Calumny of Apelles by Sandro Botticelli
Justice Minister Peter MacKay has appointed a judge who, as a defence lawyer in a sexual assault case, attempted to bring before the jury a 15th-century Botticelli painting that the presiding judge said portrays women as cunning, manipulative liars.
Kirk Munroe of Windsor, Ont., is the first defence lawyer to be appointed a judge by the Conservative government in the past 16 months, a period in which Mr. MacKay appointed 88 new judges, of whom 15 were prosecutors. His appointment to the Ontario Superior Court of Justice comes a little more than a month after The Globe and Mail reported that the government has been favouring prosecutors and avoiding putting defence lawyers on the bench, reflecting an attempt to appoint judges it thinks are more likely to be tough on crime.
Defending Fred Muvunga in May, 2013, on charges of sexually assaulting a woman on three separate occasions, Mr. Munroe told Ontario Superior Court Justice Renee Pomerance he wished to show that false accusation is not an invention of defence lawyers. (Mr. Muvunga maintained the woman initiated sex with him in the context of an extra-marital affair.) He said he was not trying to promote stereotypes, but simply to demonstrate that people can lie, adding that he would tell the jury to disregard the gender of the figures in the painting, known as Calumny of Apelles.
Justice Pomerance forcefully rejected the attempt. "The painting depicts women as symbolic representations of slander, ignorance, suspicion, fraud, conspiracy and repentance," she said. "The accused individual is seen as an innocent young man being dragged by the hair toward the king. Ignorance and suspicion – two women – are whispering into the king's ears. … asking the jury to disregard depictions of gender is like asking Mrs. L [Abraham Lincoln's widow] whether, aside from everything else, she enjoyed the play. It is impossible."
She said her concern is that the artwork would discredit the trial's fact-finding process, revive "offensive myths and stereotypes" and harken back to a time, pre-1980s, when rape laws in Canada were "based on an inherent distrust of sexual assault complainants." The jury acquitted Mr. Muvunga without seeing the painting.
While Justice Pomerance said she accepted Mr. Munroe's assertion that he did not intend to promote stereotypes, University of Windsor law professor David Tanovich says he does not. "It is highly unlikely that he has (or would) ever try this stunt in any other case involving an assertion that the complainant or primary Crown witness was lying," Prof. Tanovich wrote in an article about defence tactics in sexual-assault trials to be published in the Ottawa Law Review.
Patrick Ducharme, a veteran Windsor defence lawyer, said in an interview that the attempted use of the Botticelli painting "conjures up the worst of concepts, of determining that someone's truthfulness is based on gender or background or anything that would be generalized."
But he said that is no reason to deem a capable, experienced lawyer unsuitable for the bench. "That's too harsh. ... Probably if you examined the history of every case that every lawyer did, either as a Crown or defence lawyer, there would be moments that each lawyer, if they were honest with themselves, might not be proud of."
Brian Greenspan, a senior criminal lawyer in Toronto, said Mr. Munroe showed restraint by asking for permission. "I think the key here is that he didn't interpret it as being inflammatory but realized that others might. Rather than simply proceed without judicial approval, he asked the judge whether it was acceptable."
Clarissa Lamb, a spokesperson for Mr. MacKay, said in an e-mail that the government makes appointments "based on the principles of merit and legal excellence. There is a great deal of research that goes into the individual candidate search and the Judicial Advisory Committee has a wealth of knowledge that it draws upon when reviewing and submitting names for nomination."
Reached at his law office and asked about his use of the controversial tactic with the Botticelli painting, Mr. Munroe responded: "Is that a controversial tactic?" He declined to say anything further.
Mr. Munroe began his career as a prosecutor in Florida in 1973, and set up a defence practice in 1978 in Miami before moving to Windsor in 1996. He has been the head of the Florida Association of Criminal Defense Lawyers, the Windsor Criminal Lawyers Association and, in 2013-14, the Essex Law Association. He is also a sessional lecturer at the University of Windsor law school.
Veteran Ontario lawyers consider him creative in his attempts to use the Charter of Rights and Freedoms, and a "defence lawyer's defence lawyer" – attributes the Conservative government has gone to great lengths to avoid in most of its 550 appointments to Canadian courts since 2006.
Sean Fine