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Federal judge in Hawaii puts Trump travel ban on hold

Ben Nuckols and Gene Johnson, The Associated Press | posted Thursday, Mar 16th, 2017

Hours before it was to take effect, President Donald Trump’s revised travel ban was put on hold Wednesday by a federal judge in Hawaii who questioned whether the administration was motivated by national security concerns.

U.S. District Judge Derrick Watson also said Hawaii would suffer financially if the executive order blocked the flow of students and tourists to the state, and he concluded that Hawaii was likely to succeed on a claim that the ban violates First Amendment protections against religious discrimination.

“The illogic of the government’s contentions is palpable,” Watson wrote. “The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.”

Trump called the ruling an example of “unprecedented judicial overreach” and said his administration would appeal it to the U.S. Supreme Court.

“We’re going to win. We’re going to keep our citizens safe,” the president said at a rally in Nashville. “The danger is clear. The law is clear. The need for my executive order is clear.”

The judge issued his 43-page ruling less than two hours after hearing Hawaii’s request for a temporary restraining order to stop the ban from being put into practice.

The ruling came as opponents renewed their legal challenges across the country, asking judges in three states to block the executive order that targets people from six predominantly Muslim countries. Federal courts in Maryland, Washington state and Hawaii heard arguments Wednesday about whether it should be allowed to take effect early Thursday as scheduled.

In all, more than half a dozen states are trying to stop the ban.

Watson made it clear that his decision applied nationwide, ruling that the ban could not be enforced at any U.S. borders or ports of entry or in the issuance of visas.

Nominated to the federal bench by President Barack Obama in 2012, he is currently the only Native Hawaiian judge serving on the federal bench and the fourth in U.S. history. He received his law degree from Harvard in 1991.

In Maryland, attorneys told a federal judge that the measure still discriminates against Muslims.

Government attorneys argued that the ban was revised substantially to address legal concerns, including the removal of an exemption for religious minorities from the affected countries.

“It doesn’t say anything about religion. It doesn’t draw any religious distinctions,” said Jeffrey Wall, who argued for the Justice Department.

Attorneys for the ACLU and other groups said that Trump’s statements on the campaign trail and statements from his advisers since he took office make clear that the intent of the ban is to ban Muslims. Trump policy adviser Stephen Miller has said the revised order was designed to have “the same basic policy outcome” as the first.

The new version of the ban details more of a national security rationale. It is narrower and eases some concerns about violating the due-process rights of travellers.

It applies only to new visas from Somalia, Iran, Syria, Sudan, Libya and Yemen and temporarily shuts down the U.S. refugee program. It does not apply to travellers who already have visas.

“Generally, courts defer on national security to the government,” said U.S. District Judge Theodore Chuang. “Do I need to conclude that the national security purpose is a sham and false?”

In response, ACLU attorney Omar Jadwat pointed to Miller’s statement and said the government had put out misleading and contradictory information about whether banning travel from six specific countries would make the nation safer.

The Maryland lawsuit also argues that it’s against federal law for the Trump administration to reduce the number of refugees allowed into the United States this year by more than half, from 110,000 to 50,000. Attorneys argued that if that aspect of the ban takes effect, 60,000 people would be stranded in war-torn countries with nowhere else to go.

Chuang made no immediate ruling.

In the Hawaii case, the federal government said there was no need to issue an emergency restraining order because Hawaii officials offered only “generalized allegations” of harm.

Jeffrey Wall of the Office of the Solicitor General challenged Hawaii’s claim that the order violates due-process rights of Ismail Elshikh as a U.S. citizen who wants his mother-in-law to visit his family from Syria. He says courts have not extended due-process rights outside of a spousal relationship.

Neal Katyal, a Washington, D.C., attorney representing Hawaii, called the story of Elshiskh, an Egyptian immigrant and naturalized U.S. citizen, “the story of America.”

In Washington state, U.S. District Judge James Robart – who halted the original ban last month – heard arguments in a lawsuit brought by the Northwest Immigrant Rights Project, which is making arguments similar to the ACLU’s in the Maryland case.

Robart said he is most interested in two questions presented by the group’s challenge to the ban: whether the ban violates federal immigration law, and whether the affected immigrants would be “irreparably harmed” should the ban go into effect.

He spent much of Wednesday’s hearing grilling the lawyers about two seeming conflicting federal laws on immigration – one that gives the president the authority to keep “any class of aliens” out of the country, and another that forbids the government from discriminating on the basis of nationality when it comes to issuing immigrant visas.

Robart said he would issue a written order, but he did not say when. He is also overseeing the challenge brought by Washington state.

Attorney General Bob Ferguson argues that the new order harms residents, universities and businesses, especially tech companies such as Washington state-based Microsoft and Amazon, which rely on foreign workers. California, Maryland, Massachusetts, New York and Oregon have joined the claim.

Why anti-Trump travel boycotts won’t work

Nick Taylor-Vaisey | posted Wednesday, Mar 15th, 2017

Banning travel from several predominantly Muslim countries, as President Donald Trump has decreed by executive order, is a blunt instrument that makes life hell for innocent people. Personal travel boycotts, a trendy reaction in Canada and around the world to the ban, are just as blunt—and easier to impose. They’re also a terrible antidote to whatever ails our American friends.

Canadian academics are boycotting conferences south of the border. Canadian authors like Linwood Barclay are calling off public appearances. Canadian tourists are taking a break from visiting, say, the Grand Canyon until the next president’s inauguration. These boycotts are well-meaning nods to the less privileged among us, typically people whose recent lineage traces to red-flagged countries—the six nations targeted in Trump’s executive order, but of course many others around the world—and who are given much grief at the border because of how they look or sound.

We’ve recently learned about Fadwa Alaoui and Manpreet Kooner, two Canadian citizens denied entry into the United States and incomprehensibly told they required immigrant visas. Alaoui wanted to give her son, stricken with cancer, a change of scenery for the day. Kooner wanted to visit a spa. Both were left understandably shaken, and neither found any justice at the end of their nightmares.

We all know someone who’s now more nervous crossing the border than even just a few weeks ago. Boycotts in solidarity are a natural response, both on principle and because of our perceived spending power. Maybe a united world could repeat the perceived effect that boycotts and sanctions arguably had on, say, Apartheid in South Africa. Withholding a couple thousand dollars in delegate fees, sightseeing adventures or duty-free liquor could add up, if only tens of thousands of us would join forces and punish America for its president’s destructive immigration policy.

But that’s a big “if only.” In 2014, Canadians tourists spent 23 million nights and $21 billion in the U.S. It would take hundreds of thousands of individual boycotts to make a dent in that flow of travellers. On top of that, the broader Canada-U.S. economic relationship—our exports to the U.S. totalled $392 billion in 2016—would dwarf the impact of even the most ambitious border boycott imaginable.

Last year, the Freakonomics podcast mused about the effectiveness of consumer boycotts. The episode’s basic conclusion was that they can maybe sorta work, but mostly don’t work. That said, Brayden King, a professor at Northwestern University, argued that focused boycotts, even if they fail to financially drain their targets, can at least hit a company’s reputation where it hurts.

But whose reputation do travel boycotts threaten? All Americans? Or are they meant to force change at the polls in four years? That’s a long time to pack up and abandon the sort of exchanges that, in the meantime, help us better understand America’s struggle to come to terms with itself—and even lend an ear.

FILE - In this Wednesday, Dec. 7, 2011 file photo, a car approaches the United States and Canada border crossing in Lacolle, Quebec, south of Montreal. In April 2013, in its 2014 fiscal year budget proposal, the Department of Homeland Security requested permission to study a fee at the nation's land border crossings. The request has sparked wide opposition among members of Congress from northern states, who vowed to stop it. A fee, they say, would hurt communities on the border that rely on people, goods and money moving between the U.S. and Canada. (AP Photo/The Canadian Press, Ryan Remiorz, File)

(AP Photo/The Canadian Press, Ryan Remiorz, File)

Spend any time south of the border, and it’s impossible not to trace a quiet struggle there—less a resistance than an attempt to live adjacent to, if not precisely within, Trump’s vision of the country. A counterculture gone mainstream that might come to define many American lives.

Visit San Diego and hear from an airport-shuttle driver who lives in Mexico but works five days a week in the city. He’ll tell you that his traditional run-around at the border has worsened since January, but somehow sounds cheerful—and appears to be plugging away at a mock citizenship test sitting in a pile on the passenger’s seat.

Head to Grand Canyon, which will remain intact in four or eight years—even a bellicose president is nowhere near as mighty as a river that’s spent five million years carving a mile-deep gorge—and keep in mind that the non-profit Grand Canyon Association, which supplements threatened federal funding for educational tours and trail maintenance, counts on all those tourist dollars spent on magnets and postcards.

Strike up a conversation with a Navajo artist at the Four Corners monument where Utah and Colorado meet Arizona and New Mexico at a tidy crosshairs landmark. She’ll tell you how Navajo tend to vote Democrat, but some voted for Trump because of an apparent aversion to women leaders (a so-called “buckskin ceiling”). She’ll also tell you that her kids, who are headed to college, can’t understand their grandmother’s language. And then she’ll tell you she’s a Washington Redskins fan, and she’s wearing that toque not to reclaim the logo, but because she kind of likes it.

If more direct resistance is your thing, drop in to Sweetwater Harvest Kitchen in Santa Fe, which tracks donations to the Standing Rock protest (“$360 sent to Water Protectors Legal Collective, 2/1/17”). They can use the cash visitors spend on organic scrambled eggs and avocado salads. Just more Americans who live behind enemy lines in their own country.

No boycott can replace a genuine exchange of ideas between a Canadian trying to make sense of the world and a hard-working Mexican who aspires to be American or a non-profit conservationist who can explain the genesis of Grand Canyon or a Navajo artist who defies assumptions or a cafe that wears its activism on its cash register.

And no boycott can dismantle the crooked fairy tales of bigots, born out of bitterness in a country they no longer know. “Feels like the calm before the storm, doesn’t it?” says a man filling his gas tank at a station outside Albuquerque. “All these shabby businesses, run by Arabs.” Had he paid inside the store, he’d have encountered a white cashier, and if he’d bothered to ask, he’d have learned the station’s owner was a (white) Mormon who lived out of state. Witnessing that remarkable detachment from the truth, packed in such baldly erroneous assumptions, reveals one pocket of a nation so divided people are unwilling even to talk to each other.

Admittedly, it takes a certain kind of obvious privilege to be in a position to call for constructive engagement with Americans, let alone answer it. The sort of person who goes to the airport and, instead of answering a barrage of probing questions, typically endures harmless small talk about the reason for their trip—a baseball game or a road trip or some other slice of American life.

That experience reeks of unfairness. Set against that preferential treatment, who could be blamed for refusing to cross the border in solidarity with Muslim people? But any collective cold shoulder would invite a tragic conclusion: we’d no longer hear those countless voices that tell the modern American story in all its beauty and ugliness.

As that country tears itself apart, we could all stay away and congratulate ourselves for the strength of our conviction. And we could stick to chatting up American tourists when they pay us a visit. But an honourable boycott won’t change much. And we’d all be more ignorant for it.

Toronto dealing with 37 mumps cases, four in schools

CityNews | posted Wednesday, Mar 15th, 2017

LOCAL INTERNET OUT

The number of mumps cases in Toronto has hit 37, with four of them in schools.

Those four people are either staff or students, Toronto Public Health said Monday, and they’ve all been in contact with someone who had the mumps.

“However, broader community spread of the mumps is now occurring in Toronto,” Toronto Public Health warned, adding that everyone should be up-to-date with their vaccinations.

Initially, Toronto Public Health said most people who contracted the virus from a bar attended businesses west of Yonge Street. Most of those infected were 18 to 35 years old, and either lived or attended bars downtown.

That has now changed.

Toronto Public Health is asking the public to take the following general precautions:

1) Check vaccination records for you and your child

Two doses of mumps vaccine (MMR, MMRV) are recommended for all individuals born in 1970 or later.
Children receive one dose after the first birthday (MMR) and a second dose at 4 to 6 years of age as part of Ontario’s Publicly Funded Immunization Schedule; check your child’s yellow immunization card.
Individuals born between 1970 and 1992 may have received only one dose as a child. If an adult is unsure about their vaccinations or has only received one dose of mumps-containing vaccine, a booster dose is recommended.

2) Watch for symptoms of mumps

The mumps infection causes fever, swelling of one or more salivary glands, loss of appetite, tiredness, and headache. If you or your child have symptoms of the mumps and are ill, please contact your health care provider and do not attend work or school.

3) Planning to travel

Ensure that your immunizations are up-to-date for you and all your family members before travelling.

‘That video is of my son’: The eerily parallel lives of a convicted cop and his victim

Avery Haines | posted Wednesday, Mar 15th, 2017

I woke up on Saturday morning to a Facebook message.

A message from one mom to another. Her son, who had spent Christmas dinner at my house a couple of years ago, had unwittingly played a starring role in an investigation I had just aired on CityNews called Convict Cops.

Graphic

The story was initially only supposed to be about numbers and the near impossibility of accessing those numbers. How many police officers had been convicted of a crime, and what happened to them after those convictions?

Getting the data from five police forces took weeks, and access to that information relied heavily on the varying goodwill of the different police services of York, Durham, Peel, Halton and Toronto. I discovered that at least 59 police officers across the GTHA had police tribunal hearings scheduled in the last four years for convictions ranging from domestic and sexual assault to weapons, drugs and drunk driving. Only five of those officers were fired following their convictions.

Toronto Constable Gary Gould was one of the cops who lost his job, after he was captured on his cruiser dash cam beating a drunk and handcuffed suspect.

When you watch that video, you likely make a snap judgement about both the cop and the spitter. Bad cop. Bad kid. But the truth is far murkier.

After the story aired, Gould reached out to me. I went to his house to interview him, and he shared a powerful story of what had happened in his life in the moments and years before he “snapped” and started wailing on a drunk suspect who had spit on him.

Gould made it very clear he’s not making excuses for what he did that night, but felt it was important for people know that he had been crying out for help for years, had tried to end his life a few months before the assault, was struggling with alcohol addiction, and felt Toronto police did nothing to try to get him help.

For me, hearing from Gary elevated the discussion about “convict cops” and launched a side-investigation into just what kind of services are available for officers suffering from job-related stress. His words reminded me that a numbers story is never just numbers. That each of those officers had untold backstories; that it’s never black and white; that life is a jagged space of grey; that everyone is someone’s mother, or father or son. It’s not about excuses, it’s about context and compassion.

The stories aired and, with Gary’s interview, the comments turned from condemnation of a “bad cop” to questions about the bigger issues of mental health and support for officers. There were a number of comments too, about the “drunk idiot” who deserved to be punched because, after all, what kind of a person spits in the face of a cop?

And then Saturday, the Facebook message from a stranger, the mother of my son’s friend who was captured in a video I had watched again and again as part of my research, not knowing that this “drunk idiot” was a 19 year old who’d been to my house for dinner.

I invited Chris back to my house this week. He’d watched the dash cam video again and again, having little to no recollection of that night. He’d never heard the backstory of the cop who laid a beating on him. I played him the interview.

A story about numbers all of a sudden became a story about two lives, so different and yet so eerily similar.

The mental health issues, the suicide attempts, the addiction, the cries for help, each losing their jobs when their darkest moments were captured on camera.

What are the odds that these two men would find each other at their very worst, and have those minutes of violence captured on camera. A moment in time that cost both of them their jobs, but also, ultimately, may have saved their lives.

Gary Gould, pointing to his head, told me: “Up here, I’m at the best I’ve ever been. It’s the first time I have felt happiness in a long, long time. I owe that strictly to being forced out of the Service. It was a blessing in disguise.”

Christopher, sitting by the same dining table where we had eaten a Christmas dinner together, told me he plans to go back to school and has been sober for nine months. “I want my mom to be happy. I want her to be happy with where I am heading in life. I want her to know that her son is okay.”

Christopher told me he’d never thought a cop could be going through the same things he was struggling with, that hearing Gary’s story made him wonder whether they were somehow destined to meet and change each other’s lives.  Now 23 years old, Christopher said if he met Gary Gould he’d likely cry and give him a hug. I called Gary last night to tell him about my interview with Christopher.

Before we said goodbye, he told me, if he met Christopher, he would return that hug, with gratitude.

Canadian students asked to design Google doodle for Canada’s 150th birthday

The Canadian Press | posted Wednesday, Mar 15th, 2017

Google is asking Canadian students to submit a design for the banner atop the search engine home page to celebrate Canada’s 150th birthday.

Students from kindergarten to Grade 12 have until May 2 to submit a Google doodle based on the theme “What I see for Canada’s future is?”

The winning student’s doodle – to be judged on “artistic merit, creativity and originality” – will be displayed on the Google.ca homepage for a day.

The winning “doodler” will receive a $10,000 scholarship, a $10,000 technology grant for his or her school and a paid trip to Toronto where the top doodle will be revealed on June 13.

Google says students can submit a doodle made from almost any medium, including computer code.

The winning doodle will be selected by Google employees and a panel of guest judges which includes federal Science Minister Kirsty Duncan.

Click here to download entry forms and contest rules.

Trump earned $153M and paid $36.5M in taxes in 2005

Jill Colvin and Jeff Horwitz, The Associated Press | posted Wednesday, Mar 15th, 2017

President Donald Trump earned $153 million and paid $36.5 million in income taxes in 2005, paying a roughly 25 per cent effective tax rate thanks to a tax he has since sought to eliminate, according to highly sought-after newly-disclosed tax documents.

The pages from Trump’s federal tax return show the then-real estate mogul also reported a business loss of $103 million that year, although the documents don’t provide detail. The forms show that Trump paid an effective tax rate of 24.5 per cent, a figure well above the roughly 10 per cent the average American taxpayer forks over each year, but below the 27.4 per cent that taxpayers earning 1 million dollars a year average were paying at the time, according to data from the Congressional Joint Committee on Taxation.

The tax forms were obtained by journalist David Cay Johnston, who runs a website called DCReport.org, and reported on MSNBC’s “The Rachel Maddow Show.” Johnston, who has long reported on tax issues, said he received the documents in the mail, unsolicited.

Trump’s hefty business loss appears to be a continued benefit from his use of a tax loophole in the 1990s, which allowed him to deduct previous losses in future years. In 1995, Trump reported a loss of more than $900 million, largely as a result of financial turmoil at his casinos.

Tax records obtained by The New York Times last year showed the losses were so large they could have allowed Trump to avoid paying taxes for up to 18 years. But Trump’s 2005 filing shows that another tax prevented him from realizing the full benefit of those deductions.

The bulk of Trump’s tax bill that year was due to the Alternative Minimum Tax, a tax aimed at preventing high-income earners from paying minimal taxes.

The AMT requires many taxpayers to calculate their taxes twice – once under the rules for regular income tax and then again under AMT – and then pay the higher amount. Critics say the tax has ensnared more middle-class people than intended, raising what they owe the federal government each year.

Were it not for the AMT, Trump would have avoided all but a few million dollars of his 2005 tax bill.

Trump’s campaign website called for the end of the AMT, which is expected to bring in more than $350 billion in revenues from 2016 to 2025.

As a candidate and as president, Trump has refused to release his tax returns, breaking a decades-long tradition. Although he initially promised to do so, he later claimed he was under audit by the Internal Revenue Service and said his attorneys had advised against it – though experts and IRS officials said such audits don’t bar taxpayers from releasing their returns.

The White House pushed back even before the release of the documents Tuesday night, saying that publishing the information was illegal.

“You know you are desperate for ratings when you are willing to violate the law to push a story about two pages of tax returns from over a decade ago,” the White House said in a statement issued on condition that it be attributed to an anonymous official, although the president has decried the use of anonymous sources.

The unauthorized release or publishing of federal tax returns is a criminal offence, punishable by a fine of up to $5,000 and up to five years in jail. But Maddow argued that MSNBC was exercising its First Amendment right to publish information in the public interest.

Trump long insisted the American public wasn’t interested in his returns and said little could be learned from them. But Trump’s full returns would contain key details about things like his charitable giving, his income sources, the type of deductions he claimed, how much he earned from his assets and what strategies Trump used to reduce his tax bill.

The issue was a major point of attack from his election rival Hillary Clinton, who suggested Trump had something to hide.

The White House has not said whether or not the president plans to release his returns while he’s in office. More than 1 million people have signed a White House petition urging the president to release them.

Associated Press writer Jonathan Lemire in New York contributed to this report.

1 dead, dozens treated after crashes, chemical spill on Hwy. 401

News Staff and The Canadian Press | posted Wednesday, Mar 15th, 2017

A crash involving at least 30 vehicles on a major highway east of Toronto on Tuesday killed a truck driver and caused a chemical spill, prompting police to evacuate the area and Kingston General Hospital (KGH) to declare a “Code Orange.”

Highway 401 will remain closed indefinitely in both directions between Mallorytown and Lansdowne, Ontario provincial police said Wednesday.

The hospital was treating the incident as an “external disaster” and had set up a decontamination bay for patients arriving from the scene, spokeswoman Meaghan Quinn said.

Non-critical emergency patients were being re-routed to Hotel Dieu Hospital, and the community was being asked to avoid KGH except for serious or critical emergency care.

Hospital officials said they admitted 29 patients from the incident. The driver of the tractor-trailer carrying the hazardous substance died.

At least 10 of the patients were first responders, who underwent decontamination and were held for observation as a precaution.

OPP said that seven firefighters, three police officers and 17 civilians were treated for exposure to the substance as a precaution. Frontenac paramedics said that three members of their team were also treated.

The crash was one of three that happened in poor weather at about 2 p.m. ET near Lansdowne.

OPP Const. Sandra Barr says the pile-ups on Highway 401 east of Kingston involved cars and about 15 transport trucks..

Barr says one of the transport trucks was leaking a toxic substance, which was later confirmed to be fluorosilicic acid.

Exposure to the chemical can cause irritation to the nose, throat, respiratory system, redness or swelling of the skin and severe eye irritation. Also, symptoms can take several hours to appear, which is why patients were being kept for observation.

Residences around the highway did not have to be evacuated, Barr says, adding that the evacuation was only applied to the highway and the people involved in the crash.

Around 8 p.m., Ministry of the Environment staff, including hazmat teams, arrived to evaluate the spill area.

“You really don’t necessarily know what’s travelling along these highways and your railways and they’re going through all of our towns and cities,” said Joseph Baptista, mayor of Leeds and the Thousand Islands, where the spill happened.

“For us, obviously, it’s a concern because we have a very busy stretch here along the 401 that goes through our municipality.”

The crash occurred in the eastbound lanes, but the highway was closed in both directions around the collision site. A cattle truck involved in the pile-uphad to wait for another truck to transport the animals.

Despite the poor weather conditions, including icy roads and blowing snow, Barr says before the crash, officers were trying to stop one motorist speeding at about 160 kilometres an hour on the highway, which has a 100-kilometre-per-hour limit. She says that incident was not related to the pileup.

The highway was expected to remain closed until at least midnight Tuesday.

Why Canada needs more female judges

Gillian Hnatiw | posted Tuesday, Mar 14th, 2017

She was discovered by the police after 1 a.m. in the back of a taxi. Legs propped up against the back seat, passed out and naked from her breasts down. The taxi’s driver, who was unknown to her until she hailed his cab moments before, had his pants undone and his seat reclined in a manner that gave him access to her naked bottom. He was frantically trying to hide her urine-soaked underwear.

At the sexual assault trial that followed in Halifax last year, the woman testified that she had blacked out and had no memory of what happened in the back of that cab. Her blood alcohol level had been three times the legal limit. The driver — the accused — did not testify. As the only person who could presumably remember the encounter, he offered no explanation at all.

Astonishingly, earlier this month, the judge concluded that he was left with reasonable doubt about whether the driver had sexually assaulted the unconscious, half-naked women in the backseat of his cab. It was possible, he determined, that she had climbed into the cab and consented to sexual activity with the driver, a stranger, mere moments before passing out.

Possible? Yes, in the way it is possible that my daughter did not consume the chocolate that was once encased in the wrappers I found under her bed. I did not see her eat the chocolate, and thus it is “possible” those chocolates met a different fate.

But reasonable? Not in my eyes. Not in the eyes of most women, many of whom have protested the decision. For something to be reasonable, it must have more than a passing whiff of reality. The idea that the young woman got into that cab and propositioned the driver in a fit of uninhibited lust is the stuff of pure, pornographic, male fantasy.

In recent years, issues of sexual assault have been in the headlines constantly, often highlighting the various ways the justice system is failing victims. As a lawyer who regularly represents these victims, I am asked (a lot) about what needs to change. There have been numerous suggestions and initiatives for reform, many of which strike me as worthy of further study: mandatory sexual assault education for judges, providing meaningful legal assistance to victims before the testify, empowering judges to make “restitution orders” (by which the accused would be ordered to reimburse the victim for the cost of therapy, legal fees, and other out of pocket expenses related to the trial), and the creation of specialized sexual assault courts.

Ultimately, however, change for sexual assault survivors seeking justice must come through the police, the lawyers and the judges who make the system run. That is why, for my money, one of the most effective solution may also be one of the simplest: appoint more women to the bench.

Currently, only 37 percent of federally-appointed judges are women (and that is with the recent influx of female appointments under Prime Minister Justin Trudeau). The numbers are often low at the provincial court level, too, where the majority of sexual assault trials are heard, including that of the cab driver discussed above. In Ontario, just over 30 percent of sitting Judges are women.

The law is in love with the concept of “reasonableness.” The mythical “reasonable person” — the detached average citizen who, until the late 1980s, was most commonly referred to as the “reasonable man” — stands at the centre of many of the decisions judges make. In criminal law, “reasonableness” is the essential qualifier to the concept of doubt. Often, all that stands between a conviction and acquittal is the judge’s lingering uncertainty that the accused, who is presumed innocent, may not have done the thing alleged. Even if the judge believes that the accused is probably guilty, it is not enough. As long as the judge harbours some “reasonable” doubt, an acquittal must follow.

The arbiter of reasonableness is the judge. Despite their robes and their power, judges are just human beings like you and me. And, despite best efforts and training, they cannot help but bring their lived experience into the courtroom with them. Consequently, reasonableness is an imperfect and inherently subjective standard. Whether or not a judge finds an explanation to be reasonable will always depend, at least to some extent, on whether something resonates with his or her sense of reality.

Sexual assault is a highly gendered crime. Victims are overwhelming female. Perpetrators are overwhelmingly male. Consequently, when it comes to the intuitive framework judges use to evaluate reasonableness in these cases, gender matters.

There are some excellent, progressive men on the bench who are sensitive to these issues and committed to reform. However, it is difficult for male judges, particularly white ones, to understand at a cellular level what it means to be vulnerable to the threats of physical and sexual violence. Women, typically, cannot rely on their physicality to protect them. This difference in experience is how we get to a place where Justice Robin Camp, a 64-year old white man who stands more than 6 feet tall, openly wonders why a 110-pound indigenous teenager could not just “keep her knees together” in order to ward off an attack. The Canadian Judicial Council recently recommended that Camp be removed from the bench; he resigned before Parliament could act on the recommendation.

Unless you have demurred in the face of unwanted attention, hoping to normalize a situation until you think up an escape plan, a victim’s behaviour may seem inherently odd to you. Unless you have brushed off unwanted touching, hoping to avoid escalating a situation until a friend returns, a victim’s behaviour may seem inherently confusing to you. If you have never “made nice” with someone slightly menacing, in the hopes of keeping the situation in check until you can get to a place of safety, a victim’s conduct may seem inherently unreasonable to you. Women intuit on a different level the things that other women do when threatened. There are some experiences that training and education simply cannot replicate.

Powerful men, in a well-meaning attempt to empathize with crimes of violence against women, often reference their daughters or granddaughters. The judge in the Halifax case, for example, wrote in his decision that the cab driver is “not somebody I would want my daughter driving with, nor any other young woman.” Powerful women have been these daughters and granddaughters; they have been the woman in the back of the cab. They have navigated the world in different skin, and they bring that experience with them everywhere they go.

Diversity on the bench is about more than just tokenism. It’s about more than just facilitating opportunities for women to advance (though that is important), or ensuring that those who come before the courts see themselves reflected in those who sit in judgement of them (though that is important too). Gender diversity on the bench is essential to reshaping accepted, male-centric concepts of reasonableness, which are at the heart of the legal system and the decisions judges make.

If governments are serious about improving outcomes for sexual assault survivors, they should start by getting more women on the bench. That way, the next time a cab driver is found with an unconscious, half-naked woman in the back of his cab, the accused’s conduct might be measured by a sense of “reasonableness” that is more in line with women’s reality.

Gillian Hnatiw is a Toronto-based lawyer specializing in sexual assault, harassment and abuse.  She can be reached at ghnatiw@lerners.ca or on twitter @gillianhnatiw.

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