Friday, August 14, 2009

"I Didn't Know Truth Had A Gender"

In case you missed it earlier this week, the Globe ran a story with the rather provocative headline: Can a busy female politician give reliable evidence? A judge says no. Here's what the Jane Taber article had to say:

Lisa MacLeod is a young female politician who commutes to her job at Queen's Park from Ottawa and leaves her husband, Joe, and four-year-old daughter, Victoria, at home. Mr. Justice Douglas Cunningham of Ontario Superior Court said this is a big distraction for the 34-year-old woman and as a result he felt he could not accept her evidence as corroboration of the Crown's key witness in the recent high-profile, influence-peddling trial of Ottawa Mayor Larry O'Brien.

Judge Cunningham is 69; he was appointed to the bench in 1991.

His comments, delivered last week in his ruling dismissing the charges against Mr. O'Brien, are now drawing criticism from political strategists and activists who are shaking their heads, wondering when women will be treated as equals in politics.


Taber goes on to quote a plethora of outraged individuals, including Lisa MacLeod who laments "I didn't know truth had a gender". It's not hard to get worked up over this shocking incident. In fact, I was left pretty aghast after reading this article the first time.

The problem is, this shocking incident didn't really happen.

As was pointed out to me in an e-mail from a frequent reader, this sensationalist story falls apart as soon as you bother to read the actual ruling. Click on the link and read items 61 to 64 on page 14. The quote raising the fuss is simply a recap of the defence's case and is not given as the judge's reason for dismissing her testimony.

If you don't feel like reading the ruling, James Bowie has a fantastic post up where he neatly summarizes the case:

In her own words, Ms. MacLeod says she didn't know if it was Kilrea who initiated discussions. She said that "somebody" was talking to Kilrea about "an appointment," but she can't say who. She is unable to testify as to exactly what words were used. Asked if she didn't know about Kilrea working on an appointment himself, or whether the discussion had taken place earlier, she herself admits she doesn't know.

That is the salient point here - the witness, by her own admission, does not know the answer to the question. Asked "and you didn't know?" She responded "Yes." Asked "and you didn't know...?" She responded, "correct."

It is all a bit rich, therefore, for Ms. Taber and Ms. MacLeod to say that the judge was motivated by sexism in his apprisal of the witness. She herself said she did not know, and her recollection was not clear. It is only reasonable in such cases to assign little weight to the evidence of the witness.

Now, I don't want to criticize Jane Taber on this - no one can take a few anonymous quotes and pass them off as real news better than she can. But this story should never have run - one look at the ruling would show that there was absolutely nothing there.

I would love to see more articles on the problems facing female politicians, because the low number of elected women in Canada remains a travesty. But trying to drum up faux sexism charges against a judge doesn't help anyone.


UPDATE: Chris Selley also weighed in this morning, and points out the idiocy of the Globe accusing Lisa MacLeod of overracting, a day after running with the story on the front page.

18 Comments:

  • You're both wrong and right.

    Her evidence was weak. No one is denying that. It was entirely appropriate for the judge to give it the weight he did, on its own merits.

    The problem is, the judge took an extra step. He in effect excused the poor quality of the evidence in part because MacLeod was a career woman who commuted to Trotono, "leaving her husband and child in Ottawa."

    That was utterly gratuitous. No judge would ever state, in reference to a man's weak evidence, that the poor fellow was distracted because he went to work and left his wife and kid at home.

    No one--not even MacLeod--is arguing that the actual assessment of the evidence was wrong on its face. But the judge did let his mask slip a bit with that comment. If I were a career woman fighting a custody battle, I'd dread appearing before Justice Cunningham.

    By Blogger Dr.Dawg, at 9:33 AM  

  • Toronto. Good grief, my worst typo ever.

    By Blogger Dr.Dawg, at 9:33 AM  

  • Dr. Dawg: EXACTLY!

    By Anonymous Anonymous, at 9:44 AM  

  • The Judge did not excuse the evidence due to the activities, that is a logical fallacy. A beside B does not mean A --> B.

    By Blogger Kyle G. Olsen, at 10:32 AM  

  • Thanks, CG. Posts like this are one reason why your blog is a must-read even for Conservatives like me.

    By Anonymous Anonymous, at 11:11 AM  

  • The Judge did not excuse the evidence due to the activities, that is a logical fallacy. A beside B does not mean A --> B.

    So why was A there at all?

    By Blogger Dr.Dawg, at 11:26 AM  

  • ^ Because in decisions it is the judge's job to summarize arguments and facts that the lawyers brought up.

    By Blogger Kyle G. Olsen, at 11:36 AM  

  • Dawg, the "factors in her life" was demonstrated as part of the defense, it was part of the proceedings. As such it was part of the testimony recorded. The judge is well within bounds to refer to the testimony given at the trial.

    There maybe a point that this shows sexism during the actual court proceedings, but before we rush to judgment, we should review all court judgments across the board to find if this particular factor is only ever brought up as a means to discredit a female witness.

    If it is shown, then there is sexism within the system (and probably reflects society's attitudes overall). To infer sexism on the part of an individual based on a single statement within the judgment is grossly unfair. Context is everything, and making a pariah of this particular judge without a broader understanding of the whole process is specious at best, slanderous at worst.

    By Blogger Catelli, at 12:20 PM  

  • Dan, the real question is when will people whose fathers have cancer stop being discriminated against in courts of law. Brutal

    By Anonymous Anonymous, at 12:21 PM  

  • I'm far from a legal expert, but the judge was recaping the defence's argument that there was a lot going on in her life (commute, family, dad with cancer, etc).

    Is that relevant? Is it worth being included as a recap even if it isn't considered? I don't know. But it's far from a sexist argument - you could just as easily make the same argument for a man.

    The problem is the article was obviously slanted in one direction. A snipet of the decision was included, and there are toss away lines like "The judge was 69" etc, to try and build the case. And there was no real mention of MacLeod's testimony being dismissed for the proper reasons that it was.

    By Blogger calgarygrit, at 12:34 PM  

  • Dawg, the problem with your argument above, and the argument of everybody else who jumped on the Condemn Justice Cunningham bandwagon on the strength of Taber's grossly misleading article, is that it relies on the premise that "No judge would ever state, in reference to a man's weak evidence, that the poor fellow was distracted because he went to work and left his wife and kid at home."

    What is your evidence for this statement? That is a bald, unsupported and perhaps unsupportable assertion. To pick up on CG's point, that a male witness is commuting regularly between cities and being away from his family (and hence is potentially distracted) is also be something that may create reasonable doubt about the (male) witness' ability to recall a casual conversation. That is all the defence was trying to establish in its cross-examination and in any event, it's far from clear that Justice Cunningham gave that fact more than token weight in his analysis of the reliability of her recollection of the conversation.

    Let's face it - Taber did a hatchet job on this judge, for reasons known only to her, and a bunch of people got suckered into voicing outrage against him without checking the source of her quotes. Then they got called out on their having taken an unsupportable position, and instead of admitting their error and blaming Taber for rolling them, they decided to cling to the unfounded and defamatory claim that this judge has somehow revealed sexist tendencies in his decision. If anything, what this disgraceful episode shows is that a whole lot of people are inclined to believe, on the flimsiest of evidence, that 69-year-old male authority figure with a WASPy last name is a sexist. Now that's prejudice.

    In my view, Taber should lose her job over this story, as should the fact-checker who clearly didn't read the source material and the editor who decided to put it on the front page, and the Globe should apologize, on the front page.

    And so should you, Dawg, for perpetuating something that just isn't true on any reasonable reading of the judgment.

    By Anonymous Anonymous, at 7:17 PM  

  • By Blogger Dr.Dawg, at 10:48 AM  

  • This comment has been removed by the author.

    By Blogger Dr.Dawg, at 10:49 AM  

  • I forgot to add this link about Bevin Wortin:

    http://www.watsonlabourlaw.com/Who%20We%20Are.htm

    Incidentally, I'm not arguing from authority here: I'm reacting to the notion that us lay folk simply don't understand the legal process, but lawyers and others connected with the system do. They've been rushing into print in the media and at my place as well.

    You think police close ranks? Check out "the legal fraternity." But even there the opinion is not unanimous.

    By Blogger Dr.Dawg, at 2:08 PM  

  • I think it's great that we're so very vigilant when it comes to sexism. It's to our advantage that we're conditioned to sniff it out so easily wherever it attempts to hide.

    However, from time to time, we rush to judgment. We wind up exaggerating a particular case or, at worst, fabricate it from almost nothing. Just like the boy who cried wolf, the next time we try to point out legitimately concerning cases of discrimination, some people might confuse it for one of these overblown cases.

    So I'm feeling kind of bittersweet about this.

    By Blogger Robert Vollman, at 3:12 PM  

  • Well said, CG.

    But rather than just taking on the Globe's errant coverage, you may also want to mention CTV's similar treatment of the story.

    http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20090811/macleod_judge_090811/20090811/

    By Blogger paul.obeda@, at 12:32 PM  

  • This does do a bad job to the cause of women in politics, you are exactly right on. Too bad.

    By Anonymous Jason Bo Green, at 10:08 PM  

  • I agree with Jason...

    By Anonymous Sue, at 3:23 AM  

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