I can never be a judge

Opinion

Hey there, time traveller!
This article was published 28/11/2014 (3429 days ago), so information in it may no longer be current.

Two ships passed in broad daylight this week, one bringing an accused to the shores of justice, one carrying an honourable madam to the highest court in the land. I am now more uncertain that the ship of justice and the ship of law share a common port. One thing I now know for certain is that I can never be a judge.

On Tuesday, Jian Ghomeshi was exposed to the public, his face finally naked, in a media crush of flashing bulbs. Hereafter, Ghomeshi can continue the silence he adopted after unleashing a media storm with his Facebook accusations against women that he admitted to brutalizing with their alleged consent.

Hereafter, he will not have to prove anything. Everything now hangs, for him, on the credibility of the complainants. Their credibility is about to be assaulted by his brilliant and fearless “shark” of a lawyer, Marie Henein, with a frenzy of lethal legal attacks.

Two of the most common lines of attack in sexual-assault trials have notoriously led victims to conclude: I can never be a complainant. Directly or indirectly, defence counsel will make every effort to expose a complainant’s sexual history to the public in an attempt to show that her sexual character is inherently contrary to the image of a credible witness. And the veil around the complainant’s intimate inner world will be tugged and torn at by defence counsel, with the goal of laying it out for public viewing by calling into evidence the complainant’s medical and therapeutic records. A sexual-assault trial is not a voyage for the faint of heart.

The tidal wave of indignation against Ghomeshi buoyed many of us into believing that most of us might be able to weather those legal attacks.

And then Suzanne Coté, independent counsel to the disciplinary committee of Queen’s Bench Justice Lori Douglas, insisted the committee members needed to see the graphic photos of Justice Douglas’s naked body, released without her consent by her now-deceased husband, in order to determine whether she should stay on the bench. They needed to determine for themselves whether the photographs were “demeaning to women.”

One of the remaining three questions in front of the council was whether the photographs themselves were inherently contrary to the image and concept of integrity of the judiciary. Did their very existence “out there” undermine public confidence in the justice system? “The main dispute,” Coté argued, “is about the effect of these pictures.”

Justice Douglas’s lawyer, Sheila Block, argued the exposure of the photos to Justice Douglas’s colleagues on the bench was gratuitous. “There’s no issue these are graphic pictures. These are pictures of people having sex. They’re highly prejudicial. They’re not necessary for the determination of this issue. These are people she has dinner with. These are colleagues. The harm is tremendous.” Block’s argument prevailed and she managed, for a moment, to clothe her client with a tissue of dignity.

Then, Coté applied on Nov. 19 for the release into evidence of Justice Douglas’s medical records, including the clinical notes of her therapist.

By Monday, Honourable Justice Douglas had folded. And three days later, Coté sailed on to become the next honourable madam justice at the Supreme Court of Canada.

I have four law degrees, two social work degrees, and 15 years of experience as a legal scholar and law professor. But I have a photograph “out there.” And someone close to me threatened to send it to my employer, Osgoode Hall Law School. In solidarity with the Hon. Justice Lori Douglas, I can proudly say that, as it now stands, I will never be a judge.

I am from the analogue generation. My guess is that the digital generation of female lawyers and law students is exponentially more exposed than I ever was.

And that a silent and obscure collective gasp just escaped: I can never be a judge. The Hon. Madam Suzanne Coté’s arrival on the shores of law to the contrary.

 

Susan G. Drummond is a professor at Osgoode Hall Law School