The Niqab in the courtroom: A new guise for "whacking" sexual assault complainants?
By Joanna Birenbaum and Kerri A. Froc
In June 2010, the Ontario Court of Appeal will consider the Charter application in R. v. N.S. The case involves a sexual assault complainant who was ordered to remove her religious clothing as a precondition to testifying at the preliminary inquiry of two men charged with sexually abusing her as a child.
Reasonable Accommodation: The Charters of Rights and the responsibility of jurists in the public debate
By Pierre Bosset
The “reasonable accommodation crisis” that led to the creation of Quebec’s Bouchard-Taylor Commission was also, according to some analysts, an institutional crisis. But that claim was based on a misperception: supposedly, the law and the courts had not demonstrated their capacity to oversee the application of accommodations founded on important values and principles, such as gender equality.
Innovative approaches needed to address inequalities in the legal profession: ABA report on diversity
By Rebecca Bromwich
A new ABA report on diversity makes several recommendations to the American legal community that have resonance in the Canadian context.
Staff changes bolster support for CBA equity initiatives
By Rebecca Bromwich
At a time when law firms are increasingly prioritizing equity initiatives in their work, a renewed vigour in CBA staff provides us an opportunity to continue to lead the profession in this important area.
An alternative approach to learning – Equity, pedagogy and the law school classroom
By Amy Raposo, Danielle Farace, and Radhika Joshi
The authors describe an alternative approach to learning that might be applied to legal education.
Who do you think we are? Voluntary self-identification and the CBA
By Arleen Huggins and Esi Codjoe
The fact that diverse members of the profession face barriers is not a new issue. However, The CBA has sought to help remedy this situation.
Competing rights: Hate and free speech
By David Matas
Freedom of speech is a basic human right. So is the right to be free from incitement to hatred. How do we balance these two competing rights?
The Niqab in the Courtroom: A new guise for "whacking" sexual assault complainants?
By Joanna Birenbaum1 and Kerri A. Froc
In June 2010, the Ontario Court of Appeal will consider the Charter application in R. v. N.S. The case involves a sexual assault complainant who was ordered to remove her religious clothing as a precondition to testifying at the preliminary inquiry of two men charged with sexually abusing her as a child.
R. v. N.S. at once presents a new problem for Canadian courts and at the same time underscores an old problem for Canadian feminists: how to prevent sexual assault trial fairness from being undermined by defence tactics that, at their heart, are aimed at discrediting complainants based upon shopworn (but still potent) rape myths. The Women’s Legal Education and Action Fund (LEAF) is intervening in the case to argue for this complainant’s equal right to a fair trial and to ensure that the s.7 and s.15 Charter rights of sexual assault complainants are given due weight in a case that has been framed as pitting religious freedom against an accused’s right to a fair trial.
N.S. is a Muslim who wears a niqab, a head covering that covers the face with the exception of the eyes. She describes the niqab as "a part of me" and a matter of "respect", "modesty" and "honour." The two co-accused are family members. At the preliminary inquiry, the accused objected to the complainant testifying wearing her niqab. Under the umbrella of full answer and defence, they asserted a right to the demeanor evidence of the complainant, by which they meant evidence in the form of facial expressions and reactions from the eyes down.
Although it is the accused who demanded the removal of the niqab on the basis of their Charter rights, from the moment their objection was raised, the complainant has been forced into the role of Charter applicant. She has been required to prove her right to wear the niqab, without the accused first discharging their onus of establishing any infringement of their rights.
The preliminary inquiry judge responded to the accuseds' objection by calling N.S. into the courtroom and asking her questions about her religious beliefs, without her having the benefit of counsel and over the objections of the Crown that N.S. be represented. Following argument on the issue (by which time N.S. was represented), the Court ordered N.S. to remove her niqab. N.S. appealed.
In April 2009, the Ontario Superior Court of Justice quashed the order that N.S. remove her niqab. Rather than determining N.S.'s right to wear her niqab, however, the Court directed an unprecedented and burdensome procedure to respond to the accused's objection. The regime involves at least four voir dires at which the complainant is a compellable witness made to establish the validity and sincerity of her religious beliefs and to describe the events of the sexual assault over and over again, all prior to her knowing whether or not she will ultimately be permitted to testify at trial. N.S. has appealed this judgment to the Ontario Court of Appeal.
To date the N.S. case has been presented almost exclusively as involving a "conflict" between the complainant's right to freedom of religion and the accused’s right to full answer and defence. The religion vs. fair trial rights dichotomy, however, obscures an essential aspect of the case. It fails to address the individual and systemic inequalities raised when a Muslim, niqab-wearing sexual assault complainant is ordered to remove her niqab at the behest of two male accused.
LEAF's intervener factum argues that the complainant is entitled to access the Canadian criminal justice system wearing her niqab. LEAF further argues that the Court should determine the appeal on the basis of the complainant's s.7 and s.15 Charter rights, and that it is unnecessary for the Court to determine the complainant's right to freedom of religion to decide the appeal. An Order stripping the complainant of her niqab constitutes a profound violation of her ss.7 and 15 Charter rights, while the wearing of the niqab would not impinge on the rights of the accused.
Why does LEAF assert that the complainant's s.7 and s.15 Charter rights best ground this appeal? First, LEAF argues that these rights require that the objection to the complainant wearing her niqab be situated in the particular historical context of how defence tactics have been and are used to "whack the complainant". Sexual assault complainants continue to be subjected to greater scrutiny than any other category of witness. Women continue to be aggressively cross examined on their sexual history, sexual reputation and medical records in order to exploit rape mythologies, humiliate and intimidate them, and undermine their credibility. Such tactics at the preliminary inquiry seek to harass the complainant so that she will withdraw from participating at trial. Despite legislative reforms and Supreme Court of Canada rulings denouncing such practices, they remain a central feature of the sexual assault preliminary inquiry and trial.
LEAF argues that the history of these practices intended to "whack the complainant" cannot be ignored when the accused ask the Court to strip the complainant of a deeply personal item of religious dress, which she describes as a "part of me". In this context, the metaphors of re-victimization, of stripping and laying bare by the harassing cross-examination and aggressive attacks on the credibility of sexual assault complainants become literal.
The complainant is entitled to be free from the state imposed psychological harm occasioned by the forced removal of the niqab. An equality analysis of this s.7 Charter right reveals that the psychological harm is uniquely gendered. The niqab is only worn by women. The demand for the removal/undressing of the niqab is made in the context of a sexual assault trial, where the charges involve an act of male power. The complainant's credibility and beliefs as a Muslim woman are being challenged and undermined.
The s.7 Charter rights of N.S. and other niqab-wearing women to physical security of the person and liberty (understood both narrowly as freedom from imprisonment and broadly as freedom of movement and from state interference with fundamentally personal decisions) are also engaged. If niqab-wearing women risk having to remove their niqabs to testify, or if they face an onerous and demeaning procedure to justify their niqabs in Court, to what extent will this exacerbate the underreporting of sexual assault by this already marginalized group of women? As it is, less than 6% of sexual assaults are reported and even fewer prosecuted. An order that the niqab be removed in the courtroom in sexual assault trials will shut niqab-wearing women out of the criminal justice system. And the message effectively will be that they can be raped with impunity. In addition, if niqab-wearing complainants are compellable witnesses and refuse to comply with an order to remove their niqabs, they risk criminal sanction. The risk of incarceration, the increased vulnerability to sexual assault, together with state interference with a complainant’s religious practice, all amounts to an affront to section 7.
One question that arises is whether this argument that allowing complainants to continue wearing their niqab while testifying swings the pendulum too far and diminishes the accused's right to a fair trial? In answering this question, it is important to consider whether the lack of demeanor evidence makes any significant intrusion on the right to full answer and defence. The Supreme Court of Canada has repeatedly confirmed that there is no absolute right to see the face of one's accuser (R. v. Levogiannis, [1993] 4 S.C.R. 475). Moreover, the reliability and probative value of demeanor evidence is increasingly under question by the judiciary and social scientists. For example, renowned social scientist, Professor Paul Ekman of the University of California, conducted an empirical study of professionals, such as judges, FBI, CIA and police, who make judgments about whether people are lying or telling the truth.
His results revealed that these professionals do "no better than chance" in "spotting liars simply by their demeanor". Discriminatory judgments based on demeanor have had devastating consequences for accused as well as victims – one need only look to the wrongful conviction of Guy Paul Morin and the wrongful charging of Susan Nelles. In the sexual assault context, rape mythologies about how a complainant ought to look or behave are steeped in racism and sexism, and further distort the truth seeking function of the criminal trial (for example, the history of Aboriginal and racialized sexual assault complainants being seen as less believable, innocent and worthy than white women). In the case of N.S., where the sexual complainant is a woman of colour from a stigmatized racial/religious minority, the risk of distortion of the trial process by reliance on demeanor evidence is significant.
LEAF's view is that the very limited probative value of demeanor evidence generally, as well as its routine discriminatory misuse in the cross-cultural and sexual assault contexts, means that the right to full answer and defence is not engaged much less violated, by permitting a sexual assault complainant to wear her niqab while testifying.
The equal citizenship and participation of niqab-wearing women in Canadian society requires an accessible and respectful space for niqab-wearing women in the courtroom. Whatever one’s personal views are on the niqab, disenfranchising women who wear one will not further their equality, the same way as excluding them from health, educational and other services (as is proposed under Bill 94 in Quebec) will not further their equality.
1 Joanna Birenbaum is Director of Litigation for LEAF.
Reasonable Accommodation: The Charters of Rights and the responsibility of jurists in the public debate
By Pierre Bossett
Law Professor, Université du Québec à Montréal (UQAM)
The “reasonable accommodation crisis” that led to the creation of Quebec’s Bouchard-Taylor Commission1 was also, according to some analysts, an institutional crisis. But that claim was based on a misperception: supposedly, the law and the courts had not demonstrated their capacity to oversee the application of accommodations founded on important values and principles, such as gender equality. There were many who believed that only through a political discussion could proper limits be set on accommodation practices.
There must be a dialogue between legal institutions and political institutions. Such a dialogue is inherent in the very logic of our institutions. The rights enshrined in the Quebec and Canadian human rights charters may actually be limited by a rule of law, within reasonable boundaries, whose justification can be demonstrated in the framework of a free and democratic society. In “extreme” cases, the lawmakers even have the ability to derogate from certain rights or freedoms. We are therefore a long way from the “government of judges” that figures so prominently in the discourse of those who believe “the law has said too much.”
It would be risky to trivialize these charters of rights, which are fundamental enactments. However, that is precisely what some of the current political discourse implies, setting up the charters, speciously, against other “values.” Here, as counterweights to the charters, proponents raise equality between men and women, the separation of church and state, the primacy of the French language and even, according to a draft bill recently tabled by one of the opposition parties in the National Assembly, Quebec’s historical heritage. The tautological nature of this list is worth pointing out. Indeed, some elements (such as gender equality) are already comprised in broad legal concepts, such as the prohibition against discrimination.
The same can be said of the separation of church and state; this separation, which was expressly recognized by our courts as early as the 1950s, has since been conceptualized as stemming from the fundamental freedoms (conscience and religion) guaranteed by the charters of rights. It is therefore erroneously that certain proposals make the separation of church and state a distinct value, capable of influencing the interpretation of the Quebec charter. And how can one speak of Quebec values without also raising the protection of rights and freedoms, justice and the rule of law, minority protection, social solidarity, and the rejection of discrimination and racism?
Such trivializing discourse reduces these charters of rights to a set of abstract and discarnate standards, unrelated to culture. In point of fact, the realm of rights and freedoms clearly encompasses a number of the values raised in today’s socio-political debates. Let us mention here, to complete the circle, the concept of Quebec’s historical heritage, which is sometimes raised. Respect for minority rights, particularly religious minorities, is part of that historical heritage. As early as 1832, the Legislative Assembly of Lower Canada (Quebec) adopted an innovative law recognizing that all members of the Jewish faith had the same rights and privileges as the members of other religions. The equality of the various faiths was then affirmed in 1840, and reaffirmed in 1851 with the Freedom of Worship Act, which is still in force. Our charters of rights have inherited this long-standing historical tradition of tolerance and openness. Though it may not suit those who insist on opposing law and history (or law and identity), the law is also part of history. Our history.
Whence the legitimacy of jurists’ participation in the current debate? A distinction should be drawn here between the technical legitimacy of jurists’ participation and its moral legitimacy. The former is self-evident, jurists’ primary role being to safeguard the internal cohesion of the law and the respect of its substantive rules. From that point of view, jurists have no doubt been gratified by the Bouchard-Taylor report where, despite a sometimes simplistic view of judicial dynamics, the legal rules were ultimately recognized and taken into account.
As for the moral legitimacy of jurists’ participation in the public debate, it is based on the fact that the application and interpretation of the law, especially in “hard cases” (such as reasonable accommodation), call for political morality or, more specifically, plausible concepts of political morality. In the case of reasonable accommodation, this is obvious when one considers to what point the development of this concept reflects the progress of Canadian and Quebec anti-discrimination laws towards a material concept of equality.
This search for the law’s moral foundations is one of the fundamental aspects of the prescriptive exercise to which jurists are committed; it manifests what Dworkin calls the “fraternal attitude” of the law.2 In my view, it is this recourse to plausible concepts of political morality that legitimizes the participation of jurists in the public debate, beyond simply its technical legitimacy. It is in the name of that fraternal attitude that jurists should assert not only the rules of positive law, but also the principles and values underlying positive law. And that is why jurists should continue to make themselves heard in the current debate on reasonable accommodation and closely related topics, such as the place of religion in the public sphere.
1See the Commission’s report: Building the Future – A Time for Reconciliation, [Montreal], Consultation Commission on Accommodation Practices Related to Cultural Differences, 2008.
2 Dworkin, Ronald, Law’s Empire, Harvard University Press, 1988, p. 413.
Innovative approaches needed to address inequalities in the legal profession – according to new ABA report on diversity
By Rebecca Bromwich
At its mid-year meeting in Florida last February, the Presidential Initiative Commission of the American Bar Association released a detailed and comprehensive new report on what Commission Chair Commission Chair Ellen F. Rosenblum, a judge on the Oregon Court of Appeals, characterizes as new means to meet its longterm goal: "to see a bench that reflects our population and a profession in which all lawyers have the opportunity to achieve all of which they are capable."
While there are important differences between our countries, this ABA report makes several recommendations to the American legal community that have resonance in the Canadian context.
The ABA asks law schools to educate applicants "about planning for the financial aspects of a legal education, including the risks associated with mortgaging their futures [by] acquiring excessive student loans and that they are not guaranteed to secure employment with a $150,000-a-year salary." Legal educators are admonished by the report to also explore ways to reduce the costs of legal education through re-thinking traditional curricular offerings, making use of technological innovations to offer more distance learning opportunities and more generally reconsidering what is core and what might be expendable in the traditional three-year law school curriculum.
Another important recommendation of the report is that it is crucial for the legal profession to define diversity and intersectionally broadly. The ABA affirms that diversity initiatives should address members of the lesbian-gay-bisexual-transgender community as well as disabled lawyers. The report states that approaches to diversity by firms and other actors in the legal profession must be creative and inclusive, taking an overarching approach rather than addressing segmented individual affinity groups by race or ethnicity, sexual orientation, disability or gender alone. Further, while inclusive, initiatives to enhance diversity must be crafted to meet lawyers' specific needs. They should be tailored to the circumstances of different work settings.
The report also calls on law firms to think about how to change their workplace cultures, and not just pay attention to numbers, to achieve greater diversity. "Taking effective steps to prevent the systemic and shameful attrition of attorneys from underrepresented groups–especially women attorneys of color–will improve the workplace for everyone and curb and expensive loss for any organization," the report states.
Full text of the ABA's "Diversity in the Legal Profession: The Next Steps" report can be viewed here.
Staff changes bolster support for CBA equity initiatives
By Rebecca Bromwich
A commitment to issues of equality and diversity continues to be a major priority for the CBA. Recent staff changes have significantly increased the resources and capacity of the organization to facilitate and support member initiatives relating to equity. At a time when law firms are increasingly prioritizing equity initiatives in their work, a renewed vigour in CBA staff provides us an opportunity to continue to lead the profession in this important area.
Originally, it was recommendations from two landmark reports that brought equity to the forefront of CBA work. The 1993 Bertha Wilson Task Force Report, Touchstones for Change, looked at the status of women in the legal profession and made over 200 recommendations. In 1999, the Report on Racial Equality in the Canadian Legal Profession was presented to CBA Council by the Working Group on Racial Equality in the Legal Profession, expanding and re-crafting the approach of the CBA to appreciate intersectionality and racism in undertaking its work to towards the CBA's support for and enhancement of equality within the legal profession. The bulk of the recommendations made in both of these reports have been adopted as Resolutions by CBA Council. One key recommendation made was to institute staff support for equity work at the CBA to resource and assess efforts towards equality in the profession made by the Association. The CBA created the National Sexual Orientation & Gender Identity Conference (SOGIC) in 1997 and the Women Lawyers Forum in 2004, as well as the Standing Committee on Equity in response in large part to these watershed reports.
The CBA has signaled that Equity issues are central, not marginal, to its work. In its 2007-2012 Strategic Plan, it affirmed its commitment to "taking action to eliminate discrimination and advance the cause of equity." Consistent with its mandate for equality, the CBA is committed to promoting equality in the legal profession by:
- assisting in the elimination of discrimination within the legal profession;
- assisting in the elimination of discrimination in the practice of law and in the provision of legal services;
- providing programs and services to ensure equality in the legal profession and the justice system; and
- assisting in the elimination of discrimination in the law and the administration of justice.
I am delighted to be joining the CBA in a staff capacity as one of two Equity and Law Reform lawyers. I will be working with Kerri Froc of the CBA's Legislation and Law Reform Department on Equity issues. With our new staff complement, we have the capacity and renewed energy to move forward vigorously in supporting and facilitating equality work by the association.
This is an exciting and opportune time to be involved in equality and diversity work. Globalization of trade and increased diversity in workplaces are just two factors contributing to a new phenomenon whereby increasingly, Canadian law firms are voicing commitments to diversity, equity and inclusions and are publicizing projects for doing so. CBA's recent staff changes positions our association to continue to lead the profession and justice system in its strides towards equality.
An alternative approach to learning – Equity, pedagogy and the law school classroom
By Amy Raposo, Danielle Farace, and Radhika Joshi 1
As three political science students at the University of Toronto, we were exposed to a new style of learning in our Women and Politics course. Our instructor was very concerned with a democratic classroom setting. She encouraged us to think about how this set-up implicates power dynamics, between the professor and students, as well as between students and their peers.
We wondered how this innovative style of teaching and learning would work. As part of our major assignment, we were to complete an action project whereby we would pick an important issue, significant to us, inform others about it, and take a step towards making change. The three of us chose to focus on power dynamics in the classroom, since it was an issue that had changed our learning experience and we wanted to make the same impact on others.
We hoped that by conducting the workshop, and by publishing an article in our school paper, we would be able to help students analyze their education and apply active learning in their classrooms.
We conducted a workshop in the Student Centre, on Friday, Jan. 22, 2010 to promote active learning within the classroom. We would like to share our rationale for this workshop and the outcome with the legal professionals through this article.
The purpose of the workshop was to help raise awareness on an alternative approach to learning and to get students to be more involved when participating in class. We were able to recruit some students around campus and a total of seven attended.
We define active learning as "any form of participation within the classroom setting that contributes to the course, the educational environment, as well as the overall learning experience-benefiting the student, their fellow peers and the lecturer." This can include asking or posing questions, sharing opinions as well as personal anecdotes, including information on any upcoming activities and events to help encourage students to get involved (whether it be within or outside school).
The purpose of sitting in a circle is to ensure that the power dynamics are evenly distributed between students and the lecturer (in our workshop – between peers and us, as the facilitators of the workshop), instead of the traditional style of teaching (when the professor stands at the front of the classroom and lectures, often non-stop, as students are seated in rows one behind the other).
This workshop enabled participants to engage in political conversation in a non-academic setting. When professors change the structure of the classroom, leaving more room for discussion, they are adhering to the concept of transformative education; the lecturer provides a more inclusive learning space (a circle) and has also taken the time to structure the class into a discussion-like setting. However, in order for this to happen, the instructor has to be willing to give up some of their power; this includes altering their current style of teaching to incorporate discussion based lecture venues.
We organized an activity to help illustrate active learning in action, focusing on the issue of interlocking sets of oppression such as race, class, gender, sexual orientation, profession, ethnicity, location, and religion. Each participant was given an identity (different from the one they currently possessed) and were asked to choose a number from a game board which consisted of different scenarios; from here, they had to put themselves in the shoes of another and respond critically, based on how they feel they would be treated, depending on the circumstances.
Ultimately, the purpose of this task was to challenge how power and privilege operates within our day-to-day lives. The participants were eager to participate and had many things to say, especially during the activity. At the end of the workshop, participants were asked to fill out an anonymous feedback form, in which they answered a series of opinionated questions, on what they thought about the active learning approach and whether or not they felt they could benefit from it.
One participant wrote: "Being involved means being a part of the learning experience, rather than having the learning experience happen passively to you." And, "It also makes you more interested in the course and to actually be excited to go to class." Another participant wrote: "I am a fan of active learning because students actually get to state their opinions which can enlighten other individuals and enhance their learning experience."
Hopefully, these reflections will inspire students who were unable to attend this workshop to challenge power and privilege within their day-to-day lives, as well as the traditional style of teaching and learning.
The outcome of the workshop will be similarly applicable to the legal education and may interest the legal community. You must be observant as lawyers, law students, and other professionals about power and privilege in your everyday lives. Power and privilege can undeniably be witnessed in legal settings; it may occur in law school itself, or between relationships that lawyers hold with their clients, judges, and their fellow colleagues. One of our group members has personally observed these dynamics while spending time working with a lawyer. For example, an upper class, educated lawyer can hold power over a client that does not come from the same background. Also, a large, established law firm has an advantage over a sole practitioner, in terms of access to legal resources.
It is our view, based on this workshop, that active learning should be implemented into legal education. Students who have not been exposed to this learning style in the past can gain insight and valuable skills by using active learning to challenge power and privilege in the classroom, and eventually apply it in the profession.
By making people in the legal community aware of these power-and-privilege dynamics, it can lead to more equality amongst members of this group. We realize that we are a small group, but we hope that readers of our piece will be encouraged to promote change through their own agencies.
1 The authors are political science students at the University of Toronto. Special acknowledgement: Dr. Krista Hunt, Women and Gender Studies Institute, New College, University of Toronto.
Who do you think we are? Voluntary self-identification and the CBA
By Arleen Huggins and Esi Codjoe
The fact that diverse members of the profession face barriers is not a new issue. However, The CBA has sought to help remedy this situation.
In February, 1999, the CBA's Working Group on Racial Equality in the Legal Profession authored a Report entitled "The Challenges of Racial Equality: Putting Principles into Practice". The Report recognized that racialized members of the profession face barriers from entry into the profession through to practice, and the judicial appointment process. The Report concluded that systemic racism, sometimes known as institutional racism, exists within our legal organizations and in the legal profession, but also concluded that there also exists intentional, direct discrimination and racial prejudice which cries out for redress as it denies many talented people the opportunity to contribute fully in our profession. A number of the recommendations from the Racial Equality Report were adopted by the CBA by way of resolution in 2000.
The 2006 Crystal Clear Report of the CBA outlines the strategic directions of the CBA. Strategic Direction Number 3 was "to promote diversity within the CBA". That Strategic Direction was overwhelmingly found by our membership to be an immediate goal. The CBA was directed to play a leadership role on the equity front in order to ensure that our Association reflected the changing demographics in the legal profession. We were to learn about the barriers equity seeking members of our profession face, and to help eradicate them. The goal was to open the CBA to the full spectrum of ideas and perspectives, and create a welcoming environment for these members to join our Association.
The Ontario Bar Association ("OBA") Strategic Plan also embraced this Strategic Direction, and it was endorsed by the OBA Council. In furtherance of the OBA Strategic Plan and the OBA's commitment to diversity, in September, 2007 the OBA Council endorsed the work of the OBA Equal Opportunity Committee and the formalization of a pilot program, now a permanent program of the OBA, involving a number of diverse legal organizations affiliated with the OBA. The Diversity Program is designed to encourage diversity in OBA governance and membership and to encourage the growth and development of equity seeking legal organizations with the assistance of the OBA.
In May, 2008, the OBA Equal Opportunity Committee and the then President of the OBA, Gregory D. Goulin, wrote to the Treasurer of the Law Society of Upper Canada ("LSUC") requesting that consideration be given to amend the Member's Annual Report ("MAR") to include the collection of self-identification geographic data. The communication from the OBA to the LSUC noted in particular, "it is anomalous that members are asked to voluntarily self-identify as to gender on the MAR but not as to any other significant dimension of identity." The letter further stated, "members of equity-seeking communities leave the profession in disproportionately large numbers. Voluntary data collection would help to provide factual information on differential rates of attrition."
In August 2008, the Canadian Association of Black Lawyers ("CABL"), an OBA Diversity Program participant, also wrote to the LSUC to endorse the OBA's request that the LSUC amend the MAR to include appropriate voluntary self-identification questions. CABL's view was, "demographic member data will allow the LSUC to accurately report on trends among its equity seeking members, as well as provide them with support initiatives and assistance to address access to legal education and professional opportunities and the disproportionate rates of attrition among members of these communities."
The OBA's Equal Opportunity Committee continued to advocate for changes to the MAR. In early September, 2008, the Equal Opportunity Committee, together with the OBA's Executive Director and a CABL Board Member, met with a member of the LSUC Equity and Aboriginal Issues Committee, as well as the LSUC's Equity Advisor and discussed the history of initiatives by both the LSUC and the CBA in addressing diversity and to further discuss amending the MAR.
The OBA's advocacy lead to a successful outcome. On May 28, 2009, the LSUC announced that in an effort to "better understand demographic trends in the profession, to develop programs and initiatives within the mandate of the Law Society, and to promote equality and diversity in the professions", the LSUC will ask lawyers and paralegals if they wish to self-identify as members of equality-seeking communities beginning in the 2009 MAR for lawyers and paralegals. The questions will be voluntary and the information will be kept confidential and only used in aggregate form in accordance with human rights and privacy legislations.
We commend the LSUC on taking this initiative. The OBA Equal Opportunity Committee continues to work with the CBA Equity Committee to encourage the law societies in every province to include similar voluntary self-identification questions on their annual reports and to co-ordinate the specific questions asked to ensure a uniform framework for the comparison of data across provinces.
As of May 2009, three other provincial law societies were annually collecting demographic data. The Nova Scotia Barristers' Society began asking voluntary self-identification questions in its 2007 annual member report. Since 2008, the questions have been mandatory. In 2008, the Barreau du Québec included demographic data collection questions on its annual membership form. The questions were asked on a voluntary basis based on wording used by the Quebec Human Rights Commission. In September, 2008, the Law Society of British Columbia approved a question about whether members are Aboriginal and if so, whether they are Status or Non-Status Indian, Métis or First Nations Persons of North America. That question will be included in the annual practice declaration.
In February, 2010, the CBA confirmed that it is moving forward with instituting voluntary self-identification questions on its membership renewals.
In the course of fulfilling its mandate to represent our profession, it is important that the CBA be aware of the extent to which its members are reflective of the broader community that it serves. The Ontario Human Rights Commission, TD Bank and KPMG joint report "Count Me In," highlights the importance of data collection to such organizations.
An awareness of the demographics of our membership is essential in meeting the needs and interests of the public, and to enable the CBA to develop programs to enhance the diversity of the legal profession. The regular collection of demographic data on a voluntary basis will allow for assessment and analysis of the changing composition of our Association, and to meet the needs of our diverse membership. The CBA must first know who it is in order to know where it is going.
Competing rights: Hate and free speech
By David Matas
Freedom of speech is a basic human right. So is the right to be free from incitement to hatred. How do we balance these two competing rights?
There are, unfortunately, all too many who do not even want to try, who proclaim that freedom of speech trumps all other rights. It is my view that all human rights have to be read together as a coherent whole.
If one human right is considered absolute, or given priority, then other human rights, necessarily, take second place. One facet of human development is thwarted so that another facet can be given free rein. Or, what often happens, the rights of some are given lavish attention; and the rights of others are trampled.
The Universal Declaration of Human Rights does not rank rights, and quite properly so. In a sense, the Universal Declaration does not assert many rights, but just one right with many facets, the right to dignity, self realization and self worth of the individual.
Objectively, if we have to rank rights, the right that stands head and shoulders above all others is the right to life. If you are dead, the right to freedom of expression is meaningless.
The greatest crimes of the past century were not crimes of censorship. They were genocide: the Holocaust, the Armenian massacre, the Bosnian ethnic cleansing, the Cambodian killing fields and other mass killings.
If we go beyond the most basic right, the right to life, and ask which human rights violations led to these mass killings, surely the answer must be violations of the right to be free from advocacy of hatred. We do not have to look hard to find a direct link between incitement to hatred and the worst violations of human rights. In the words of Mr. Justice Dickson in the Keegstra case in the Supreme Court of Canada, "The experience of Germany represents an awful nadir in the history of racism, and demonstrates the extent to which flawed and brutal ideas can capture the acceptance of a significant number of people."
Auschwitz was built with words. The killing fields of Cambodia were sowed with slogans. The genocide of Rwanda was spread by radio. Bosnia was ethnically cleansed by television.
Because human rights are an interconnected whole, it is simple to link one right to another. Free expression is important to other rights, but other rights are equally important to respect for freedom of expression. Take any thread out of the quilt of rights and the quilt unravels. To choose only one thread and proclaim that this is the thread that counts is arbitrary.
Arguing for a balance is easy. Working out that balance is not so easy. A prohibition against incitement to hatred which is ineffective tips the balance too far in favour of freedom of speech. But a prohibition against incitement to hatred can also be too effective, leading to chilling of legitimate speech.
Right now, the problem we have with human rights commissions and tribunals is the latter. Invoking their jurisdictions against incitement to hatred has become too easy, imposing unnecessary and unwelcome restrictions on freedom of speech.
Complaints are cost free to the complainants but costly to the targets of the complaint. In some jurisdictions, and under some circumstances, complaints can be based on rumour alone. Complainants can complain in several fora simultaneously, imposing on the target the necessity of simultaneous defenses in several jurisdictions. The wrong missing parties can be added; but the wrong added parties cannot be dropped. There is sometimes little or no effective screening of frivolous complaints. There is inadequate disclosure given to the targets of complaints.
To restore the balance, these changes to human rights commissions and tribunals powers to protect against incitement to hatred need to be made:
- Human rights commissions and tribunals should have the power to award costs.
- Targets of the complaint should have the right to know their accusers.
- Complainants should be required to choose one jurisdiction only when pursuing a complaint.
- Human rights commissions and tribunals should have the power to remove parties wrongly added.
- Human rights commissions should have the power to dismiss frivolous complaints at an early stage.
- Targets of complaint should have a right to disclosure of the material being considered by human rights commissions and tribunals.
The defects in current procedures have put wind in the sails of free speech absolutists, helping to push their agenda of abolishing the powers of human rights commissions and tribunals to combat hate speech. These powers though are too valuable to lose. What is wrong can be made right. Re-equilibration can make human rights commissions and tribunals respectful of both the right to freedom of speech and the right to freedom from incitement to hatred.
David Matas is a Winnipeg lawyer and a member of the Canadian Bar Association committee on the hate speech jurisdiction of the Canadian Human Rights Act.
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