Dewar case teaches many lessons

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Manitoba Justice Robert Dewar gave a convicted rapist a two-year conditional sentence. (KEN GIGLIOTTI / WINNIPEG FREE PRESS ARCHIVES)

If anger, confusion and frustration are the most common emotional responses for someone who has been sexually assaulted, now the public at large has an idea how a rape victim feels.

This week's Free Press story by Mike McIntyre about what a judge said during a sexual assault sentencing in Thompson eight days ago has unleashed the full extent of those raw emotions right across the country.

Plus one more.

Outrage.

In explaining why 40-year-old Kenneth Rhodes will serve a two-year, curfew-bound conditional sentence for a crime dating back nearly five years, Justice Robert Dewar said the "protection of society is not advanced one iota by putting Mr. Rhodes in jail."

An ironically liberal point of view for a judge appointed just a year-and-a-half ago by the law-and-order Harper Conservatives.

But that sentencing decision -- which isn't the only ironic twist along this trail -- isn't what really set the howling hounds loose with Justice Dewar's scent in their flared nostrils.

Oh, no.

It was the insensitive and, alas, ignorant way Justice Dewar characterized the perpetrator -- who was 36 at the time -- as a "clumsy Don Juan," while describing the then-20-year-old victim as being braless in a tube top.

The judge -- who has a nerve calling anyone clumsy -- went stumbling on.

"This is a different case than one where there is no perceived invitation," the judge said during the sentencing hearing on Feb. 18, more than four months after he found Rhodes guilty of forcing himself on the young woman on a dark highway in the summer of 2006. Dewar, who has an adult daughter of his own, tried to downgrade the seriousness of the assault by calling it a case of "misunderstood signals" and "inconsiderate behaviour."

Then, tripping over his tongue and his black judge's robes at the same time, Dewar attempted not to point the finger at the victim, while pointing it at the victim.

"I'm sure whatever signals were sent that sex was in the air were unintentional," he remarked, in the process re-victimizing the victim.

But, having said that, this story really isn't about one bumbling judge.

Rob Dewar, as he's known to his legal pals, isn't a stupid man, no matter how he looks today. He was a highly respected lawyer and perhaps he could have been a highly respected judge -- if he had been assigned to the law he's best at.

Dewar was a civil litigator.

He knows about corporate and commercial litigation, insolvency, professional liability, disciplinary matters, construction disputes and insurance.

Not sexual assault cases.

Not criminal cases, at all, really.

He has no experience.

That's partly why new appointees to the bench are sent to a kind of school for judges, to familiarize themselves with areas of law they haven't practised. But book-learning the Criminal Code isn't the same as having years of court time as a Crown prosecutor or defence counsel.

So, if there's a lesson to learn for the Manitoba judicial system maybe it's this: judges who were civil litigators should be hearing those kinds of cases, and judges who were defence counsels or Crown attorneys should specialize in those cases. Manitoba already has a court that deals only in family law.

Why not other specialty Queen's Bench courts?

But there's something else that's suggested from what I'll call the Dewar case. Potential judges should have their attitudes checked before they're appointed.

Including their attitudes toward female sexual assault victims.

I'm not saying that Justice Robert Dewar is someone who has a bad attitude toward anyone.

But when a Crown attorney stands up prior to sentencing -- as Sheila Seesahai did in this case -- and warns that "this is a very serious" case, that the decision is important, that it raises "a number of issues relating to public confidence in the sentencing process," and suggests it will be heard far and wide, Rob Dewar should have listened.

Or have his hearing checked.

But, as I was saying, there's another irony to this case.

If the assault had happened a year later, Justice Dewar would have had no choice but to send Rhodes to jail because in 2007 Ottawa enacted a mandatory a minimum jail sentence on this kind of sexual assault.

He could have done it in this case, too.

All of which suggests, perhaps, that Justice Dewar might want to head back to judge's school. Or, what the judiciary jokingly calls it themselves, "Dumb Judges School."

Which would be funny.

If it weren't so sad.

gordon.sinclair@freepress.mb.ca

Republished from the Winnipeg Free Press print edition February 26, 2011 A5