Russell Wangersky

The political circus continues to the south of us and, chances are, bare-knuckle politics by a crowd of venal and privileged old men will continue to set the tone, serving their cronies and their paymasters.

As part of that, even after his bizarre, angry, tearful performance last week, Brett Kavanaugh will probably find his way into a seat for life on the U.S. Supreme Court.

But what I keep getting stuck on is what would have happened if that shoe was on a different foot; if Kavanaugh’s yelling/crying performance had been given by a female prospective jurist, the decision that she was unfit for the job would have come almost immediately.

I can tell you that, most likely, they would be told they were too emotional and hysterical and not analytical enough to do their job fairly.

But don’t take my word for it.

All you have to do is look at one recent Ontario Superior Court of Justice case.

Just last month, a female judge with 23 years on the bench, Judge Anne Molloy, gave her answer to a defence request that she recuse herself from a case and declare a mistrial, in part because she appeared to be emotional when two graphic cellphone videos were played in court. (Molloy is originally from Newfoundland, is well known for her strong record of jurisprudence.)

Molloy showed why she is so well known for her jurisprudence, taking the request apart analytically.

“It may well be the case that I looked disgusted while watching one or both videos. They depict a terrified woman being demeaned and brutalized, at times with a knife to her face. In the second video, the bruising on her face from being punched is also visible. … However, what I can say definitively is that the expression on my face had absolutely nothing to do with any ultimate conclusion I might reach as to the guilt or innocence of the accused in this case,” Judge Molloy wrote. “After 23 years as a trial judge in Toronto, there is not much horror I have not seen. I do not shirk from my responsibility to view such subject matter in the course of the trial process. … One can be revulsed by photographs of a butchered murder victim, without losing sight of the requirement to be satisfied beyond a reasonable doubt as to the identity of the perpetrator. Likewise, one can be ‘disgusted’ by images of sexual violence, without losing sight of the requirement to be satisfied beyond a reasonable doubt as to the guilty mind of the alleged perpetrator.

“If what (the defence) is suggesting is that other trial judges before whom he has appeared are better at concealing their reactions than I was that day, I expect he is probably right. I am not much of an actress, nor am I known to be a person whose face is completely unreadable. … Judges are human beings who will have the same range of emotions as other human beings, regardless of their role as impartial decision-maker or the fact that they have seen many horrible images to which the general public is not routinely exposed. Indeed, I would suggest that if there are judges who do not feel such emotions, or who have become indifferent to human suffering over time, those judges are less equipped to be fair and impartial than are their counterparts with common human emotions.”

Molloy refused to grant a mistrial.

Ask yourself now, in all honesty: would a male judge have been taken to task in the same way over the same circumstances?

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