Note to (former judge &) electoral candidate: “Nix the Nuance. It’s an Election Campaign!”

Playing dirty in politics: no one likes it, but everyone expects it, especially during elections.

Routinely, attempts by idealistic candidates to make nuanced and in-depth analysis of issues is spurned, abused and replaced with shallow, simplistic statements, ungrounded assertions and mud-slinging.

One of the latest recipients of this mud-slinging is Liberal candidate John Reilly, a former Alberta Provincial Court Judge. On a radio interview with Calgary’s QR77, he discussed the Tory’s crime agenda. He attempted to provide some nuanced, realistic, thoughtful insight on mandatory minimum sentences. The Tories are hoping that this reasoned analysis will cost Reilly his political aspirations.

If you have not read over the transcript of that infamous and grossly misinterpreted radio interview, then reserve your judgement and discard any attacks you have heard so far. Read the transcript here.

On the program, John Reilly distinguished between two opposing views on the purpose of criminal law: punishment and vengeance versus reduction of crime and rehabilitation. He mentioned the hazards of Tory laws that will put thousands more people into our jails, will cost us billions, and will NOT reduce crime, but will have an overall harmful effect (which tends to be greater recidivism). When the conversation turned to mandatory minimum sentences, the former judge pointed out that you cannot treat all crimes the same way.

The host asked if there are occasions when someone should not go to jail after having committed an offence (and he listed a series of offences that are generally considered serious.) Reilly contended that in some cases, a jail sentence or a mandatory minimum sentence (as the Tories are proposing) of three years is not appropriate. The examples he cited were: some drug offences, some assaults causing bodily harm, and some sexual offences. In each case, he gave an example of a real offender that had been before him and why, in those circumstances, a mandatory minimum sentence of over two years was not appropriate (though a conviction and a different sentence, including jail, could be appropriate.)

If Judge Reilly had focused only on the small-time drug dealer and addict in need of help, or on his aggravated assault example of a drunk woman who seriously injured a man at whom she was trying to throw the beer in her glass, and argued that given the facts of those cases and the accuseds’ backgrounds, they should not be sent to jail for three years, no headlines would have been made. No one would have called his comments outrageous or shameful.

But then, heaven forbid anyone should speak of sexual assault with some nuance. In my opinion, it’s not that Harper or the Conservatives are champions of women’s rights and a protector of woman victims, but that they saw an opportunity to feed Reilly and the Liberals to the vultures, and they seized it. In so doing, they (and anyone else who outright condemned Reilly) removed all nuance and all intelligence out of the discussion of sentencing and mandatory minimum sentences.

But what did Judge Reilly really say? Did he say that men who commit sexual assault should not be held accountable? No! Did he say that no perpetrators of sexual assault should go to jail? No! Did he say that no doesn’t always mean no? No!

What he did say is that a judge needs to examine the facts of each case, as well as the accused person who is before him. (Judges routinely do this in every case. Is the person a first-time offender? Is he remorseful? Has he taken any steps to make a positive change? Was he in a position of trust? Etc. ) He said that there are different kinds of sexual assault, and that they should not all be treated the same.  Indeed, not every sexual assault deserves a three-year penitentiary sentence, and some deserve way more.

Harper and everyone else who’s vilified Reilly want to suggest that all sexual assaults should have an arbitrarily set minimum penitentiary sentence: whether you are a 19-year-old who makes a condemnable, wrong, and misguided decision (for which Judge Reilly never said you should not be held accountable) or a serial sexual predator who creeps into women’s homes at night and assaults them, or a priest in a position of trust who abuses young people in his charge. Judge Reilly was merely saying that these different accused persons should not be treated the same way. And he is right: take a hypothetical sexual assault example: an 18 or 19-year-old who has no prior convictions, who regrets his actions, wants to apologize, or to take some courses related to gender issues, one who made a terrible, wrong and one-time decision while intoxicated, should not be sent to the penitentiary for three years. A judge should be permitted to examine the entire context and make the call for the appropriate sentence.

It is even entirely possible that, in this specific case, the victim of the sexual assault, had she been involved in the decision-making, would have of her own free will and using her own sense of what happened, her own knowledge of the perpetrator and her own rational mind, asked for a less Draconian sentence than 3 years in the pen.

What is shameful is that even Reilly’s own party leader permitted the lies and misconceptions about what Reilly said to continue. In attempting to distance himself from Reilly’s alleged stance, Michael Ignatieff failed to seize an opportunity (I will admit, not the easiest one) of saying, “Hey, this judge never said we should overlook or go easy on sexual assault. He simply said that there are different kinds of criminal acts and they should be treated differently.” Igantieff could have further clarified that Reilly’s comments in no way exonerate or give an excuse to men who do not obtain a woman’s consent prior to any sexual acts. He could have even added that Reilly’s cursory description, in the circumstances, was problematic because it could mislead some idiotic misogynists to inappropriately conclude that a woman’s sexual attitude obviates the need to get her consent.  Instead, he said that Reilly’s comments were “outrageous” and “unacceptable.”

Ignatieff didn’t fire his candidate, but he did not stand up for truth, justice, intelligence and nuance either. Unfortunately, this cowardly attitude has been prevalent in the Liberal (and, to some extent, NDP) approaches to crime.

While Reilly did not use the smartest example, politically, to make his point, and while his explicit description of the sexual assault is too much for our conservative society and likely intensified the negative reaction, he did not, as the Tories would have us believe, excuse sexual assault or lay the blame for it on women.

In this last debacle, it was not just John Reilly who was turned into a dartboard and shot at by Conservatives, Liberals and the media alike. Justice was also made a victim. Humanity and our struggles were turned into a two-dimensional comic, where hyperbole ruled the day, context was completely ignored, and deep, rational analysis was sacrificed.

In the end, all Canadians lose when we eliminate any nuance and analysis from our discussions about the justice system.

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1 Comment

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One response to “Note to (former judge &) electoral candidate: “Nix the Nuance. It’s an Election Campaign!”

  1. Good post! I recall all the Conservatives wanted minimum three year sentences for any crime committed with a gun. Then, a police officer used his service revolver to shoot Dudley George at Ipperwash. It was held to be criminal negligence causing death. Oh no, Conservatives said, we didn’t mean POLICE OFFICERS!

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