Message from the Chair
By Pascale Pageau, Delegatus Legal Services Inc., Montreal
As I write these words, the National Women Lawyers Forum has officially started its new year.

WLF Connected
By Pat Lane, Taylor McCaffrey LLP, Winnipeg
Connecting with the American Bar Association (ABA): The ABA has a Commission on Women in the Profession that has twelve appointed commissionaires...

Profile: New CBA-BC Branch President
By Nadia Bechai, Cappellacci DaRoza LLP, Toronto
Sharon Matthews, has not only built a busy private practice but has also become known as a tireless volunteer promoting issues of importance such as access to justice and legal aid.

2011 NAWL Survey – The one good thing about bad news
By Rebecca Bromwich, Canadian Bar Association, Ottawa
Since 2006, the National Association of Women in the Law (NAWL) has been conducting an annual survey on retention and promotion of women in law firms. Results of the most recent such survey were released in October.

The Supreme Court of Canada on Advance Consent to Unconscious Sexual Activity: R. v. J.A., 2011 SCC 28
Maryellen Symons, OBA Feminist Legal Analysis Section
The majority and dissenting reasons in R. v. J.A., 2011 SCC 28, raise deep questions about the meaning of consent and the scope of sexual autonomy.

National Conference of Women Bar Associations 2011 Women's Bar Leader Summit: Strength across borders
By Judith Huddart, Dranoff and Huddart, Toronto
The National Conference of Women Bar Associations promotes and assists the growth of U.S. local and state-wide women's bar associations through membership in the NCWBA.

WLF “Branch Bytes”
By Elaine Keenan Bengts, Keenan Bengts Law Office, Yellowknife
The Women Lawyers Forum Branches across the country are working hard to provide events and resources for its members. Here are just some of the events happening across the country.

2012 CLC in Vancouver
The WLF and the Canadian Corporate Counsel Association will be joint sponsors of a skills-building workshop, “Strategies for Succeeding at Difficult Conversations.”

Cecilia I. Johnstone Award Call for Submissions
The nomination deadline for the Cecilia I. Johnstone Award, presented annually to recognize outstanding work for the advancement of women in the legal profession, is April 2, 2012. Please consider nominating someone in your community!

Message rom the Chair

By Pascale Pageau

As I write these words, the Women Lawyers Forum has officially started its new year. The members of our Executive, the Members-at-Large and the representatives of each province got together for the annual WLF in-person meeting. In the name of efficiency and cost savings, in-person meetings are held only once a year, while other meetings are held by conference call, or during the annual CBA Legal Conference. As such, the in-person meeting is a special time for us to get to know one another and share our ideas, plans, and dreams.

This year, the meeting was held on November 25 and 26 in my home town of Montreal. The primary goal of the two-day event was to get to know one another.

On Friday evening, a cocktail party and dinner were held at my firm. Since my firm is located in an open-concept loft and has a large modern kitchen, I dared to try out the Chef-at-Home experience (a real chef who comes to your home or office to cook a delicious three-course meal and who takes care of serving and cleaning up).

It was a tremendous success! The evening began with a cocktail party, where delicious appetizers and white wine were served. Unusual anecdotes, vacation experiences, holiday plans, professional projects and family stories were all welcome topics during this very friendly event.

A large boardroom at the firm was converted to a banquet room for the occasion. There were 16 of us seated around the table. The food was excellent and the service impeccable. We laughed a lot and quickly bonded. For many of us, it meant reconnecting with old friends; for the new recruits, it was the perfect opportunity to learn more about the Women Lawyers Forum and its champions. Therefore, I can happily report that the primary goal was achieved.

The second goal of the meeting was to discuss our plans and ideas. The "official" annual meeting took place on Saturday, November 26. What a wonderful group of intelligent, devoted, determined, and fascinating women! Ideas, involvement and new projects were all discussed. So the second goal was also achieved. All year, you will be the first to know how these plans are materializing in your own provincial organizations and at the national level. I can tell you that this year will be outstanding!

At the meeting, we decided to create a new LinkedIn group for the Women Lawyers Forum, and this group was set up in early December. If you are not yet a member, I encourage you to sign up through LinkedIn as soon as possible. I strongly urge you to use it to share your ideas, concerns and discoveries. I look forward to reading your comments.

We also recently learned that we are losing the invaluable assistance of Jennifer Lalonde, our CBA liaison. This is a big loss! Jennifer knew all the inner workings of the Women Lawyers Forum, and she has been an indispensable resource for our team. Jennifer, we’re going to miss you very much… In future, Jennifer will be acting for other CBA committees.

But for every piece of bad news there is almost always some good news: Jennifer is being replaced by a brand new CBA recruit, Gathoni Njuguna. I had the pleasure of meeting Gathoni in Montreal on November 25 and 26. She has a lot to learn, but she is very keen and committed to women’s place in the legal community. Welcome aboard, Gathoni.

In closing, I wish to remind you that each and every one of us has a role to play, large or small. It is thanks to your involvement, your suggestions, your personal stories, your positive and constructive energy, that we will make great strides together. To get involved, please contact the CBA Women Lawyers Forum representative in your province.

Once again, I invite you to write me throughout my term as Chair to tell me about your interests, challenges and suggestions.

I look forward to hearing from you and meeting you in person.
 

TOP

WLF Connected

By Pat Lane

Connecting with the American Bar Association (ABA):

The ABA has a Commission on Women in the Profession ("the Commission") that has twelve appointed commissionaires. In addition, the Commission has invited approximately 20 organizations to participate through a liaison representative. At the initiative of Veronica Jackson, when she was Chair of the WLF three years ago, we were invited to have liaison status with the Commission. We are in a privileged position as the WLF is the only organization from outside the USA that has liaison status.

We decided that the Chair of the WLF should be the WLF representative at the Commission. Accordingly Veronica Jackson held this role until September 2010 when Pat Lane assumed the role for two years. Our current Chair, Pascale Pageau, began her term in September 2011.

WLF representatives have been very active on the Commission including travelling to the in-person Fall meetings, and participating on a number of committees, most notably the Committee which put on the WILL (Women in Law Leadership) Academy in Philadelphia in April 2010 and the Toronto ABA conference in August 2011. At the October 2011 Business meeting in Chicago, Pascale participated in the development of an eight year strategic plan for the Commission.

The Commission focuses on policy issues central to the position of women in the profession. Much work has been done on the issues of implicit bias in hiring, associate reviews, and the impact of different partnership structures on women's advancement within the profession. For example, in October 2010 in the program Women in Law Firms: Is Progress Being Made?, Stephanie Scharf, President of the National Association of Women Lawyers Foundation, discussed the findings of the Fifth Annual Survey on Retention and Promotion of Women in Law Firms. Roberta Liebenberg, then Chair of the Commission, presented an overview of the recent study completed by the Minority Corporate Counsel Association, Project for Attorney Retention. This survey examined how law firms distribute billing origination credit and how that distribution affects compensation and the advancement of women lawyers to positions of real power and influence in their firms. [More information on this study] A panel discussion followed on what steps law firms can take to develop fair and equitable compensation, origination credit, and client succession policies to help women lawyers to advance and succeed. As well, the panel discussed the ramifications of the NAWL survey and what it means for the progress of women lawyers.

The Commission also provides immediate advocacy to the ABA about matters of concern to women in the profession. Examples of this include effective action to eliminate the inclusion of scantily clad showgirls in the promotional material and program for an ABA litigation conference. More recently there has been extensive advocacy on the inappropriate use of controversial headlines in the ABA Journal that project a negative stereotype of women partners.

For more information on the Commission on Women in the Profession, visit their website.

Connected with the National Conference of Women Bar Associations (NCWBA):

The WLF is also the first non-American Bar Association to be invited to join the NCWBA, an organization that represents 35,000 women lawyers in the United States. It is not part of the ABA, but is rather an affiliated organization. The WLF was invited to join the NCWBA as a result of the work that past WLF Member at Large Heather Segal and Pat Lane contributed to events in Toronto in August 2011. Heather did a wonderful job on the organising committee for the NCWBA’s Bar Leadership Summit: "Strength Across Borders" and Pat Lane helped coordinate the joint reception with the WLF, the ABA Commission of Women in the Profession, the Law Society of Upper Canada and the NCWBA.

In addition to the WLF joining the NCWBA as one of the member Bar associations, Pat was elected to the Board of Directors and attended the Fall 2011 business meeting in El Paso. This involved a day visioning program and the assignment to key committees. Building on the WLF's successful stand-alone Leadership Conference for Professional Women: Skills for Success held in Toronto in January 2011, and Pat's involvement on the WILL Academy committee, Pat was asked to join the planning committee to develop a NCWBA conference to take place in Dallas in February 2013. Pat will attend the NCWBA 2012 meetings in New Orleans (February), Chicago (August) and Boston (October). In addition to providing a website to share information between Women Bar Associations, the NCWBA is also pro-active and able to take immediate action on matters of concern to women in the profession. For more information on the NCWBA visit their website.

We are very pleased with our recognition through association with both the Commission and the NCWBA. We have been warmly welcomed and have found the relationship to be mutually beneficial. Despite some differences in our jurisdictions, the issues we face are very similar, and it is rewarding to share experiences and resources.

Patricia Lane is Past Chair of the WLF.

TOP

Profile: New CBA-BC Branch President

By Nadia Bechai

Sharon Matthews

Newly elected President of the CBA-BC Branch, Sharon Matthews, has not only built a busy private practice but has also become known as a tireless volunteer promoting issues of importance such as access to justice and legal aid.

After completing her articles at a major B.C. firm and being called to the bar in 1993, Sharon joined the boutique firm Camp, Church & Associates as an associate. By 2000, Sharon became a partner at what is now Camp, Fiorante, Matthews, Mogerman, maintaining a civil litigation practice focused primarily on plaintiff-side product liability, aviation, and class action cases, appearing before courts of all levels across the country including the Supreme Court of Canada. While her practice germinated from product liability cases, she welcomed the introduction of the class action regime in B.C. in 1996 as an opportunity to explore a variety of substantive law issues, such as in the case of Barbour v. UBC where public law principles were argued to determine the legality of the parking regime, and in the case of Hislop v. Attorney General of Canada where matters of competition law were raised to determine the discrimination of gay and lesbian persons under the Canada Pension Plan.

Alongside her busy practice, Sharon is active in the legal community, her hard work being recognized through prestigious awards including the CBABC President’s Medal which she received on two occasions. Sharon volunteers as a roster lawyer for Pro Bono B.C. and is a member of several professional organizations. In 1998 Sharon co-founded the CBA-BC Branch – Class Actions Section and in 1999 she was elected a member of the Provincial Council of the CBA-BC Branch. She held many other positions including sitting on the Executive Committee and in 2009, she became Secretary-Treasurer of the CBA-BC Branch, Vice-President in 2010, and in August 2011 she was named President.

Sharon finds that her active involvement with the CBA has both improved her practice and enriched her relationships with members of the bar. She believes that the opportunity to learn other lawyers’ perspectives on substantive and procedural issues has assisted her in becoming a better litigator at home and across the country. She also believes that the opportunity to foster collegial relationships with other lawyers assists in more efficiently resolving disputes on the merits for her clients, instead of simply driving the adversarial process. Through volunteer work with the CBA, Sharon does her part in upholding the rule of law by promoting legal aid and access to justice. To ensure that justice is served, Sharon believes: first, more must be done to ensure that everyone has access to legal representation and second, for effective representation, the bar must reflect the diversity of our population.

Sharon has worked to promote access to justice through her work as part of the legal team on the CBA-BC Branch Legal Aid Test Case (which led the court challenge to the constitutional right to legal aid) and through the Rural Education and Access to Lawyers (“REAL”) program (which places law students in remote locations to provide legal representation to rural populations where the aging legal profession is not being adequately replaced.)

During her term, Sharon intends to maintain access to justice as a priority. As President, and on behalf of the CBA, she recently launched the “We Need Legal Aid” campaign. Building on the momentum created by the March 2011 Public Commission on Legal Aid in British Columbia’s report titled “Foundation for Change” (a.k.a. the “Doust Report”), Sharon hopes that the campaign will raise public awareness about the need for legal representation for all. This, Sharon believes, will in turn encourage the provincial government to adequately fund the legal aid program in B.C. Further, Sharon notes that more work needs to be done across the country to assist lawyers in providing pro bono services since real justice cannot be served without equal access for all. Sharon also believes that for representation to be effective, the lawyers who represent the people must reflect the diversity of the people. In her own words, “how much better we will be able to serve clients if we collectively and individually have the background and experiences to understand all the nuances of their legal issues.”

Regarding the important issue of retention of women lawyers, Sharon urges members of the bar to consider whether the question that should be asked is not “how can we make it work” for them, but rather “what is the work” being given to them. Sharon believes that firms must find unique ways to retain women and, more importantly, to keep them interested and engaged. For our part, Sharon encourages women lawyers to be more self-confident and not apologize for being unable to docket the long hours. Instead, she invites women to focus on what they have to offer firms.

How does she do it all? Her answer is simple: she is supported by her partners. While her work with the CBA has not always been so time consuming –she says it was often very manageable – when it does take more of her time, her partners’ support is invaluable. And, she says, the work offers a delightful surprise: sometimes, it makes her miss the practice!

Nadia Bechai practices at Cappellacci DaRoza LLP in Toronto.

TOP

2011 NAWL Survey – The one good thing about bad news

By Rebecca Bromwich

Since 2006, the National Association of Women in the Law (NAWL) has been conducting an annual survey on retention and promotion of women in law firms. Results of the most recent such survey were released in October. What follows is a link to the full text of a NAWL Report: National Survey On Retention And Promotion Of Women In Law Firms, October, 2011.

This NAWL Survey is the only U.S. study that annually tracks the professional progress of women in the nation's 200 largest law firms. It provides a comparative view of the careers and compensation of men and women lawyers at all levels of private practice, as well as analyzing data about the factors that influence career progression.

In brief, last year’s news isn’t good. What is remarkable and new about this news is that 2011 marks the first time that women’s progress towards equality with men in the legal profession is sliding backwards.

To quote the Report, this year, survey results point to:

…a sobering picture of the prospects for women in “Big Law.” Not only do women represent a decreasing percentage of lawyers in big firms, they have a far greater chance of occupying positions – like staff attorneys, counsel, and fixed-income equity partners – with diminished opportunity for advancement or participating in firm leadership. [Emphasis added]

In sum, at least in the U.S., continuing low levels of women participating in senior partnership/managing roles are combining with the increasing complexity of law firm hierarchies and lower numbers of women entering into private practice to produce continuing inequality for women in the legal profession. More specifically, the U.S. survey made the following findings:

• The percentages of women entering law schools and entering large firms in particular have apparently peaked and are now in decline;
• For the first time since 2006, percentages of women in large firms are decreasing;
• Women account for only 15% of equity partners and this number has been steady for 20 years;
• Women are much more likely than men to occupy positions that are not “partner-track”;
• Women are disproportionately either actually not bringing in business to firms or they are not credited with the business they bring in;
• Women at every stage of practice earn less than their male counterparts, with the biggest difference at the equity partner level;
• Women continue to be “markedly underrepresented” in law firm leadership; and
• Women represent an astonishing 80% of “fixed-income equity partners,” those lawyers in mixed-tier or other firms who are required to contribute capital but do not share in the overall profits of the firm.”

Perhaps the one good thing about the bad news presented in the NAWL survey is that it documents the reality of problems with gender inequality. Repeated assertions are offered in law firms, and in popular parlance more broadly, that equality for women has been achieved both in the legal profession and in Canada as a whole. Such claims and erroneous assumptions can undermine current and future work and particularly compromise the resources allocated to that work. The NAWL report underscores ongoing need for continued efforts to ensure women can take an equal place in the legal profession alongside their male colleagues. While it represents U.S. data, and the Canadian context has important unique dimensions, it is unlikely, especially where there is increasing globalization of legal work in North America, that the picture is utterly different in Canada. The backsliding towards inequality that is newly evident speaks to a need for redoubling of efforts towards retention of women in private practice.

At the same time, the report speaks to a growing need to focus efforts on women who are contemplating their career choices and have yet to take places in the legal profession. It implies that more young women lawyers are now opting not to enter private practice. It further implies that more women are also choosing not to enter law school. Since this is a new problem, perhaps some consideration needs to be given to whether creative new means should be undertaken to ensure that women are encouraged to enter, as well as to remain in, the profession.

Rebecca Bromwich is a CBA Staff Lawyer, Law Reform and Equality.

TOP

The Supreme Court of Canada on Advance Consent to Unconscious Sexual Activity: R. v. J.A., 2011 SCC 28

By Maryellen Symons

The majority and dissenting reasons in R. v. J.A., 2011 SCC 28, raise deep questions about the meaning of consent and the scope of sexual autonomy. The issue before the Court was the interpretation of “consent” in the sexual assault provisions of the Criminal Code: specifically, whether consent given in advance to sexual activity that will take place while the consenting person is unconscious is valid consent for the purposes of the Code.

Background and trial decision

The complainant, K.D., and the accused, J.A., had an ongoing relationship that involved sexual experimentation, including erotic asphyxiation. On the occasion that ultimately brought the issue to the Supreme Court, K.D. agreed to have J.A. choke her into unconsciousness during sex. She was unconscious briefly; she estimated it was less than three minutes. When she regained awareness, her hands were tied behind her back and J.A. was inserting a dildo in her anus. He removed it ten seconds after she regained consciousness and they had vaginal intercourse. J.A. then cut K.D.’s hands loose.

Several weeks later, K.D. complained to the police. In a videotaped statement, she said that she had not consented to the sexual activity that took place. She later recanted, but the Crown proceeded with charges against J.A. At trial, the Crown did not attempt to have the videotaped statement admitted for the truth of its content. Instead, it argued that choking the complainant into unconsciousness constituted bodily harm which vitiated consent; and that, as a matter of law, it was not open to the complainant to consent to sexual activity that would take place while she was unconscious. The trial judge rejected bodily harm, but found that K.D. had not consented to being penetrated by a dildo. She also held that the complainant could not legally consent in advance to sexual activity while unconscious.

The Court of Appeal

At the Ontario Court of Appeal, Justice Simmons (Juriansz J. concurring) found that the trial judge had erred on several issues and allowed J.A.’s appeal. On the one issue that went to the Supreme Court, the key paragraphs are:

[77]         Second, the Crown’s argument ignores the fact that its obligation in a sexual assault case is to prove absence of consent. Where a person consents in advance to sexual activity expected to occur while unconscious and does not change their mind, I fail to see how the Crown can prove lack of consent. The only state of mind ever experienced by the person is that of consent.

[78]         In this regard, I note that at para. 28 of Ewanchuk, Major J. observed that “having control over who touches one’s body, and how, lies at the core of human dignity and autonomy” and that protecting individuals’ security of the person lies at the heart of “the inclusion of assault and sexual assault in the Criminal Code”. Permitting a person to consent in advance to sexual activity expected to occur while unconscious or asleep is entirely consistent with this principle.

Justice LaForme found Justice Simmons’ analysis “thorough and persuasive,” except on the issue of “the interpretation of relevant provisions of the Criminal Code and relevant jurisprudence.” On this issue, he dissented and would therefore have dismissed the appeal. The counterpart key passage in his reasons is:

[136]       At the heart of this matter are individual autonomy and individual choice to protect the dignity of the individual and the security of the individual’s person. Autonomy is the capacity to exercise choice free of restraint, unfettered by control and absent interference. It belongs to the individual and cannot be assumed by or delegated to another. The autonomous operating will of the individual is negated by unconsciousness; there simply is no active operating will while the individual is asleep or unconscious.

[137]       In both the common law and statute law applicable to sexual assault, choice and autonomy are active and oriented to the present; to the here and to the now. Consent is the autonomous choice of the individual. Consent ends when the active independent personal operating will ceases. Indeed, this is precisely what is being expressed in the jurisprudence, in my view. Thus, I must respectfully disagree with my colleague when she holds that consent in advance to sexual activity expected to occur while unconscious or asleep is entirely consistent with this principle.

The Supreme Court of Canada

The Crown’s appeal to the Supreme Court of Canada was an appeal as of right, on a question of law alone upon which there was a dissent at the Court of Appeal. Therefore, the only issue before the Court was, as set out in the Crown’s Notice of Appeal:

As a matter of law can a person consent in advance to sexual activity expected to occur when the person is either unconscious or asleep?

The majority

The Court divided, six to three. Chief Justice McLachlin, for the majority (joined by Justices Deschamps, Abella, Charron, Rothstein and Cromwell), held that the legislature’s intention, as reflected in the words of the statute and the jurisprudenc on the interpretation of “consent,” lead to the conclusion that consent given in advance to sexual activity that will take place while the person is unconscious is not valid in law. Advance consent does not equal actual consent, as Simmons J. suggested. Consent must be conscious and must be present throughout sexual activity. “The only relevant period for ascertaining whether the complainant consented under the Criminal Code is while the touching is occurring” (paragraph 53, citing R. v. Ewanchuk). A participant in sexual activity must be able to revoke consent — to ask their partner to stop — at any time. It is not possible to do that while unconscious.

The majority carefully distinguished consent to surgical treatment under anesthesia from advance consent to sexual activity while unconscious. The context is entirely different and the two situations of advance consent are not the same. Similarly, the analogy of two friends who agree before going to a party to help each other get home if either should pass out from drinking too much is not exact. In the case of non-sexual assaults, consent may be implied at common law. The friend who takes an unconscious friend home will not be charged with kidnapping or unlawful confinement.

The majority addressed several other difficulties that would arise from making an exception to the definition of consent in the Criminal Code to allow for advance consent to activity while the person is unconscious or asleep:

• The unconscious person would have to turn her or his mind beforehand to specific acts or there is no defence.
• The unconscious person cannot control how he or she is being touched and has no way of knowing what really happened, or whether the activity went beyond what was consented to.
• There are difficult issues of proof.
• An exception based on a relationship of mutual trust, such as marriage, runs counter to Parliament’s rejection of defences to sexual assault based on the nature of the relationship.

J.A. did not bring a constitutional challenge to the Criminal Code definition of consent. Absent such a challenge, it is for Parliament, not the Court, to modify it:

[65]         In the end, we are left with this. Parliament has defined sexual assault as sexual touching without consent. It has dealt with consent in a way that makes it clear that ongoing, conscious and present consent to “the sexual activity in question” is required. This concept of consent produces just results in the vast majority of cases. It has proved of great value in combating the stereotypes that historically have surrounded consent to sexual relations and undermined the law’s ability to address the crime of sexual assault. In some situations, the concept of consent Parliament has adopted may seem unrealistic. However, it is inappropriate for this Court to carve out exceptions when they undermine Parliament’s choice. In the absence of a constitutional challenge, the appropriate body to alter the law on consent in relation to sexual assault is Parliament, should it deem this necessary.

The dissent

Justice Fish, joined by Justices Binnie and LeBel, notes that, while consent is frequently referred to as a defence, and can be thought of that way in so far as it negates liability, the absence of consent is an essential element of the actus reus and must be proved, beyond a reasonable doubt, by the Crown. In his view, McLachlin J. has found that Parliament has created a statutory exception to the general principle that the complainant’s genuine consent precludes a finding of sexual assault:

[95]         The Chief Justice finds that Parliament has created a statutory exception to the well-established general principle that the complainant’s genuine consent precludes a finding of sexual assault. In my colleague’s view, the purpose and effect of this perceived exception is to vitiate consent to “unconscious sexual activity” – that is, sexual contact that is expected to occur while the consenting adult is asleep or unconscious. With respect, nothing in the Criminal Code indicates that Parliament has considered, let alone adopted, an exception of this sort.

Fish J. argues that nothing in the definition of consent in s. 273.1 of the Code – “the voluntary agreement of the complainant to engage in the sexual activity in question” – refers to the timing of consent or otherwise excludes advance consent to unconscious sexual contact (para. 96). With reference to s. 273.1(2)(b), which provides that consent is not obtained where the complainant is incapable of consenting to the activity, he distinguishes between incapacity at the time of consenting and consent given in advance, while capable, to activity that will take place when the person is incapable. Section 273.1(2)(e) provides that there is no consent where the complainant expresses a lack of agreement to continue to engage in activity already consented to. The majority points to the impossibility of revoking consent while unconscious. In the view of the dissent, it is enough that consent can be revoked immediately before losing consciousness or immediately after regaining it.

[105] With respect, there is no factual or legal basis for holding that K.D.’s prior consent, otherwise operative throughout, was temporarily rendered inoperative during the few minutes of her voluntary unconsciousness. In my view, it was not suspended by the fact that she had rendered herself incapable of revoking the consent she had chosen, freely and consciously, not to revoke either immediately before or immediately after the brief interval of her unconsciousness…

The Chief Justice relied on s. 273(2)(b), which precludes a defence of honest but mistaken belief in consent where “the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting,” to support the interpretation that consent must be an ongoing state of mind. The dissent relies on the French text of the provision: “Ne constitue pas un moyen de défense … le fait que l’accusé croyait que le plaignant avait consenti à l’activité à l’origine de l’accusation … [et] n’a pas pris les mesures raisonnables … pour s’assurer du consentement” to argue that “was consenting” and “consented” refer to prior consent.

In the view of the dissent, the position of the majority unduly limits individuals’ sexual autonomy. It goes against Parliament’s embrace of the privacy and sexual autonomy of consenting adults as a “fundamental social value and an overarching statutory objective”.

Consent and autonomy

R. v. J.A. raises issues that could fairly be called philosophical. How should the law define consent? Must it always be conscious and ongoing, so that situations in which liability does not attach to actions upon a sleeping or unconscious person are exceptions? If so, what exceptions should the law recognize? Or should the legal concept of consent include consent to enter into situations in which consent cannot be revoked? If the latter, what limits should the law recognize to voluntary surrender of one’s ability to revoke prior consent? What contributions can the disciplines of psychology and philosophy make to such a discussion of consent?

The question of autonomy is related to the question of consent. Is sexual autonomy respected and furthered if, in law, a person cannot consent to activity expected to take place while he or she is unconscious or asleep and unable to revoke consent? Or is such a restriction an undue limit on individual sexual autonomy? More generally, is the possibility of voluntarily surrendering one’s autonomy a component of autonomy, or a contradiction?

The Criminal Code amendments of which the definition of consent was a part were highly contested. They were passed at a time when – as both the majority and the dissent remind us – women’s right to decide for themselves what sexual activity they would engage in, and with whom, was severely limited by myths and presumptions that prevailed in society and were enshrined in the law. Until 1982, the offence was “rape” and could be committed only by “a male person” against “a female person who is not his wife.”¹ The current definition of “consent” dates from 1992.² It was intended to address the notions that “no” could mean “yes,” that consent could be implied, that consenting once meant consenting once and for all …. There was a huge uproar about the 1992 amendments, including the definition of consent.³ This history pervades the background of R. v. J.A.

The Criminal Code sexual assault provisions are now in gender-neutral language and offer the protection and benefit of the law to everyone. At the same time, sexual assault has been and continues to be a gendered crime, not only because the majority of victims are female, but because the myths and presumptions around it are not entirely gone. Regardless of the Code’s gender neutrality, R. v. J.A. shows that the territory of women’s sexual autonomy still is both undefined and contested.

¹ See http://www.constancebackhouse.ca/fileadmin/website/rape.htm.
² See http://www.constancebackhouse.ca/fileadmin/website/consent.htm.
³ Kim Campbell, then Minister of Justice, steadfastly and calmly supported the amendments against ferocious attacks and shepherded them through Parliament.

Maryellen Symons is a research lawyer in independent practice. This article was originally published in the October, 2011 edition of “Voices,” the newsletter for the Ontario Branch of the WLF, the Feminist Legal Analysis Section.

TOP

National Conference of Women's Bar Associations 2011 Women's Bar Leader Summit: Strength Across Borders

By Judith Huddart

L to R: Josée Bouchard, Equity Advisor, LSUC; Laurie Pawlitza, Treasurer, LSUC; Heather Williams, Partner at Cavanagh Williams Conway Baxter.

The National Conference of Women's Bar Associations (NCWBA) promotes and assists the growth of U.S. local and state-wide women's bar associations through membership in the NCWBA. Providing a national forum helps local women’s bar groups to stay in touch with one another and share best practices for meeting the needs of the individual women lawyers in each group. The American Bar Association (ABA) recognizes the NCWBA as an affiliate organization, with a seat in the House of Delegates (the ABA policy-making body). The WLF recently became the Canadian liaison to the NCWBA.

NCWBA delegates from across the U.S. meet in conjunction with the ABA’s AGM. In August 2011, the meeting took place in Toronto. The NCWBA organized a one-day Summit, presented in partnership with the Law Society of Upper Canada, where conference attendees shared best practices and learned from panels on:

• Combating Sex Trafficking - ways for women's bar groups to help, domestically and internationally; podcast and materials from the program.
• The Law Society of Upper Canada's Justicia Project to promote advancement and retention of women in firms.
• Women supporting women? - A discussion of women lawyers' support for other women lawyers.
• 30 in 30 - Free or low-cost tools and technology to help organizations do more with less. Some sites of interest included:
• “FreeConferenceCall.com” – up to 96 people can be conferenced-in for up to 6 hours. All you pay is any long distance charges for calling in.
• “Tungle.me” – schedule meetings, send out e-mails with open slots, and receive back a summary of everyone’s available times
• And, while not technically law-related, “RunPee.com” – gives you the best places in movies to take a bathroom break, and then tells you what you missed (!)
• Click here for all the suggested tools and their websites.

Following the program, the WLF, together with the ABA Commission on Women in the Profession, the NCWBA and the Law Society of Upper Canada, co-hosted a very well-attended reception for women lawyers. In addition to the opportunity to network with colleagues from across North America, the reception featured guest speaker Nancy Gertner, a former federal judge of the U.S. District Court for the District of Massachusetts, and author of the newly released In Defense of Women: Memoirs of an Unrepentant Advocate. Judge Gertner began by taking off her shoes, and then proceeded to regale attendees with anecdotes from her legal career. A wonderful ending to a most interesting day!

Judith Huddart practises at Dranoff and Huddart in Toronto. She is the WLF Vice-Chair for 2011-2012.

TOP

WLF “Branch Bytes”

By Elaine Keenan Bengts

The Women Lawyers Forum Branches across the country are working hard to provide events and resources for its members. Here are just some of the events happening across the country:

Newfoundland/Labrador

With a very small core of just two or three organizers, the Newfoundland and Labrador branch have held a number of successful events over the last several months. Their next event scheduled is a lunchtime panel discussion entitled “How Does She Do It? Balancing Parenting and Practice.”

New Brunswick

New Brunswick has 86 members spread throughout the province. To kick off the 2011 year, they organized a clothing drive for the Transition House in Fredericton. Dubbed “Women Helping Women”. Women lawyers were encouraged to donate gently used business clothes to assist women returning to the workplace. In February they are planning an in-person meeting to discuss alternative careers for women in law.

Quebec

A luncheon conference was held in September on a little known pioneering Quebec feminist and thinker who championed women's rights and the fight for equality for all with history professor and author, Andrée Lévesque. This legal pioneer worked at the Quebec National Library and wrote under various pseudonyms on women's issues and the importance of women in the legal profession.

In October, they had a presentation from lawyer and career coach, Lucie Rousseau, who spoke about whether doing a career plan was more of a millstone or a necessity (conclusion - it's a necessity).

In January 2012, they planned a joint project with the Montreal Bar at which three dynamic female managers shared some of the secrets of their success.

Ontario

The Ontario Branch is in the process of reviewing their mission statement and governance, along with the rest of the Ontario Bar Association. They have a number of projects on the go as well, including a mentorship program, and recently held a very successful dinner program entitled “Slut Walks – Part of the Problem or Part of the Solution?” This generated a significant amount of debate and discussion. They are planning a JAG program early in 2012 to provide women lawyers with information about options for a legal career in the military.

Manitoba

The Manitoba branch has established a new award to be handed out at their branch Mid- Winter meeting. The award is named after Isabel Ross McLean Hunt who was the first woman in Manitoba to get a law degree, become a lawyer, have her own sole practice, and be a city solicitor. The award recognizes a woman who has encouraged the participation of women in the legal profession.

In an effort to create more transparency in appointments to provincial administrative tribunals and to get more women appointed to these tribunals, the Manitoba Branch lobbied the Provincial Government to make the process of appointments more transparent. As a result, the province has now created a website which lists all tribunals in the province, has an application form and provides guidance on how to apply for such appointments.

On the social side of things, the branch has recently hosted its 4th Annual “Wine Women and Song” Event with performances by women lawyers and judges. In June, they held their 2^nd Annual Wine and Cheese Party to honour retiring and newly appointed judges. As part of this event, a donation was made to the Manitoba Legal Help Center for each of the honourees.

In December, the Manitoba WLF hosted a noon hour lunch and learn entitled “So You Want to be a Judge”.

Alberta

The Alberta WLF started their year in October with a lunch meeting presentation entitled “Ten Hot Tips from Four Hot Mentors.” Four experienced female lawyers shared ten hot tips which they have learned throughout their careers.

On the agenda in the next few months are some more lunch presentations, including a presentation on appointments to the Court of Queen’s Bench and Provincial Court, and a similar discussion about appointments to Alberta government tribunals. There is also a proposed joint meeting with the Law Society of Alberta and the WLF for a round table discussion among women in the profession with a focus on the challenges and opportunities for a successful career and the sharing of ideas to address the high attrition rate of women from private practice. Finally, they are planning a presentation on “Communicating Inside and Outside the Court Room: Do Women and Men Communicate Differently?”

Northwest Territories

The small Northwest Territories Branch is gaining momentum through a series of potluck events. There seems to be an appetite for some mentoring opportunities and the branch will be working on this over the next few months.

British Columbia

British Columbia now has three forums in the province: the BC (founding) WLF, WLF-Kamloops and WLF-Vancouver Island. The Kamloops and Vancouver Island members are now automatically members of the BC WLF so that all WLF members can be connected to support women in the practice of law.

The BC WLF events and programs, which focus on education, networking, mentoring and recognition, have included: hosting an annual Education Day open to all WLF members; publishing a newsletter twice yearly titled “Connecting Women in the Law” which goes out to all members; continuing the very successful mentoring program which has matched over 800 lawyers in 8 years; and sponsoring two awards: the WLF Award of Excellence recognizing outstanding women lawyers in BC and the Debra Van Ginkel QC Mentoring Award presented to an exceptional mentor having participated in their mentoring program. Associate Chief Justice Anne MacKenzie, of the BCSC, was a special guest speaker at the 2011 Awards luncheon which was attended by over 180 WLF and CBA members and guests.

The BC WLF plans and presents a number of events each year, including:

• Participating in orientation week at UBC Law School to encourage student membership in the BC WLF
• Potluck Dinners
• Sr. Women Lawyers Dinner (Suzanne Anton, one of the mayoral candidates in the recent election and a lawyer, will be their next speaker)
• Jr. Women Lawyers Networking event
• Outreach events for women lawyers who work outside the city
• AGM/Summer Reception

The BC WLF will host a networking reception on Saturday, August 11, 2012 in conjunction with the CBA CLC in Vancouver. In addition, executive members from the BC WLF and National WLF are planning the WLF CLC program on “Strategies for Succeeding at Difficult Conversations” with Diane A. Ross, a facilitator and executive coach.

WLF-Kamloops, co-chaired by Kathleen Kendall and Linda Thomas, held a welcome BBQ for Thompson Rivers University (TRU) law students and faculty in October which was well-attended. Students had an opportunity to meet lawyers and judges and many students signed up to join the WLF. (TRU has included student CBA memberships in the law school tuition.) As well, Kamloops WLF members recently attended a Spa retreat held at Quaaout Lodge with two CPD events planned: a presentation on the Residential School Adjudication process and a panel on Ethics and Practice Management Issues. In December, they hosted their annual Christmas Social at the Courthouse Library with funds donated to the Kamloops Food Bank.

WLF-Vancouver Island, chaired by Krystle Gill, was recently formed and planned several events, including: a September presentation by Sarah Klinger on “How to Take the Nightmare Out of Networking”; and an October joint luncheon meeting with the Family and ADR Victoria sections on “How to Deal with High Conflict Counsel.” In December, they hosted a holiday potluck dinner at a member’s home, with donations to the food bank.

Elaine Keenan Bengts, Member-at-Large with the CBA National WLF, practises at Keenan Bengts Law Office, Yellowknife.

TOP

2012 CLC in Vancouver: Strategies for Succeeding at Difficult Conversations

The WLF and the Canadian Corporate Counsel Association are jointly sponsoring a 3 hour skills building workshop on “Strategies for Succeeding at Difficult Conversations.” Our dynamic presenter is Diane A. Ross, a former litigator trained at Harvard Law School in Negotiations and now working as a coach to lawyers and law firms.

The ability to say "no,” to deal with offensive or disrespectful behavior, to have difficult conversations and to ask for what you want and need – are all elements of a successful practice. All lawyers, at various stages in their career, encounter difficult clients and situations where the stakes are high and they need to set limits or say “no.” Sometimes this can involve ethical issues, which adds to the challenge. This workshop will provide you with strategies and skills to successfully manage your difficult conversations.

TOP 

Cecilia I. Johnstone Award call for submissions

Deadline for Applications: April 2

The Cecilia I. Johnstone Award was established in 2007 to recognize women who have achieved professional excellence in their field and influenced other women to pursue legal careers, supported other women in career advancement or opened doors for women lawyers in a variety of job settings that historically were closed to them.  It is named to honour an outstanding lawyer, judge, CBA President, woman and friend who passed away April 15, 2006.

Eligibility

The individual achieved professional excellence in her field and influenced other women to pursue legal careers, supported other women in career advancement or opened doors for women lawyers in a variety of job settings that historically were closed to them. 

The Award is open to CBA members and will not be given posthumously. 
Members of the National Women Lawyers’ Forum Executive are not eligible to receive the award.

Criteria

Candidates should possess one or more of the following:

• the highest standards of professional conduct and competence;
• a high level of excellence and leadership; and
• commitment and service to the other women.

More information.

TOP 

JANUARY 2012

Editors:
Judith L. Huddart
Veronica Jackson
E-Publications Editor:
Rose Steele
Production:
Rose Steele
Staff Liaison:
Gathoni Njuguna

Contributors:
Nadia Bechai
Elaine Keenan Bengts
Rebecca Bromwich
Judith Huddart
Pascale Pageau
Maryellen Symons

Published by the Canadian Bar Association's Women Lawyers Forum.

Skilled Lawyer Series: Back by popular demand! The CBA Skilled Lawyer Series II offers accredited, online, skills-based training to help you excel in the courtroom and the boardroom. Check out our Litigation or Corporate streams of programming.

Online PD:

Trends in Law Practice Management: Calculating the Risks (February 28, 2012)

THE CANADIAN BAR ASSOCIATION:

500-865 Carling Avenue
Ottawa, ON K1S 5S8

Tel. : 613-237-2925
Toll-free: 1-800-267-8860
Fax: 613-237-0185

E-mail: info@cba.org

© 2012 The Canadian Bar Association. All rights reserved.