the problem of race is deeply rooted and entrenched in American society and goes beyond blacks and whites. So deeply rooted and entrenched is the race problem that it distorts or impairs reason and common sense. The second lesson is that it is truly comforting that most observers - including Texans - can readily see the perverseness of the state's position today.