Justice Dewar Debacle - Dangerous Interference With the Judiciary

"No" Means, "No Trial Needed"

Separation of Powers.

Interesting concept.

The idea is that in a democratic system, the three arms of government - the Executive, the Legislative and the Judiciary all operate as separate and distinct agents, offering checks and balances on the others to assure a government ultimately being accountable to it's people.

It's been around for a while, as far back as the very founders of democratic principals in ancient Greece.

And it has been recognized as a pretty important principal, with one of the founding fathers of the United States Constitution, James Madison, declaring in 1788:

"No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."

His words were true then, and they are no less valid today.

In order to protect against tyranny and oppression, no principal is more dear than that requiring that each arm of government be permitted, within it's own scope, to do its job unfettered by obstruction and interference from the other.

Unfortunately, in the age of relativist values, we seem to have lost our way.

We seem to feel that our Judiciary has the right to intrude upon the realm of the legislative and executive arm of government - not simply ruling on constitutionality of legislation, but, in fact, re-writing legislation and, beyond that, directing positive action of the executive when it suits their whim.

And, it appears, tit for tat, we have come to believe that the legislature and the executive feel no concern over intruding into the realm of the judiciary.

Witness the recent furor over the comments of Justice Dewar in a sexual assault case in Manitoba.

After convicting Kenneth Rhodes of sexual assault, Justice Dewar, having heard the evidence and considered the totality of the case, including the demeanor of the witnesses and full representations of counsel, decided against imposing a jail sentence, and made the unpardonable sin of commenting on the conduct of the complainant, stating, that he found the circumstances of the assault such that the accused may have received mixed signals, referring to him as a "clumsy Don Juan", and suggesting the attire of the victim may have contributed to his conduct.

Were his comments appropriate?  Well, firstly, I would note that most people writing on this subject betray their ignorance of the criminal law process in confusing the concept of "defence" to a charge with issues of degrees of culpability when determining sentencing.

And this is exaggerated when the writers are basing their "learned" opinions on newspaper reports - as opposed to having the opportunity of reviewing the whole of the transcript of the proceedings, including examination and cross of both accused and victim.

But let's just say, for argument's sake, that the Judge was betraying a bias and that his comments, in the circumstances, were inappropriate and, more importantly, that his sentencing decision was wrong.

That's what we have appellate courts for.

But not in today's climate where to be politically correct trumps all other issues, including principals such as separation of powers and and an independent judiciary.

Whether you think Kenneth Rhodes is a scumbag or not, he is entitled to a fair hearing.  And as the Crown is, no doubt, inclined to appeal his sentence, Kenneth Rhodes still is before the Court system seeking to obtain a fair disposition.  And when he appears before the Manitoba Court of Appeal, one would hope that not only will he obtain a fair hearing on the appeal, but that it will appear that he is getting a fair hearing.

But that can't happen now.

No.

Because the "boss" of the Judge being appealed from, the Chief Justice of the Court of Queen's Bench of Manitoba, Justice Glenn Joyal has already chosen to publicly censure Justice Dewar and to state, effectively, to all who care to listen, that Justice Dewar is a bad judge and he will not "be handling offenses of a sexual nature" pending review of his conduct.

Oh - of course the Chief Justice doesn't say that directly, and goes through the charade of giving lip service to the importance of not "commenting publicly" on a matter still subject to judicial review.  What "comment" does he believe ISN'T being made, however, when he announces, so very proudly, that "Justice Robert Dewar will continue sitting on the bench but with a limited caseload?"

And of course everyone wants to pile on and assure that there is not a chance that there will be a perception of fairness on an appeal, because now the executive branch of government is piling on, with the Manitoba Minister responsible for the Status of Women also proudly making it clear that the cabinet of the Manitoba government thinks that Justice Dewar was wrong and is a bad judge, announcing that she has made formal complaint to the Canadian Judicial Counsel.

Rest assured, that when YOUR liberty is on the line, and when YOUR welfare is at stake, you don't want to rely on the court of public opinion or the media to determine your welfare.

The most troubling aspect of this whole thing, for me, is the obvious crumbling of the concept of the independence of the judiciary.

Because the message is being sent, very clearly and very loudly to the Judiciary that they had best assure that whatever they do, it had best accord with the dictates of public opinion.  Far easier to convict and sentence any alleged rapist than to actually go to the trouble of considering the law and the facts - because there will be no hue and cry should you send and innocent man to jail.

And rest assured that it doesn't end with sexual assault cases.

Decisions to prosecute store owners for defending their property, husbands for protecting their wives, and don't even get me started in the circus of family law are all influenced by fear of the Judiciary doing what the public considers the "wrong thing."

And that's not Justice.

But, in Manitoba, and, in fact, throughout Canada - that's ok I guess.

Hope and pray that you are never required to put your own welfare in the hands of the Court of Public Opinion.