“The episode is one of … America’s most notorious cases of mass hysteria. It has been used in political rhetoric and popular literature as a vivid cautionary tale about the dangers of isolationism, religious extremism, false accusations, and lapses in due process.”
No, this is not a future historian’s description of yesterday’s election of the 45th President of the United States, or of his tenure in office, or of America’s choice of an unfit man over a qualified woman as its chief executive. It is the Wikipedia commentary on the Salem Witch Trials.
As mob chants of “lock her up!” resonated through the streets of Manhattan early this morning, one cannot but remember that it started that way in Cleveland, where the prosecution of the female candidate began at the Republican National Convention. Somehow, during the campaign, the alleged cover-up of unlawful handling of emails extended to secrecy over her personal health. The trials of witches, we remember, were historically based on the Biblically-inspired belief that the ‘weaker sex’ is more prone to be possessed by dark influences.
The male candidate had vowed to put her on trial. In fact, he did. In the end, it was a trial by mob jury, the stuff of nightmares and B-movies. Even the stereotype of the bumbling policeman, in the form of FBI Director James Comey, was there to add credence to a belief she was guilty of an offence that always looked like a pretext, an abuse of the state’s inquisitorial power. As the overachieving female lawyer inwardly cringed while having to tell audiences at rallies that she would not be charged with any criminal offence, she continued to feel the prosecutorial sting of knowing that ‘not guilty’ did not mean ‘innocent’ to a biased court of public opinion. If many wondered why so many more distrusted her than her real estate salesman opponent, just ask any successful woman lawyer about her career experience.
As jurists, we have a special duty to recognize these awful patterns and narratives in the history of our civilization. Canadian jurists might be tempted to despair while standing in line for our cup of Tim’s, perhaps commiserate for our brothers and sisters in the U.S., and yet secretly convince ourselves that we could never allow what is essentially a protracted legal process to be turned into a witch trial.
Those who observed the recent OBA Foundation Debate have heard the blunt message that lawyers in Canada, despite the comparative institutional sophistication in sexual assault trials, mishandle the public legal narrative of issues involving gender conflict. Most sensitive jurists I have spoken to believe that Justice Lori Douglas was mistreated by her colleagues in the Bench and Bar, in the process leading to her resignation. The reaction of lawyers in bringing about the calling to account of Justice Robin Camp, the male “knees together” judge, for having unfairly put the complainant on trial did show that we are capable of seeing sexist legal narratives, at least in obvious cases. In having this debate, we are now poised to improve not only our justice system but our civic understanding of the role of personal narrative in a just society.
This year, we north of the 49th have witnessed, concluding yesterday, nothing less than a reverberation of a perverse ad hoc judicial process from 17th-century early America. Now that it is over, the aftershocks of this new event have only begun. The next four years will be hard for many of us who pursue a way and calling founded on knowledge and expertise in legal processes and substantive justice. The U.S. president-elect has promised to appoint to the Supreme Court a justice willing to turn back major constitutional developments concerning the personal and democratic rights of women and minorities. Our role, as Canadian jurists, is to resist the temptation of turning our backs on America out of fear or horror. Our colleagues south of the border, more than ever, will need every ounce of our support during what will be a dark and dangerous time for the rule of law.