06 Nov The mindless wrecking ball that is zero tolerance

He was a married, 40-something opposition MLA, a large man with ambitions of becoming premier someday. She was a popular, 20-something party staffer, a small woman with plans to study law. They began what would be a four-year “personal relationship,” details of which have not been disclosed, but one gathers it’s the sort of friendship the MLA would prefer his wife did not discover.

In the fall of 2013, the MLA’s party won a landslide victory in the general election, and on October 22 of that year, he was sworn in as Minister of Energy—a giant step toward his ultimate political ambitions. The ceremony took place in Annapolis Royal. Later that evening, at The Dingle tower in Sir Sandford Fleming Park, the newly minted minister and the now former staffer—she had by this time left the party office to study law at Dal—had some sort of altercation. Police would later say she bit him.

Was she distraught because the minister broke off their relationship? We don’t know. In fact, none of the events I’m describing here have been tested in court. I have pieced them together from various public statements and media accounts of preliminary court proceedings.

Fast forward to November 2014. The Minister is embroiled in the controversy over whether to permit hydraulic fracking in Nova Scotia. He receives a death threat from a fracking opponent. Police investigate, and perhaps ask the minister if he knows of anyone who might bear him ill will. For whatever the reason, he discloses the incident that took place a year earlier at The Dingle.

As a matter of policy, police and prosecutors in Nova Scotia exercise zero tolerance in cases of domestic violence. So they laid a charge of common assault against the former staffer, who was by then an articling clerk preparing for exams that would lead to her admission to the bar.

Whenever you hear the words, “zero tolerance,” dear reader, the hairs on the back of your neck should rise to attention. Zero tolerance is the abdication of judgment, a refusal to draw distinctions or exercise common sense.

In this case, there was no weapon. There is no accusation of bodily harm. There were no apparent lasting effects. There is not even a complaint or a complainant. Just an unhappy, private, year-old encounter in which a slight woman briefly got physical with a much larger man, a big guy who was never seriously in harm’s way. But because police and prosecutors have too often turned a blind eye in cases that are superficially similar but actually very different—large men beating the crap out of small women—we have stripped them of the power to make reasonable distinctions.

The consequences of this policy-driven decision to lay an overwrought charge were many. The fallout would strain the minister’s marriage and—ultimately—hobble his career. The unfolding scandal would publicly humiliate his wife and children child. The law student stood to lose her career, since an assault conviction would likely preclude her admission to the bar.

To avoid the worst of these consequences, the minister took refuge in the technicality of parliamentary privilege and refused to appear at her trial. As a result, a charge that should never have been laid was dismissed, and a young woman with promise will be able to pursue her chosen profession. That’s a good thing. For his part, the minister was spared the ordeal of testifying about facts that would further humiliate his innocent family to no higher purpose. That’s not a bad thing.

In the media feeding frenzy that followed, the minister told what appears to have been a fib—although this interpretation is not quite as clear-cut as media accounts have implied. The premier had his fill of the scandal, and sacked him. [UPDATE: Late last night, the minister issued a statement acknowledging that his disputed comment to the media, which reporters and the premier have taken as a lie, was a mistake, albeit an unintentional one, he says.]

Twitter came alive with sanctimonious parsings of the precise measure of shame to be accorded each participant. The Chronicle-Herald’s editorial board reached exactly the wrong conclusion:

The minister’s failure to appear in court, and to act on his own initiative to waive legislative privilege, clearly undermined an important government policy on domestic violence.

Only Tim Bousquet at Halifax Examiner put the outcome in reasonable perspective:

In the end what matters is: Has justice been served? Should a promising young woman’s legal career be derailed before it begins because of an alleged assault that neither she nor Younger want detailed in public?

In reality, a policy devoid of scope for reasoned judgment caused harm out of all proportion to the actual facts or any conceivable public purpose.

UPDATE: Tim Bousquet has a further thoughtful discussion of this episode here.