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Canada’s legal system is sexist and broken

By: | March 26, 2016

The Ghomeshi ruling is just the tip of the iceberg.

Hans Rollmann
To Each Their Own examines political issues impacting Newfoundland and Labrador.

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People demonstrated outside the Toronto courthouse Thursday where the Ghomeshi verdict was being handed down. Photo:blogTO.com / Creative Commons.

When it comes to dealing with sexual harassment and assault, Canada’s legal system is sexist and broken.

The Jian Ghomeshi verdict is not so much a bad verdict as it is the product of a badly broken system. It reveals that the problems which continue to plague a legal system that is powerfully biased against women complainants are deeply rooted and systemic.

For an excellent analysis of the sexist reasoning underlying the ruling, check out this thorough overview. But the Ghomeshi verdict is just the tip of the iceberg.

Women driven out

Earlier this month, a report by the Criminal Lawyers’ Association revealed that women were leaving the field of criminal law in dramatically high numbers, owing to discrimination.

“It found low pay, lack of financial support for maternity leave and being treated differently than male peers by judges and court staff as some of the reasons so many women are leaving private practice of criminal law,” reported Maureen Brosnahan for the CBC.

A field in which women are discriminated against and driven out in such numbers means it’s a field where masculine attitudes and standards dominate. It’s little wonder that so little progress has been made in educating judges about the very basics of sexism and gender equality. And it’s little wonder that their rulings reflect this lack of perspective and understanding.

Let’s say it again: Canada’s legal system is sexist and broken.

Where to start?

A few years ago, I had a revealing encounter of my own. A local law office came out with an ad which was condemned by local activists as sexist. “Assault this, and you’ll only need one law firm,” stated the ad, where the ‘this’ being objectified referred to women.

When I wrote a complaint about the ad to the provincial Law Society, I had expected them to look into the matter. Instead, they disclosed my complaint and identity to the lawyer in question, and I proceeded to receive a number of aggressive letters, suggesting my statement that “the ads in question may be easily construed as condoning and in fact encouraging violence against women” may be libellous.

I was understandably shocked; calling out a triggering ad about sexual assault as being sexist resulted not in apologies but instead what appeared to be threats from a male lawyer. When I complained about this to the Law Society, and pointed out their treatment of the matter would have been deeply traumatic to a survivor of sexual assault, they indicated they hadn’t dealt with a complaint of this nature before. In the end the complaint was resolved — the ad was removed and the Law Society indicated they would revise and clarify their complaint procedures, which they subsequently have.

But the whole affair revealed a very telling fact — the legal field was badly unprepared for what in the 21st century should be a much higher priority: tackling sexism. These problems are not confined to Canada, either. A 2015 article in The New Statesman offers a moving example of how deeply rooted sexism is in western legal institutions.

In Canada, the low rates of conviction for sexual assault are an indictment of the system itself. As a 2014 Toronto Star article revealed using Statscan data from 2004 and 2006, 460,000 women self-reported sexual assault: 15,200 reported to the police, 5,544 charges were laid, with 2,824 prosecutions and 1,519 convictions. Again, that’s almost a half million self-reported assaults, and 1,519 convictions. Something is deeply wrong.

All of this is the product of a systemic sexism which manifests in multiple ways: lack of appropriate oversight and education around sexism and gender equality for those who work in the legal field, lack of adequate support for women seeking to make careers in the field, and ultimately a lack of basic feminist principles in the adjudication of cases like that of Jian Ghomeshi.

Let’s say it again: Canada’s legal system is sexist and broken.

Media plays a role, too

When systemic sexism rears its head in one field, it’s often the case that systemic inequities in other fields emerge to support it. Take media coverage of the Ghomeshi ruling. While there’s been a lot of good and insightful coverage of the trial, including by CBC reporters, there’s also been a lot of coverage that has retrenched rape myths and other sexist stereotypes. A telling example is offered by a CBC story published shortly after the ruling, which reveals the masculine privilege still embedded in the newsroom.

The article, headlined “Ghomeshi trial praised by lawyers for ‘right decision’”, opens with the lede: “While former CBC Radio host Jian Ghomeshi’s acquittal has sparked protests, many within the legal community are praising the decision, agreeing with the judge that the complainants’ credibility issues raised reasonable doubt in the case.”

This is a typically masculinist framing of the issue. “Many within the legal community” – i.e. experts – support the decision, while those who dislike it are dismissed as ‘protestors’ (while in fact many of those who have criticized the decision are academic and legal scholars as well).

But most damningly, the article goes on to quote no less than six of these legal experts, all of whom are men. And not a single woman appears in the entire article.

Some journalists might argue that expert opinions have no gender. But anyone with a basic understanding of gender knows that they do. Moreover, for a news agency to publish an analysis of a case involving sexual assault allegations against women, without interviewing a single woman, is basic bad journalism. But it’s bad journalism that legitimizes the systemic sexism that pervaded this case and its outcome.

Let’s say it again: Canada’s legal system is sexist and broken.

Reflection, and a time for change

When it comes to justice for women survivors of sexual assault and sexual harassment, Canada’s legal system is badly broken. Let’s use this moment not just to critique the Ghomeshi verdict, but to call for a review and overhaul of the Canadian justice system, and to address the deeply rooted and systemic sexism with which it is riddled in so many ways.

In the wake of the Ghomeshi verdict there are already some great ideas being floated around, including the possibility of introducing special courts to hear sexual assault cases — much like Newfoundland and Labrador’s Family Violence Intervention Court that advocates, including Crown prosecutors, have fought hard for.

Whatever future possibilities exist, they first require political will. And it just so happens that when Canada’s Liberal government was elected last fall, Justin Trudeau’s mandate letter to Justice Minister Jody Wilson-Raybould called for her to “conduct a review of the changes in our criminal justice system and sentencing reforms over the past decade with a mandate to assess the changes, ensure that we are increasing the safety of our communities, getting value for money, addressing gaps and ensuring that current provisions are aligned with the objectives of the criminal justice system.”

If there was ever a time to get a move on reforming the legal system to ensure justice for victims of rape and sexual assault, that time is now. Because Canada’s legal system is sexist and broken.

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