Modern matriarchy meets medieval theocracy

http://www.georgejonas.ca/recent_writing.cfm?id=916

by George Jonas
National Post
October 16, 2010

The leaves are falling, as they do every October, but LEAF, the women's 
Legal Education and Action Fund, seems impervious, or at least resistant, 
to changes of season. This week the sisterhood is celebrating whatever 
role it played as intervener in (a) acculturating the quaint custom of 
wrapping up women like sausages and (b) legitimizing the idea of 
defendants having to face masked accusers in Canadian courts.

From now on, at least until a higher court decrees otherwise, shariah will 
gain a symbolic foothold in Canada's justice system. Trial judges will 
determine case by case if a witness can testify wearing a niqab. The door 
had been opened by blue-ribbon feminists; the mullahs just walked through. 
Ironically, in Ontario the burqa isn't the Taliban's fashion statement but 
feminism's.

What do we lose? Oh, bagatelle; a few principles. Blessed by judicial 
hypocrisy, we've reduced the ability of lawyers to cross-examine, juries 
to arrive at informed conclusions and defendants to make full answer and 
defence. Look at what we've gained, though: We've accommodated a liaison 
between modern matriarchy and medieval theocracy.

Talk about strange bedfellows. It certainly illustrates the kinship of the 
single-minded.

Still, I'm not as dismayed by the Ontario Court of Appeal's decision in R. 
vs. N.S. as many friends in the media. True, taking away from men in legal 
disputes with sausage-ladies every defendant's right to test demeanour 
evidence in court is pretty bad, but it could have been worse. Someone 
could have argued that to avoid unfairness to non-Muslim complainants, or 
the non-religious, all accused should be deprived of the benefit of 
demeanour-evidence.

LEAF's Susan Chapman didn't go that far but she did say that "[i]t is also 
important that the court confirmed the unreliability of demeanour evidence 
in general and in the specific circumstance of sexual assault." Next, 
expect the argument that since demeanour-evidence isn't very reliable 
anyway, neither is cross-examination. A prosecution witness should be able 
to testify by remote link, or better still, just text in his/her evidence. 
This would make the Crown's job easier, and since most prosecutors are 
women because it's a lower paid job than defence work, if Crown witnesses 
used text messaging, trials would be shorter and prosecutors could spend 
more time with their children."

Don't laugh. A short while ago testifying in a mask would have been a sick 
joke, too.

Okay, if R. vs. N.S. isn't as bad as it could be, Pridgen v. University of 
Calgary, a decision by the Court of Queen's Bench of Alberta, may not be 
as good as some of my friends think it is.

Pridgen stands for the proposition that universities can't ride roughshod 
over free expression provisions in the Charter, believing that, since they 
aren't government, the Charter doesn't apply to them. Madam Justice 
Strekaf decided this week that it does.

At first blush the decision is attractive, partly because the 
administrators in Pridgen aren't -- they sound nasty -- and partly 
because, nasty as the may be, they seem par for the course. Based on their 
track records, one virtually expects universities to be run by spineless 
martinets masquerading as pedantic twits.

In Canada as well as abroad, if it weren't for their faculties of 
engineering and medicine, institutions of higher learning would be a net 
loss. They tend to censor the best in the culture and succumb to the 
worst; give in to rioters but expel peaceful protesters; shelter 
disruptive groups and coercive charlatans but exclude or persecute fine 
scholars; they bully the meek but fold to bullies. Universities were 
hotbeds of Nazism, Communism, Islamo-fascism, Maoism -- and had there been 
anything worse, they would have been hotbeds of that, too.

I could go on about universities (and I notice I have) so will only add 
that hearing a judge say to administrators, as Madam Justice Strekaf did 
this week: "I am satisfied that the University in not a Charter-free 
zone," strikes a sweet chord of poetic justice. But even as one savours 
the moment, a question intrudes.

Isn't it a Charter-free zone? What is it, then?

Pridgen is essentially about university bureaucrats visiting 
administrative vengeance upon the heads of two students for ungraciously 
criticizing a professor on the Internet. The bureaucrats acted harshly, 
probably meanly, possibly unfairly; they acted true to type; acted as 
other bureaucrats at the same university did when they found pro-life 
students guilty of non-academic misconduct for setting up a display where 
passers-by could see it -- but they acted within what was, or they 
believed was, their sphere of autonomy.

Institutional autonomy is one of the pillars of liberty. Societies are 
free to the extent that their institutions -- family, church, university 
-- are off limit to the state. This doesn't sit well with the state, which 
often uses the sword of justice or "protection" to cut through 
institutional autonomy in its warfare upon liberty. Using the Charter to 
sharpen the sword is a bright idea -- bright enough to obscure its 
function.

Think about this. If the Charter is here, can government be far behind?

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