By Adam Jones

MERGE has no intention of denying real sexism or callousness toward females where it occurs. But the claims made in this regard in recent years have overwhelmingly been gross exaggerations and outright fabrications--claims themselves motivated by sexism and usually acceded to because of a perverted chivalry. On occasion, however, someone with courage and integrity exposes the charges for what they are. What follows is a synopsis of an official report written as the result of chilly-climate claims made by the Edmonton Journal: In the Matter of an Inquiry Pursuant to Section 13(2) of the Territorial Court Act, S.N.W.T. 1978(2), c. 16 -and- In the Matter of an Inquiry into the Conduct of Judge R.M. Bourassa. Released 28 September 1990. Page references are to the report.

The Edmonton Journal’s reports on Michel Bourassa, a Territorial Court Judge in Canada's Northwest Territories, received instant and intense national attention. The resulting public and media outcry was so great that a commission of inquiry was called into the judge's actions and statements as these were reported in The Journal. In her hefty final report of that inquiry (346 pages plus introduction), Commissioner Madame Justice Carole Conrad stated: "I do not intend to decide whether the actions of the press in this case were scandalous or defamatory. That question is not before me" (202). Nonetheless, Justice Conrad's investigation focused closely on The Journal's reporting strategy, along with the paper's presentation of Bourassa's comments and character. Her explorations of this matter are exhaustive--and, it would be fair to say, devastating to The Journal.

In the autumn of 1989, The Edmonton Journal decided to commission a series of articles about native justice in the north, especially the circuit-court arrangement that is unique to the northern justice system. It assigned reporter Laurie Sarkadi to the story.

In October, Sarkadi got in touch with Justice Mark de Weerdt, Senior Judge of the N.W.T. Supreme Court. Sarkadi wanted to travel around with and profile a circuit court judge. The one she chose was Michel Bourassa, who had recently aroused the ire of native women's organizations in the case of Regina v. A. by sentencing a prominent Yellowknife M.P. to five days in jail and nine months probation for sexually assaulting his stepdaughter. As to whether Bourassa was selected because of his controversial sentence in Regina v. A., the Journal personnel who appeared before the inquiry testified they could not remember. But in her report, Justice Conrad stated: "It is at the very least coincidental that the request to do the series came at approximately the same time as the Regina v. A. decision, and that it was the judge who had passed sentence in Regina v. A. that was contacted for an interview" (63).

The Journal reporter conducted two separate interviews with Judge Bourassa: at Baker Lake, NWT, on 4 December 1989, and the next day at Rankin Inlet, NWT. In both interviews the reporter took notes rather than recording the conversations--the second time at Bourassa’s request. She then wrote her story and dispatched it by modem to The Journal, where it appeared on 20 December. The relatively long period between completion of the article and its publication is explicable by the fact that the article was "lawyered", i.e., cleared with The Journal's legal staff to ensure nothing in the story was legally actionable.

The Journal reporter spent some of the period between writing the article and its appearance in print getting in touch with contacts who were working for "at least two native rights organizations ... and preparing them for the inevitable cascade of media attention", according to Justice Conrad (101). As Justice Conrad puts it, the reporter clearly "set the stage for the anticipated impact of her article" (101). Journal Editor-in-Chief Linda Hughes likewise acknowledged in her testimony that she knew "it [the article] would put the judge in a defensive position against the public, given the already volatile situation here."

The 20 December article became the subject of much of Justice Conrad's report. It was headlined: "Sex assaults in North are often less violent, judge says," and began:

A Northwest Territories judge says sexual assault among Northern natives is sometimes less violent and cannot always be judged in the same light as southern Canadian cases.

"The majority of rapes in the Northwest Territories occur when the woman is drunk and passed out. A man comes along and sees a pair of hips and helps himself", Michel Bourassa, a Quebec-born territorial court judge, said in a recent interview with The Journal.

"That contrasts sharply to the cases I dealt with before (in southern Canada) of the dainty co-ed who gets jumped from behind."

The article then turned to describe Bourassa's background and the circumstances of Regina v. A. It noted the fact that Bourassa's sentence had been upheld on appeal by the Supreme Court. The article also mentioned another case, Hall Beach:

The outcry that greeted the Journal article was immediate, explosive and predictable. By far the greatest controversy centered on Bourassa's seeming claim that rape was a less serious or violent act for northern native women than it was for their southern Canadian counterparts.

The broadside against Bourassa hit with full force the next day, 21 December, when The Journal published an extordinarily aggressive editorial. The editorial was headlined, "Investigate the Judge", but The Journal did not limit itself to calling for "an impartial hearing from [Bourassa's] peers." Rather, in the final paragraph of the editorial, the paper stated the results of its own investigation into Bourassa's sentencing record and statement--and called outright for his dismissal.

The editorial then turned to Bourassa's sentencing record for sexual offenders in the Northwest Territories. It reiterated the details of the Hall Beach case, and described the judge's overall "sentences for convicted sexual offenders" as "far too lenient":

The Commissioner's findings

On 23 February 1990, the Judicial Council of the Northwest Territories appointed Justice Conrad to head an inquiry into Bourassa's alleged comments and judicial conduct, with a view to determining whether he was guilty of "misbehavior" or whether his comments "give rise to an inability to perform his judicial duties properly" (i). Conrad's basic finding was that the Journal articles contained "inaccuracies and misleading innuendoes" (v). Below are summarized and examined the Commissioner's findings on each of the allegations and attributed comments cited above.

On this matter, Justice Conrad's comments were aggressively to the point: "the evidence was unequivocal that Justice Bourassa did not use the word 'natives' at any time in the interviews" with the Journal reporter (v); Conrad accepted "without equivocation"

Bourassa's statement to the inquiry that the quotation was " an utter and absolute fabrication" (152). For her part, the reporter acknowledged Bourassa had never used the word, and conceded that extensive consideration had been given as to whether to use the racial term in the paraphrased comments attributed to the judge.

Justice Conrad's report stressed, in particular, the highly provocative juxtaposition of the article’s first paragraph with the headline, "Sex assaults in North are often less violent, judge says." Under examination by Bourassa's counsel, the Journal reporter was asked: "In the checking of your notes, which you have testified that you did carefully before writing the article, did you find any reference to Judge Bourassa saying that sexual assault among northern natives is sometimes less violent?" She answered "No" (169).

Justice Conrad's comments on The Journal’s decision to use the term were quietly scathing. "In my view," she wrote, "the informed person... would understand that when Judge Bourassa spoke of sentencing in the north, he was referring to the sentencing of all persons coming before his courts. That would include both natives and non-natives, from both urban and rural areas. He at no time set apart native behavior in sexual assaults from non-native behavior. ... When The Edmonton Journal singled out the word 'native,' it was made to appear as though Judge Bourassa distinguishes between the racial origin of persons appearing in his court. The inclusion of the words 'northern natives' was not an innocuous choice of words by The Journal. Rather, the natural inference is that the words were "carefully selected for their social and political impact " (xvii, 166).

Elsewhere, she stated: "The Edmonton Journal was aware that Judge Bourassa had never used the word 'native' in his remarks about sentencing practices in the North. In spite of this, and in spite of having carefully considered the use of that word, the decision was made by The Journal to use it. In my view, there was no reason for running the risk of using the word, other than the sensational impact it would have on the public" (204).

Justice Conrad pointed out that on the day the Journal reporter attended court in the Northwest Territories, two out of seven cases before Bourassa involved non-natives (165).

The implications of this reportorial stratagem alone are considerable. The Journal, fully aware of the explosive repercussions that would ensue from its article, and aware that Bourassa had never used a racial designation when discussing sexual assault victims in the north, nonetheless--and after extended consideration--chose to paraphrase the judge in terms "carefully selected for their social and political impact," in Conrad's words. Put another way, The Journal deliberately manipulated Bourassa's comments to conform to the paper's own interpretation of Bourassa's comments and conduct--an interpretation which may well, in light of the controversial Regina v. A. judgment, have been pre-formed.

The seemingly flippant phrases

Justice Conrad (and Judge Bourassa) acknowledged that in both cases, Bourassa used the phrases "pair of hips" and "dainty co-ed" in his interviews with the Journal reporter. But the way The Journal presented the comments also came in for strong criticism from Justice Conrad.

According to Conrad, "With respect to the 'pair of hips' statement, a reasonable person would know that Judge Bourassa was not condoning the act or referring to the woman as a willing victim because she was drunk. He was describing facts that he encountered in his courtroom, and describing the state of mind of the offender who comes along and takes advantage of an intoxicated victim. It is his opinion of how the offender views women, not how Judge Bourassa views women. He recognizes that taking advantage of a passed out victim can be an aggravating factor in sentencing, not a mitigating one" (xvii-xviii). To buttress this claim, Conrad cited excerpts from Bourassa's previous rulings, including situations where the woman had been drunk or passed out at the time of the attack. In Regina v. Kooto (1984), for example, Bourassa dealt with a man who had sexually assaulted a sleeping woman.

He wrote: "I find the worst aspect of this case is that surely to goodness a woman can go to sleep in her own house without worrying about some man trying to have sexual intercourse with her... But here he goes out to her house, invites himself into the house, and seeing her asleep, decides to commit the offence. I think that’s a very aggravating factor. I think it’s such an aggravating factor that it outweighs a lot of other factors. ... I think the sentence imposed must be one that is going to deter that class of person who might be inclined to do something like this" (303, emphasis added).

As for the "dainty co-ed" statement, its presentation by The Journal had similarly serious and, in Justice Conrad's view, unmerited repercussions. Bourassa quickly realized after making the offhand statement that it was a poor choice of words. He asked the Journal reporter not to use the phrase, and to substitute instead a statement that also ended up in the 20 December article (beginning, "My experience with rape down south is different from the reality of rape up here"). According to Justice Conrad, the Journal reporter left Bourassa with the impression that she would respect his wish to abandon the original phrasing: "Ms. Sarkadi acknowledges that she left Judge Bourassa with the impression she would not use the earlier statement. I am satisfied that if she had said to Judge Bourassa 'sorry, too late,' the only logical inference is that the interview would have ended at that point" (74-75).

As a violation of the canons of journalistic ethics, this falls somewhat short of publishing a statement delivered "off the record." But it does suggest the Journal reporter's intent to mislead the interviewee, and seems highly questionable on those grounds. In any case, as Justice Conrad pointed out, The Journal committed a much more serious violation of the principles of fair reporting by presenting Bourassa's "dainty co-ed" comment in isolation, in a way that made it appear as gratuitous and flippant as possible. In fact, Bourassa had made a more extensive statement of which the "dainty co-ed" phrase was only a small part.

In examining the alleged quote, Justice Conrad was able to trace the evolution of Bourassa's comments from their original version, through the reporter's translation, to the final version approved by Journal editors. After examining the reporter's notes, Conrad found that Bourassa's original comment "was closer to the following": "That [rape of a woman who is passed out from alcohol, with little or no violence apart from the rape itself] contrasts sharply to the cases I dealt with before at Kingston, of the dainty co-ed who gets jumped from behind on a university campus and suffers vaginal tears, and is traumatized physically and psychological [sic], totally devastated, suffers injuries requiring hospitalization " (ix, emphasis added).

The final, edited version of the article, however, broke Bourassa's statement into two unlinked parts, in a manner that clearly influenced public perceptions of Bourassa's alleged insensitivity and boorishness on the matter of sexual assault. (The strategy seems in close keeping with the decision to put the word "native" into Bourassa's mouth.) Justice Conrad pointed out that "Judge Bourassa did not make a separate statement that southern Canadian victims often suffer vaginal tears and psychological trauma related to sexual intercourse for several years afterward. That statement was an integral part of what he had said before it. It was inaccurate to make the statements appear unrelated" (176).

In summarizing The Journal’s presentation of the "pair of hips" and "dainty co-ed" comments, Justice Conrad was again quietly devastating: "While Judge Bourassa must take responsibility for the remarks he made, I am satisfied that Ms. Sarkadi understood exactly what Judge Bourassa was trying to say. She knew that he recognized that sexual assault is in itself a violent act. She knew that he was drawing a distinction between sexual assaults where there was violence and injury in addition to the violence of the assault itself, and cases where the violence was that of the assault only. She knew that the 'dainty co-ed' comment was part of one lengthy statement, and that she had not recorded it in full. She knew that there was a long list of psychological trauma and physical injuries at the end of the sentence, which put his words in their proper context. She knew that he was talking of specific examples at universities" (208-209).

One of the consequences of the above distortions was the impression that Bourassa believed rape itself in southern Canada is less violent than in the North. Such is also the message, for example, of attributing the "psychological trauma related to sexual intercourse" only to southern Canadian victims of rape. And The Journal’s angry demand that rapes in the North and South be punished the same implies that Judge Bourassa was guilty of perceiving a difference between them in general. On this matter, Justice Conrad found that: "The point Judge Bourassa was attempting to make was that in the North, there is frequently less violence associated with the assault, apart from the sexual assault itself [emphasis added]. That is different from saying that sexual assault is less violent in the North. The difference, although subtle in its phrasing, is significant in its meaning. The statement, as it appears [in The Journal], suggests that somehow it is more violent to rape a southern woman than a northern woman. That is not what Judge Bourassa said, nor is it what he meant. In fact, Laurie Sarkadi acknowledged that in ... her cross-examination..." (171).

Sentencing and lnuit culture

As part of the attempt to depict Judge Bourassa as "soft" on sexual offenders, an excerpt from his 1984 judgment in the Hall Beach case was presented for Journal readers. According to The Journal, "Bourassa's sentence was based on the belief Inuit culture accepted that 'when a girl begins to menstruate she is considered ready to engage in sexual relations.'" The paper also stressed that the sentence for the three men convicted of having sex with a 13-year-old mentally deficient Inuit girl was increased on appeal.

Justice Conrad found that "While The Edmonton Journal was technically accurate in its direct quotation from Judge Bourassa's judgment in the Hall Beach case, they were not accurate in suggesting that he had based his sentence solely on that statement. It was one consideration only. Moreover, the quote was a partial quote" (197). In addition, as Conrad pointed out, Bourassa drew his statement almost exactly from the pre-sentence report prepared for his consideration, which he was obliged to consider in his sentencing. The pre-sentence report also included a passage noting "the feeling in Hall Beach ... that there are not necessarily any age restrictions when it comes to a sexual relationship; when a girl begins to menstruate she is ready to engage in sexual relations. It is very likely, in light of the community standards, that the offender grew up with this attitude and did not consider the act as illegal" (196). In other words, the vitally important legal principle of mens rea is at stake here: was the accused aware, or fully aware, of doing wrong? The Journal ignored this crucial question, preferring (yet again) to read racist and sexist motives into the judge's decision.

Conrad summed it up as follows: "A reasonable person, fully informed, would be aware that this statement was taken directly from one of the pre-sentence reports submitted to Judge Bourassa. Such a person, informed of court procedure on sentencing, would understand that Judge Bourassa was relying upon the only evidence before him" (xx). Journal reporter Sarkadi, as an experienced court reporter of many years' standing, would have been well aware of these nuances.

Significant, as well, was The Journal’s treatment of the appeal process for Hall Beach. Although Bourassa's sentencing was increased on appeal, Chief Justice W.A. McGillivray, speaking for the Court of Appeal, stated that "We are all of the view that [Bourassa's] judgment as a whole is thoughtful and careful and that the learned trial judge has considered all the matters that should have been present to his mind, including deterrence, not only to these accused, but to others" (197). When reviewing the notes the Journal reporter had made in preparing her article, Conrad found that McGillivray's comments finding no fault with Bourassa's handling of the case had been located and noted--but not included or mentioned in the Journal article. Once again, the intent seems to have been to paint Bourassa in the blackest terms possible, as a racist and sexist who was lenient on sexual offenders.

Bourassa's sentencing pattern

The notion that Bourassa exhibited a discernible pattern of leniency in his sentencing of sexual offenders was strongly hinted at throughout The Journal 's initial report on Judge Bourassa, and explicitly stated in the 21 December editorial ("Bourassa's sentences for convicted sexual offenders in the Northwest Territories have been far too lenient"). Yet witnesses brought before the inquiry in fact testified to Bourassa's reputation as a particularly "tough" judge, especially when it came to sexual assault. (See testimony cited on pp. 141-150.)

The Journal 's allegations, implicit and direct, were particularly stunning in light of the fact that the Journal reporter had, at her editors’ explicit request, done extensive research which by her own admission turned up no evidence of a pattern of lenient sentencing (see esp. pp, 147-150). Justice Conrad accepted as much when she found that Bourassa's "sentences were generally in the upper range of appropriate sentences. ... Any complaint as to sentencing should be directed towards the law and not towards the Judge" (308).

According to Conrad, when Journal editors heard their reporter's account of conversations with Judge Bourassa, they instructed her "to research Judge Bourassa's sentences and to determine if there were any other sexual assault sentences, aside from Regina v. A., that could be considered lenient' (94). In her testimony, the Journal reporter stated she had turned up half a dozen sentences which in her view could be considered lenient but also (in Justice Conrad's words) "a number of sentences that she considered to be severe." Managing Editor Murdock Davis accordingly relayed to Editor-in-Chief Linda Hughes the fact that, in Hughes' words, "There were some lenient sentences and some harsh sentences, but no pattern that appeared to us to be worth pursuing. So [Davis] said that information would not be included" (95). Thus, while a number of innuendoes appeared in the original article, an explicit allegation of lenient sentencing was not made until the next day--in the 21 December editorial.

Justice Conrad was adamant that the editorial's assertion "is not consistent with the facts that Laurie Sarkadi uncovered, but rather, it is absolutely contrary to the fact that there was no sentencing pattern discovered by The Edmonton Journal itself" (129, emphasis added). Conrad was so "concerned with this apparent inconsistency" (129) that she asked Editor-in-Chief Hughes whether there were any "other facts available to the editorial staff'" that might have justified such an assertion about Judge Bourassa's sentencing. The Journal 's lawyers responded that Hughes would not disclose any other facts that might have been available, "on the basis that such information was constitutionally guaranteed protection from disclosure" (Conrad's words, 129).

For the purposes of the inquiry, this ended the matter--though one is tempted to read between the lines of Conrad's summation: "Faced with this objection [on constitutional grounds], counsel for Judge Bourassa asked that I proceed with the Inquiry without that information, as he did not want to get into a constitutional battle with The Edmonton Journal. I agreed that questions in that regard could be withdrawn but drew attention of The Journal [to] the inconsistency between their editorial and the facts that they had uncovered in their own investigation of Judge Bourassa's sentencing pattern" (130).

As for Regina v. A., The Journal's presentation of the case ignored a crucial piece of information of which the paper well aware--it was recorded in reporter Sarkadi's notes (190). In prosecuting the Yellowknife man accused of sexually assaulting his stepdaughter, the Crown proceeded by way of summary conviction proceedings, which carry a maximum penalty of 6 months in jail or a $2,000 fine. Justice Conrad noted that "this contrasts sharply with proceedings by indictment for sexual assault, where the maximum penalty is 10 years imprisonment" (48). Thus, Bourassa was limited from the start in the severity of the penalty he could impose. Equally relevant was the fact that the Court of Appeal judge who heard the Crown appeal in Regina v. A. (as briefly noted in The Edmonton Journal’s original article) considered Bourassa's original sentence--with its 5-day jail term--as in some respects unusually severe.

The witnesses called to testify concerning Judge Bourassa's character and sentencing procedure further discredited The Journal's one-sided allegations of leniency. Mary Erasmus was Executive Director of the Native Women’s Association of the Northwest Territories at the time Bourassa passed sentence in the Hall Beach case. According to Justice Conrad, "Ms. Erasmus' immediate reaction to reading the sentence passed in that case was anger, horror and dismay, and she was very vocal in her disapproval of the sentence. However, after fully reviewing the documents put before Judge Bourassa in that case, she came to the conclusion that he had been reasonable in passing sentence. She understood how he had based his opinion and his judgment on the pre-sentence report that had been presented to him, and felt that he had used that information in a fair manner. ... It was her opinion that, generally speaking, across the board, Judge Bourassa had a reputation for being on the tough side in respect of sentencing in criminal matters" (143).

Erasmus also stated, according to Conrad, that Bourassa was "very sensitive towards native people ... Overall, she was highly complimentary of Judge Bourassa and his conduct in the courtroom' (I 44). Alice Mackenzie, a social worker who had accompanied into court many people who came before Judge Bourassa, "testified that ... [s]he never observed Judge Bourassa treat a woman differently from a man in the courtroom, nor has she ever observed him treat a native person differently from a non-native person" (145).

Regarding this final issue, then, The Journal's strategy again seems clear. Judge Bourassa was pre-judged to be racist, sexist and soft on sexual offenders. Evidence was then sought to bolster this contention. Considerable evidence to the contrary was ignored even when it took the form of The Journal’s own investigation into Bourassa's sentencing procedures.

On the broad question of Judge Bourassa's conduct, Justice Conrad stated: "I am satisfied that Judge Bourassa is not biased against natives, women, northern Canadians, or victims who are under the influence of alcohol. Nor is he biased in favor of accused persons. There was considerable evidence to support these findings and no evidence was adduced to contradict them" (298). The interviews with prominent legal figures and social workers "portray a man who has a great interest in, and sensitivity to, the social and cultural problems of the North" (298). Conrad pointed out that "During the interview with Laurie Sarkadi, Judge Bourassa confirmed his abhorrence of spousal violence. ... He stated emphatically that violence cannot be accepted, and that forgiveness [by the victim] is not a mitigating factor" (307).

Justice Conrad's only criticism of Bourassa was that at two points (the "pair of hips" and "dainty co-ed" references) he exhibited poor judgment in his choice of words--although she noted that in the latter instance he quickly sought to retract his statement, and the Journal reporter led him to believe she would accept a substitute phrasing. Addressing indirectly the charge made in the Journal editorial that Bourassa's comments and conduct made him unfit to hold office, Conrad found instead that Bourassa's "conduct in making those comments falls far short of attributing to him the defect of moral integrity, uprightness or honesty in decision making which is required to render him unfit for office" (xxiii).

About The Journal's performance, Justice Conrad was sternly to the point: "I found it difficult to come to any conclusion other than that the [20 December] article was slanted against Judge Bourassa, and that it did not present a balanced view of him" (202), while the 21 December editorial was "without foundation" (207).