Another medical report has been published confirming that abortion does not increase a woman’s risk of mental health problems, contradicting the claims of many anti-abortion groups. The report, “Induced Abortion and Mental Health: A Systemic Review of the Mental Health Outcomes of Induced Abortion, Including their Prevalence and Associated Factors” was prepared by the British National Collaborating Centre for Mental Health for the Academy of Medical Royal Colleges and was published in December 2011. It is available online at http://aomrc.org.uk/publications/reports-guidance.html.

This most recent British Report was commissioned to address claims that abortion may adversely affect a woman’s mental health. The purpose of the Report was to review the best available evidence on induced abortion and mental health outcomes and to clarify whether there was any relationship between the two.

The main conclusion of the Report was that the rates of mental health problems for women with an unwanted pregnancy were the same whether the woman chose to have an abortion or continue the pregnancy. The Report found that women with an unwanted pregnancy are at an increased risk of mental health problems regardless of the outcome and recommended that “[f]uture practice and research should focus on the mental health needs associated with an unwanted pregnancy, rather than on the resolution of the pregnancy.”

This report may prove to be another important tool in challenging the abortion-harms-women argument that has been increasingly relied upon by anti-abortion groups in both Canada and the United States. These groups have been using such claims to argue for restricting women’s access to abortion. In the United States, this advocacy has seen some political success.  In South Dakota, arguments that abortion harms women were the basis for abortion bans tabled in both 2006 and 2008. These bans were only narrowly defeated in referendum. In the 2007 case Gonzales v. Carhart, the Supreme Court of the United States upheld a state ban on a particular kind of abortion in part on the grounds that abortion harms women.

Similarly, two Bills were recently tabled in Canadian Parliament that made assumptions about a connection between induced abortion and women’s mental health. Although both Bill C-484, the Unborn Victims of Crime Act, and Bill C-510, An Act to Prevent Coercion of Pregnant Women to Abort (Roxanne’s Law) were eventually defeated, it is likely we may face similar initiatives in the future. In any event, the abortion-harms-women has become an increasingly prominent focus in anti-abortion groups’ platforms in Canada. See for example the arguments used by the de Veber Institute for Bioethics and Social Research and The Signal Hill. (See my earlier blog post on Bill C-510 here.)

The findings of this most recent UK review are echoed in similar American reviews, such as that performed by the American Psychological Association in 2008 (“Report of the Task Force on Mental Health and Abortion”, available online at http://www.apa.org/pi/wpo/mental-health-abortion-report.pdf ). These studies provide further evidence that the abortion-harms-women argument is rooted in anti-choice ideology, not science, and are not motivated by a genuine belief that women need protection, but simply by the desire to see abortion restricted.

Legislation considered: Bill C-19, An Act to amend the Criminal Code and the Firearms Act (“Ending the Long-gun Registry Act”), 41st Parliament, 1st Session

December 6, 2011 is the National Day of Remembrance for Violence Against Women, which marked the 22^nd anniversary of the Montreal Massacre. The Globe and Mail’s Jane Taber indicated that “government MPs [were] purposely shut out from officially speaking at and attending an event on Parliament Hill to honour the 14 young women who were shot dead in 1989”, because the government is about to repeal the long gun registry (see Bill C-10, s.47). The Montreal Massacre was one of the pressure points for the registry, as was the use of firearms in crimes of domestic violence.  When the Alberta government challenged the constitutionality of the registry, which was implemented via the Firearms Act, S.C. 1995, ch. 39, as an amendment to the Criminal Code, the Supreme Court found that it was properly enacted under the federal government’s criminal law powers (see Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783 at paras. 43, 59). The enactment of the law creating the registry was constitutional; but is its repeal unlawful?  I think an argument can be made that the federal government’s abolishment of the long gun registry is unconstitutional on Charter grounds, as well as contrary to international law.

This argument is dependent on the premise that the long gun registry is effective in preventing violence, and evidence of this efficacy would need to be mounted in any court challenge. Here, we might also turn to the Reference re Firearms Act case.  While acknowledging that its task was not to rule on the efficacy of the law in a reference on division of powers grounds, the Supreme Court stated the following (at para. 59):

We also appreciate the concern of those who oppose this Act on the basis that it may not be effective or it may be too expensive.  Criminals will not register their guns, Alberta argued.  The only real effect of the law, it is suggested, is to burden law-abiding farmers and hunters with red tape.  These concerns were properly directed to and considered by Parliament; they cannot affect the Court’s decision.  …  Furthermore, the federal government points out that it is not only career criminals who are capable of misusing guns.  Domestic violence often involves people who have no prior criminal record.  Crimes are committed by first-time offenders.  Finally, accidents and suicides occur in the homes of law-abiding people, and guns are stolen from their homes.  By requiring everyone to register their guns, Parliament seeks to reduce misuse by everyone and curtail the ability of criminals to acquire firearms.  Where criminals have acquired guns and used them in the commission of offences, the registration system seeks to make those guns more traceable.

In the debate around Bill C-10, evidence of efficacy of the registry has been put forward by police forces, which support the continued existence of the registry as a useful tool in their efforts to prevent violence (see Rhéal Séguin, History of tragic shootings drives Quebec’s gun-registry battle, Globe and Mail, 16 November 2011).

Assuming evidence of the efficacy of the registry in reducing gun-related violence could be amassed, Charter arguments might be made under both sections 7 and 15. These arguments would be to the effect that the repeal of the firearms registry is an arbitrary violation of the right to life and security of the person contrary to the principles of fundamental justice under section 7, and that the maintenance of the registry is required in order to combat violence against women, an aspect of women’s equality under section 15 of the Charter.  The difficulty under both sections would be that arguments that the government has a positive obligation to enact or maintain legislation have not been well received by the courts (see for example Ferrel v. Ontario (Attorney General) (1998), 42 OR (3d) 97; 168 DLR (4th) 1 (ONCA) and Gosselin v. Québec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429).  On the other hand, the Supreme Court’s recent decision in Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44 effectively requires the federal government to maintain an exemption for Vancouver’s safe injection site (Insite) under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 to protect the life and security of the person rights of intravenous drug users, and may help to offset some of the earlier negative case law on positive obligations. The government would likely try to distinguish the Insite case on the basis that it deals with the obligation to grant an exemption from existing legislation to avoid criminal consequences to the Charter claimants, rather than the enactment of (or duty not to repeal) legislation to protect the interests of the claimants.  However, with strong evidence of the effectiveness of the firearms registry it might be possible to overcome this distinction, as both cases ultimately involve the government’s obligation to protect the claimant group from the harm that would otherwise result from its (in)action.

International law could also be brought to bear as an interpretive tool in assessing the government’s Charter obligations. For example, the recent report of the Inter American Commission of Human Rights in Lenahan, on which I blogged (here), does an excellent job of linking state inaction on violence to violations of women’s rights to life, security of the person and equality (see Jessica Lenahan (Gonzales) et al v United States, Case 12.626, Report No. 80/11 (Inter-American Commission on Human Rights, 17 August, 2011).  In addition to providing an interpretive tool under the Charter, principles such as those in Lenahan can hold the government to account for a breach of its international legal obligations under instruments such as the American Declaration on the Rights and Duties of Man (O.A.S. Res. XXX, Int’l Conference of American States, 9th Conference, OEA/Ser.L/V/I.4 Rev. XX (2 May 1948)). Under Articles II and VI of the American Declaration, which protect the right to life, liberty and security of the person and the right to equality, respectively, states such as Canada have an obligation to act with due diligence to prevent, investigate, and sanction acts of gender-based violence, including those committed by private actors (Lenahan at paras. 119, 120, 122, 124, 126). This principle is echoed in other international documents, such as the Report of the Special Rapporteur on violence against women on The Due Diligence Standard as a Tool for the Elimination of Violence against Women, E/CN.4/2006/61 (20 January 2006), which concludes that the obligation of states to use due diligence to prevent and respond to violence against women is a rule of customary international law (at para. 29). The Special Rapporteur’s Report on The Due Diligence Standard, as well as the United Nations General Assembly Resolution Accelerating efforts to eliminate all forms of violence against women: ensuring due diligence in prevention (A/HRC/14/L.9/Rev.1, 16 June 2010), indicate that the enactment of legislation responding to violence against women is an important component of a state’s due diligence obligations. It follows that Canada’s repeal of the long gun registry can be seen as a violation of its obligation to act with due diligence to prevent violence against women.  The federal government’s plan to destroy existing registry records rather than provide them to provincial governments such as Quebec who wish to implement their own registries could also be seen as a violation of the government’s due diligence obligation (see Joan Bryden and Jim Bronskill, Privacy czar shoots down Tory rationale for destroying gun records, Globe and Mail, 1 November 2011).

The repeal of the long gun registry (not to mention the many other contentious aspects of Bill C-10) is obviously a hot political issue. It should also be seen as a legal issue involving justiciable rights.

What is the role of the state in the bedrooms of the nation? The Supreme Court of British Columbia has handed down the latest word on this question in its decision upholding Canada’s criminal law against polygamy. In his decision in Reference re: Section 293 of the Criminal Code of Canada (2011 BCSC 1588), Chief Justice Bauman ruled that while the prohibition of polygamy does violate the right to freedom of religion protected by s. 2(a) of the Charter, such a limit is justified by the harms to women and girls associated with the practice.

As an intervenor in the case, West Coast LEAF argued that while the state has no place in the bedrooms of the nation simply to regulate the sexual activities of consenting adults, the state does have a role in ensuring that women are safe within the confines of intimate relationships; to say otherwise is to seal off a significant area of women’s experience from Charter protection.  It would be a perversion of the intent of the Charter to use the rights contained within it to create a safe space for men to exploit women. Equality is a value underlying all of the rights protected by the Charter.  The scope of the right to freedom of religion is not without limits and must incorporate considerations of women’s equality and autonomy.  While the Charter protects the right to freedom of religion, it does not protect a ‘right’ to exploit women and girls.

While West Coast LEAF argued that these considerations should inform the s. 2(a) analysis and lead to the conclusion that a religious practice that undermines women’s equality and causes harm to women and girls should not be considered a violation of religious freedoms at all, the Court ultimately disagreed with that submission, concluding that the harms and competing rights should instead be considered in the section 1 analysis. In the result, the violation of religious freedom was found to be a reasonable and demonstrably justified limitation given the harms associated with the practice of polygamy.

Importantly, the Chief Justice emphasized that polygamy institutionalizes gender inequality, and patriarchal hierarchy and authoritarian control are common features of polygamous communities. Chief Justice Bauman spent considerable time outlining the myriad harms associated with polygamy, including higher rates of domestic violence and abuse, higher rates of depression and mental health issues, decreased autonomy and economic independence, and lower life expectancy. Polygamy was also found to have harmful impacts on society flowing from the high fertility rates, large family size and poverty associated with the practice.

The Chief Justice also recommended that children between the ages of 12 and 17 who are married into polygamous relationships should not be subject to the criminal law. Women aged 18 and over who are married into polygamous relationships, however, will continue to be criminalized according to the Court’s interpretation. If (as is expected) this case makes its way through the appellate courts, West Coast LEAF will continue to argue that a spouse who is exploited in the context of a polygamous marriage should not be subject to criminal sanction.

Chief Justice Bauman found that the prohibition should be broadly applied to all people engaged in multi-spouse marriages that have been sanctioned by civil, religious or other means. The decision appears to exclude from the criminal law people involved in common law multi-spouse unions such as polyamorous triads, which have not been officially recognized as “unions” by any formal sanctioning event. However, the Chief Justice emphasized several times throughout the judgment the importance of the “critical institution [of] monogamous marriage,” a “the norm in the West” that must be defended, a position that had been argued consistently by the Government of Canada as one of the parties to the Reference.

This decision is unlikely to be the final word on the matter, and all parties anticipate an eventual appeal to the Supreme Court of Canada.

Ottawa, 9 November 2011 – The Canadian Judicial Council announced today the results of its review of complaints made against the Honourable Robert Dewar of the Manitoba Court of Queen’s Bench. The complaints focused on comments made by Justice Dewar after finding Mr Rhodes guilty of sexual assault and in the context of sentencing in the case of The Queen v. Rhodes.

The complaints against Justice Dewar were reviewed by the Honourable Neil C. Wittmann, Chief Justice of the Court of Queen’s Bench of Alberta and Vice-Chairperson of the Judicial Conduct Committee of Council.

This review showed that Justice Dewar’s comments were perceived by many individuals as being insensitive to victims of sexual assault. They were also seen as reflecting negative and outdated gender stereotypes, as casting blame on the victim and showing an unacceptable gender bias against women. Some complaints also raised dissatisfaction with the sentence imposed by the judge.

Justice Dewar provided comments about the complaints received by the Council. He agreed that his poor choice of words negatively affected women who are victims of sexual assault. He acknowledged that his use of stereotypical language was totally inappropriate and expressed his regret. Justice Dewar wishes to “express my unequivocal apology to (the victim) for the hurt she must have experienced from my comments. Some of the letters of complaint, from persons who have worked directly with past victims, have pointed out that some of my comments were also traumatic for them. I very much regret that as well“.

In his desire to approach social justice issues with greater sensitivity in the future, Justice Dewar met with an expert on gender equality. He is pursuing further professional development in this area as part of his commitment to become a better judge.

Justice Wittmann accepts that Justice Dewar has learned greatly from these events. However, he is of the view that Justice Dewar’s remarks showed a clear lack of sensitivity towards victims of sexual assault. Chief Justice Wittmann formally expressed his concerns to Justice Dewar, noting that his conduct fell short of the high standard Canadians expect of all judges.

In commenting on those complaints that were made regarding Justice Dewar’s decision on sentencing, Chief Justice Wittmann notes that the proper recourse to express disagreement with a judge’s decision is by means of appeal. In this case, it is noted that the matter is currently before the Manitoba Court of Appeal.

When finding shortcomings in a judge’s conduct, Council must ultimately determine whether the matter is so serious that it could warrant the judge’s removal from office.

In this case, Chief Justice Wittmann considered Justice Dewar’s full apology to both the victim and all those offended by his words. He also took note of the active steps taken by the judge to improve his understanding of gender equality issues and his commitment to continue those efforts, with the support of his Chief Justice. In context, and given that this is an isolated event in the judge’s career, Chief Justice Wittmann decided, after formally expressing his concern to the judge about his conduct, that no further action was necessary by the Council.

A copy of the Council’s letter to the complainants is attached. Information about the Council, including its Complaints Procedures, can be found on the Council’s website at www.cjc-ccm.gc.ca.

Contact:
Norman Sabourin
Executive Director and Senior General Counsel
(613) 288-1566 ext 301

Background Information:

9 November 2011

Dear Complainant:

I am writing in regard to your complaint against the Honourable R. A. Dewar of the Court of Queen’s Bench of Manitoba. In accordance with the Complaints Procedures of Council, your complaint, together with a number of other similar complaints made against Justice Dewar, were referred to the Honourable Neil Wittmann, Chief Justice of the Court of Queen’s Bench of Alberta and Vice-Chairperson of the Judicial Conduct Committee of Council.

All of the complaints received reflect a common theme directed at the judge’s comments during his decision and sentencing in the matter of R. v Rhodes. Because the complaints are all related in nature, Chief Justice Wittmann has decided to address at the same time all of the allegations put forward in the various complaints, including your own.

The complaints all arise from certain remarks made by the judge during the Rhodes matter. In finding Mr Rhodes guilty of sexual assault and in the subsequent sentencing portion of the trial, the judge said that “sex was in the air that night;” that the accused was “a clumsy Don Juan.” He said that the victim was dressed in a way that showed she “wanted to party.”

These comments were seen as perpetuating negative myths and suggesting that the behaviour of the victim would have contributed to the sexual assault or even that the victims of sexual assault have only themselves to blame. A general complaint was that the judge showed insensitivity rooted in outdated gender stereotypes and that this reflected poorly on his impartiality. Some complainants said that the sentence imposed by the judge was too lenient, and that this was because of gender bias.

Given the seriousness of the allegations, Chief Justice Wittmann asked Justice Dewar and his Chief Justice to provide comments. He also obtained the relevant transcripts of the proceedings. Chief Justice Wittmann has now completed his review of this matter and he has asked me to provide you with the following.

The judge’s decisions in R. v. Rhodes

At the heart of judicial independence is a judge’s freedom to administer justice to the best of his or her ability, without fear or favour, in accordance with the evidence presented and the law. In case of a disagreement with a judge’s decisions about the evidence or the sentence in a criminal matter, the matter must be raised by way of appeal. In this case, Chief Justice Wittmann notes that both the convicted person and the Crown have appealed the decision of the judge. This is the proper recourse. Because Council has no authority to review or reverse any Court decision, it would not be appropriate for Chief Justice Wittmann to comment on the merits of Justice Dewar’s decisions, including the sentence imposed in this case or any of the issues of law that may be raised on appeal, including any allegations of bias.

Remarks made by the judge

Justice Dewar recognizes that many of his remarks in the Rhodes matter were not appropriate. He is also aware that he did not fully appreciate the negative treatment that victims of sexual assault can receive. He truly regrets this.

In particular, Justice Dewar said that in commenting on the state of mind of Mr Rhodes, whom he found guilty of sexual assault, he clearly was not sensitive to the effects on the victim. He explained that he now realizes how hurtful his use of stereotypes was to the victim. Justice Dewar has offered a full and unequivocal apology to the victim for the hurt she experienced from his comments. He also is aware that his comments may have been traumatic to other women who were victims of sexual assault and expressed his sincere regret for this.

Since these events took place, Justice Dewar has met a recognized expert on gender equality. She has provided him with insight and practical advice, referred him to useful materials about these issues, and is making herself available in the future. Justice Dewar is convinced that he can be a better judge, through serious, ongoing efforts at professional development. He is determined that this will remain a single, isolated incident.

After reviewing all the facts, Chief Justice Wittmann agrees that Justice Dewar did show a lack of appreciation and sensitivity toward victims of sexual assault when he made remarks that can perpetuate negative stereotypes about women. He is of the view that such conduct fell short of the standard Canadians expect of their judges. For these reasons, Chief Justice Wittmann formally expressed his concerns to Justice Dewar.

Chief Justice Wittmann notes that all judges have a duty to ensure everyone before the courts is treated with equality, according to law. As stated in Ethical Principles for Judges, in the commentary relating to Equality, “Judges should not be influenced by attitudes based on stereotype, myth or prejudice. They should, therefore, make every effort to recognize, demonstrate sensitivity to and correct such attitudes.”

In reviewing the entire matter, Chief Justice Wittmann is of the view that Justice Dewar has learned from this experience and that he now fully appreciates the negative effect of his comments. Chief Justice Wittmann accepts that Justice Dewar will be making “every effort” to uphold the standards of conduct expected of all judges.

When finding shortcomings in a judge’s conduct, Council must ultimately determine whether the matter is so serious that it could warrant the judge’s removal from office.

For all of the above reasons, and given that this represents an isolated incident in the judge’s career, Chief Justice Wittmann is confident that Justice Dewar can continue to fulfill his judicial duties in the future and that no further action is required by the Council.

Yours sincerely,

Norman Sabourin
Executive Director and Senior General Counsel

Le Conseil canadien de la magistrature termine son examen des plaintes contre le juge Robert Dewar

Ottawa, le 9 novembre 2011 – Le Conseil canadien de la magistrature a annoncé aujourd’hui les résultats de son examen des plaintes faites contre l’honorable Robert Dewar de la Cour du Banc de la Reine du Manitoba. Les plaintes visaient surtout les propos que le juge Dewar a tenus après avoir reconnu M. Rhodes coupable d’agression sexuelle et lorsqu’il a imposé la peine dans l’affaire R. c. Rhodes.

Les plaintes contre le juge Dewar ont été examinées par l’honorable Neil C. Wittmann, juge en chef de la Cour du Banc de la Reine de l’Alberta et vice-président du Comité du Conseil sur la conduite des juges.

L’examen des plaintes a révélé que les propos du juge Dewar ont été perçus par de nombreuses personnes comme étant insensibles envers les victimes d’agression sexuelle. On a perçu les propos du juge comme étant représentatifs de stéréotypes sexuels négatifs et désuets, rejetant la responsabilité sur la victime et dénotant un préjugé sexiste inacceptable envers les femmes. De plus, certains plaignants ont exprimé leur mécontentement à l’égard de la peine imposée par le juge.

Le juge Dewar a fait des commentaires en réponse aux plaintes reçues par le Conseil. Il a admis que ses propos déplacés ont eu un effet troublant sur les femmes victimes d’agression sexuelle. Il a aussi reconnu que son usage d’un langage stéréotypé était tout à fait inacceptable et il a exprimé son regret. Le juge Dewar a écrit : [traduction] « Je veux présenter mes excuses sans équivoque à (la victime) pour la peine que mes propos ont dû lui causer. De plus, certaines lettres de plainte sont venues de personnes qui ont travaillé directement auprès de victimes d’agression sexuelle et qui ont dit avoir aussi été traumatisées par certains de mes propos. J’en suis également très désolé. »

Soucieux de s’instruire davantage sur la façon de traiter les victimes d’agression sexuelle, le juge Dewar s’est aussi entretenu avec une experte en matière d’égalité des sexes. Il s’est engagé à poursuivre des activités de perfectionnement professionnel dans son désir de devenir un meilleur juge.

Bien que le juge en chef Wittmann reconnaisse que le juge Dewar ait tiré une grande leçon de ces événements, il est toutefois d’avis que, par ses propos, le juge Dewar a de toute évidence fait preuve d’un manque de sensibilité envers les victimes d’agression sexuelle. Le juge en chef Wittmann a formellement exprimé ses préoccupations au juge Dewar, par le fait que le comportement du juge est contraire aux normes de conduite élevées que les Canadiens et Canadiennes attendent de la part de tous les juges.

En réponse aux plaintes concernant la décision du juge Dewar sur la détermination de la peine, le juge en chef Wittmann a souligné qu’en cas de désaccord avec la décision d’un juge, le recours approprié consiste à faire appel de la décision. Le juge en chef Wittmann a fait remarquer que la Cour d’appel du Manitoba est présentement saisie de cette affaire particulière.

Lorsqu’il conclut qu’un juge a commis un écart de conduite, le Conseil doit déterminer, en définitive, si l’affaire peut être suffisamment grave pour justifier la révocation du juge.

Dans le cas présent, le juge en chef Wittmann a tenu compte des excuses complètes que le juge Dewar a présentées aussi bien à la victime qu’à toutes les personnes qui ont été offensées par ses propos. Il a également pris note des mesures concrètes que le juge Dewar a prises pour mieux comprendre les questions d’égalité des sexes ainsi que son engagement à poursuivre ces efforts dans le futur, avec l’appui de son juge en chef. Dans ce contexte, et puisqu’il s’agit d’un incident isolé dans la carrière du juge Dewar, le juge en chef Wittmann a formellement exprimé ses préoccupations au juge Dewar au sujet de sa conduite et a conclu qu’aucune autre mesure n’est requise de la part du Conseil.

Ci-joint, la lettre du Conseil aux plaignants. D’autres renseignements sur le Conseil canadien de la magistrature, y compris les Procédures relatives aux plaintes, se trouvent sur le site Web du Conseil à www.cjc-ccm.gc.ca.

Renseignements :
Norman Sabourin
Directeur exécutif et avocat général principal
(613) 288-1566 poste 301

Renseignements supplémentaires

Le 9 novembre 2011

Monsieur / Madame,

Je vous écris au sujet de votre plainte contre l’honorable R. A. Dewar de la Cour du Banc de la Reine du Manitoba. Conformément aux Procédures relatives aux plaintes du Conseil canadien de la magistrature, votre plainte, de même qu’un certain nombre d’autres plaintes semblables faites contre le juge Dewar, ont été transmises à l’honorable Neil Wittmann, juge en chef de la Cour du Banc de la Reine de l’Alberta et vice-président du Comité du Conseil sur la conduite des juges.

Toutes les plaintes reçues avaient un sujet commun et visaient les propos que le juge a tenus lors de sa décision et de l’imposition de la peine dans l’affaire R. c. Rhodes. Puisque toutes les plaintes étaient de nature semblable, le juge en chef Wittmann a décidé d’examiner en même temps toutes les allégations faites dans les diverses plaintes, y compris la vôtre.

Toutes les plaintes émanent de certains propos que le juge a tenus dans l’affaire Rhodes. Lorsqu’il a reconnu M. Rhodes coupable d’agression sexuelle et, plus tard dans le procès, lorsqu’il a imposé la peine, le juge a dit que [traduction] « il y a avait du sexe dans l’air ce soir-là » et que l’accusé était [traduction] « un Dom Juan maladroit ». Le juge a aussi dit que la victime était vêtue d’une manière qui montrait qu’elle [traduction] « voulait faire la fête ».

De l’avis des plaignants, les propos du juge ont perpétué des mythes négatifs et ont laissé entendre que le comportement de la victime aurait contribué à l’agression sexuelle ou que les victimes d’agression sexuelle ne peuvent s’en prendre qu’à elles-mêmes. Les plaignants étaient généralement d’avis que le juge a fait preuve d’une insensibilité fondée sur des stéréotypes sexuels désuets et que cela est un piètre reflet de son impartialité. De plus, certains plaignants ont dit que la peine imposée par le juge était trop clémente et que cela était attribuable à un préjugé sexiste de sa part.

En raison de la gravité des allégations, le juge en chef Wittmann a demandé des commentaires au juge Dewar et à son juge en chef. Il a aussi obtenu les transcriptions des audiences. Le juge en chef Wittmann a maintenant terminé son examen de l’affaire et il m’a chargé de vous informer de ce qui suit.

Les décisions du juge dans l’affaire R. c. Rhodes

L’indépendance judiciaire repose sur la liberté d’un juge d’administrer la justice au mieux de ses capacités, sans crainte ni favoritisme, et en conformité avec la preuve et les règles de droit. En cas de désaccord avec les décisions d’un juge concernant la preuve ou la peine dans une affaire criminelle, les décisions du juge doivent être portées en appel. Dans cette affaire, le juge en chef Wittmann constate que la décision du juge a été portée en appel aussi bien par la personne déclarée coupable que par la Couronne. Il s’agit de la voie de recours appropriée. Étant donné que le Conseil n’a aucunement le pouvoir d’examiner ou d’infirmer une décision judiciaire quelconque, le juge en chef Wittmann n’est pas en mesure de se prononcer sur le bien-fondé des décisions du juge Dewar, y compris la peine imposée dans cette affaire, ni sur les questions de droit qui pourraient être soulevées en appel, y compris de quelconques allégations de partialité.

Les propos tenus par le juge

Le juge Dewar a reconnu que bon nombre des propos qu’il a tenus dans l’affaire Rhodes étaient déplacés. Il comprend maintenant qu’il n’était pas pleinement conscient de la façon négative dont les victimes d’agression sexuelle sont parfois traitées. Il le regrette sincèrement.

En particulier, le juge Dewar a dit que, dans ses observations sur l’état d’esprit de M. Rhodes, qu’il a reconnu coupable d’agression sexuelle, il a été visiblement insensible aux effets de ses propos sur la victime. Il a expliqué qu’il comprend maintenant combien la victime a été blessée par son usage de stéréotypes. Le juge Dewar a présenté des excuses complètes et sans équivoque à la victime pour la peine que ses propos lui ont causée. Il est également conscient que ses propos peuvent avoir traumatisé d’autres femmes qui ont été victimes d’agression sexuelle et il a dit le regretter sincèrement.

Depuis ce temps, le juge Dewar s’est entretenu avec une experte reconnue en matière d’égalité des sexes. Celle-ci lui a donné des avis et des conseils pratiques et lui a fourni de la documentation utile sur ce sujet et se rendra disponible dans le future. Grâce à ces conseils et par de sérieux efforts et formation professionnels, le juge Dewar est convaincu qu’il peut devenir un meilleur juge. Il est bien décidé à ce que cet incident demeure unique et isolé.

Après avoir examiné tous les faits, le juge en chef Wittmann est d’accord que le juge Dewar a fait preuve d’un manque de compréhension et de sensibilité envers les victimes d’agression sexuelle lorsqu’il a tenu des propos pouvant perpétuer des stéréotypes négatifs à l’endroit des femmes. Le juge en chef Wittmann est d’avis qu’un tel comportement est contraire aux normes de conduite que les Canadiens et Canadiennes attendent de leurs juges, et il a exprimé ses préoccupations au juge Dewar à cet effet.

Le juge en chef Wittmann fait observer que tous les juges ont le devoir de veiller à ce que toutes les personnes qui comparaissent devant les tribunaux soient traitées avec égalité, en conformité avec la loi. Comme il est précisé dans les Principes de déontologie judiciaire, dans les commentaires sur l’égalité, « Les juges ne doivent pas se laisser influencer par des attitudes fondées sur des stéréotypes, des mythes ou des préjugés. Ils doivent donc tout mettre en oeuvre pour identifier ces attitudes, y être sensibles et les corriger. »

Après avoir examiné toute l’affaire, le juge en chef Wittmann est d’avis que le juge Dewar a tiré la leçon de cette expérience et qu’il est maintenant pleinement conscient de l’effet négatif de ses propos. Le juge en chef Wittmann accepte que le juge Dewar va faire « tous ses efforts » pour observer les normes de conduite attendues de tous les juges.

Lorsqu’un juge fait preuve d’un manquement dans son comportement, le Conseil doit en définitive déterminer si l’inconduite est suffisament grave pour justifier la révocation du juge.

Pour tous les motifs énoncés ci-haut et puisqu’il s’agit d’un incident isolé dans la carrière du juge Dewar, le juge en chef Wittmann est confiant que le juge Dewar est capable de continuer à remplir ses fonctions judiciaires dans l’avenir et qu’aucune autre mesure n’est requise de la part du Conseil.

Je vous prie d’agréer, Monsieur / Madame, mes salutations distinguées.

Le Directeur exécutif et avocat général principal,
Norman Sabourin

An editorial in The Guardian recently welcomes various signs of a rebirth in feminist activism in the UK. One particularly noteworthy development is an organization called UK Feminista, which holds summer school workshops on women’s issues. Sounds very hopeful, and makes one wonder whether a similar initiative couldn’t be mounted in Canada. If the economy really is going to meltdown once and for all, feminists had better start strategzing about how to be part of the process to pick up the pieces and refashion the global economy in a woman-friendly way.

Faculty of Law, University of Toronto

The Supreme Court’s decision in Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011SCC 37 confirms the worst fears of equality advocates worried that the Court’s recent pronouncements on s. 15(2) in R. v. Kapp, [2008] 2 S.C.R. 483 might open up a loophole that government lawyers could drive a Mack truck through. In Kapp the Court set the stage by announcing a very deferential approach to the interpretation of s. 15(2). Provided a challenged program had a bona fide ameliorative objective and the distinctions it uses could plausibly be regarded as serving that objective, it is shielded from further judicial scrutiny and is deemed not to violate the Charter. The government need not offer any actual evidence that its exclusionary criteria serve the ameliorative purpose of the program. There is no opportunity for an exploration of the effect of exclusion on those excluded.

The worry immediately identified by equality advocates was that such an approach would not only keep (mainly) non-Aboriginal and not disadvantaged claimants from horning in on a program honouring the traditional connection between Aboriginal culture and economies and fishing, as in Kapp, for example, but would also invite governments to claim that benefit programs aimed at a legitimate equality seeking group could exclude other similarly disadvantaged groups with impunity. This has been labeled the problem of under-inclusive ameliorative programs. Disability rights groups are particularly concerned about this phenomenon, since government programs for persons with disabilities are littered with cracks between which subsets of disabled people easily fall. “This is a program for long term disabilities, not somewhat shorter term ones”, this government says; “this income support program is for those with disabilities other than substance addiction”, that government says. Shouldn’t we want to examine the way legislatures have drawn these lines in order to ensure that the principles of equality are being upheld, one might naturally ask.

The Supreme Court’s emphatic answer in Cunningham is “No”; we’re going to trust legislatures to do the right thing. The facts of Cunningham are complex; in many ways it was not an ideal case in which to test the Court’s willingness to deal with the problem of under-inclusive ameliorative programs. The case involved the legislatively mandated exclusion from the benefits of Métis community membership of members of Métis communities who voluntarily sought registration as status Indians after a particular date. The claimants, long-standing members of the Métis settlement of Peavine, Alberta, took up the option only recently granted to them to regain Indian status that had been stripped from their female ancestors by the notorious marrying out provisions of the Indian Act. For this, they were turfed out of the only community they knew as home. Lest anyone should think that registering for status was a lark, something to be done ‘because it was there’, the evidence was that the claimants sought status in order to be able to access health care benefits provided under the Indian Act and not otherwise available to them.

The issue in Cunningham is bound up with the idea of Métis self-government and whether it entails the power to determine membership within the community. How far such a power should go and whether it trumps principles of equality is a really hard question and reasonable arguments exist on both sides of the debate. However, the Supreme Court essentially ducked these hard questions, and while relying in passing on the self-government aspirations of the Métis, made it clear that their approval of potentially discriminatory ameliorative programs is not limited to these especially tough cases. The Court pronounces: “Ameliorative programs, by their nature, confer benefits on one group that are not conferred on others. These distinctions are generally protected if they serve or advance the object of the program, thus promoting substantive equality. This is so even where the included and excluded groups are aboriginals who share a similar history of disadvantage and marginalization.” (para. 53] Substitute for “aboriginals” “disabled persons’ or “women” and it becomes clear that governments are to be allowed to pick and choose amongst the disadvantaged with little scrutiny.

Indeed, the Court has clarified how little scrutiny it means to provide. Referring to a phrase in passing from Kapp to the effect that s. 15(2) protects all use of enumerated or analogous grounds that “serve and are necessary to” the ameliorative purpose, the Court takes the opportunity in Cunningham to say ““necessary” should not be understood as requiring proof that the exclusion is essential to realizing the object of the ameliorative program. What is required is that the impugned distinction in a general sense serves or advances the object of the program, thus supporting the overall s. 15 goal of substantive equality.” (para. 45) This entirely avoids acknowledging that the pursuit of one group’s substantive equality may violate the substantive equality of another. Provided the program tends toward some equality related goal, we need not inquire into who is harmed, how much, and whether that harm was avoidable.

It becomes obvious that despite the Court’s claim in Kapp that it was articulating a third approach to the interpretation of s. 15(2), treating it neither as an interpretive aid in understanding the scope of s. 15(1) nor as creating an exemption from s. 15(1), the new approach actually functions as an exemption. Satisfying the s. 15(2) test does indeed exempt the government from the rigors of s. 15(1); the Court even now refers to s. 15(2) as “saving” an impugned distinction. (para. 44) What’s new is that the Court  grants such exemptions without actually saying out loud that it is an exemption, indeed, without even looking to see whether the equality rights of those excluded have been violated before deciding whether to permit an exclusionary program to stand. It undoubtedly makes the Court’s job easier, and perhaps salves some judicial consciences, not to confront the negative equality effects of its decisions as well as the positive ones, but it is hard to see how this represents a robust and responsible conception of substantive equality. The Court’s approach seems driven not by any conception of substantive equality at all, but rather by a simple desire to defer to the ultimate judgment of the legislature about the extent to which equality is to be promoted. The logic of the Court’s analysis of s. 15(2) mirrors the most deferential s. 1 analysis imaginable (foregoing the minimal impairment analysis and the final comparison of conflicting values), and uses it to preclude investigation of whether anyone’s rights have even been violated. Government lawyers will think they have died and gone to heaven.

One is tempted to conclude that the Supreme Court is bored with equality litigation, or finds it too difficult to actually work through the “elusive concept” of equality (Andrews v. Law Society of British Columbia, [1989] 1 S.C.R 143, at p. 164), and really doesn’t want to see any more equality cases. It has certainly done its utmost to discourage claimants.

The Court considered the following question: Where the Crown charges murder instead of infanticide when a mother has killed her newly-born child, is the lesser sentence for the crime of infanticide  nevertheless available to the accused woman?

LEAF intervened in the case to offer the Court a perspective on the ongoing relevance and importance of infanticide as a homicide offence that is separate and distinct from murder.  Infanticide recognizes the reproductive functions and caregiving roles of women and the unique stressors which accompany those roles.

In the past few years, we have seen what appears to be an emerging trend of the Crown charging women who have killed their newly-born children with murder instead of infanticide.  The result is that these women face life imprisonment. This is a significant concern to LEAF since the offence of infanticide, which carries a maximum sentence of 5 years imprisonment, is intended to account for the complex and gendered social, economic, psychological and medical context in which the offence occurs.

The Ontario Court of Appeal decision upheld the trial judgment convicting L.B. of infanticide, even though the Crown had charged her with murder. The Ontario Court of Appeal decision provides a blueprint to courts and Crown Attorneys in Ontario, as well as an important precedent across Canada, for how the infanticide offence operates in the modern-day context.  The decision confirms that even where a woman in these terrible circumstances is charged with murder, she will be convicted of infanticide where the legal elements of a ‘disturbed mind’ caused by ‘the effects of childbirth and lactation’ are present.

This is an important decision since it upholds Parliament’s recognition of the reduced culpability of women who commit infanticide.

A life sentence with long periods of parole ineligibility in cases of infanticide is inconsistent with Parliament’s intent, the community’s sense of justice, and the uniquely gendered context of the offence.   The women who commit infanticide in Canada tend to be young, poor, socially isolated and without adequate social and economic supports to cope with childbirth or caring for a child.  They have often experienced sexual or other abuse and have often denied their pregnancy to others and even to themselves.  Many accused women have given birth alone, and commit the offence in a state of panic, intense pain, shock, disassociation, exhaustion and alienation.  The offence of infanticide is treated differently in law than murder because of these many overlapping social, cultural, psychological and medical factors, which may affect the state of mind of accused women after childbirth.

In March 2010, the House of Commons Standing Committee on the Status of Women (FEWO) undertook a study on violence against Aboriginal Women. It held meetings in Ottawa in April 2010, and travelled to various communities across Canada in 2010 and early 2011 to hold hearings and meet with interested individuals and organizations. The Committee wrapped up its tour with a visit to Edmonton on January 21, 2011, where I was called as a witness. Sadly, and in spite of receiving a news release related to this and earlier hearings, no one from the media was present in Edmonton, a situation we were told was replicated in the Committee’s other hearings. Although one of the Committee members, Conservative MP Nina Grewal, stated repeatedly during the hearing that violence against Aboriginal women is a “top priority” of the government, the issue does not appear to be getting much attention.

In addition to Ms. Grewal, the MPs present in Edmonton were Hedy Fry (Liberal, Chair of the Standing Committee, who unfortunately arrived towards the end of the hearing), Dona Cadman (Conservative, and Acting Chair in Ms. Fry’s absence), Jean Crowder (NDP critic for Aboriginal Affairs), Nicole Demers (Bloc Quebecois spokesperson for women’s issues), and Anita Neville (Liberal, Official Opposition critic for the Status of Women). Three rounds of witnesses were heard, focused on the following topics / areas of expertise: (1) service providers and local police (with testimony from representatives of the Edmonton Police Service, Awo Taan Healing Lodge (Calgary), Métis Child and Family Services Society, and Little Warriors), (2) missing and murdered women (with testimony from Jo-Anne Fiske, a Professor of Women’s Studies at the University of Lethbridge, representatives from the Memorial March for Missing and Murdered Women Calgary and the Stolen Sisters Awareness Walk and Movement, and the RCMP), and (3) research on violence against Aboriginal women (where I testified, along with researcher Sandra Lambertus and Muriel Stanley Venne, President of the Institute for the Advancement of Aboriginal Women). Some of the witnesses were themselves Aboriginal women survivors of violence. Witnesses had 7 minutes each to present submissions, followed by timed rounds of questions from each of the Committee members.

All of the witnesses seemed to have much more to say, and the Committee members more questions to ask than the time allowed. Some of the recurrent themes from the witnesses were as follows: violence against Aboriginal women, both by family, acquaintances and strangers, occurs in epidemic numbers, and has its root causes in colonialism, cultural genocide, systemic racism and poverty; Aboriginal women vastly under report this violence, largely out of fear of the reactions of police, child welfare, health care workers, etc.; the impact of legal and justice system reforms on Aboriginal victims of violence cannot be accurately assessed due to a lack of information gathering within the system; at the same time, some of those reforms (e.g. dual charging in spousal violence cases as a result of zero tolerance policies) have led to the criminalization of Aboriginal women); some specialized services are available for Aboriginal women who experience violence and their children, but these services have nowhere near the capacity or funding they require to handle the volume of cases they are faced with; Aboriginal women and their representative organizations continue to be denied a voice or to be listened to in the context of social policy issues, such as property rights on reserve, band membership, child welfare, and responses to violence (which are all interconnected), the latest example being the federal government’s strategy around missing and murdered women; in spite of being the experts on these issues, Aboriginal women’s organizations have experienced core funding cuts at the hands of the federal government, and cannot continue to exist on project based funding; the public seems indifferent to violence against Aboriginal women, as shown by the lack of media interest in the hearings, and this is evident of a profound lack of respect and denial of full citizenship for Aboriginal women; there is a need to build capacity at the level of Aboriginal communities, and for integrated, multi-jurisdictional approaches to solving these issues, but the federal, provincial and territorial governments often pass issues off to one another and fail to work together; training, education and accountability is required for justice system personnel; training and education is also important for front-line workers; Aboriginal families need support rather than intervention, and Aboriginal youth require cultural and language education; anti-racism and cultural awareness education of non-Aboriginal youth is also required.

These issues were certainly not being raised for the first time, and many witnesses (as well as some Committee members) expressed frustration at the lack of action by the federal government. For example, Jean Crowder noted that the Standing Committee had recommended the reinstatement of funding to women’s organizations several years ago, but things have only gotten worse. Muriel Stanley Venne pointed to the National Aboriginal Women’s Summit of 2007, and the fact that no action had been taken on the recommendations made there. The Liberal, NDP and Bloc members all had questions relating to the impact on Aboriginal people of the government’s law and order agenda and crime bills, and the resulting decision to build new prisons at a large cost to the public. Some members (e.g. Crowder and Demers) were critical of the ongoing federal policies of colonization and assimilation, with Demers asking in despair at one point, “Qui sommes nous?” (”who are we”, referring to the settler society and all we have wrought). Demers also asked a question about whether the mandatory long form census should be reinstated as one way of gathering information about the circumstances of Aboriginal women. Witnesses agreed with this point, yet also noted that action rather than information gathering was required.

Minutes of the proceedings are available here, and eventually the evidence of the proceedings and the Committee’s report will also be available on the FEWO website. It is to be hoped that the Committee will develop concrete recommendations that truly respond to the submissions it heard on the pressing issue of violence against Aboriginal women, and that all levels of government will act upon those recommendations.

Congratulations Beth!

- this news courtesy of the Institute for Feminist Legal Studies at Osgoode website. See the full post here: http://ifls.osgoode.yorku.ca/2011/01/feminist-lawyer-beth-symes-made-companion-of-the-order-of-canada/

On January 11, 2011, the Saskatchewan Court of Appeal handed down its decision on the constitutionality of proposals by the Saskatchewan government to allow marriage commissioners in the province “to refuse to solemnize a marriage if to do so would be contrary to the marriage commissioner’s religious beliefs.” (In the Matter of Marriage Commissioners Appointed Under The Marriage Act, 1995, S.S. 1995, c. M-4.1) The Court of Appeal very sensibly found that the proposals would violate s. 15 of the Charter and could not be saved under s. 1 because there is an obviously available alternative that would protect religious freedom while not sacrificing equality rights. The wonder is that the province needed the Court of Appeal to tell it how to handle this issue properly.

This is the latest installment in a running battle in the province since same sex marriage was legalized in 2004. (N.W. v. Canada (Attorney General), 2004 SKQB 434; Reference Re Same-Sex Marriage, 2004 SCC 79; Civil Marriage Act, S.C. 2005, c. 33) A successful human rights complaint brought against a commissioner who refused to perform a marriage between two men (Nichols) led to a suit against the government claiming that requiring marriage commissioners to perform such marriages violated their right to freedom of religion under s. 2(a) of the Charter. This reference to the Court of Appeal was the government’s response to the controversy.

The Court of Appeal had little trouble finding a violation of s. 15, and its reasoning is interesting in light of the latest developments coming out of the Supreme Court. Noting that the proposed legislation did not explicitly distinguish on the basis of sexual orientation, the Court nevertheless held that the effect of the law would be to treat gay and lesbian couples less well – they would be more likely to be refused the services of a marriage commissioner than straight couples, especially in northern or rural areas or small towns where there might be few commissioners in the area. This differential effect would be discriminatory, the Court held, because gays and lesbians have historically been marginalized and disadvantaged and have only just achieved the right to marry; under these circumstances, allowing marriage commissioners to refuse service would “perpetuate disadvantage and involve stereotypes about the worthiness of same-sex unions.” (para. 45) As an adverse effects case, this provides an opportunity to test the logic of the new/old approach to s. 15 announced by the Supreme Court in R. v. Kapp in such contexts. The focus in Kapp on stereotyping and prejudice as the touchstone of a s. 15 violation made many wonder what that would do to adverse effects claims, which seldom, if ever, involve stereotyping or prejudice.

So it is a relief to see an appellate court decide an adverse effects case in favour of equality claimants. However, the brevity of the reasoning is unfortunate. One can see how allowing a religious conscience exemption to marriage commissioners would perpetuate a pre-existing disadvantage by potentially keeping out of reach an opportunity long denied to same-sex couples, but the dominant strain of argument in Kapp is that it is disadvantage that occurs through prejudice and stereotyping that is the concern of s. 15. The Court of Appeal instead refers to disadvantage involving stereotypes about the worthiness of same-sex unions. This seems a looser connection than that imagined by the Supreme Court, though one hopes that the latter will also be willing to loosen up. (We’ve already seen the Supreme Court reject an adverse effects claim in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 on the ground that no stereotyping is involved in a requirement to have a photograph on one’s driver’s licence.) It also seems odd to use the concept of stereotyping as the Court does. Given the elevated importance this concept has come to have in s. 15 jurisprudence, it is incumbent on courts to be clear about what they mean by it. To stereotype members of a group is usually to make false or inaccurate generalizations about the group, as when women are assumed to lack the strength or intelligence needed to perform a particular job. It is unclear what the inaccurate generalizations are thought to be that lie behind religious convictions about homosexuality and its compatibility with marriage. If the thought is that gays and lesbians have been the victims of stereotyping in a way that has contributed to disadvantage, so that any law that perpetuates that general status as disadvantaged group is a violation of s. 15, that seems to loosen the connection between differential treatment in the law challenged and stereotyping even further. There may be a conception of discrimination operating here that helps us break out of the straightjacket arguably imposed by Kapp, but without a fuller elaboration of the argument it is hard to tell.

The s. 1 analysis in the case is equally interesting. There is a lively disagreement on the Court (though unanimity in conclusion) about whether to start with a generous conception of the significance of freedom of religion and let the minimal impairment and ultimate proportionality assessment do the work of determining whether the legislation can be saved (Richards, J.A, Klebuc and Ottenbreit JJ.A. concurring), or to whittle down the significance of this claim to religious freedom as appropriate at the stage of considering whether it is pressing and substantial (Smith J.A., Vancise J.A. concurring). I am inclined to side with the majority on this question. It seems to me that it only after one has tested the efficacy of the provision in achieving the objective and its necessity to that end that one has a clear sense of the nature of the final conflict between values, if any. Provided the ‘pressing and substantial’ objective aspect of the test is understood as requiring the government to present an objective that is important enough to be in a legitmate contest with a Charter right, there is no danger in according it more weight than it deserves. A final, contextualized assessment can be performed at the final stage of the analysis. Discounting the value of the objective too early in the process might lead to finding the objective inadequate to the task without having assessed whether there is a way of avoiding the sacrifice of either right in the circumstances. And that turned out to be exactly the situation here.

Richards J.A. found that the proposed legislation could not get past the minimal impairment hurdle because there are ways to enable every same-sex couple to have the same access to the services of a marriage commissioner while still accommodating the religious convictions of the latter. The proposed legislation would have simply permitted marriage commissioners to refuse applicants, creating both the prospect of unequal access to the service and the humiliation of being denied. Richards J.A. found that a “single entry point” system that would see couples apply to some central office and be assigned to a marriage commissioner willing to perform the ceremony would mean no one need be denied the service while marriage commissioners could be faithful to their convictions. Interestingly, the suggestion of the alternative means of protecting both equality and freedom of religion at the same time seems to have come from the Court, rather than having come out of the arguments of the parties. (see para. 85) Thus, it seems that counsel appointed to argue in favour of the proposed legislation made little or no effort to argue that no alternatives to the proposed scheme were available. To my mind this should involve articulating what, in the government’s view, was the next best solution to the problem and demonstrating its inadequacies.

The Court could have stopped there, and I think should have, but instead went on to consider which of the two competing values should win out in the circumstances. It chose equality, but the argument takes a strange twist. The s. 15 analysis was about the equality interests of gay and lesbian couples – it is their equality rights that the proposed legislation would violate. That seems right. However, when the Court gets to the final step of the s. 1 analysis the equality interest at stake seems to be not only that of same-sex couples, but also that of the Province itself in being the kind of institution that is committed to an ideal of equal service to the public. It would be inconsistent with this ideal should those who choose to assume public office “expect to directly shape the office’s intersection with the public so as to make it conform with their personal religious or other beliefs”. This is a s. 1 argument that would seem more appropriately aimed at defending a scheme that denied religious accommodation, but that is the inverse of the issue before the Court. It thus seems odd to put in the government’s mouth an argument to defend the denial of accommodation in order to decide that this proposal to grant accommodation cannot be defended. The Court closes by declaring this to be a situation in which “religious freedom must yield to the larger public interest”. That seems exaggerated, since the minimal impairment analysis revealed ways to protect both religious freedom and equality at the same time. The proposed legislation clearly cannot stand against the relevant equality interests. That does not mean that freedom of religion yields to equality – the Court itself identified a means to have our cake and eat it too, constitutionally speaking.