FIGHTING MYTHS AND STEREOTYPES IN THE JUDICIAL PROCESS: A PERSPECTIVE ON THE VOICE OF JUSTICE L’HEUREUX-DUBÉ IN R. V. SEABOYER AND R. V. EWANCHUK
Written by Vanessa Henri.
Following her criticism that Justice McClung’s judgment in R. v. Ewanchuk was tinged with myths and stereotypes, Justice L’Heureux-Dubé saw her personal life put on display in Canadian newspapers. The scrutiny began when Justice McClung wrote a letter to the National Post, which implied that she was responsible for the high rate of suicide among young males in Québec. According to researcher Shannon Mae Sampert, whose thesis Bitch on the Bench covered the media reaction to Ewanchuk, National Post coverage portrayed Justice L’Heureux-Dubé as a feminist and scrutinized her personal convictions and her husband’s suicide (yet, ‘McClung’s father’s suicide was never discussed in the Post).
Sampert describes that this coverage reverted to “myths and stereotypes,” of Feminism. It was “depicted as being too powerful, as not representing women and as being anti-male.” Ironically, this media coverage demonstrated one of the most convincing arguments in favor of Justice L’Heureux-Dubé’s position in R. v. Seaboyer, that we cannot trust public officers to prevent myths and stereotypes from playing a role in the judicial process because judges are the product of a society in which these prejudices are so deeply embedded, that it is blind to them.
Seaboyer concerned the admissibility of the prior sexual history of a complainant in a case of sexual assault. Chief Justice McLachlin, speaking for the majority, framed the issue as concerning the right of the defense to cross-examine a complainant. Justice L’Heureux-Dubé, dissenting in part, framed the issue as the “ relevance, myths and stereotypes in the context of sexual assault”:
Like most stereotypes, they operate as a way, however flawed, of understanding the world and, like most such constructs, operate at a level of consciousness that makes it difficult to root them out and confront them directly. This mythology finds its way into the decisions of the police regarding their “founded”/“unfounded” categorization, operates in the mind of the Crown when deciding whether or not to prosecute, influences a judge’s or juror’s perception of guilt or innocence of the accused and the “goodness” or “badness” of the victim, and finally, has carved out a niche in both the evidentiary and substantive law governing the trial of the matter.
Justice L’Heureux-Dubé’s minority judgment exposes current stereotypes, and the degree to which they pervade every step of the judicial process, from the decision to pursue the decision to charge to the verdict. She provides empirical and social evidence that police and judicial officials frequently hold misconceptions as to who can or cannot be a victim of rape. She also emphasizes that “this baggage belongs to us all,” including majoritarian judges.
This empirical approach to myths and stereotypes is significant in the context of feminism in the early nineties. A year before Seaboyer was written, Katherine Bartlett’s article “Feminist Legal Methods” was published in the Harvard Law Review. Bartlett wrote that “methodological issues matter because methods shape one’s view of the possibilities for legal practice and reform.” While Justice L’Heureux-Dubé does not explicitly endorse Bartlett’s approach, her judgment is consistent with it.
For instance, the positional stance presented by Bartlett recognizes that ultimately one’s ‘“concept of knowledge [is] based on experience.” For example, a woman’s position of exclusion is a meaningful source of knowledge. Justice L’Heureux-Dubé applies a similar framing to public officers. By stating that they are not exempt from mythical and stereotypical assumptions, she implies that they have learned from their experience as participants in a patriarchal society.
Positionality centres on the fact that “truth is partial in that the individual perspectives that yield and judge truth are necessarily incomplete. No individual can understand except from some limited perspective.” Justice L’Heureux-Dubé argument is similar. She argues that individual police, judges, and prosecutors are limited by their perspectives, which in turn are conditioned by society. Their “truth” is partial, as it is tinged with myths and stereotypes.
Support for Justice L’Heureux-Dubé’s argument about the prevalence of myths and stereotypes in society is, ironically, found in the media’s coverage of the Supreme Court’s judgment in Ewanchuk. According to Sampert:
“[The Globe and The National Post] treated the crime as if it was a romance gone bad, using the terms non-violent sex, a clumsy pass, romance, and sexual advances to describe the sexual assault. More troubling perhaps was the fact that both newspapers made references to what the woman was wearing at the time of the attack. The Post referred to the victim’s dress in more than a third of its stories on the assault, while the Globe discussed what she wore in more than forty percent of its stories. One Globe columnist went so far as to call the victim “scantily dressed” (Repo, 04 March 1999, p. A15). Both papers also discussed the victim’s sexual history. Justice McClung was implicit in engendering this news frame because he told the Post that the victim was not “lost on her way home from the nunnery” (Justice McClung in Ohler, 27 February 1999, p. A.1).”
Both the Seaboyer and Ewanchuk judgments came during an important era of feminist scholarships, commonly referred to the “third wave.” The era was particulary concerned with the stereotypes which tinged the media portrayal of women. The coverage of the Ewanchuk case provides an example of the focus of feminist movement’s new inquiry into stereotypes.
Justice L’Heureux-Dubé’s conclusions in Seaboyer and Ewanchuck are consistent with the thought of this school of feminisim. For example, the victim in Ewanchuk was a young woman with a child, who shared an apartment with her boyfriend and another couple; certainly not the typical upper-class white woman. Myths about the victim’s character are prominent in Justice McClung’s judgment, and provide a basis for Justice L’Heureux-Dubé statements about prejudice around consent in rape cases.
Today, while prejudice in judicial decisions on sexual assault has diminished; it nevertheless persists with detrimental impact on women. The focus of the problem has moved from the wording of laws, to the everyday practice of police, judges and prosecutors. The SlutWalksof 2011, in responses to Toronto police officer Michael Sanguinett’s opinion that “women should avoid dressing like sluts in order not to be victimized” is a notable example.
 This work was largely inspired by an academic discussion in the course Advanced Criminal Law (Sexual Crimes) given by Me Robert Israel and Me Caroline Paquin.
R. v Ewanchuk,  1 SCR. 330, 169 DLR (4th) 193 [Ewanchuk].
Shannon Mae Sampert, Bitch on the Bench: Canada’s national newspapers and feminist ideology in the “no-means-no” case (M.A. Thesis, University of Calgary, 2000) at 133 [unpublished].
Ibid, at 132.
R. v Seaboyer,  2 SCR 577, 1991 4 OR (3d) 383 [Seaboyer].
Ibid, at 643.
 Ibid, at 654.
Ibid, at 659.
Ibid, at 686.
Katherine T. Bartlett, “Feminist Legal Methods’’ (1990) 103:4 Harvard Law Review 829-888.
Ibid, at 830.
Ibid, at 880.
Ibid, at 881.
Sampert, supra note 2, at 134.
 Rebecca Walker, “Becoming the Third Wave”, Ms Magazine (January 1992) 39.
 Marie Hardin and Erin Whiteside, “From Second-Wave to Poststructuralist Feminism” in Angharad N. Valdivia ed. The International Encyclopedia of Media Studies (West Sussex: Blackwell Publishing Ltd, 2013).
 Ewanchuk, supra note 1, at 372.
Curtis Rush, “Cop apologizes for ‘sluts’ remark at law school”, Toronto Star (18 February 2011) online: Toronto Star <http://www.thestar.com/news/gta/2011/02/18/cop_apologizes_for_sluts_remark_at_law_school.html>; Sarah Bell, “Slutwalk London: Yes means yes and no means no”, BBC News (11 June 2011) online: BBC News <http://www.bbc.co.uk/news/uk-13739876>