David Butt is a Toronto-based criminal lawyer.
At a ceremony on the weekend, retiring Supreme Court Chief Justice Beverley McLachlin received a richly deserved award from the legal community. But her acceptance speech, in which she weighed in on the current turmoil around sexual assault and criminal courts, was tone-deaf. The Chief Justice's speech only exacerbated the crisis of confidence afflicting the courts she symbolically speaks for.
By now, it is well known that only three in every 1,000 sexual assaults result in a conviction. No one can rationally call this an acceptable level of service to sexual assault survivors. It is instead a profound failing. Chief Justice McLachlin could have addressed this serious problem in constructive ways, but she missed the boat.
The key takeaway for sexual assault survivors from her speech was simply this: ratchet down your expectations. This is perplexing. With the conviction rate already dismally low, how much ratcheting down is left? And why ratchet down, not up?
Chief Justice McLachlin justified her stance by asserting that no one is entitled to a particular verdict. This is true, trite and unhelpful. Of course judges should hear each case with an open mind and decide it based on the evidence. Nobody seriously suggests that the appalling level of service delivery to sexual assault survivors should be fixed by assuming guilt without hearing evidence. The hashtag #Ibelievesurvivors is a rallying cry, not a policy prescription. Yet by deploying this straw-man argument, Chief Justice McLachlin implicitly denigrated thoughtful reformers, endorsed an indefensible status quo, and skated around the vexing question that those thoughtful reformers are already pondering: How do we dramatically – yet fairly – improve sexual assault outcomes?
Chief Justice McLachlin's foray into this important social issue was problematic in another respect as well. She suggested the national debate is too polarized and hostile to be helpful. This sounds like code for "anger is inappropriate here." But wait a minute. Nobody on the offender side of the ledger is angry about a 99.7 per cent success rate in escaping liability for sexual violence. So the Chief Justice's coded disparagement of anger is really directed only at sexual assault survivors. This shades uncomfortably close to victim-blaming. Ugly as this truth may be, sexual assault survivors and their loved ones have every good reason to be angry at the current system's profoundly unacceptable service delivery rates. The last thing survivors need, and the last thing that could build greater confidence in justice processes among survivors, is for the Chief Justice to wag her finger at them.
But we should not be surprised the Chief Justice's speech was so disappointing. Members of the judicial branch of government are sworn to apply the laws as fashioned by elected legislators. Basic principles of democracy insist that unelected judges must never go off on social reform frolics of their own. They are faithful implementers of the law, not change agents. As a result, deeply embedded in the judicial mindset is small-c conservative aversion to radical change, even necessary radical change, and strong fealty to the status quo. Reformers make bad judges, and judges make bad reformers.
So while we need not be surprised at the Chief Justice's tone-deafness on sexual assault reform, we certainly need not give it the weight her office normally commands. Chief Justice McLachlin stepped outside judicial confines to offer views on a reform issue. She is a fantastically accomplished judge, but as a reformer, she has much to learn.
What should she have done? Chief Justice McLachlin should have started with the obvious: the justice system can and should do far, far better than it is doing now for sexual assault survivors. That recognition would have brought on board the key survivor constituency in this debate. Then she could have laid the groundwork for productive discourse by alluding to the universally shared values of presuming innocence and proving guilt only through credible evidence, and ended by inviting everyone to pursue improvement in service delivery by re-examining everything short of those basic principles.
On a topic calling for brave honesty and commitment to improvement, we got status quo-oriented bromides and finger-wagging. We deserve better.