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earlier discussion

Lisa MacLeod, MPP Nepean-Carleton, plays with her 4-year-old daughter Victoria Varner at a playground on Bay Street on Aug. 10.Fernando Morales/The Globe and Mail

When Justice Douglas Cunningham read his decision in the corruption trial of Ottawa Mayor Larry O'Brien last week, it included something that received scant attention until this week: a point about Crown witness and Ontario MPP Lisa MacLeod's testimony. As reporter Jane Taber wrote in the Globe:

"In his ruling, Judge Cunningham said that 'the defence was able to demonstrate that there were a number of rather significant things going on in her life when she gave her statement to the police. … '

'She was commuting regularly to Toronto for her work, leaving her husband and child in Ottawa,' he read in his ruling. He concluded that her evidence was not corroborative of the Crown's main witness and said, 'I must assign it little weight.' "

The reaction to the judge's remarks was passionate. In Wednesday's Globe and Mail, two of our columnists offered opposing takes on the matter.

Sarah Hampson underscores what she sees as a double standard between women and men who balance careers and families. "The uncomfortable truth is," she writes, "many working mothers confront the persistent assumption in the workplace that once they have children, they become not only less committed to their job, but somehow less competent. Many people assume that the juggling of work and family means a ball will drop in some area of a working mother's life."

For Christie Blatchford, the judge's comments were taken out of context, and the controversy only erupted because The Globe and Mail played a large part in overemphasizing the family situation of the witness. She writes: "These were innocuous remarks made in the course of Judge Cunningham doing his job: As he explained off the top, he had to consider all of the evidence, weigh it and decide if the prosecutor had proven the essential elements of the offences beyond a reasonable doubt."

Ms. Blatchford and Ms. Hampson want to know what you think. Do you have a comment or question for either or both of the columnists? Send them to Ms. Hampson and Ms. Blatchford now. They will be online at 12:30 p.m. (ET), to answer your questions on the story.

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TRL writes: Say you were on trial, and one of the key witnesses was extremely busy at the time and unable to recall important details of your conversation. Wouldn't you want this noted in the judgement regardless of gender?

Sarah Hampson: Look, judges routinely describe how they weigh evidence and why, in some cases, a witness lacks credibility or the testimony cannot be given much weight, as Mr. Justice Cunningham did in this case. So it goes without saying that a judgement will describe what the witness said. Lisa MacLeod, who was a key witness for the Crown, was inconsistent in her recollection of the conversation. (The judge also noted that this business about a possible appointment for Terry Kilrea was peripheral to the discussion in question.) "She agreed with defence counsel that since May 2007 she had offered several alternatives as to what might have been said by Mr. O'Brien," he wrote in his judgement. Her testimony was unreliable. Fair enough.

But really, one has to wonder - if Ms. MacLeod were a man, would the defence cross-examination have tried to establish that with a child at home, looked after by his wife, a sick parent and a commute to his job, that he had a lot going on in his life which may have made it hard for him to accurately recall what was said in a conversation? The judge, in turn, didn't say that being a working mom was what caused him to dismiss her testimony. But it was certainly there as one of the reasons. Being a working father is not something that is ever said about men. But "working mother" is a common cultural term that carries various implications - one being that she is over-loaded with tasks and might not be competent in all areas of her life.

Much communication is delivered in nuance, in sly implication. This is an example of that, and it's worth highlighting, if only to draw attention to the latent stereotypes that remain.

Christie Blatchford: Yes, I'd want it mentioned, i suppose, though it is very common that people mean well, try to recollect but aren't very successful. It was in that context that the judge mentioned Ms. MacLeod's busy life.

BRZ writes: Judges are routinely criticized in the media, either for their decisions themselves or, as in this case, the content of written reasons that demonstrate their thought process. (Christie, despite your defence of the judge in this case, I think you'll agree that you've done your share of criticizing!) Yet judges are fearful of speaking up to address misunderstandings, or to explain the law behind their decisions -- for example, by explaining that they are bound by appellate law with respect to the appropriate range of sentences. They have to let their written reasons speak for themselves, but these reasons are generally written for lawyers and appellate courts, not the general public. The parts that filter out to the public through the media can be taken out of context, or can take on a life of their own, as people view the words through the lens of a particular social issue.

Think back to Justice McClung's unfortunate comments about a sexual assault complainant not presenting herself in "a bonnet and crinolines." Few remember that this comment was in the context of explaining that the age difference between the complainant and the accused was not as great as had been suggested, and still fewer recall that Justice McClung's next sentence read: "I must point out these aspects of the trial record, but with no intention of denigrating her or lessening the legal protection to which [the complainant]was entitled." Three words repeated endlessly in the newspapers, "bonnet and crinolines," became shorthand for "out of touch sexist judges who believe a woman deserves what she gets if she dresses provocatively."

The question: Given that the public perception of judges and judging are driven by the media's account of both what happens in court and what judges say in their reasons, what can judges do to better communicate to the public via the media? Is it possible for reporters to provide greater context, or will they always be limited by space and time?

Christie Blatchford: You raise an interesting point. Judges aren't able to defend themselves, or their decisions. It's not considered very judge-ly to get in a pissing match over what a decision said or meant. I think Justice Cunningham was well aware of that, and that this is why, before he began reviewing the evidence, he explained the difference between finding a witness not credible (i.e. they dissembled or lied) and not reliable (they tried, but their memory was inaccurate).

It was all there to be read.

I don't think there's much to be done about the problems, actually. Judges won't and probably shouldn't get involved in defending/explaining themselves, and lots of reporters won't read the bloody decision, but will rely on the first story to set the tone.

Sarah Hampson: Every journalist who writes about court decisions knows that he or she should read the written decision. Most journalists also know how to wade through the legalese -- and if they don't, they often consult lawyers, who are knowledgeable about the decision and are happy to provide clarification. So, it's not that judges should try in any way to "dumb down" or "layman-ize" their written judgments just so some journalist can accurately convey them to the masses. Having said that, I think it is easy to take things out of context or to overstate what has been written as part of a long, considered decision. It happens. No journalist alive hasn't been accused of taking quotes out of context at one point or another. Sure, some gotcha-journalism goes on, but most members of the media work hard to understand the complexity of an issue or of someone's entire comments in order to write about the truth of them.

Kate Holmes writes: If we can trust Judge Cunningham's view that Lisa MacLeod had so much going on in her life that her testimony cannot be relied upon, then does it not stand to reason that she would also be unfit to fulfill her duties as an MPP?

Sure the comments may be out of context, or blown out of proportion, but can you imagine hearing the same comments made of a male politician? What if this is really the way many men view women's abilities, but those men are smart enough to keep their mouth's shut? Are you okay with that?

Sarah Hampson: Judge Cunningham was not calling into question her competency as a politician or as a mother. He was simply implying that with so much going on in her life, her testimony was all over the place. Lots of people give unreliable testimony, and there may be a variety of reasons for that. The key point here is that one of the reasons he suggested she was having a hard time recalling the facts was that she was a commuting mother with a child at home -- looked after by her husband, I should add. I am not trying to overstate anything here, but I think it's pretty clear that the suggestion is not the kind you would ever hear about a man. And I think that it is a good thing to call someone out on that, because it highlights that this is the way many people -- not just men, but women, too -- think about working moms. Ask any woman who has had a child or two what she had to deal with when she came back to work after mat leave. There is often a feeling that you have to prove yourself all over again or you are overlooked for a promotion or for a special assignment. You have to make it clear that your child-bearing is not going to impact your value in the marketplace. It's there as an assumption that employers wonder how committed she will be, how hard she will be willing to work, late hours, etc. Let's air out the closets of our heads, filled with these persistent stereotypes. It's only by acknowledging and shining light on these things that we can address them head on -- and hopefully get rid of them.

Christie Blatchford: That the comments ARE out of context, AND blown out of proportion -- that isn't just some minor irritant, but the crux of the matter. The judge didn't say that commuting to Toronto was a distraction for MacLeod. He was referring to her own evidence, in cross, that she was bloody busy. There was no judgment in his judgment, if you follow. He wasn't looking askance at her for being busy. He was merely saying, here was this good honest witness but her memory was imperfect, and here is why that might have been.

There is NO reason to think Cunningham views women's abilities in any sort of perjorative way, or that this is a widely held view.

Bevery Smith writes: Mothers with paid income bristle at any suggestion they should not be earning outside the home and yet is that what is going on here? I don't think so. I suspect the intent of the judge had nothing to do with discounting women's paid work. He may have even thought he was being understanding because he knew she was a busy lady. When women were denied the vote it was not to keep them down. It was done to protect them from the hurly-burly raucous climate of politics. Many men felt that women should not have to bother with such technicalities and the men would take care of them. The motive was to protect. When women took offence at it, it was because women wanted to have their own say

I suspect that today's judges, mostly senior in age, are having trouble keeping up with what women want in understanding and respect. What may be intended to be kind ends up looking like a huge insult.

It used to be that men had to serve on juries when called but a woman with small children did not - no questions asked. She was busy. Now she has to serve too since women have insisted that their equality does not require a special protection.

But personal circumstance exists. For years, men have been required to be blind to it in the career world. Too bad if your child is having a concert, your wife is sick or your dad is dying . They had to suck it up and keep working, no time off.

The problem now of deeming women's personal lives relevant and men's not, is that it starts to have not just protective implications but potentially sinister ones. When women go to court to accuse someone of rape, their own personal history was deemed relevant while if a man was assaulted in the alley, the court would not ask if he had been assaulted before. The idea that women were too emotional to vote, too hysterical to handle top CEO jobs or multitask has been addressed and shot down, mostly, but not quite. We still have vestiges of it and that concerns me

Christie Blatchford: Smart lens through which to view things, and I don't disagree. But I have to say, I think the subjects of women's work, women's protection, women's needs, etc., etc., have nothing to do with this judgment. I think the premise of the discussion -- ours, everyone's, the whole question of whether the judge was dissing MacLeod and/or women -- is false. He did not say anything in his decision that would lead a reasonable person to think he was patronizing MacLeod, or anyone else.

Sarah Hampson: Reading Judge Cunningham's written decision, it is hard not to see his comments about Ms. MacLeod as paternalistic. There was a sense of "there there" about his comments -- as if he were patting her on the shoulder and saying that yes, you are a busy lady, with a child at home, a sick father, a long commute, and so, through no fault of your own, your testimony will be dismissed. I don't think there was anything sinister to it. Just paternalistic. And I agree. There are lots of life circumstances that potentially cause everyone to lose focus or commitment at work. Gee, falling in love can be a huge distraction. But can you imagine a judge saying that because a key witness was in the throes of a new love affair, he can't be relied upon to give accurate testimony? We fixate on the "working mom" as a separate kind of being who is somehow compromised in some area of her life. (Women may have added to this discussion over the years by saying that the Superwoman have-it-all model of the 80s, encouraged by the 70s-era feminists, just isn't possible.) But there are lots of ways our personal lives intrude upon our professional ones, and I think the "working mom" obsession suggests the underlying, often negative, assumptions about women who are mothers and who work outside of the home. If the children go off the rails, she will be blamed, not so much the working father. There is an implication that if she is too ambitious, she is hard and unmaternal, not "complete" in a way. Women do have to confront these misguided assumptions. A woman is still having to prove how she can be a woman and a mother as well as ambitious.

Mark A. Weir writes: Living in Ottawa and following this case extensively on a daily basis it is interesting to see where the fallout from this verdict is heading. While the overwhelming implications are to be found in what the verdict means for Mr. O'Brien and Mr. Kilrea, the Lisa McLeod issue is an interesting one, albeit not to be given equal focus.

While I have read both pieces and can understand both perspectives, for me, what struck me upon reading the verdict is the way Judge Cunningham put his wording with respect to the evidence that Ms. McLeod gave. To me, the only thing going for the Crown's case was the potential of corroborating evidence between Mr. Kilrea and Ms. McLeod. It wasn't hard to see why the judge saw through Mr. Kilrea's evidence, writing him off quite early in the verdict. However, in being eager to see how the judge would account for the evidence given by Ms. McLeod, it seemed all too easy for him to seemingly cast it aside by stating that "she many significant events going on in her life." Granted, things like having an ailing parent and commuting can be strenuous, but having a husband and a child? What strikes me here is that, why does this warrant any mention AT ALL in his ruling? Aren't we all leading difficult lives with significant life events? What I think truly needs analysis, and it is here that I would appreciate the input of Ms. Hamspon and Ms. Blatchford, since when does the busyness of being a wife and a mother negate someone from putting their belief and trust in what you say? This is the part of the ruling that I think most people found a moment of pause. Granted, most people that day were caught up in the overall ruling, but if you go back and look at it, it certainly raises an eyebrow.

Christie Blatchford: But the thing is, Mark, the judge never said that MacLeod's busy-ness negated her as a witness, or meant she couldn't be trusted. What he said was that her busy-ness meant her memory couldn't be trusted. It wasn't reliable. by her own words, her recollection of what was or wasn't said was all over the map. She couldn't be sure who said what. She refers to Mr. Kilrea as "Terry", not "Brian." And it had bugger all to do with her sex, but with her life.

Sarah Hampson: I agree. It raises an eyebrow. My earlier comments explain why.

Paul writes: Dear Ms. Blatchford and Ms. Hampson, clearly there is a legitimate discussion about whether Justice Douglas Cunningham did or did not act appropriately or whether his comments were prejudicial and even if the reporting was correct. However, I would like to comment on the more pervasive concern that the very debate of this matter highlights.

Women's groups are right to be concerned about what is generally the demeaning premise of the legal community, the behaviour of its participants and the rulings/agreements extracted. Judges may claim to be hard working and have good intentions but they are subject to the constructs of their system, some of which are quite troublesome. I have noticed that judges and lawyers get very upset and defensive when anyone challenges their practices. Family law judges are the worst for being demeaning to women. Instead of encouraging them to get up on their feet they commit many women to a life of dependence on former spouses, usually for the same kind of reasoning attributed to Justice Douglas Cunningham. Lawyer friends of mine tell me that a typical judicial comment is something along the lines of "you can't expect a woman in her 40s to obtain meaningful employment".

Such a self-serving argument aggrandizes the judiciary and facilitates their condescending and usurious practices to justify their own existence and their support of lawyers in their never-ending games to increase billable hours. Judges were lawyers before they were judges. The legal system does not demonstrate objectivity. It is an endless dance between judges and lawyers in their undeclared efforts to build ever more complex procedures in order to present the appearance of objectivity, when at their core the primary concern is maintenance of the system for their own benefit. This system is in trouble.

Women today have earned equality through decades of superb efforts which began with the suffragettes. Women today constitute at least 50% of university attendees. Women make up a considerable proportion of the work force and the economy. Our world has developed massively because of the efforts of women, it is a different place because of women like MPP Lisa MacLeod and of yourselves. Thank goodness for all of this change.

Meanwhile the judicial system has not evolved. It continues to apply archaic logic almost consistent with shariah law instead of recognizing women as equal to men in every way. Why? Because it perpetuates their system. Shame!

Sarah Hampson: I have covered a fair amount of family law decisions and I have spoken to many family lawyers about issues related to divorce and spousal support. Many have pointed out that judges often look to protect women.(It is a well-known statistical fact that women in divorce suffer more financially than men, and often descend into poverty.) And I think that many ex-wives and their lawyers do take cases to court in an effort to get a soft landing and to avoid having to return to work after a marriage breaks down. But I also know that there are just as many former wives who are unhappy with various kinds of judgments as there are former husbands -- despite what fathers-advocates groups say is a sustained bias against men in the courts. Family lawyers will tell you that, too.

But to suggest that the legal system as a whole is in shambles or lawyers and judges are looking only to line each other's pockets is overstating things. Justice is an elusive concept -- even in law school, you are taught this.

Christie Blatchford: Dear Paul, I don't agree "there is a legitimate discussion about whether (the judge) did or did not act appropriately." I think the only legitimate exercise, the only one that arises from his decision and his words, is the quality of the reporting and editing, etc.

You may well be right about the legal community, though that is not my own experience. I spend a good part of my life watching lawyers and judges, and for the most part, I find them far more bright, engaged and articulate than the norm. And a huge percentage of lawyers are women, young and not so young. Some of the finest lawyers I've seen are women. And the same goes for judges, though women aren't quite so well represented in those ranks yet. (I rarely write about family law, because it is so fraught with difficulties and because the truth is so often hard to ascertain....but I'd be frankly surprised if family law judges were especially demeaning to women. They sure do continue to give women custody more often than men, and they have certainly awarded some sizeable $ amounts to women in divorces, etc.)

Finally, your comparison to sharia law is odious.

globeandmail.com: Thanks, Christie. Thanks, Sarah. And thanks everyone for participating in this discussion today.

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