Judiciary’s comments on women come to fore

Lawyers who work on gender issues in law say the recent media attention just scratches the surface of a complex ethical discussion about judicial training, diversity, and rules versus ethics.

As a series of high-profile cases involving women complainants have captured the attention of the mainstream press, the comments made by judges has become a focal point for debates feminism and the judiciary.

The Ontario Court of Appeal overturned an acquittal in a case of sexual assault of a child, lambasting the lower court’s decision to consider the pre-teen’s “interest in sex.” The court also ordered a new trial in another Ontario decision, involving sexual assault allegations in a home for people with disabilities. In that case, the accused was acquitted by a lower court in a decision that considered the woman’s attire. 

Other courts, too, are under the media microscope. At an Immigration and Refugee Board hearing, a judge asked a woman alleging domestic violence, “If he really wants you to be gone, why doesn’t he just kill you?”

In Quebec, on the other hand, the chief justice of the province's Court of Appeal has faced complaints for saying she is a “feminist.” Vocal supporters of women’s rights — such as Beverley McLachlin and Shaun O’Brien — have served on the bench. But declaring one’s feminism in court is a political bias, alleges Frédéric Bastien, who teaches history at Dawson College and made a complaint against Quebec Chief Justice Nicole Duval Hesler. A feminist group has also reportedly complained that Duval Helser made inappropriate comments about her future prospects as an arbitrator.

While recent headlines have brought the issues into sharper focus, lawyer Angela Chaisson says there is a difference between decisions that discredit rape allegations and comments about feminism — namely, the former are errors of law. 

“Rape myths, myths about consent, myths about sexual assault survivors, continue to pervade our justice system. Which is why it's imperative that we make sure people who are on the bench believe in the basic tenets of equality,” says Chaisson, who was previously a research assistant at the Institute for Feminist Legal Studies. “And also, uphold the law. We're seeing trial judges being overturned at the Court of Appeal, because they haven't followed the law. And that's not an issue of feminism. . . . it's just an issue of doing your job.” 

Sonia Lawrence, an Associate Professor at Osgoode Hall Law School and director of the Osgoode Institute for Feminist Legal Studies, also cautioned against creating too tight a link between debates about how judges handle sexual assault cases, and complaints against Duval Hesler.

“I do think that those things are connected but they're connected through, I think, a broader struggle over whether there is actually a neutral position,” says Lawrence. “And how we determine where legal lines are — and who's qualified to make those decisions. And I think that that struggle extends far beyond law.”

Lawrence says that a judge relying on rape myths displays more of a lack of understanding of the substantive law. Lawrence also notes that the allegations facing Duval Hesler stem beyond the label of feminism. For example, the judge reportedly stepped back from a speaking engagement at the Lord Reading Law Society, which is publicly opposed to bill 21 and has joined an action against it. Plus, there are many facets of feminism. In the Quebec case — which addresses a ban on religious symbols enacted by bill 21 — there are feminists who support the bill and others who oppose it. Indeed, Pour les droits des femmes du Quebec, a feminist group, has also complained about Duval Hesler’s handling of the bill 21 case.

Chaisson, herself a feminist, says that it’s also important for people to know that judges are rarely able to respond publicly to complaints, and are careful to separate their activities outside of court. But during the argument phases of a proceeding, judges do sometimes take “devil’s advocate”-type positions to push counsel to advance their arguments before a final decision is made, she says.

But adding more judges who are explicitly feminists on the bench and providing judicial training, Chaisson says, would help in eliminating “deeply entrenched misogyny” in courts.

“Justice in Canada is stronger with a diverse bench. And we're doing ourselves a great disservice by even questioning whether feminism is incompatible with being a judge,” she says.

Even if a judge’s comment in court cannot be taken as an indication of their political views, Chaisson says she does not see “feminist” as a controversial label.

“Saying that you're a feminist in court is perfectly appropriate, because believing in equality of all people is a prerequisite for being on the bench, like saying that you're not a racist. That is not controversial,” she says.