Law Matters | Fall 2019

On September 27, 2019, the Law Society of Alberta released its Articling Survey Report which, among other things, found that 32% of new lawyers experience discrimination or harassment during recruitment and/or articling. At pgs. 20-21, Elizabeth Aspinall describes the report—in her words, a “modern-day Dickensian comment on the legal profession”—in greater detail, but the 32% finding alone raises troubling concerns about the culture in Albertan law firms, and the extent to which current processes are seemingly inadequate in addressing that culture. The #MeToo movement has served as a catalyst for greater discourse around sexual violence and accountability—could it be making its way to Canadian law firms as well? That subject, #MeToo and the law, is the focus of our latest edition. And we are thrilled with the variety and quality of our contributors.

At pgs. 8-9, Professor Tuulia Law interrogates several facets of the #MeToo movement: how it can be understood as a contemporary manifestation of feminist “consciousness raising” with respect to “the prevalence of sexual violence”; how its use of “survivor” terminology in sexual discourse may exclude certain people who have experienced sexual violence; how #MeToo can be seen as a “return of the victim”, where victimhood is mobilized to justify punitive measures; how #MeToo has generated reflections (some productive, some less so) regarding sexual justice; and how, despite our progress, conventional sexual scripts still permeate our courtship rituals. She concludes with a gesture towards transitioning our sexual discourse from one that centres victimhood, to one the centres agency (and respect therefor).

At pgs. 10-11, Professor Lisa Silver discusses the overlapping and, at times, conflicting semiotic processes engaged by social movements like #MeToo and our criminal justice system (an overlap also explored by Emma Wilson, at pg. 17, with respect to recent changes in the frequency and reception of sexual assault complaints). Specifically, Professor Silver explores the impact of the #MeToo Movement on jury impartiality, “a core concept of our adversarial system”, with constitutional significance. She notes the delicate balance struck by a system that simultaneously demands impartiality and experience, and illustrates the complexity of striking this balance in three recent Alberta cases—Fuhr, Shirvastava, and Way—where #MeToo and jury bias were at risk of colliding (though in all three cases the applications to challenge for cause were dismissed). Professor Silver also observes our two “courts”—literal (criminal justice) and metaphorical (public opinion)—have distinct consequences, and thus, distinct evidentiary norms and standards which they apply. Contextualized in this manner, Professor Silver argues how #MeToo, “[i]nstead of a banner of bias … can be an emblem for fairness and balance in our system.”

At pg. 12, Gail Gatchalian, Q.C. boldly states: “[s]exual harassment is rife in legal workplaces” (a claim seemingly justified by the Articling Survey Report mentioned above). She then goes on to discuss “the largest ever global survey on bullying and harassment in the legal profession”, and its troubling findings of systemic discrimination against women, including that 1 in 3 female respondents had been sexually harassed at work, 3 out of 4 cases go unreported, a principal reason for not reporting is fear of repercussions, and—perhaps most surprisingly—workplaces with harassment policies were just as likely to have harassment as workplaces without them. The ineffectiveness of harassment policies, in isolation, leads Ms. Gatchalian, Q.C. to the view that #MeToo is not only about ensuring that firms have harassment policies in place, but further, that “people care about those policies”—in other words, not only a change in administration, but a change in culture, too.

Lastly, we include articles that explore how we can respond to sexual violence and #MeToo, both theoretically and practically. At pgs. 18-19, we include a conversation between doctoral student Daniel Del Gobbo and our Co-Editor-in-Chief Joshua Sealy-Harrington regarding critical feminist and queer approaches to legal theory and law reform in the context of sexual violence, as well as emerging questions in feminist thought in light of the #MeToo movement. And at pg. 21 we feature the Elizabeth Fry Society’s initiative providing independent legal advice for survivors of sexual assault.

We urge all Alberta lawyers—but especially those with managerial roles at firms—to reflect on these articles, consider what is currently being done in your workplace, and take action to ensure that our legal environments are welcoming to lawyers of all backgrounds—a true commitment to merit.

Joshua Sealy-Harrington
Jessica Robertshaw