Manitoba judge is dead wrong in rape case

To borrow from the league-leading Alberta Court of Appeal, whose best minds are merely light-years ahead of the rest of the country in their treatment of sexual assault (not to mention in their use of plain and muscular English), the "starting point" for a discussion of Manitoba Judge Robert Dewar may just be that he is a blockhead.

But he's also dead wrong on virtually every front.

The judge, named to the Manitoba Court of Queen's Bench about 18 months ago after a career as a civil litigator, finds himself at the centre of a firestorm for comments he made recently while giving a convicted rapist a conditional sentence - that is, no jail time - of two years.

He called the rapist, one Kenneth Rhodes, a "clumsy Don Juan," described the case as one of "misunderstood signals and inconsiderate behaviour" and blamed the 26-year-old victim for creating "inviting circumstances." He noted that she and a girlfriend on the night in question wore tube tops with no bras (to my faint recollection, that is a given with tube tops), high heels and lots of makeup, said they wanted to party and left the impression that "sex was in the air."

Judge Dewar convicted Mr. Rhodes, who had pleaded not guilty on the grounds that he believed the woman had consented, but then gave him a kiss.

It is to that very gap between conviction for a serious offence and a sentence that doesn't reflect the gravity of the crime - judges are all over the map - that the Alberta high court first began to address itself almost 30 years ago, when it discussed the idea of "starting points."

In 1982, in a case called R v Johnas, the court set a starting point - three years - for an unsophisticated armed robbery.

Three years later, the court discussed and applied the same principle in a case called R v Sandercock.

That case famously, and controversially it appears, set three years as the starting point that judges should use in determining sentences for major sexual assault - that is, non-consensual vaginal intercourse and other equally serious sexual offences.

Among the common-sense conclusions from that three-member panel, all men, was this: "It is surely not provocation, for example, simply to be a woman, or to be attractive, or to be prettily attired."

Judges across the land whinged about the damage sentencing starting points would do - chiefly, put some limits on their vaunted discretion - and tried mightily in their judge-ly ways to nullify starting points.

Thus, as Chief Justice Catherine Fraser smartly noted, "the problems associated with some conditional sentences did not end," despite the Sandercock ruling.

Fast forward to the fall of 2009, when a five-member panel of the high court headed by Chief Justice Fraser heard an appeal of the sentence in another case, in which the rapist assaulted the victim after she had passed out and was sleeping in her family home.

He got a whopping 90 days in jail to be served intermittently, plus three years probation.

The Crown was appealing, the defence relying on four other recent high court decisions that it said disputed starting-point sentencing in general, and in particular, impugned the Sandercock three-year starting point. So the Crown had applied for and got the nod to have the court reconsider these four sexual assault decisions as well.

This case, called R v Arcand, provides in the majority decision, written by Chief Justice Fraser and Justices Jean Côté and Jack Watson, the most intelligent analyses on starting points, conditional sentences, sexual assault - and a whole hell of a lot of other things. The decision was released only last December.

My favourite part is the majority's frank talk on what they call five sentencing truths - that sentencing is hard, and controversial; that if judges knew the facts of a given case, they would all agree on the result, and that, the court said, "is simply not so"; that judges "are not the only ones who know truths one and two and thus judge-shopping is alive and well in Canada - and fighting hard to stay that way"; that without a reasonable uniformity of approach to sentencing among judges, "many of the sentencing objectives and principles … are not attainable. This makes the search for just sanctions at best a lottery, and at worst a myth" and four, that "Pretending otherwise obscures the need for Canadian courts to do what Parliament has asked: minimize unjustified disparity in sentencing while maintaining flexibility."

Truth No. 5? "The final truth.

"If the courts do not act to vindicate the promises of the law, and public confidence diminishes, then Parliament will."

Parliament has.

In 2007, it removed from judges any power to grant conditional sentences for any sexual assault or other serious personal injury offence.

In other words, the sentence Judge Dewar handed Kenneth Rhodes, in that smarmy language, is now forbidden.

Mr. Rhodes had the good luck to rape - er, behave inconsiderately toward - his victim by a dark highway outside Thompson in 2006, the year before the law took effect.