Watchdogs of sexual harassment as eager to bite as they ever were




January 10, 2009

Now, I don't know Patrick Brazeau, former national chief of the Congress of Aboriginal Peoples and a new, and newly embattled, Tory senator.

And I've no particular truck for the Senate: In my view, it's a public trough and all who are appointed there are to varying degrees piggies.

But that said, I have a few thoughts about sexual harassment and that is what Mr. Brazeau finds himself accused of, or should I say reaccused of, since he was already cleared (via an outside firm hired by the CAP board) of the same complaint that is now at the Human Rights Tribunal of Ontario.

Perhaps Mr. Brazeau will be shown to be a sexist pig, as well as the regular sort. And there's no question that, given the sexual abuse chronic in some native communities, it is a complaint to which aboriginal organizations should be particularly sensitive.


Still, I can't help but remember what is probably the most notorious case of alleged sexual harassment in Canadian history, notorious because it involved allegations against an Ontario Court judge and a public inquiry headed by another judge, Madam Justice Jean MacFarland, now on the appeal court herself but at the time on the Superior Court.

This all unfolded, I should say, way back in 1993, when Bob Rae was the Ontario premier and Marion Boyd his attorney-general; it was Ms. Boyd who appointed Judge MacFarland.

I hesitate even to use the accused judge's name now, because when all was said and done, the Ontario Court of Appeal found that Judge MacFarland had exceeded her jurisdiction and quashed her recommendation that the judge be removed from office.

By then, of course, it was too late: The damage had been done to his very good reputation, and he was ultimately pensioned off early and never worked on the bench again. His name is Wally Hryciuk, and I thought he was a lovely guy.

I covered the inquiry, held in the fall that long-ago year, and the essence of the complaints against Judge Hryciuk were as follows - he had a suggestive switchplate in his chambers about which he allegedly made bad ("you can flick my switch any time") jokes but which was a birthday gift from his wife; the alleged grabbing at a Christmas party of a female court reporter (brought by the reporter and her judge husband), an unwanted kiss of a young female Crown attorney and an overlong handshake.

I was unconvinced, to say the least, that all of the alleged incidents had happened.

The Crown attorney, for instance, who then worked in the Scarborough courts where the prosecution of violent sex crimes was not unknown, was a veritable drama queen in the witness stand, weeping as she recounted the alleged kiss, which she said had sent her into a spiral of crying, frantic teeth-brushing and fears she might have caught a disease and would be unable to have children.

Given such a delicate constitution, I found not only her evidence suspect, but also her very employment: How could such a fragile naf ever prosecute criminals?

But even if all of the incidents had occurred, they didn't constitute sexual harassment in my view, least of all a pattern of sexual harassment, which to my way of thinking would involve serious misconduct.

I knew a woman who in those days refused to walk up the stairs at the office in front of her boss because he was likely to give her a pat on the butt or look up her skirt. He was an old-school kind of guy, prone to sexual innuendo and even the odd grab, but he could also be courtly, even genteel. He was a man out of his time, I guess, but for all his failings, and they were considerable, the woman who worked directly for him simply learned to cope. Of course, she shouldn't have had to do that, and in a perfect world, she wouldn't have. But the world is imperfect and the woman was capable and resilient, as in 1993 I expected most women to be.

If that man and Judge Hryciuk were guilty of anything, it was of being out-of-date. The judge's alleged offences in particular constituted nothing more than the rough-and-tumble dynamics of a workplace - the criminal courts - that I would have thought was one of the grittiest and least fey workplaces imaginable.

I expected, then and now, young women to be able to handle bad jokes, stupid switch plates and the like, and probably even to indulge now and then in the equivalent sort of thing themselves.

I am almost surprised to find that the apparatus to root out and deter sexual harassment is still with us, more than 15 years after Judge Hryciuk was put through the wringer. If he was out of date back then, the machinery of such witch hunts seems sorely so now.

Yet it survives, and apparently not much changed from 1993.

Now, as then, particularly when the matter is handled internally, the accuser usually remains anonymous (though in Mr. Brazeau's case, a second young woman, a former employee, has come forward publicly to generally support the anonymous woman's allegations), with the accused sometimes left in the dark about the precise nature of his alleged wrongdoing. And intent - which counts for so much in the courts where mens rea, or a guilty mind, is so important - matters less in these forums than the effect upon the purported victim.

As a lawyer once put it to Judge Hryciuk, then in the witness box, "Wouldn't you agree, when looking at these comments and jokes, it's important not only that you thought them funny, it's more important to look at the recipient?"

Sexual abuse and sexual assault are different; they are real offences upon the person, as the Criminal Code says, which warrant real punishment. But sexual harassment, particularly when it involves merely words, jokes or injured feelings, is much less worthy of our attention.

Poor Wally Hryciuk. He was 58 when he was pilloried as a dirty old man. And poor Patrick Brazeau: Only 34 and already the same thing is happening to him.