Learning is dangerous

You would think that schools, ie. the places our children go to learn, would encourage children having access to the single most important, influential, and historically significant book ever written, rather than voting on whether to end said access. Especially since said access is free.

You also wonder how many of those same administrators and teachers opposed to allowing access to said book also encourage teaching those same children about anal sex.

An Idiotic Suit

I was reading the WFP and came across this article, "Province sued over child support".

The just of the article is that a women with three started getting $750 in new income in the form of monthly support payments from her ex-boyfriend and because of this the Manitoba government has reduced her $1,279.19 in social assistance accordingly.

The WFP starts this poor reporting with the statement, "A Gimli woman has initiated a class-action lawsuit against the province for forcing mothers on welfare to turn over child-support payments." While the byline and another line or two, mention this is simply a reduction of payment due to a new source of income, the WFP repeatedly makes absurd statements that somehow the government is taking money from this women.


Also, the entitlement this mother just oozes is a sorry statement on society. She actually states:

 "What right does the government have to take that money and use it for bridges and streets and things?"

Re-read that sentence. Now think about it for a second.

What kind of spoiled, entitled brat do you have to be to say something like that? Taxpayers provide her with over a $1000 a month (likely not including all the other benefits, such as child tax benefits, she gets from the taxpayers), then the government (rightfully) forces her boyfriend to pay $750 a month to care for her kids, and she complains that she is being stolen from so that the government can use taxpayer's money to benefit taxpayers. It's mind-boggling.

The government even resumed full payments when her boyfriend stopped paying. Mind-boggling.

"The monthly budget is difficult to live on as it is but when they withheld my support payments, it made it really tough," Miyai said. "I'm behind on all my bills. I'm spending the money my parents set aside for university."

Her income didn't change, so she fell behind on her bills. I'm sure this is somehow the government's fault.

(Also, look closely at the background of the picture; there might better reasons why she is behind on her bills).

The legal argument being made her is one of the most ludicrous I've heard of in a while.

"Miyai states child-support payments belong to the children, but the province's Family Services Department considers the money as income for the parent and deducts that amount from regular income-assistance cheques."
...
In court documents, Miyai states the province's seizure of the child-support payments is a violation of the children's charter rights, and wants the court to rule it unlawful.

I don't know what more to say about it. I hope this case gets thrown out and both she and her lawyer get penalized for wasting the courts' time and resources.

Manitoba's Petroleum Industry

Recently learned that the Fraser Institute released their 2011 Global Petroleum Survey which measures the attitudes of oil industry managers and executives towards doing business.

Out of all the jurisdictions in the survey, Manitoba was 12th (down from 8th in 2010, but in things like these a few positions one way or the other are not generally indicative of much). Saskatchewan was 11th, while Alberta was 51st Alberta seems to have a royalty regime and environmental policies are hurting their ranking, a permitting process that takes too long, and harsh aboriginal consultation requirements. The NWT are way down in the rankings due to land claims issues and the Mackenzie Gas Project, which spent three decades after proposal in consultation, review, and just sitting around before finally being approved a couple months back.

Comments on Manitoba included:

“Qualified labor and best tax regime.”
“Manitoba has a relatively small piece of the basin but is smart enough to want employment rather than worry about trying to collect royalties.”

There are also no "horror stories" from Manitoba.

It seems our government is friendlier to the economic expansion of the oil industry than Alberta, something which surprised me enough that I thought it was interesting enough to point out.

My off-the-cuff guess is that this is most likely due to the fact our sector is a lot smaller, so there's not as much pressure to try to exploit the industry for political purposes. It would be a lot easier for the oil industry to leave here than Alberta, so Alberta can get away with more.

But whatever the reason, good for Manitoba.

Manitoba's oil industry is located in the southwest. A map of Manitoba's oil fields can be found here.

For "fun" facts about the oil industry in Manitoba, you can go here.

Bipole III: Statistical Mutilation, Bad Math, and Outright Lies

So, in the never-ending bipole debate two numbers have recently been bandied about as the differences the cost of the east and west side route. The PC's are using $11,748, the NDP are using $13.68. Now when the $13.68 was first proposed (after the $11,748, had already been set forth) I figured someone more knowledgeable than me would come forward and destroy one (or both) of the numbers, because the completely absurd disparity between the numbers means someone (or multiple someones) is either lying or mutilating statistics to the point it might as well be a lie.

But other than some credulous partisanship, and a bunch of crap in the comments I can't say I've seen much talk on it. (The best discussion of the numbers I've seen are from the Purple Rod comments a few months back, before the $13.68 estimate). I have certainly not seen anybody analyze how two such vastly different numbers could possibly be put forward. (It is possible I may have missed it).

Time went on, then this from yesterday, and still no real analysis beyond a classic Abbott and Castello routine (of which I approve).

So given that nobody else seems to think these numbers are absurd enough to analyze, here goes:

First, the PC's number.

The cost difference between west side line vs. east side line is an estimated $3.62 billion. East Side: $788 million ($600 million for the line, plus $188 million for licensing) West Side: $4.1 billion plus $300 million line losses (the value of the energy lost in transit via a longer route).

A decent start, but perhaps somewhat unfair. The east side cost has almost doubled since the original cost, so it's quite possible the original cost of the west side was also underestimated. On the other hand, I know of no more recent estimate so I can't argue it's wrong.

Also, the $4.1 billion was an unofficial leaked figure and the NDP claimed that it was out-of-date and meaningless and the Hydro CEO says he never saw it. But then again the accepted NDP price estimate has increased from $2.2-billion to $3.2-billion, something they insisted on until very recently.

So take that as you will.

The only people who know the true projected costs work for Hydro and would likely be risking their job if they provided information not cleared by higher-ups.

By using a Manitoba population figure of 1,232,550, the per person differential cost is estimated at $2,937. This population figure is not a current Statistics Canada number. It looks like an about June 1, 2010 number.

Using the most current population number of April 1, 2011 of 1,246,396 gives a per capita value of $2,904.

The difference in population due to the date is a minor issue and not really worth mentioning (especially given that these are not census numbers and are likely closer to estimates than an actual head count).

The main problem is that the use of population is somewhat inaccurate. The Manitoba population will (hopefully) not be paying for this, ratepayers will. (Obviously there is a huge overlap, but the distinction between ratepayers and taxpayers is important). A better number would be 510,000, the number of Hydro ratepayers. This would increase this number particular significantly.

But then again, ratepayers includes businesses and industry who would use much more power than your average home owner. I found this on residential vs. commercial/industrial usage page 16 of this forecast from 2002, where it states that general usage (all commercial and industrial use) accounts for 65.9% of the total usage, according to page 10 33.7% is residential, while street light usage takes up the last tiny chunk. I can think of no reason why this would have changed significantly in the last decade. According to this survey from 2010, there were 439,096 residential customers (which would mean about 70,000 industrial customers).

But this distinction between residential and commercial might be meaningless. Any greater costs in rates accrued by a company would simply be passed on to consumers through higher prices and/or onto workers through lower wages, so the general Manitoba population would be paying for most of the "general use" rate increases anyways.

Continuing on:

So, if the differential cost is $2,937, then the differential cost for four individuals is 4 x $2,937 or $11,748.

In this analysis the number of families of size four is not used at all. It’s a per individual approach.

This is shoddy use of statistics. If they wanted cost per family, they should have calculated by household (which is available from StatsCan) not by individuals/4, but this is fairly irrelevant because the use of taxpayers rather than ratepayers is invalid on the face of it.

Conclusion: The PC's showed poor use of statistics and a gross error in the use of taxpayers.

So onto the NDP's number. (I know technically it's Brennan's number, but I have little doubt he was pressured by NDP to play along with their questioning for political purposes. At least, I really hope the CEO of Hydro is not actually as incompetent as this discussion makes him out to be).

So when I multiply that number by the number of families that the chief statistician tell us exist in Manitoba, I get a total amount of $3.8 billion. Now I’ve looked at the presentation you made. The total cost estimate of the bipole is $3.2 billion. So this advertising seems to suggest a total that’s more than the cost,

See above for earlier talk on the disagreement over the cost. I'm not sure which I'd use (so I'm actually going to calculate with both later on) because both are playing partisan games with numbers, but to attack the PC's calculations based on a potentially valid number from a leaked document strikes me as fundamentally dishonest. So, write off the bat we see the NDP are using a fundamentally different start point from the PC's.

yeah, I took the difference in length between the two routes. I took the total transmission cost, calculated the cost per kilometre, which really works out to quite an expensive amount I think it was $940,000 a kilometre, and applied that to the incremental length and got a number of $428 million,

This is just plain sloppy calculation and borderline dishonest. This assumes that the cost per kilometer on both sides is the same. Whether it is, I have no idea, but there is not way I would base a cost estimate on that assumption. There are far to many variables, such as terrain, existing infrastructure, political impediments, land use compensation, etc. to make it even remotely reasonable to make this assumption.

Second, his number of $940,000 is an outright lie (I really hope the CEO of Hydro is not this incompetent). The cost was stated as $3.2-billion; according to Hydro documents, the preferred route is about 1,364 km long. Simple division makes the cost $2,346,041/km. Almost exactly two-and-a-half times the amount he calculated.

The east side route is about 479 km shorter. The calculated extra cost on this is $1.1 billion, again about 2.5 times greater than Brennan's number.

I did not include what Mr. McFadyen was talking about, increases losses that occur, I excluded that. But that, it wouldn’t double this number, that’s for sure, it would be even less than that.

Notice this. I have no idea if it's double or not, but Brennan has stated that he didn't include part of the PC's calculations. The numbers are automatically not comparable because of this. Any number Brennan gives after this will automatically be lower than the PC's number. Any claim the numbers are comparable is a straight-out lie.

So then I took the number of households, escalated up to 2017. And that number’s less than the current number of customers, and I took the incremental cost per household (inaudible…)

That number came out to $821 per household.

At least he's using households not individuals, but he should be using ratepayers, not households. Similar problem as with the PC's number. The last census counted 448,780 households in Manitoba in 2006. So, $953/household if we use Brennan's earlier number. $821 sounds reasonable given that the number of households has increased since 2006. But his math was wrong earlier, so the number is actually almost $2,500 per household, but we can say $2,000 as the number of households has increased since 2006.

And then I said, well, that’s over the life of the line so I divided that by 60. And so the annual cost would be $13.68.

After all the bad math and poor statistics, this one is the most disgustingly dishonest. You can not compare a total number like the PC's with an average yearly cost over 60 years like this one. The dishonesty of it just reeks.

Not to mention that if we amortize the cost over 60 years like this calculation suggests, the interest rates will well over double the cost of the project. You can play with this amortization here, but even if we put everything in Hydro's favour: 1 payment a year, a low 3% interest rate, the total interest paid will still be 140% of the cost. So, interest costs would be more than the project itself. (I really, really hope the CEO of Hydro is not incompetent enough to amortize over 60 years).

If we aren't amortizing over 60 years, then the rate increases will not be paid over 60 years, they will be paid over the period of amortization. So the use of 60 years is fundamentally dishonest.

Conclusion: The NDP/Brennan abused statistics and math to the point where I consider it an outright lie and they even got basic division wrong. The PC's calculations were sloppy and based on poor assumptions, but the NDP/Brennan calculations were just disgustingly dishonest.

Now onto a more accurate number than either of those sad, partisan little bits of statistical mutilation.

I'll calculate a few numbers using both a low using the NDP's $3.2-billion and a high using the leaked report's $4.1-billion.

The average cost per ratepayer (510,000) for constructing the entire west side line could range from $6275 to $8039.

The average cost per ratepayer (510,000) of the east side line using the $788-million estimate is $1545.

So, if we use the original estimate for the east-side line the additional average construction cost per ratepayer of constructing the west line over the east line could range from $4370 to $6494.

An honest assessment on the available public information would put the extra cost of construction (not including transmission losses) of the west side line at somewhere from $4370 to $6494 per ratepayer. These are the numbers I would use depending on which west side project cost estimate I accepted as true.

I'll perform some other calculations and why I wouldn't use them.

Extra total cost of west side project based on the average cost per a kilometer of transmission line (calculated earlier): $1.1 billion.

Average cost per ratepayer (510,000) based on this: $2157.

This number is not exactly dishonest, but, as mentioned earlier, it assumes that the cost per kilometer is the same in both projects, which is not an assumption I would make unless there was some hard proof. It's use is fundamentally unsound unless said hard proof is offered.

Now let's calculate the cost per residential ratepayer, this will be a bit more complex, so I'll put the math in.

$3,200,000,000-788,000,000 = $2,412,000,000
(Extra total cost of west side line).

$2,412,000,000 * 33.7% = $812,844,000
(Cost of west side line borne by residential ratepayers).

$812,844,000 / 439,096 = $1851
(Lower limit extra cost of west side line per residential ratepayer).

$4,100,000,000 - 788,000,000 = $3,312,000,000
$3,312,000,000 * 33.7% = $1,116,144,000
$1,116,144,000 / 439,096 = $2542

So, the total extra construction cost (not including transmission losses) of the west side line per residential ratepayer would be somewhere between $1851 and $2542.

This would be a perfectly legitimate number to use. I would not use it myself, because the extra costs borne for commercial and industrial use will simply be passed on to either Manitoba consumers or workers as mentioned earlier. But let's calculate commercial and industrial ratepayers increased costs.

$2,412,000,000 * 65.9% = $1,589,508,000
$1,589,508,000 / 70,000 = $22,707

$3,312,000,000 * 65.9% = $2,182,608,000
$2,182,608,000 / 70,000 = $31,180

So, the total extra construction cost (not including transmission losses) of the west side line per a commercial/industrial ratepayer would be somewhere between $22,000 and $31,000.

Transmission losses have been estimated at about $300-million by a group of engineers. So that's about an extra $588 per ratepayer of losses.

The costs of this will borne by the Manitoba consumer, so prices of goods and services will go up (or it will be borne by the workers, in which case wages or benefits will go down).

So there you have it, the actual extra costs of the west side route as opposed to the east side route calculated as accurately as possible with the information publicly available.

As for what side of the debate I support, I support the East Side route because the experts that are not being leaned on by the government to express a certain view support it, and being no engineer and seeing no real flaw in their arguments I accept their expertise.

BTW, their estimate was $4,200 for a family of 5, or about $840/person. Although, it is not clear if that includes transmission losses or not. They are also using old estimates from almost a year ago, and the cost of the west side has increased.

More on Dewar

Looks like some others have responded to the transcript.

The Black Rod has an interesting piece on the topic. Written in his usual inflammatory style.

Also, Sinclair at the WFP has issued something resembling an apology for his part in the Dewar attacks. Although, his original piece was relatively balanced on the matter and more from the human interest side. Good for him.

On the other hand, the Globe and Mail continues ripping quotes from context even when they have the full transcript. Bravo.

The Media Failure on Dewar

Before I begin, I'd like to thank Melissa at Nothing in Winnipeg for the plug. It's much appreciated. Now onto the show.

So, for my first content post I thought about doing something small and simple, but decided instead on something long and complex. Might as well start with a bang.

Anyway, the transcript for the Rhodes case containing the comments made by Justice Dewar that have caused a national furor has been released, so I’ve decided to analyze that for my first post. From the beginning I’ve thought that there was something off about the story and how it was portrayed in the media, as the short quotes presented by the media seemed devoid of context. So, now we have the chance to see if my gut was right. (Warning, this is going to be a long post with much quoting).

Section 273.2 of the criminal code, which deals with consent, is mentioned a few times, so I’ll post s273.2:

273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where

(a) the accused’s belief arose from the accused’s

(i) self-induced intoxication, or

(ii) recklessness or wilful blindness; or

(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

Dewar’s sentencing rationale starts at after the recess on page 70, I will be focusing mainly on his rationale, as that's the controversial part.

First off, there’s some talk of deterrence and denunciation and the uniqueness of this case (it’s not archetypical). He establishes that 3 years is the general minimum in major sexual assaults on the bottom of page 72.

The reason he gave for his conviction is given on page 73:

My conviction in this case was based upon the notion that the accused took no steps, once he got to the highway, to be sure that what was about to happen was an activity that was mutually desired.  Some signals had been sent early, but they were not enough for the accused to conclude that the heightened sexual activity would be consensual, only that it was a possibility.  He acted at the side of the road without any further inquiry.  He took the lead and expected the complainant to follow.  He was not entitled to the benefit of the honest, but reasonable belief defence because he did not take reasonable steps to verify the consent.  Put another way, he was insensitive to what the complainant wanted and Section 273.2 of the Criminal Code mandated a finding of guilt.  His lack of reasonable inquiry deemed a guilty mind whatever he was truly thinking.

We can see that Dewar clearly believes that the sexual “signals” of earlier were not a sign of consent, only a sign of a possibility of consent (of which there is a difference, one that is important in this case). Rhodes was convicted because he did not take reasonable steps to verify consent. So, the accusations against Rhodes that he believes a woman’s manner or dress means she deserves to be raped, or that they imply consent, or what have you are false. He clearly states that consent must be obtained and can not be implied by “signals”.

We can also see that Rhodes was convicted not for engaging in sex against the stated wishes of the victim, but rather because he had not taken the proper steps to ensure that the victim consented.

Page 73-75 have him relating what he had said earlier in regards to the mistaken belief defence, this is where many of the quotes the media carried concerning clothing, partying, sex in the air, etc. were from:

I say this because the complainant herself testified that on the gravel road between the lake and highway she gave some indication of willingness to engage in sexual activity by returning the kisses of the accused. It must be acknowledged that the parties met in what can only be described as “inviting” circumstances.  At 2:30 on a summer morning two young women, one of which was dressed in a tube top without a bra and jeans and both of whom were made up and wore high heels in a parking lot outside a bar, made their intentions publically known that they wanted to party.  Then the women, in particular S.M., made the suggestion that the group should go swimming, notwithstanding that not one of them had any bathing suit. 

These facts could fairly conjure up, in the mind of the accused, that getting together with these women had potential that sexual activity lay ahead.  Then to see Mr. Lederhous and S.M. “making out” at the stop at the Jonas Road could further heighten the anticipation in the mind of the accused that further sexual activity could well occur.  And although the complainant had rebuffed his advances in the backseat of the car, her demonstrated willingness on the gravel road to hold onto him and kiss him and pretend to like him could surely leave an impression that the door was then not closed to further sexual activity.  This is especially so since there is no evidence before the group got out of the car by the lake there were any threats or excessive advances made by the accused.  

By the time he was walking hand in hand with the complainant up the gravel road to the highway, I find that the accused was not aware of the complainant’s fear of him and that he honestly believed that the increased sexual activity was still a possibility.  I do not accept that the accused had formed any intention at this time to impose his desires upon the complainant, since it would have made more sense to impose them in the privacy of the gravel road than in the more relative openness of the highway.  

After all that description of why he thought the accused might think sex was going to happen and did not form intention to rape, he then says of this:

I did prefer the complainant’s evidence over Mr. Rhodes evidence as to what happened at the side of the highway.  But that describes the activity.  It does not describe Mr. Jones (sic) mind.  In effect, that doesn’t matter because of  Section 273.2.   

So, Dewar basically says that, although circumstances may have led Rhodes to believe sex was a possibility and that he had no intent of imposition, it doesn’t matter; Rhodes was still guilty of sexual assault because he did not take reasonable steps to ascertain consent.

This flatly contradicts the accusations against Dewar that he believes clothes, kissing, partying, and suggestions of nude swimming justify non-consensual sex. He specifically says quite the opposite, that it does not justify a lack of consent.

Dewar then further illustrates Rhodes lack of concern over the next few paragraphs, but it’s not really controversial, so I won’t quote it here.

As an aside, there is one point of note, at no point in Dewar’s description of events did he ever describe the victim as saying no. Rhodes seems to have been convicted not because he pressed on when the victim said no to sex, but because he did not try to ascertain whether she wanted sex or not.

The only sign that I can find that the victim indicated sex was unwanted were on page 76:

forging on with the sexual activity on the side of the highway without further inquiry either before it began or midway through after she exhibited discomfort, does not satisfy the test of 273.2(b).

So I looked backed over the first pages, like I said I wouldn’t at the beginning, page 4 had this: “I further note that Mr. Rhodes continued with penile penetration of the victim’s vagina and briefly her anus, after she had expressed pain from her comment when he was digitally penetrating her vagina and fear. Your Lordship did find on the facts that there was a comment from her asking if he planned to kill her.”

On page 5 this: “I draw to My Lord’s attention that the victim was so afraid that she fled through the pan – without pants through the woods.”

And this: “He did pursue the victim after she had clearly rebuffed him.  Although, the Crown does concede that this attenuate by the victim’s response to subsequent advances by Mr. Rhodes during the walk to the highway.”

On page 31-32, Dewar asks this:

It’s one thing – the fact that a complainant is passive does not satisfy the – does not act as some sort of a defence – does not satisfy the consent And if there’s no consent then there’s a conviction.  So then you come to sentencing.  And – and (inaudible) there may be circumstances which are ruled out for conviction that may have some bearing.  I don’t know how much, but some bearing on sentence.  The fact that she didn’t say no, at any time, is not a defence to the conviction.  But does it add anything; is it part of the sentencing consideration?

He indicates that the victim did not say no and says that that is not a defence, but may affect sentencing. There’s some pages of talk of prior court cases by the prosecutor, then on p. 33-34 Dewar asks this:

it’s what – what concern I have is the – is the conduct on the highway – on the road leading up.  And I think when I made the decision; I found that at that point in time there was no intention on the accused to sexually assault the lady.  And there was a possibility out there – the door wasn’t closed and … The door to any kind of sexual conduct was no closed as they were walking up to the 24 highway… Now in this case, and I’m not critical of the complainant, I understand she was frightened, but she did something, he said – he made some comment about sexual activity and she said; let’s go to the highway.  

After some more talk about prior cases and a recess comes this from the prosecutor on page 40-41:

Firstly, one of the findings that I believe you made was that there had been at least three independent indicia of rebuffing of the accused prior to that circumstance.  There was a specific rebuffing in the car, there was a certain coldness, as described even by the accused, and there was the fact that she’d gone off into the bush.  Those indicia would not have led a reasonable person to believe that there was a reasonable likelihood of behaviour after that.  
On page 45 speaking to the defence Dewar states:

Well, I – I think she did rebuff him – I think I found she did rebuff him in the backseat of the car.

The following pages have the defence defending and indicating that at no point did Rhodes use violence.

So it seems that while she did rebuff his advances earlier in time, she later came to, at least on the surface, accept some of his advances afterwords and even suggested going to the highway when propositioned for sex. But at the time of the assault, I can not find anything that indicates (it’s possible I may have missed it) she actually indicated to Rhodes that she did not consent (although, Rhodes did not take reasonable measures to obtain it, which was why he was found guilty of sexual assault). After penetration and during the assault, she seems to have made a comment indicating pain along with a question about whether he would kill her, which was callously brushed off by him; this seems to be the closest the victim seems to come to actually verbally protesting the attack.

All this to say, that Rhodes never heard a straight-forward turn down of his advances except earlier on, after which the victim did seem to agree to some contact, although she did not agree to sex.

But, anyway, back on track, on p. 76-77 Dewar states:

This is a case of misread signals and inconsiderate behaviour.  There is a different quality to these facts than found in many cases of serious sexual assault.  There were signals given by the circumstances and indeed by the complainant, albeit the latter based upon self preservation, which ought not to be overlooked.  This is not a case in which Mr. Rhodes’ anticipation was groundless.  However, its consummation without reasonable inquiry was not justified. 
 

As I stated before the digression: Rhodes was convicted not because he pressed on when the victim said no to sex, but because he did not try to ascertain whether she wanted sex or not. This seems to have had some influence on Dewar’s sentencing.

Further on page 77 comes the “clumsy Don Juan” quote that was one the 'objectionable' statements he made:

But when talks of proportionality (similar sentences for similar offences), the court must compare apples and apples, not apples and oranges.  Yes, there were common threads. There was sexual intercourse; there was cunillingus and digital penetration. 

But here there were no threats knowingly given, there was no violence knowingly imposed.  Mr. Rhodes, in his testimony, had said that he wasn’t out there to hurt anyone.  Even his sexual activity, bizarre as it was and as hurtful as it was to the complainant, cannot be said to be only self gratification.  It had the characteristics of a clumsy Don Juan.  I don’t condone it, but it simply does not fit the archetypical cases cited.  

Unlike the sleeping women cases, there was no inert woman giving no signals at all.  There was some invitation however involuntary.  I’ve read you the facts that I found.  I don’t criticize the complainant.  She was a frightened young woman all alone in the presence of a large, perhaps loud, overbearing older man.  But she did give signals that he read the wrong way and was not considerate enough to make sure of what they were saying.
Again, this quote seems to have been ripped from context. It is not used to justify or condone Rhodes actions or justify rape, but only to show that Rhodes was not out to hurt someone and had no intent for rape (only a disregard for his victim), and because of this the sentencing of the archetypical cases shown earlier where there was intent may not applicable due to considerations of proportionality.

On page 78 Dewar quotes and earlier case:

Provocation of the offender by the victim is an obvious mitigating factor. More difficult to decide is whether, in a given case, there has been provocation. It is surely not provocation, for example, simply to be a woman, or to be attractive, or to be prettily attired. Sexual arousal is not the same thing as the arousal of a desire to seek sexual satisfaction by violence to another, and provocation of the first is not necessarily provocation of the second.

And then Dewar says on it:

The case uses the words provocation.  Perhaps enticement is a better word.  But even that is not really apt here.  I’m sure that whatever signals there were that sex was in the air were unintentional.  But that does not change the fact that they were there, more then just a manner of dress, more than the fact that she was a woman.  And they are a relevant, mitigating factor.  

So again, Dewar specifically states that attire, being a woman, being attractive, and causing arousal are not provocation for sexual assault and are not a mitigating factors, but that the victims signals were beyond that and into the realm of provocation, which can be a mitigating factor in sentencing. He then sites some relevant case law saying provocation can be used in sentencing.

Sex was in the air had appeared earlier in the transcript, on page 47. The prosecution is describing what Dewar had stated earlier, during the trial:

You say at page 22, at sentence nine, I conclude that although the accused was led by the circumstances to conclude that sex was in the air, he was insensitive to the fact the complainant was not a willing participant.  It was fairly argued by the Crown that as required by Section 273.2(b), he did not take reasonable steps to verify consent.  

In context, the “sex was in the air” quote was exactly the opposite of what the media and Dewar’s accusers tried to portray it as. The media and Dewar’s accusers had portrayed the quote as Dewar justifying sexual assault, when, in fact, he uses the quote to say that it was not an excuse for not taking reasonable steps to verify consent.

Then comes the sentence on page 80:

The signals given here, in this case, are at least relevant to the degree of moral blameworthiness of Mr. Rhodes.   So this case is different.  Make no mistake Mr. Rhodes’ failure to make inquiries warrants sanctions.  Apart from anything else women deserve respect and consideration.  And when strangers are involved, greater care must be exercised in showing that consideration because there is no track record of familiarity on which to gauge the consent.  But in this case therefore, not only is deterrence and denunciation important, so also are the other criteria in Section 718, including:  

1. Protection of society,

2. Rehabilitation, and

3. Promote a sense of responsibility in offenders and acknowledgment of the harm done to the victim and to the community.  

Protection of society, I do not believe is advanced one iota by putting Mr. Rhodes in jail.  The Pre-Sentence Report suggests that there are no psychological or antisocial patterns and Mr. Rhodes’ history confirms that.   

As to rehabilitation and promoting a sense of responsibility, a lengthy prison term, in my view, for non-thinking behaviour tends to stifle constructive change rather then encourage it.   

The Pre-Sentence Report is favourable.  Mr. Rhodes has no criminal record, has steady employment, a supportive girlfriend.  There is no real suggestion of recidivism.  By this conviction he is branded a sexual offender, at least in the eyes of many members of society.  And he has been living under this cloud for four and a half years.  I do not view either Sandercock or Arcand as particularly helpful where an accused is found guilty because he failed to measure up to a deemed intent.  Mr. Coggan is right that the moral blameworthiness of Mr. Rhodes on this night, in those circumstances was not at the same level as the accused persons in either Sandercock or Arcand.  Not all guilty people are morally culpable to the same level.  This difference is not reflected in conviction. It can be reflected in sentencing.   

If I were forced to utilize the Sandercock approach, the lesser level of moral culpability in the unique circumstances of this case is a material mitigating factor.  However, I do not feel the Sandercock

starting point should be applicable in this case because of the different fact situation, which I have earlier described.   I mention also the fact that Parliament has now determined that conditional sentences are not available for cases such as this anymore.  However, when this offence was committed, conditional sentences were not only available, they were not infrequently utilized.  Mr. Rhodes ought not to be prejudiced by the shifting sands of time, and I am able to draw upon a conditional sentence for this offence as one arrow in my sentencing quiver.  

The real question is whether, in this case, it is appropriate to do so.  Deterrence to Mr. Rhodes is not a factor.  With his past and his Pre-Sentence Report, I see no basis for believing that he is at greater risk to do this again if he doesn’t go to jail.  He has been living with the system including the vagaries of placing a position before the court.  If he hasn’t learned to be more respectful towomen by this experience, he never will.  

I also am of the view that general deterrence and denunciation can be found in a properly crafted conditional sentence.  The Pre-Sentence Report demonstrates that Mr. Rhodes likes his freedom; to fish, to camp, to go out and visit.  A conditional sentence which restricts those activities, in my mind, imposes jail like conditions that do impact on a person’s quality of life.

He then goes on to list the terms of the conditional sentence.

The conditional sentence was imposed because Rhodes wasn’t as blameworthy as to require jail as there was no intent to harm, just signals that were taken the wrong way that entered the realms of provocation and a disregard for reasonable inquiry on his part, for which he was convicted. He wasn’t likely to reoffend, deterrence is not a factor, and jail wouldn’t rehabilitate him.

Dewar believed being a sex offender and having jail-like restrictions on freedom were enough of a punishment.

So, my conclusion, the sentence Dewar handed out may or may not have been appropriate, and that’s to be decided on appeals, but the justification for his sentence was not unreasonably inappropriate. He was definitely not the misogynistic rape apologist that critics of the sentencing have been accusing him of being and he does not deserve disciplinary punishment.

On the other hand the media-led attacks on Dewar were grossly unfair. His judgment was quote-mined and the controversial remarks were ripped completely out of context, sometimes to the point of making Dewar seem to say the opposite of what he actually said. Dewar specifically and repeatedly said that attire, demeanor, attractiveness, suggestions of nude bathing, sex being in the air, etc. were not excuses for sexual assault, were not invitations for sex, and did not justify rape. He very clearly stated that consent can not be implied from any of these but must be given and that reasonable measures must be taken to obtain consent.

Rhodes was given a conditional sentence because he was not a threat to reoffend and would not be rehabilitated through prison and because his blameworthiness was limited as (although, he was still blameworthy) as he did not intend harm, but rather had callously misread signals. Dewar thought that being a sex offender and having jail-like restrictions on his behavior were punishment enough.

It is perfectly legitimate to take these factors into consideration for sentencing and it occurs all the time, whatever you may think of the leniency of the justice system and this case in particular.

I hope his accusers apologize for the attack on Dewar and, by consequence, the justice system as a whole, but I have no real expectations of this. Hopefully, he will at least be able to get back to work without restriction. Also, I hope the next time they’ll wait for enough information rather than just ripping quotes out of context in a knee-jerk fashion and destroying a person’s career for headlines.

One other anecdotal thing stood out to me in the reaction to this case. A lot of those who would normally be opposed to mandatory sentencing seem to have been supporting mandatory sentencing in this case and were advocating that he not get less than the generally accepted three years for sexual assault. But, either the judge is given leeway to sentence as he sees fit or the judge is not. It is hypocritical to attack mandatory sentencing as a matter of course, but then demand that judges use mandatory sentencing despite the circumstances in specific cases. Whatever your position on mandatory sentencing, at least be consistent in it.

Edited: on March 13 to make some things more clear.