Yesterday, Michael Ignatieff refused to remove retired judge John Reilly as a candidate in southern Alberta. Reilly, during a radio interview, said that there were sexual assaults, and then there were sexual assaults. Reilly immediately apologized and Ignatieff said that was the end of it. Here is a transcript of Reilly’s remarks in that interview:
“Rutherford: You shouldn’t go to jail for a sex assault?
Reilly: Well, you know, there are sexual assaults and there are sexual assaults.
Reilly: And I had another young man, not a young offender, but a 19, 20-year-old. He’s at a party, there’s a lot of sexual innuendo, one of these women is being very aggressive with her boyfriend and they’re drinking a lot, the boyfriend passes out, she goes, gets into bed naked, he goes up, he’s thinking he’s going to be able to, that she’ll probably agree to have sex with him, he fondles her privates, and she wakes up and tells him to go away, and he goes away.
They report it, he’s charged with (a) sexual offence, he has digitally penetrated her, the Crown prosecutor says this is a digital penetration of a woman’s vagina, he should go to jail for three years, that’s the starting point for this sexual offence.
And I’m looking at this 20-year-old, socially inept young man, and his offence is a sexual assault and it’s one that they consider a major sexual assault because it involves digital penetration. I don’t think in those circumstances that what happened there should put that young man in a penitentiary for three years.”
Julian Fantino (former OPP Commissioner) immediately said this was an example of the Liberals being ‘soft on crime.”
I’m trying to understand exactly what it was that Reilly said that so offended Fantino. Reilly said, essentially, that different sexual assaults are punished differently. Which they are.
I actually know John Reilly: he was the provincial court judge in the Cochrane area when I was a lawyer in Alberta. He used to handle the area that included the Stoney Nakoda Indian Reserve. He’s written a book about his experiences called Bad Medicine. Here’s how it’s described:
“Early in his career, Judge John Reilly did everything by the book. His jurisdiction included a First Nations community plagued by suicide, addiction, poverty, violence and corruption. He steadily handed out prison sentences with little regard for long-term consequences and even less knowledge as to why crime was so rampant on the reserve in the first place.
“In an unprecedented move that pitted him against his superiors, the legal system he was part of, and one of Canada’s best-known Indian chiefs, the Reverend Dr. Chief John Snow, Judge Reilly ordered an investigation into the tragic and corrupt conditions on the reserve. A flurry of media attention ensued. Some labelled him a racist; others thought he should be removed from his post, claiming he had lost his objectivity. But many on the Stoney Reserve hailed him a hero as he attempted to uncover the dark challenges and difficult history many First Nations communities face.
‘At a time when government is proposing new “tough on crime” legislation, Judge Reilly provides an enlightening and timely perspective. He shows us why harsher punishments for offenders don’t necessarily make our societies safer, why the white justice system is failing First Nations communities, why jail time is not the cure-all answer some think it to be, and how corruption continues to plague tribal leadership.”
What I remember about Reilly is the time he refused to give the Crown an adjournment when a witness (the woman in a domestic abuse/sexual assault situation) failed to show up on two occasions. I thought his remarks were important because he wanted to get a message across to the Crown that they should stop just throwing these women into court without any support whatsoever. In his decision, Reilly wrote:
“…unless some over-all program is established to deal with the widespread incidence of this problem in this community, the hit and miss prosecution of a few offenders will do more harm than good. If offenders are unsuccessfully prosecuted they will get the message that they are above the law, and I believe that they will continue to be unsuccessfully prosecuted until something more is done for victims than just handing them a subpoena and leaving them to their own resources to deal with all of the fears and difficulties that they encounter in our justice system. I therefore refused this adjournment, and will refuse others where the Crown is unable to satisfy me that real steps have been taken to prepare the witness.”
This is hardly a judge who is indifferent or blase about sexual assault or unconcerned about victims.
On the second aspect of Reilly’s comments, here’s a reality check. There are, in fact, different kinds of sexual assaults and they do result in differing sentences. An unwanted kiss is a sexual assault. It does not attract a penetentiary sentence; rape usually does.
The Criminal Code was amended when I was a young criminal defence lawyer/prosecutor to remove sections that delineated those differences. Words like ‘rape’ were removed, because of concerns at the time that naming the crime specifically served to victimize the victims further. But changing the words doesn’t change the way the acts are dealt with by the courts.
One other fact to note. The Harper government’s scale of payments for abuse in the horrific claims of sexual assaults in Indian Residential Schools uses those very distinctions between types of sexual assaults as the basis for its adjudicated awards. A claimant who was anally or vaginally raped gets more compensation than someone who was fondled or who had nude photographs taken of them, or was digitally penetrated.
Those Independent Assessement Process compensation criteria (which I helped administer both as a Senior Adjudicator and later a Deputy Chief Adjudicator) clearly recognize that sexual assaults vary from the less serious to the more serious, and those distinctions can include the effect and impact on the victim as well.
Given all of that, I think it’s a bit rich for the Tories to jump all over Reilly for saying something in a radio interview that they’ve long accepted as government policy. And for Fantino, who should know better, for suggesting that stating the obvious about what goes every day in court is somehow being ‘soft’ on crime.
Peggy’s regular blog posts on writing and getting published will resume on May 3rd, after the Canadian election.