Op-ed: Law professor’s words highlight how the personal is still the political

Should professional women’s personal lives have anything to do with their careers? One law professor doesn’t have the answer to that question, but her words make clear that regardless of whether they “should”, they certainly do.

Osgoode Hall Law School professor Susan Drummond says she stands in solidarity with Manitoba judge Lori Douglas. Douglas decided last week to retire early after sexually explicit photos of her, put on the internet without her consent in 2003 by her now late husband, became the subject of an inquiry by the Canadian Judicial Council.

In an article originally published in the Winnipeg Free Press titled “I can never be a judge,” Professor Drummond revealed that she appears in a presumably compromising photograph that someone close to her has threatened to send to her current employer, Osgoode Hall. Following the outcome of Justice Douglas’ plight, Professor Drummond says she has realized that “as it stands”, because she too has a photo “out there”, she can never be a judge.

Drummond likens this knowledge to that of sexual assault complainants like those who are, she says, about to have their credibility attacked by Jian Ghomeshi‘s lawyers in his upcoming criminal proceedings. Just as she can never be a judge because of the scrutiny that could befall her personal life, she says many survivors of assault feel they can never be a complainant for the same reasons.

Further, Professor Drummond ties Justice Douglas’ experience to the recent appointment of Quebec corporate law litigator Suzanne Côté as newest justice to the Supreme Court of Canada, announced on November 27. Côté was independent counsel to the disciplinary committee that heard Justice Douglas’ case, where, as Drummond recounts, Côté insisted that the committee needed to see the graphic photos of Douglas in order to make its decision. After Douglas’ lawyer obtained an injunction preventing the committee from seeing the photos, Côté applied for Douglas’ medical records, including notes from her therapist, to be included in evidence. Several days later, Douglas offered to retire early to avoid a hearing on her case. Following several days after that was Côté’s appointment to the Supreme Court.

The appointment of Côté will bring the number of women Supreme Court justices back up to four out of nine, a fact applauded by opposition party members as much as by feminists. But Professor Drummond’s story reminds us that we are far from a world where we side with women who have been threatened, attacked, or harassed. For the important thing is not that Drummond and Douglas apparently agreed to the taking of compromising photos. It’s that they and their careers are not protected when their privacy and dignity is violated by others, without their consent, in the way that Douglas’ was and Drummond says hers is threatened to be. The photos of Douglas’ private life did not mysteriously “appear” on the internet. They were put there deliberately, by someone she presumably trusted when the photos were taken.

As Drummond makes clear, these women are victims that the law does not or will not protect. Sexual assault victims, dignity and privacy violated too, are not protected either from having their reputations and careers ruined by scrutiny into what they mistakenly thought was their “private” life. As long as women like Douglas can still lose their jobs because private photos of their consensual sexual activity were put on the internet without their consent; as long as women like Drummond can still know that certain prestigious, high-paying, powerful, male-dominated jobs will remain forever out of their reach because of the possibility that they will be judged and scrutinized over private photos put into the public sphere without their consent and used as threats against them; as long as women feel they must refrain from lodging formal sexual assault complaints because of how their personal and private lives will be publicly scrutinized, the personal does not remain personal at all, but still acutely political.

As a feminist, I like seeing another woman appointed to the Supreme Court too. I just wish it was a woman who, rather than participate in the same old savage attacks on the personal life of another woman victim of sexual harassment, had chosen instead to stand in solidarity with her as Drummond does. But Côté would likely argue that she was just doing what lawyers do: representing her client’s interest, impartially, objectively; indeed, the legal system makes it possible and acceptable for her to do as she did in Douglas’ case. Just like the lawyers who filed a hopeless and now-retracted $50 million civil lawsuit against CBC on behalf of Jian Ghomeshi, a move that law professor David Tanovich says is ethically and professionally questionable. While Côté’s work on Douglas’ case may not be professionally questionable, it still begs the question that Tanovich asks: is this – damage to the lives, careers, and reputations of women who are direct targets of intentional violations of their privacy – what we are going to accept as “business as usual”?

 

 

 

 

Creating a Better Learning Environment: Gay-Straight Alliance Bill to be Introduced in Alberta Legislature

On Thursday November 20, Liberal MLA Laurie Blakeman is set to introduce Bill 202, the Safe and Inclusive School Act, to the Alberta Legislature. The private member’s bill is aimed at making all Alberta schools safe, inclusive, and supportive learning environments for all students regardless of sexuality, sexual orientation, or gender identity. The introduction of the bill in this year’s fall session of the legislature comes after a non-binding Liberal motion to support gay-straight alliances in Alberta schools was defeated in the spring session. It remains to be seen whether the bill will receive enough support to move forward in the legislative process from the governing Conservative party and opposition Wildrose party.

Read the rest of this entry »

Budget Cuts, User Fees Threaten Access to Information

Canada’s federal information watchdog, Suzanne Legault, is warning that budget cuts are impeding her ability to carry out her mandate of ensuring Canadians’ right of access to information.

The Office of the Information Commissioner of Canada is tasked with investigating complaints regarding freedom of information requests under the Access to Information Act.  The Office serves a vital role in government transparency, giving Canadians recourse to an independent body if a government agency denies or unduly delays a request for information.

However, the Office has been squeezed over the past few years by budget cuts and increased user access requests. Read the rest of this entry »

A Violation of Privacy Threatens a Victim’s Career

Lori Douglas is the Associate Chief Justice of the Court of Queen’s Bench’s Family Division in Manitoba. Over a decade ago she was the victim of an invasion of privacy on the part of her late husband, Jack King, who posted nude photos of her online without her knowledge or permission. In 2010, a former client of Douglas’ husband filed a complaint with the Canadian Judicial Council (CJC), alleging that the couple had sexually harassed him. According to the client, King had invited him to participate in a threesome when he posted the nude photos of his wife online. Until his death King maintained that Douglas had no part in what he later described as his “ridiculous [...] grotesque” actions. The CJC dropped the sexual harassment allegations in early October, however is proceeding with the disciplinary hearing. The CJC is concerned that the photos “could be seen as inherently contrary to the image and concept of integrity of the judiciary”. On Tuesday, Douglas lost a bid to end the hearing.

Senate Approves Controversial Prostitution Bill

The Senate approved Bill C-36 on Tuesday, inching the controversial prostitution bill one step closer to becoming law.  It now needs only Royal Assent, a mere formality, to become law.

The Bill is a response to the Supreme Court of Canada’s decision in Canada v Bedford last December, which struck down the existing prostitution laws as unconstitutional. In Bedford, the Court found that the laws infringed sex workers’ s. 7 Charter rights by imposing conditions that created a dangerous working environment. Read the rest of this entry »

“Monster” anti-austerity Halloween march takes place in Montreal

A Halloween protest against the Quebec Liberal government’s austerity plan, which was announced in spring 2014, turned out to be a “monster” on October 31.

Tens of thousands participated in the march, dubbed “Austerity: A Horror Story” in acknowledgement of it falling on Halloween. Members of Quebec’s largest union federations, retirees, health care workers, community groups and approximately 85,000 post-secondary students participated. The now-famous “red square,” symbol of 2012′s Maple Spring student protests in Quebec, was again seen everywhere in the Montreal core.

The last large anti-austerity protest in Montreal was on April 3, 2014, when approximately 60,000 students went on a one-day strike and took to the streets in response to the provincial government’s budget propositions. The march was organized by the Association pour une solidarité syndicale étudiante (ASSÉ), one of the main forces behind the Maple Spring organizing.

Police in Montreal declared the April 3 march illegal before it started, claiming that organizers did not provide them with the march route ahead of time. The protest ended with violence as police deployed tear gas, pepper spray, projectile launchers, batons and shields against participants.

The October 31 march was also declared illegal for the same reason, but took place peacefully and without any major conflicts according to the Montreal Police Service (SPVM).

 

 

 

 

 

 

Quebec courts feeling strain of Maple Spring cases

Quebec’s student uprising in the spring and summer of 2012, the Maple Spring, brought new laws and protest response tactics that resulted in hundreds of protestors experiencing fines, detention and arrest. Now, Quebec courts may be feeling the strain.

On October 23, 2014, a municipal court in Montreal dismissed the cases of 75 self-represented litigants who were fined and detained at a protest in April 2012. Judge Gilles Pelletier’s decision rested on the fact that such fines, handed out in large quantities, were creating unreasonable delays in the system. Without a plan provided by the Crown to end the cases within a reasonable time period, Judge Pelletier found the massive resources and time required to process the tickets to be unjustifiable.

The 75 litigants in question had been fined under Montreal bylaw P-6, which was amended during the Maple Spring to allow police to fine protestors wearing masks or people gathering for a protest where the itinerary had not been provided to police.

P-6 continues to be a controversial. In August 2014, the Quebec Superior Court authorized eight class action law suits against the City of Montreal involving police response to protests. The class in question includes over 1600 protestors who were ticketed and claim to have been mistreated by police.

UK to Increase Maximum Sentence for Internet Trolls

The UK government announced today that it will increase the maximum prison sentence for internet trolls to two years, up from six months. It will also increase the statute of limitations for criminal prosecution from six months from the day of commission to three years. This is in conjunction with the creation of a specific offence to criminalize ‘revenge porn’.

The offence is described as “cover[ing] sending a letter, electronic communication or article of any description to another person, which is in nature, or which conveys a message which is, indecent or grossly offensive, or conveys a threat or false information, with the purpose of causing distress or anxiety to the recipient or to any other person to whom it is intended that its contents should be communicated.”

Chris Grayling, the Minister of Justice, has described the initiative as “a stand against a baying cyber-mob”. Neither Mr Grayling nor the official press release make any comment about the underlying discrimination found in many instances of trolling.

This announcement was made just days after a high profile trolling case was made public. The daughter of Judy Finnegan, a well-known TV presenter, had receive rape threats online because of her mother’s on-air comments regarding a convicted rapists and football player. Finnegan said that Ched Evans should be welcomed back to professional sports because the rape “wasn’t violent and the victim was drunk”. Her comments solicited wide criticisms and she has since apologized, though her daughter was consequently the target of internet trolling.

For more information, see here.

UK to Criminalize “Revenge Porn”

UK Justice Secretary Chris Grayling announced a new law to explicitly make “revenge porn” illegal. The Crown Prosecution Service had announced that current legislation already criminalized it with a maximum sentence of 14 years. The new law will explicitly penalize distributors of digital or physical “photographs or films which show people engaged in sexual activity or depicted in a sexual way or with their genitals exposed, where what is shown would not usually be seen in public”. The maximum sentence is 2 years imprisonment.

While revenge porn is usually characterized by spurned ex-lovers distributing pornographic images, many victims report that the only means that their photos could have been accessed was through computer hacking. It is unclear whether exes and hackers will be treated similarly under the law.

Criminalized distribution will not be limited to specialized revenge porn sites, but also to Twitter, Facebook, SMS and email. Additionally, if it is deemed a sexual offence, distributors could face up to 14 years in jail.

For more information, see here.

Bill C-13: At Odds with the Supreme Court of Canada

Bill C-13 or the Protecting Canadians from Online Crime Act, was tabled by Minister of Justice Peter MacKay. As of October 1st, it passed on a vote at its report stage despite the Supreme Court of Canada’s ruling on internet privacy laws this summer.

In summary the Bill, creates a new offence of non-consensual distribution of intimate images without the owner’s consent. It provides for the authorization to have these images removed, the forfeiture of property used in commission of the offence, and the restriction of the use of a computer or the Internet by a convicted offender.  It creates the power to make preservation demands and orders to compel the preservation of electronic evidence.  It allows for the granting of a warrant that will extend the current investigative power for data associated with telephones to transmission data relating to all means of telecommunications. It also allows for the grant of warrants that will enable the tracking of transactions, individuals and things related to the legal interests at stake. The Bill also prescribes a streamlined process of obtaining warrants and orders to intercept private communications.

In June of this year, the Supreme Court of Canada in R v. Spencer recognized enhanced privacy rights online and ruled that warrants are generally required when seeking subscriber information from telecoms. The decision goes against the enhanced powers that are found in Bill C-13. The Globe and Mail reports that,

Mr. MacKay insisted the bill “does not create warrantless access” to information, saying it’s an “incorrect, factually wrong statement” to say otherwise. However, the bill plainly opens the door to police getting information without a warrant – through the immunity provisions that apply broadly, not just to telecoms, which received 1.2 million data requests from law enforcement agencies in 2011.

With the Bill going ahead, there are critics wondering as to whether or not the Bill should be allowed to move forward due to the constitutional issues now at play. The Globe and Mail reports,

“We know the Supreme Court has already quashed one of the clauses … because it provided access to data without a warrant,” NDP MP Charmaine Borg said in the House, questioning Mr. MacKay. “… His bill allows people to have warrantless access to data with no judicial verification. Is he prepared to say that [the bill] is constitutional? Because the Supreme Court has already said that it is not.” Mr. MacKay said the question was a “false dichotomy”.

One suggestion, provided in a Macleans report in June of this year, states that, “privacy commissioner Daniel Therrien and the Canadian Bar Association have recommended that the cyber-bullying bill be split in two, with one bill covering cyber-bullying and another focusing on lawful-access provisions”.

The full text of Bill C-13 can be found here.

 

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