It is a new year. Let’s roll up our sleeves and do that work. But, to bring about a more equal world, what work can we in the Canadian legal profession do?
The direct work to be done on sexual assault and sexual harassment cases is enormous.
The Royal Canadian Mounted Police is processing more than 1,100 open claims made by women in relation to workplace sexual assault and sexual harassment. In marked contrast to other violent crimes, which have decreased in number over the past 10 years, Statistics Canada’s most recent General Social Survey on Victimization found rates of sexual assault to be at a steady level, and it found also that victims of sexual assault were no more likely to report the offences now than they were a decade ago.
Offending rates remain too high, and reporting rates remain too low.
Taking action against sexual harassment and sexual assault is where we should begin but not where we should stop. Not all of us will be involved directly in those cases. It is far too easy to make the #metoo movement about monsters.
The high-profile men recently deposed due to sexual harassment and assault allegations were enabled in their abuse by their positions of power. People and structures were complicit, many of them women. More complicated than rooting out villains is the knotty work of untangling the gender bias and systemic inequalities in a society that normalizes and enables them.
Social order rests not only on law but also on a cultural web of small interactions — we all have some power at our local level to do law differently. It is not only men but also women who need to act.
My book about the death of Ashley Smith while she was imprisoned concluded with a challenge that is ever more relevant — to find ways to ensure that contexts where legal processes are carried out are emancipatory spaces for women and girls as world makers. Smith, a 19-year-old, was first incarcerated for throwing apples and stealing a CD.
She died in prison after having spent several years in solitary confinement. Smith had accumulated hundreds of disciplinary infractions in prison. Her death was found by an inquest jury to be a homicide perpetrated by the justice and correctional systems. Legal and correctional processes failed her by not making sense of her actions.
Unless we open those spaces, there will be no justice.
We must talk differently about women and girls. We need to do better to represent women, by confirming they matter as individual people, not just as someone’s sister, mother, wife or daughter.
We must put forward the complexities of women’s characters. It is imperative that we think differently about ethics in representation.
Law has cultural power. When we represent people in advocacy, we also create representations, or depictions, of persons. These representations take on a cultural reality. They can confirm or challenge stereotypes. They create worlds.
We can do better to make visible the pain of victims and the failures of our systems to protect them. We must say their names.
For example, in discussing the trial of Basil Borutski for his 2015 misogynist murder spree in Wilno, Ont., we should focus much more on the lives that were ended and the failure of our systems to protect Anastasia Kuzyk, Nathalie Warmerdam and Carol Culleton.
We should turn our gaze not to the notoriety of the perpetrator but to the courage of the women who died and on fighting for those who are living.
When representing or cross-examining a woman, we can consider how her humanity is being depicted in the courtroom. We need to ask ourselves: Is how I am representing or questioning or describing this client, complainant or opposing party itself a form of violence?
The trial in R. v. Barton, 2017 ABCA 216 presents an example of a troubling representation of women intersecting with race and gender.
Bradley Barton was charged with first-degree murder in relation to the death of Cindy Gladue, who was found dead in the bathtub in a hotel room occupied by Barton. She died from blood loss from a perforation of her vaginal wall.
The Alberta Court of Appeal overturned Barton’s acquittal and ordered a new trial on the basis of errors in the charge to the jury. In addition to the errors in law, the trial has been condemned because of the manner in which Gladue’s dismembered body was represented in the court. Her actual vagina was brought in for inspection. The trial of Barton itself dehumanized Cindy Gladue.
Those of us in the Canadian legal profession can make 2018 a year of taking action toward more just and emancipatory lawyering. We are all more powerful than we think.
Dr. Rebecca Bromwich is an Ontario lawyer and legal academic. She serves as the director of the graduate diploma in conflict resolution program at Carleton University in the Department of Law and Legal Studies.