New “Ghomeshi Rules” will turn our courts into a circus
As Canadian judges struggle with the new so-called “Ghomeshi Rules” in accusations of sexual assault, many innocent men may go to prison.
Former CBC radio host Jian Ghomeshi was acquitted of sexual assault in a sensational, high profile trial back in 2016. Each of the complainants were deemed by Judge Horkins in that case to have “breached her oath to tell the truth” and even the media, who were mostly salivating for a conviction, had to admit that Ghomeshi should not have been convicted.
The Justice Centre for Constitutional Freedoms has announced it is representing another esthetic salon against Jessica Yaniv at the British Columbia Human Rights Tribunal.
The She Point Beauty Salon, owned and operated by women of the Sikh religion, has become the newest target for Yaniv’s litigation after declining Yaniv a Brazilian wax. Yaniv then demanded a leg wax, but was also refused on the same grounds. In their Tuesday morning Press Release, the Justice Centre notes that leg waxes are performed in private with the client undressed or nude from the waist down. Citing religious and safety reasons, the salon refused Yaniv service.
The interaction occurred in August 2019, with the claim being filed at the BCHRT in October—the same month Yaniv lost a number of other identical complaints at the Tribunals. The complaints, made against mostly immigrant-owned aesthetic salons, were advanced due to some of the salon’s refusal to provide waxing services to Yaniv’s male scrotum. Other salons were asked to provide services to other parts of Yaniv’s body, but declined. All did so on grounds related to safety and/or religious restrictions on intimate-area touching between unrelated, unmarried males and females.
The Tribunals found that Yaniv’s gaggle of discrimination claims against the esthetic salons were “vexatious, calculated” and, in part, motivated by racial animus against persons from South Asia and the Sikh, Hindu, and Muslim faiths. The complaints, which varied in cost-demands of up to $500,000, were dropped to fanfare and global praise of the BCHRT.
Yaniv was subsequently ordered to pay $2,000 each to three of four clients represented by the JCCF for improper conduct. On November 8th 2019, the JCCF filed an enforcement order against Yaniv with the Vancouver Law Courts to ensure the estheticians would be paid their money via possible collections action. Yaniv’s appeal to the Tribunal to retry the case was denied.
“Women have a constitutional right not to be compelled to touch biological males in an intimate or highly personal manner if they are not comfortable doing so,” says Jay Cameron in the JCCF Press Release, the lawyer who represented five other aestheticians in Yaniv’s 2019 claims. “Like male genital waxing, our client does not offer male leg waxing services to the public, and we intend to vigorously defend against this targeted harassment on behalf of our client.”
Marcus Knight—a student with autism, cerebral palsy, and learning disabilities—has prevailed in his lawsuit against Saddleback College, according to exclusive documents obtained this Sunday by TPM.
After being accused of sexual misconduct, Knight filed the lawsuit to clear his name.
Knight first came to national attention in 2018 after his attempts to make friends landed him in his college’s office for sexual misconduct (also known as a Title IX office). As a young man with autism, making friends has always been difficult for him, he told me.
One female student reported him because she was uncomfortable with Knight asking for fist-bumps, one of the “safe ways” he was taught to make friends, his mother said. Another student claimed Knight was looking at her weird and following her around campus.
And yet another woman complained that Knight had “over 300 photos” of her. (This was likely due to Knight’s cerebral palsy, which resulted in a motor tic as Knight attempted to press the “selfie” button on his phone with the woman, which was set to “burst mode”).
None of the three women who complained about Knight filed an official Title IX report.
Yet, despite this, and the fact that none of the women testified against Knight, the school’s Title IX Officer Juan Avalos still slapped Knight’s transcript with two Title IX infractions, possibly more.
The young women who reported Knight, Melissa Gold and Noemi Bueno Rojo did not respond to multiple media inquiries. Hannah Udall (now Torok), who also reported Knight for misconduct, initially said she would be happy to be interviewed but later declined.
In the initial suit against Saddleback College, Knight’s lawyer Mark Hathaway argued that Title IX officer Dr. Juan Avalos made unlawful errors during the investigation (such as not giving Knight an opportunity to defend himself).
One complainant, Melissa Gold, even declined to testify, saying she could care less.
“I have nothing to report. I don’t want to go over this any further. It’s done and I don’t go there (Saddleback College) anymore. This is irrelevant to my life now. I don’t care what happens officially at this point,” she told Dr. Avalos.
Later, Knight gathered 15 character witnesses to bring to his trial on campus. But Gold declined to testify and failed to show up. The hearing was called off. But somehow, Knight, then aged 19, still got slapped with two Title IX (sexual misconduct) sanctions.
These sanctions can be life-altering.
“We’re very scared. What happens when Marcus tries to transfer to a four-year university? Will the accusations follow him? I am terrified for his future,” Aurora Knight emailed me the night before the trial.
But last week, Knight went to court. The trial was short and Knight’s mother admits that she “didn’t really understand what was going on.” But shortly after, Aurora Knight messaged me: “We won!”
“The Court… hereby concludes that the findings and sanctions issued by Respondents [Saddleback College and Juan Avalos] against [Marcus Knight] should be set aside,” the court ruled.
“He is smiling! After court Mark [Hathaway] took a selfie with Marcus. Then we told Marcus he could do a selfie too … he was afraid to do so. But we told him that it was ok, and he finally did! He wants a fist bump and selfie party!”
“We fight for colleges and universities to treat everyone fairly so students do not lose access to education,” Mark Hathaway told TPM on Sunday.
“Saddleback College and Dr. Avalos are required to comply with the judgment and correct their records or be held in contempt and fined or jailed. We fight for colleges to treat everyone fairly so students do not lose access to education,” Hathaway added.
According to Aurora Knight, Saddleback has 30 days to remove the Title IX sanctions from her son’s record, she was told. How this all happened? She doesn’t know. “He was a great kid in high-school. No problems. Marcus just wants to be like everyone else.”
After her son was accused, Ms. Knight set up a GoFundMe to help pay for Marcus’s legal fees. Since then, more than 300 people have donated roughly $14,000, only eight thousand shy of her goal.
“We just want to put this past us,” said Aurora Knight.
TPM reached out to Leticia Clark, District Director of Public Affairs, to ask a number of questions following these developments. Clark said she was unable to answer a number of my questions on the record because the case is still considered “pending litigation.”
This is an ongoing story. TPM is tracking developments as they happen.
Toni Airaksinen is a columnist for PJ Media, The Post Millennial, and a digital media strategist for kosher restaurants and small businesses. She graduated from Barnard College in 2018, and has also published in USA TODAY College and Quillette. Follow the author of this article on Twitter: @Toni_Airaksinen.
Jessica Yaniv, a transwoman who rose to infamy after she took a number of immigrant, racialized at-home salon workers to the B.C. Human Rights Tribunal (BCHRT) for declining to provide services to her male genitalia, applied for her appeal to be heard by a new Tribunal member. She claimed bias against Devyn Cousineau, according to the 5-page document released today by the BCHRT. The appeal was declined.
Cousineau, who has a background in anti-poverty and human rights law and holds a law degree from the University of Victoria, stated she did not feel Yaniv’s claims that she had been biased in her decision were accurate. According to the document, Yaniv requested the appeal decision be made by a different member on the basis that Cousineau had been pressured and “harassed by members of the public via Twitter” to rule in favour of the salon workers.
“It is my ethical and legal obligation as a member of this Tribunal to decide cases based on the evidence before me and not based on public sentiment,” Couseineau wrote in response to the assertion.
In a recent comment given to The Post Millennial, Yaniv stated that the Tribunal ruling had been a “total misunderstanding” full of “inaccurate information.” In the BCHRT appeal document, nine areas of complaint are listed where Yaniv asserts the Tribunal was “wrong”.
These areas, including that Yaniv targeted certain ethnic groups, declined her services because of her scrotum, and that she manufactured the conditions of her complaints–deliberately attempting to provoke situations where she could claim she was being discriminated against–were listed by the BCHRT as findings of fact.
Findings of Fact
Yaniv allegedly also claimed the appeal was necessary as the decision negated to consider transgender women who required hair removal for “surgery.” Cousineau writes that this “was not an issue raised at any time in [Yaniv’s] complaints.”
One of the most striking points of the document was Yaniv’s claim to be unable to pay the improper conduct costs awarded by the BCHRT to the salon workers. These awards were $2,000 each to three of the four women represented by the Justice Centre for Constitutional Freedoms.
Citing “anti-trans harassment and attacks” Yaniv sought a reduction of costs. This was also declined by the BCHRT, with Cousineau concluding that if Yaniv wants to challenge the final decision, she must do so in court.
The Justice Centre for Constitutional Freedoms (JCCF), on whose board I sit, offers pro bono legal services to individuals or groups whose Charter rights the JCCF agrees have been breached. They have announced that they are filing a court application on behalf of the Alberta March for Life (AMLA) and its vice-chair, Jerry Pasternak, “against the City of Edmonton for its decision to cancel a scheduled lighting of the 60,000 LED-lit High Level Bridge in colours chosen by AMLA.”
First, some background on the lighting-up history of the High Level Bridge and the reasoning behind this application.
Edmonton conceived its “Light the Bridge” program with the objective of helping to “recognize major events and cultural celebrations.” Its stated aim is “to reflect the diversity of people who call Edmonton home and our connection to the global community.” The bridge has been lit, in a variety of colours, for such causes/events as Melanoma Awareness, Disability Employment Awareness Month, Rosh Hashana, the Edmonton Oilers Home Opener and Wrongful Conviction Day.
The stated criteria include: events of national or international significance; local events that positively impact community spirit; national or international issues that build community “such as Treaty 6 Recognition Day or End Bullying Pink Shirt Day or World Cancer Day.” The city “reserves the right to deny requests that do not merit public support or are mainly personal, private, political, polarizing or commercial in nature.” (emphasis mine)
This is the second time Edmonton has cancelled a pro-life group’s scheduled bridge-lighting on the grounds that it was “polarizing,” as per its criteria caveats. In May 2017 AMLA received permission to celebrate a March for Life via the bridge, lit up in pink and blue, but was cancelled. The JCCF observes that the city does not offer any precise definition of what “polarizing” means, and furthermore:
“The City of Edmonton is home to a diverse population with a wide variety of views, values and beliefs including, unsurprisingly, persons who express pro-life views. As a government that is constitutionally obligated to be neutral regarding the expression of its citizens, it is not the proper role of the city to elevate and promote the favoured ideological causes of some citizens to the exclusion of the lawful views of others,” stated Justice Centre staff lawyer James Kitchen in a JCCF press release.
In the lawsuit, the JCCF will argue that Edmonton is offering state property to the public to utilize for expression, and can therefore only limit expression in a justified manner. Obviously hate speech, or overt racism or obscenity would run counter to the values and purposes underlying freedom of speech. But, they argue, expression of a pro-life opinion is none of these things, nor can it be considered any more “political” or “polarizing” than other causes for which the bridge has been lit.
According to the JCCF, the arbitrary decision is procedurally deficient in that neither notice of cancellation nor opportunity to respond was provided. The lawsuit requests that the City only light the bridge “without political or ideological favouritism” or in “neutral colours” (perhaps blue and gold, the province’s colours), as well as a declaration that the cancellation was unjust.
Edmonton naturally set out with the best of intentions in planning the Lights program. However, when they wrote the words “personal, private, political, polarizing,” did their committee members actually have a discussion about what the words meant, or wonder if their own assumptions about “political” and “polarizing” were the gold standard of settled opinion? Did they ask themselves whether polarizing meant the same thing as, say, “opposition” of opinion?
Perhaps they had in mind anything that might give offence to certain groups. One might easily deduce this since in our current era pro-life groups are often held up to ridicule and contempt without consequence, because pro-abortion is treated by most politicians and virtually all members of our cultural elite as the default opinion of all civilized and enlightened people.
And yet the offence is purely ideological. Those who do believe in the sanctity of human life from conception are not promoting violence, or actively preventing anyone from having an abortion. They seek to persuade fellow citizens to their belief, but the freedom to attempt to persuade others is the basis of democracy. The judgment that it is “polarizing” has not come down from some objective, disinterested court. It is a subjective judgment that has come down from activists and ideologues whose opinions our progressive elites defer to. How is it the city’s business to privilege one ideology over another?
One could argue that the city has grounds for rejecting the light display because of its “community-building” criterion. It is true that any and all pro-life displays cause social tension. But one could say the same for Pride, which in recent years has become extremely politicized, and which contains indecent presentation and performance that offend many people, especially parents of young children. But since LGBT feelings are routinely privileged in our institutions of education and governance over the feelings of those who find elements of the Pride brand off-putting, the city apparently does not find Pride polarizing at all, only “community-building.”
Likewise, the bridge is open to a request for the Walk a Mile in Her Shoes movement, which raises consciousness for violence against women, an important cause to be sure. But would it be open to, say, Male Victims of Intimate Partner Violence Awareness Week? The statistics on male victimhood within relationships are (I know, hard to believe, but true) almost equal to female victimhood, but I am guessing that any attempt to use the Bridge to raise awareness of that fact would be considered “polarizing.”
It may be that pro-life displays are not community-building, but that is not their fault. Pro-lifers are always willing to engage in civil dialogue with pro-abortionists, and civil engagement is the most fundamental community-building exercise (remember Norman Rockwell’s famous painting?). But those who consider pro-abortion the only admissible position in public life do not usually willingly engage with pro-lifers. Yet in the present cultural climate, their intransigence, their insistence that there can be only one correct opinion on this subject is not considered polarizing, while the opinion that the subject should be up for debate is considered polarizing, a faulty and undemocratic assumption that the City of Edmonton has demonstrated in their cancellation.
If the city cannot exercise ideological neutrality in its assignment of the Lights, then it should get out of the ideas and “rights” business altogether. Governments, after all, have no obligation to promote “causes” at all. Edmonton could reserve the Lights for a narrow swath of indisputably community-building communication, such as support for the city’s sports teams, physical-disease awareness weeks/months, national holidays and other apple-pie messaging.
But if they wish to go beyond those parameters and offer a podium for philosophical positions or ideals, then they have an obligation to treat groups that dissent from popular opinions with the same respect and rights to that tax-funded space as those with popular opinions.