Last week Nova Scotia’s chief justice ordered an investigation into possible misconduct by Judge Gregory Lenehan, who earlier this year acquitted a taxi driver of sexual assault saying despite being found in the back of a cab naked from the waist down, with no memory of the incident, the purported victim might have agreed to sex.
“Clearly, a drunk can consent,” Lenehan said in his decision
The case renewed calls for better education surrounding the application of law for judges hearing sexual assault cases, coming just months after Alberta Justice Robin Camp – the infamous “keep your knees together” judge –dropped his robes following a recommendation from the Canadian Judicial Council that he be removed.
There are many similar stories and the body of evidence that suggests women are often marginalized and even victimized by comments and decisions from the bench is overwhelming enough to frame despair.
That is, if a judge might get away with saying that a rape did not likely occur because the alleged victim did not scream at the time of the alleged assault, where the heck are we on the small but still crucial stuff – the one thousand ways it is possible to slight, humiliate or intimidate a woman all while never directly addressing gender.
To the point – in a recent issue of Canadian Lawyer Magazine, Ontario attorney Linda Rothstein recalled being interrupted by a judge during a submission so he could compliment her nails.
In Canada men comprise nearly two-thirds of the legal profession. That is, more than 60 per cent of federally appointed judges are men, and the number is similar for provincial judges in BC. In this country less than 40 per cent of lawyers are women.
An overwhelming number of sheriffs – 78 per cent in British Columbia - are men, and in Canada women account for only 21 per cent of all sworn police officers.
(In fairness it can be noted that clerks are often women, and every courtroom has a picture of the Queen.)
In such a masculine environment, can a woman ever be assured of fair treatment?
That’s a reasonable question.
Circuit court in Princeton is always like a box of chocolates - you never know what you are going to get.
Criminal cases, small claims and youth charges can be heard in a span of hours, one Thursday out of every month. There are pleas, trials, sentencings, and much paperwork.
Last week in family court two people appeared in a child support dispute.
The mother seemed small, at least petite, and that effect was exaggerated as she stood between two towering men – her former partner and someone who identified himself as an agent acting on her behalf.
Justice Gregory Koturbash suggested at the outset that as “the agent” was not a lawyer, the woman might want to represent herself.
Repeatedly the agent interjected whenever Koturbash asked a question about the facts or the history of the case.
Twice more the judge requested the agent allow the woman to answer and eventually, showing just the brittle edge of frustration, told the guy to shut up. (That last part is a paraphrase.)
He looked at the mother.
“You can speak for yourself, you know.”
That is a seriously hard line to deliver and get right – to not come across as patronizing, bullying or overprotective.
But Koturbash nailed it.
(Apologies for reducing court coverage to a live theatre review, but you really should have been there.)
You can speak for yourself, you know - a straightforward and civil reminder to a woman that she has a voice, and someone wants to hear it.
Those words are small but still crucial. They deliver empowerment.
More sentences should be constructed likewise. - AD