Category Archives: What we’re thinking/reading/doing (IFLS blog)

What’s interesting these days?

Wired Harassment, part II

dinner with friends just reminded me that one of the reasons I started the last post (Nancy Leong on cyber harassment, & etc). was to provide context for this current Toronto trial. So….

The Crown is currently trying to convict Gregory Elliott on three charges of criminal harassment (and one of breaching a peace bond) based on Twitter activity.   The complainants are three women including Toronto feminist activist Steph Guthrie.  This Toronto Star report from last Thursday notes some of the context, including Guthrie’s online activism against an Ontario man who created a game in which players could beat up and bloody an image of Anita Sarkeesian (media critic who blogs at Feminist Frequency), apprently in reaction to Sarkeesian’s kickstarter campaign to fund a series of videos about sexist tropes in video games.  (You can go to Sarkeesian’s blog to find out more about her experience, or perhaps read this article by Helen Lewis in the New Statesman which reproduces some of the stuff Sarkeesian had to deal with –  including screenshots of the game described above).

 

Here is a link to section 264 (Criminal Harassment) of the Criminal Code of Canada, which, inter alia, requires

  • 264. (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

  • Marginal note

    (2) The conduct mentioned in subsection (1) consists of

    • (b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;

In this case (which may be the first Canadian twitter criminal harassment trial), the police investigator has apparently testified that there were no tweets from the defendant threatening to harm the women (note that is NOT a requirement of the offence), although it has been reported that the women feared for their safety.  Guthrie, at least, has received such threats in the past from others, as this newspaper report from the summer of 2012 (when the Sarkeesian kickstarter campaign and backlash were happening) describes:

“I can be anywhere, anytime, and I can kill you in over seven hundred ways,” one tweet to Guthrie said…, soon to be matched with even cruder and more violent tweets from other users.

Guthrie told the reporter “I don’t think any of these people are going to come to my house and kill me,” ….“The ability to be anonymous on Twitter facilitates really abusive comments.” (here).  She also tweeted this, of her decision to go to the police:

The question of what online harassment “means” is interesting doctrinally and otherwise.  Jim Pagels writes in Slate that Twitter (death) threats should be ignored because they are meaningless.  Hess’s piece takes that on (see below for her response).  Leong notes ignoring harassment can be one possible, starting, strategy but that it will not always work.  Again, please note that criminal harassment does not require either death threats or threats to harm.

Incidentally, news of this Toronto trial comes the same week as two people were convicted under section 127 of the UK Communications Act 2003 of sending menacing tweets to Caroline Criado-Perez, who was campaigning against the removal of Elizabeth Fry from the £10 note.  The Director of Public Prosecutions in the UK has produced a set of guidelines for “Prosecutions involving the use of social media communications”, in case you’re interested, here.

Leong’s ethics complaint raises, for me at least, very different questions than the criminal prosecutions do, but the underlying activities complained of are clearly very similar in their method and tone.  Thinking through which responses can be both appropriate and effective will no doubt continue even as legislators write new law, prosecutors and individuals try to use whatever law they find to address problems they face, and corporations wonder whether they are exposed by providing platforms for these activities.

It is interesting that the threats of violence that we’re hearing about in these cases tend to be – but are not always – threats of (for lack of a better phrase) “stranger violence,” rather than intimate violence (a phrase which describes so much of the physical and sexual violence experienced by women in our society – violence and/or threats perpetrated by men with whom one has or has had an intimate relationship).  I am not drawing a conclusion from that observation or heading in any particular direction, but rather just observing something about the places violence may be.  It feels, sometimes, impossible to be as wary as we are apparently meant to be while having an actual life.   It just cannot take too long before all the warnings to be vigilant fade into a constant background buzz and a generalized heightened awareness (or perhaps anxiety), which roars back to the forefront at particular moments.

Here is what Amanda Hess says in response to the claim that women should ignore online harassment because it does not represent a real threat of physical violence:

But no matter how hard we attempt to ignore it, this type of gendered harassment—and the sheer volume of it—has severe implications for women’s status on the Internet. Threats of rape, death, and stalking can overpower our emotional bandwidth, take up our time, and cost us money through legal fees, online protection services, and missed wages. I’ve spent countless hours over the past four years logging the online activity of one particularly committed cyberstalker, just in case. And as the Internet becomes increasingly central to the human experience, the ability of women to live and work freely online will be shaped, and too often limited, by the technology companies that host these threats, the constellation of local and federal law enforcement officers who investigate them, and the popular commentators who dismiss them—all arenas that remain dominated by men, many of whom have little personal understanding of what women face online every day. (source)

And here is Ally Fogg, quoted in the New Statesman article referenced above, with a pithy statement about where the problem lies:

What you fail to understand is that the use of hate speech, threats and bullying to terrify and intimidate people into silence or away from certain topics is a far bigger threat to free speech than any legal sanction.

Imagine this is not the internet but a public square. One woman stands on a soapbox and expresses an idea. She is instantly surrounded by an army of 5,000 angry people yelling the worst kind of abuse at her in an attempt to shut her up. Yes, there’s a free speech issue there. But not the one you think. (quoted here)

Well – what do you think? A timely paper topic for students I suppose.

[this post does not take on the issue of cyberbullying which is interestingly often given a slightly different treatment, focused more on teen behaviours, nor does it look at the question of “revenge porn” – both clearly connected to the frames provided by Leong (harassment & defamation, ethics) and Hess (criminal harassment, threats).  I see the connection – and i wonder about how the differences are defined – but leave it for another day]

 

As always, happy for cites to good legal academic articles to appear in the comments below or otherwise to me for posting.

 

 

 

Nancy Leong on cyber harassment, & etc.

A few weeks ago I tweeted a link to Prof. Nancy Leong‘s (Denver Sturm Law – her SSRN page here) series about about harassment in cyberspace (at Feminist Law Professors, here), definitely  worth a read.  As part of her reflections on anonymity, identity, and how to understand the responsibility of thread starters, website administrators, etc, she describes her own experience:

Over the course of about fifteen months, this particular harasser commented about me approximately 70 times on at least five different websites, frequently remarking on my physical appearance.  ….. Moreover, he wrote offensive profiles of a dozen other law professors who were–so far as I could tell, with one exception–all women or people of color or both. (from part 4, here)

The ABA site writes about the ethics complaint that Leong eventually filed, here, as does well known law blogger Brian Leiter here (and elsewhere).   Leiter noted Leong’s Feminist Law Professors posts back in November, in this post, where he also references work by Law Prof Mary Anne Franks (Miami) on this subject, and a few days ago he noted that Amanda Hess has written an article in the Pacific Standard:  The Next Civil Rights Issue: Why Women Aren’t Welcome on the Internet –  which references work by Franks and Danielle Citron (Maryland).

The connection between the generalised misogyny of the internet,  and the very specific targeting of particular women is interesting both in terms of understanding why and how they happen, and in terms of how both affect the behaviour of those who are neither harassers nor targets, but are in the same spaces as those who are filling those roles. I highly recommend a look at Leong’s Feminist Law Professors posts – both for those who are at home on the net and those still resisting. Leong’s work also has the advantage, in my view, of bringing an intersectional view to the question of harassment.

In Canada, I have seen a variety of work which looks at cyberbullying or related topics from law school scholars like Jane Bailey (Ottawa) (and the eGirls project researchers as a group, see the website for this SSRHC funded project here), Karen Eltis (Ottawa), A. Wayne MacKay (Dalhousie), and I’m sure many more – if anyone has an up to date bibliography on this issue I would be happy to post it.

 

If you want to read more by Leong, try this article, The Open Road and the Traffic Stop: Narratives and Counter-Narratives of the American Dream,64 Fla. L. Rev. 305 (2012) here

This review of that article, which takes on interesting questions about conceptual inquiry and its place in educating law students, and this, by Ruthann Robson pointing to another blog post by Stephen Diamond.

Dean Penny Andrews at Osgoode: on New Strategies for Pursuing Women's Human Rights

Feb3PAPosterDean Penelope Andrews (Albany) will be at Osgoode Monday February 3, 2014,  and will speak from her latest book, From Capetown to Kabul: Rethinking Strategies for Pursuing Women’s Human Rights (Ashgate) 1230-230 in room 2027.  Please RSVP to Lielle Gonsalves, lgonsalves@osgoode.yorku.ca

The author examines and compares gender inequality in societies undergoing political, economic and legal transformation, and looks at two countries – South Africa and Afghanistan – in particular. These two societies serve as counterpoints through which the book engages, in a nuanced and novel way, with the many broader issues that flow from the attempts in newly democratic societies to give effect to the promise of gender equality. Developing the idea of ‘conditional interdependence’, the book suggests a new approach based on the communitarian values which underpin newly democratic societies and would allow women’s rights to gain momentum and reap greater benefits. [from the publisher]

Ruthann Robson reviewed the book for Jotwell, here.

More about Dean Andrews from the Albany website, here:

Dean Andrews, who was born and raised in South Africa, has extensive international experience, including teaching at law schools in Germany, Australia, Holland, Scotland, Canada and South Africa. An annual award in her name—The Penelope E. Andrews Human Rights Award—was inaugurated in 2005 at the South African law school of University of KwaZulu-Natal. Along with numerous other awards, she holds a “Women of South Africa Achievement Award,” as well as Albany Law’s Kate Stoneman Award, which she received in 2002.

In 2005 she was a finalist for a vacancy on the Constitutional Court of South Africa, the highest court in South Africa on constitutional matters. She has consulted for the United Nations Development Fund for Women, and for the Ford Foundation in Johannesburg, where she evaluated labor law programs. She earned her B.A. and LL.B from the University of Natal, Durban, South Africa, and her LL.M from Columbia University School of Law, New York.

She has published extensively on topics centered on gender and racial equality, South African legal issues, Australian legal issues, and international justice.

Dean Andrews will also be speaking to Professor Dayna Scott’s International Environmental Law class on Monday afternoon on the right to water in South African (constitutional) law.

 

Community, connections, commitment: Conversations at Osgoode

 

This semester we are bringing some of the people who do front line work with gender issues in Toronto to Osgoode.   Join us for these discussions about work, careers, challenges and choices (each with one lawyer and one “non lawyer”) – we will leave plenty of time for your questions.  Tuesday Jan 21 and Tues Feb 4, 1230-230.

Tuesday January 21 1230-230 in 2027

Farrah Khan & Deepa Mattoo

Hear Deepa Mattoo (staff lawyer at South Asian Legal Clinic of Ontario) & Farrah Khan (counselor at the Barbra Schlifer Clinic for women who have experienced violence, artist, and educator) talk about their work with women in the GTA’s South Asian communities, advocacy inside and outside the community, research, media strategies, and negotiating complicated spaces between xenophobic racism and community silencing. How did these women find their way to exciting and meaningful careers? What sustains them in their work? Come & find out.

pdf poster here: KhanMattoo21jan

 

KhanMattoo21jan

 

 

Tuesday February 4th 1230-230 in 2027, join IFLS

Tamar Witelson & Joanna Hayes

Legal Director Tamar Witelson & Legal Information Coordinator Joanna Hayes work for one of Toronto’s most dynamic and community engaged agencies. METRAC is a non-profit committed to the rights of women and children to live their lives free of violence and the threat of violence. They will discuss the work METRAC does, how they work together, their career paths, and what working in the not-for-profit sector is like.

PDF poster here:  METRAC4thFeb

 

METRAC4thFeb

 

 

on Bedford (four things)

pic of bike helmet

Having spent the day mulling it over, I‘m haven’t fully decided about Bedford. I do consider it a victory on the facts and for this cause.  I mean that I haven’t decided on the map the court used to get there – what does it mean for the future on this issue and the ones that will follow.  Below are a list of four things that I think we should be thinking about – followed preceded by a very small round up of links.

I haven’t done an overview here. I can’t even begin (for reasons of time but also volume) to collect all the commentary that has come out today.  But I will say that along with the commentary – including law profs Brenda Cossman , Angela Campbell and  Michael Plaxton in the Globe, Carissima Mathen in the Ottawa Citizen, PIVOT’s summary (PIVOT is a Vancouver social change legal organization which intervened on the case against the government) NWAC’s press release (Native Women’s Association of Canada, who intervened against striking down the challenged laws), mentions of Canada in US law blawgs (here, from Canada-phile @robsonconlaw) and @cmathen’s twitter feed all day long –   you should read the decision.  It is not a monster. It is, as these things go, a model of clarity and guidance (with caveat below).  Find it here.

1.  Suspension

The last three paragraphs of the case (full text here) might be the most troubling.  Having accepted and described the harms that these laws cause – having raised the spectre of Pickton in that analysis – the Court via the Chief sets up the opposite side.  That is, a “concerned public”.   She does not, here, describe precisely what those “many Canadians” would be greatly concerned about.  But it is enough to justify “increased risk” to prostitutes [para 168], apparently because although “neither alternative is without difficulty”, the declaration of invalidity is suspended. [169]

Alright, @cmathen, you are correct of course.  My point is not so much that the Court should not have done this – but rather let’s talk about what is really going on in that three sentence paragraph 169.  Why take this approach?  Is this pragmatism?  I see no one on social media or in op eds raising the thought of section 33 (the override).  The “dialogue” that a suspended declaration is usually said to create is one way of mitigating claims about activist courts usurping the role of the legislature.  It is useful to think more about the extra-doctrinal reasoning, the reasons not provided, because clearly there is something wrong with the doctrinal logic of this suspension.

2.  Choice

My favourite trope in Charter cases: Choice!  And here we see the court taking on facile arguments about choice in wonderful ways [para 79 through 92].   The AG’s (Ontario and Canada) take a bit of a beating for their positions about the causal connection between the law and the harms the court is recognizing.

[79]     The Attorneys General of Canada and Ontario argue that prostitutes choose to engage in an inherently risky activity.  They can avoid both the risk inherent in prostitution and any increased risk that the laws impose simply by choosing not to engage in this activity.  They say that choice — and not the law — is the real cause of their injury.

Paragraph 86 represents a relatively complete picture of the complexity of choice and sex work.  It is, in many ways, this picture which makes debates over sex work so fraught within feminist communities.  Some choose it – others cannot be said to do so.

[86]                          …., while some prostitutes may fit the description of persons who freely choose (or at one time chose) to engage in the risky economic activity of prostitution, many prostitutes have no meaningful choice but to do so.  Ms. Bedford herself stated that she initially prostituted herself “to make enough money to at least feed myself” (cross-examination of Ms. Bedford, J.A.R., vol. 2, at p. 92). As the application judge found, street prostitutes, with some exceptions, are a particularly marginalized population (paras. 458 and 472).  Whether because of financial desperation, drug addictions, mental illness, or compulsion from pimps, they often have little choice but to sell their bodies for money.  Realistically, while they may retain some minimal power of choice — what the Attorney General of Canada called “constrained choice”  (transcript, at p. 22) — these are not people who can be said to be truly “choosing” a risky line of business (see PHS, at paras. 97-101).

Here is another piece of the fraught feminism around choice and sex work, referenced in para 87, which also contains the greatest SCC analogy (another of my hot button issues!) of all time or at least of 2013:

[87]                          Second, even accepting that there are those who freely choose to engage in prostitution, it must be remembered that prostitution — the exchange of sex for money — is not illegal.  The causal question is whether the impugned laws make this lawful activity more dangerous.  An analogy could be drawn to a law preventing a cyclist from wearing a helmet.  That the cyclist chooses to ride her bike does not diminish the causal role of the law in making that activity riskier.  The challenged laws relating to prostitution are no different.

Actually, there is of course another piece of the choice puzzle, and that’s the choice and role not of the seller but the buyer – but that was not at issue in this case. It will, of course, be unavoidable in the debate over what to do next.

My interest in choice goes beyond this case. It’s been a discourse that the Court has used in a number of cases to sink section 15 challenges.  Seeing it taken on so clearly here – treated as a complex issue – is a relief.

3.  Appointments & Mr. Harper

I can’t make this point any more clear than Osgoode student Avnish Nanda did via twitter:

That’s not the whole story – but it’s a big part of it.  We’re not at defcon 5 (Bush v. Gore style) yet with this Court, not even close.

To have a unanimous decision like this will make consensus builder McLachlin C.J. happy.  But this doesn’t look like a  “split the difference, everyone gets something” consensus, unless you see the suspension as the split difference.   This looks like a clear message to Parliament about lines and limits.

4. Stare Decisis & Deference to  Trial Judges on Social & Legislative Facts

There is much to be said about what happens starting at para 38, as we examine whether conclusions in earlier cases can be “revisited” [41] or “departed from” [39] (hmmm, not “overruled”?).  It’s a sign, perhaps, that we’ve had the Charter a while now that the Court now must say both:

[38]  Certainty in the law requires that courts follow and apply authoritative precedents. Indeed, this is the foundational principle upon which the common law relies.

and

[42] ….Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.

Likewise, the CJC notes that the SCC’s position on deference to the Trial Judge on social and legislative facts (starts at para 48) has shifted as we entered the Charter era:

[53]  As the Attorney General of Canada points out, this Court’s decision in RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, suggested that legislative fact findings are owed less deference.  However, the use of social science evidence in Charter litigation has evolved significantly since RJR-MacDonald was decided.  In the intervening years, this Court has expressed a preference for social science evidence to be presented through an expert witness (R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571, at paras. 26-28; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 68).  The assessment of expert evidence relies heavily on the trial judge (R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at paras. 62-96).  This is particularly so in the wake of the Ontario report by Justice Goudge, which emphasized the role of the trial judge in preventing miscarriages of justice flowing from flawed expert evidence (Inquiry into Pediatric Forensic Pathology in Ontario: Report, vol. 3, Policy and Recommendations (2008)).  The distinction between adjudicative and legislative facts can no longer justify gradations of deference.

This makes me think about the incredible burden that many critical cases place on litigants and lawyers.  There was voluminous evidence in this case – bravo to the lawyers and others who put this all together, and to the Trial Judge (a former Deputy AG Ontario, Justice Susan Himel) who wrote a decision that could stand up to all the scrutiny, that carefully detailed how she weighed the evidence.  Have a look at a case like Inglis v. British Columbia (Minister of Public Safety), 2013 BCSC 2309 – again, a long decision, significant evidence, written by a judge no stranger to this kind of evidence (I understand Justice Carol Ross has a background in sociology – she also wrote the original decision in Victoria v. Adams 2008 BCSC 1363).  Consider the 1416 paragraph BCSC decision in Carter, the right to die case) by Justice Lynn Smith (hmmm, lots of women judges here).  At any rate, these aren’t cases that walk into your office one day.  They are cases put together piece by painstaking piece.  It’s a long road to justice this way around, folks.

 


 

The last thing I need to think about, of course, is  – is there a way that the doctrines created here will be applied that I need to start worrying about?  At this point, I’m just anticipating the next ten years as a slow retreat from this high water mark of rights-protection.  I’m a bit of a pessimist.

 

I’m not, here, really writing about the substance of the case.  I do completely agree with the basic theory as captured by the helmet analogy (see bottom of this post).  And like many others, I was struck by the fierce language the CJC uses to illustrate the very real harm done by these laws, by the references to Grandma’s House (para 64, and especially 136 “A law that prevents street prostitutes from resorting to a safe haven such as Grandma’s House while a suspected serial killer prowls the streets, is a law that has lost sight of its purpose”) by the assertion that the ability to “screen” through direct communication is relevant if the practice “could have prevented one woman from jumping into Robert Pickton’s car” (para 158).    I admit that during this case, I was sometimes made uncomfortable by the variety of things which were being asserted through reference to the desperate and deadly situation in Vancouver’s DTES during the time Pickton was murdering women he picked up there.  I heard these arguments made in ways that seemed to me sensationalized – almost exploitative, and I felt uncomfortable with them – but I also heard them made with despair and rage.  In this judgment, I see these arguments accepted because of the way that the women who died at Pickton’s hand are women who might have been saved but for these laws – women with rights, women whose chances to save themselves mattered then, and now.  That’s something.

 

 

An analogy could be drawn to a law preventing a cyclist from wearing a helmet.  That the cyclist chooses to ride her bike does not diminish the causal role of the law in making that activity riskier.  The challenged laws relating to prostitution are no different. [para87]