Category Archives: News

Coerced Sterilization

You may have already been reading / listening  about the class action lawsuit proposed against Saskatchewan (inter alia) for the coerced sterilization of Indigenous women in that province.  If not, see here (or listen).   As framed by lawyer Alisa Lombard and 2 Indigenous women claimants, the suit would claim $7m in damages per claimant, and they believe there are around twenty other women who could join the (as yet uncertified) class.  Debbie Ironbow, interviewed last year by CBC, is one of those women.  Her language below sent me back to Patricia Williams’  “The Alchemy of Race and Rights” and many other assertions about the value of legal rights:

"I think the only thing that speaks is the law," she said. "The only thing we have going for us as Indigenous women and Indigenous people is that we can go into a courtroom and we can assert an inherent right over our bodies." [Debbie Ironbow quoted in David Shield, "'It steals your dreams': Saskatoon woman not sure whether she will join forced-sterilization lawsuit" October 11 2017, CBC News Online]

An independent report was released in the summer of 2017, “Tubal Ligation in the Saskatoon Health Region: The Lived Experience of Aboriginal Women” written by lawyer Senator Dr. Yvonne Boyer and Dr. Judith Bartlett.  Afterwards, the Saskatoon Health Authority apologized for the practice of sterilization of Indigenous women without proper or informed consent.   In reading through the report and hearing about the lawsuit, I was reminded of this piece that appeared in the jotwell section i co-edit earlier in the year.  Prof. Ruthann Robson wrote, in RESISTING ATTEMPTS TO CONTROL THE “HYPER-FERTILE”, about Prof. Maya Manian’s work, The Story of Madrigal v. Quilligan: Coerced Sterilization of Mexican-American Women.  It appears in Reproductive Rights and Justice Stories (forthcoming 2019), available at SSRN.

Both Robson’s short jot and Manian’s article are well worth reading, in terms of understanding coerced sterilization and legal approaches to these violations.  Robson’s short but informative note concludes with these lines:

The story Manian ultimately tells is one of courage and resistance. As we confront renewed efforts to control the reproductive and sexual rights of immigrants, people of color, and all women, it is a story that is worth reading—and retelling.

Another place that the Saskatchewan case could take us is to the broader question of racism in health care that continues to be the experience of Indigenous people across the country.  But for those interested particularly in “coerced sterilization,” here are some recent articles from a variety of national contexts.

Donofrio, Gemma. “Exploring the Role of Lawyers in Supporting the Reproductive Justice Movement” (2018) 42 NYU Rev L & Soc Change 221.
Mohapatra, Seema. “Politically Correct Eugenics Symposium: New Approaches & Challenges to Reproductive Justice” (2016) 12 FIU L Rev 51.
Ocen, Priscilla A. “Incapacitating Motherhood” (2017) 51 UCD L Rev 2191.
Pickles, Camilla. “Involuntary contraceptive sterilisation of women in South Africa and the criminal law” (2016) 2016:2 SACJ 89, online.
Sifris, Ronli. “Involuntary Sterilization of HIV-Positive Women: An Example of Intersectional Discrimination” (2015) 37 Hum Rts Q 464.
Steele, Linda. “Court Authorised Sterilisation and Human Rights: Inequality, Discrimination and Violence against Women and Girls with Disability” (2016) 39 UNSWLJ 1002.

Congratulations to Michelle Miles OHLS’18, this year’s IFLS Vanguard Award Receipient

For your Feminist Friday inspiration, here’s recent Osgoode graduate Michelle Miles, this year’s IFLS Vanguard Award recipient.

Awarded annually since 2014, the Vanguard Award recognizes:

“…a graduating student who has shown bravery and intelligence in bringing attention to issues of importance for feminism(s). The Award winner will have displayed leadership qualities including the ability and willingness to engage in critical &/or constructive difficult conversations.”

Nominated by a long list of folks – including students from every year of the JD, an alumna, a professor and two lawyers from two different clinical programs – Michelle Miles was a summer intern at the Human Rights Legal Support Centre, part of the Feminist Legal Advocacy program at Osgoode, took a leadership role with the Osgoode Feminist Collective, and served as the Vice President of the Osgoode Black Law Student’s Association.

She’ll  be articling at a family/criminal law firm in Toronto and continuing to be an advocate for women and vulnerable communities.Osgoode IFLS Congratulates MICHELLE MILES IFLS Vanguard Award Winner Osgoode JD 2018. (quote" "For students in need of feminist spaces, ways of thinking, and leadership, Michelle was a beacon in the storm of law school." Photo of Michelle, arms crossed & hair in brads, in a glen plaid suit (upper 3rd). Osgoode and IFLS logos.

Here’s what some of her nominators wrote about Michelle:

“…always quick to raise the voices of others, to initiate and guide much-need and rarely-had conversations, and to call in rather than call out.”

“….[the] recommendations to combat anti-Black racism at Osgoode are the result of Michelle’s diligent activism, organization and guidance.”

“…compassionate, dedicated, and an utter joy and relief to be around.”

“…Michelle vocally and eloquently defended equity seeking groups and their needs. It is one thing to do so when everyone in the room is nodding with you. It’s a completely different situation when you keep getting pushback from other students, who do not come to the table with the same life experiences as you, and from lawyers, who have a lot more authority and influence than you.”

“Michelle is THE feminist advocate many of us associate with our time at Osgoode.”

“I don’t think anyone is as committed or as patient or as tireless as Michelle Miles.”

“Our profession will only benefit from having a resilient Black woman like Michelle in the lead.”

“For all that she has done in her three years at Osgoode (and it is more than most people know and more than Michelle herself will acknowledge), she deserves the IFLS Vanguard Award.”

_____________________________________________________

A further thank you from the IFLS to this amazing alum of Osgoode.  Pretty sure students don’t always appreciate how much their work can mean for their professors.  Putting this post together provided mid June inspiration through thinking about the hard conversations Michelle pushed for, and the ways her feminist peers appreciated that work.

[If you’re at another school and thinking ‘maybe we could have one of these awards’, here’s a page describing what it’s for – we spent some time thinking about this and some of the details might be of interest to you:  https://ifls.osgoode.yorku.ca/what-we-do/ifls-graduating-student-vanguard-award/ ]

Ontario Sex Ed Curriculum Reversal [some resources/resistance]

The Ghomeshi Verdict: A Few Thoughts

On Thursday, Jian Ghomeshi was found not guilty on four counts of sexual assault and one of overcoming resistance by choking. For many, the verdict came as no surprise.

You can read the full decision here.

As PhD student Tamera Burnett discussed in a previous post, the case has served as an opportunity for feminists to highlight the ongoing failures of our legal system when it comes to sexual assault.

Unfortunately, the message does not always get across. For those not already well-versed in the multiple barriers faced by complainants in sexual assault trials, feminists who decry the intense scrutiny of complainant behaviour, brutalizing tactics of defence lawyers, and rape myths that continue to pervade decisions like this one just under the surface, are easily dismissed as raging social media mobsters for whom “Ghomeshi is damned well guilty, and this reasonable doubt stuff is just slippery legalese.” 

The line between standing up for survivors and reversing the presumption of innocence can seem perilously thin. We should be wary of the temptation to gloss over the question of evidence too easily, or take a judge’s words out of context, even in the heat of justified anger. The verdict in this particular case was not wrong; to convict on the evidence as it stood probably would have been.

But in the words of  Amanda Dale: “The institutional shadow cast by the false stereotypes about claimants is in no way equivalent in influence to the raw call to believe sexual assault survivors coming from outside the courtroom.”

That the evidence didn’t stand up in court does not mean that the many brave women who came forward were collectively lying about their experiences of violence with Ghomeshi. Justice Horkins himself recognized in his decision (problematic as it was, more on that below), that a finding of not guilty does not mean that the events described did not happen – a reality all too common in cases of sexual assault. Here lies the problem. Here is the good reason we have to be angry: the total disconnect between the law and women’s actual lives.

I attended the final day of the Ghomeshi trial as well as another sexual assault trial taking place around the same time at Old City Hall. Around that time, I had two particularly heated exchanges with defence lawyers, one right inside the overflow courtroom where we heard the closing submissions in the Ghomeshi trial. For those lawyers, and others quoted in the media, this case is about credibility and the presumption of innocence, full stop.

I get that. But what about the reality of sexual violence in thousands of women’s lives? What about the vast majority of cases that never make it to court because women don’t feel they have the financial, emotional, social or legal resources to come forward? What about the financial, emotional and social consequences for those who do go stick it out through a trial in which every detail of their personal lives is publicly scrutinized, only for a judge to find that their stories don’t measure up?

When I raised these issues with the lawyers I spoke to, they basically just shrugged.

While the verdict may have been right, as Professor Brenda Cossman and many others have pointed out,  Justice Horkins’ reasons perpetuate skeptical and distrusting attitudes towards sexual assault complainants, giving them yet one more reason not to bother coming forward in the first place. 

On the one hand, this judge, like the other  I observed in Mandy Gray’s sexual assault trial, clearly recognized that sexual stereotyping could get them into trouble. They would need to look no further than the fate of Judge Camp following his rape-myth riddled 2014 decision in R v Wagar.

I suppose that is something. The problem is that the analysis stops there. As Professor Julie MacFarlane notes,  once lip service is paid to the hard-learned dangers of rape myths, the myths keep right on doing their work under a thinly veiled cover. 

If Justice Horkins claims that “[c]ourts must guard against applying false stereotypes concerning the expected conduct of complainants”, then why does he repeatedly rebuke the complainants for not recognizing the relevance of this conduct? And why is he so confident in concluding that the complainants’ behaviour is “odd” and “out of harmony” with the alleged assault.

If it is “entirely natural” for survivors to become involved in advocacy work, then why does he feel comfortable speculating that such work might give a witness the motive to lie.

Perhaps most troubling of all is the condescending suggestion, after meticulously listing all of the shortcomings of the complainants’ testimony, that being a witness in a criminal trial is “really quite simple: tell the truth, the whole truth and nothing but the truth.”  Unfortunately, for many women who experience sexual violence, the truth isn’t actually that simple.

The troubling thing about this case is not the presumption of innocence absent a high standard of proof. It is the failure to see anything beyond it.

-Dana Phillips

Tamera Burnett: A Feminist Perspective on the Ghomeshi Trial

picture of TameraTamera Burnett is a student in Osgoode Hall Law School’s PhD program, where she is working on how to approach sentencing in sexual assault trials through an intersectional feminist lens.  She’s been following the Jian Ghomeshi sexual assault trial and she’s generously offered us her thoughts on the topic.

Some Overarching Comments on the Ghomeshi Trial from a Feminist Perspective

For the past several weeks, mainstream and social media has been flooded with articles and conversation about the Ghomeshi sexual assault trial. For feminists, this trial has represented an opportunity to talk about the many discriminatory issues plaguing this area of law. On the other hand, the trial has also shown us just how much work remains to be done on this issue, both in the legal system and society at large.

In 2014, Jian Ghomeshi, formerly a household name for his musical, written, and radio show work, was accused of sexually assaulting 23 different people (mostly women) over a period of many years. Of those accusations, only a handful of charges were brought to court. The most recent trial involves the accusations of three of the victims.

One of the most discussed issues arising from this trial is defence counsel Marie Henein’s use of the “whacking the complainant” strategy. To whack a complainant is to conduct as an aggressive and emotionally trying cross examination as possible in order to destroy the credibility of the complainant. Though some argue that such vigorous questioning is necessary to ensure that the accused receive a fair trial, Amanda Dale, Joanna Birenbaum, and Pamela Cross point out that no defence should perpetuate inequality. Whacking the complainant often relies on discriminatory assumptions about how “proper” victims should act. Because Ghomeshi’s victims didn’t immediately break off all contact with him and go to the police, their claims of sexual assault are seen as untrue. Yet having conflicted feelings and taking time to accept what has happened is something that many sexual assault survivors experience. The focus of a sexual assault trial should be on the actions of the parties during the time period of the assault. To assume that questions about consent are answered by after-the-fact behaviour on the part of the victim disregards the way that Canadian criminal law is structured, and relies on harmful rape myths and stereotypes. As Lucy DeCoutere’s lawyer announced shortly after her client was cross examined:

“This is and remains a trial about Mr. Ghomeshi’s conduct. What Lucy did or how she felt in the aftermath does not change that essential fact…. Violence against women is not about the behaviour of the women; it is not about how they cope with an assault, or the details they commit to memory in the aftermath any more than it is about what they wore or how much they had to drink.”

Such aggressive cross examination also ignores how memory works. Not only do memories fade over time, a very relevant fact when dealing with assaults that took place over a decade ago, but trauma influences how events are committed to memory. That witnesses did not remember what make of car Ghomeshi drove, or whether or not they had hair extensions at the time of their assault is not a sign that their memories were false. Badgering witnesses about these extraneous details doesn’t tell the court anything about the assault in question, and credibility should not be accorded to only those with perfect recollection.

Furthermore, almost all of the attention in this trial was placed on the complainants while Ghomeshi remained silent about his behaviour. No accused can be forced to testify, but this means that Ghomeshi was not quizzed about his memories. His rationalisations were not demanded in a public forum, and his choices not systematically picked apart, despite the reasonable steps requirement of Canadian sexual assault law. Acknowledging this gap in the trial narrative is particularly important given that some of Ghomeshi’s behaviour appears to reflect the attitudes and actions of abusers. According to some victims, Ghomeshi made sure he had written documentation to show that his victims seemed to want to engage in sexual activities with him, and that any communications after sexual or violent contact remained flirtatious and friendly to support this claim. Accusations of inappropriate behaviour, therefore, could be countered with documentation suggesting that victims approved of what happened between them and Ghomeshi, a tactic used by abusers to justify and disguise their problematic behaviour. Additionally, other victims have come forward to state that he groomed them for violence, drawing in his victims with stories of vulnerability, and then emotionally manipulating them to create doubt that Ghomeshi could be at fault for any issues in the relationship. While none of these details were discussed at length in court, they can be seen over and over again in the stories of the victims who have come forward. Ghomeshi was never “whacked” on the stand, but bikini pictures of his victims were submitted as official evidence. Even if these disparities are required by the letter of the law, the spirit of justice is damaged when a trial incorporates so many unfair and irrelevant standards for complainants, while at the same time protects an accused from scrutiny into his behaviour.

Finally, the Ghomeshi trial highlights an important ethical conflict in criminal defence lawyering: when does a vigorous defence for an accused begin to undermine the administration of justice as a whole? Though the accused must be protected from the overwhelming power of the state, the actions of criminal defence lawyers should never directly harm society in order to protect their clients. After all, there is a substantial difference between protecting your clients’ rights and doing whatever possible to ensure that they are acquitted. David Tanovich argues that Canada needs a better standard for ethical defence lawyering in sexual assault trials. He and Elaine Craig state in a recent Globe and Mail article that while “[some] of the brutality of our adversarial system is inevitable[, it] is intolerable and shameful that our profession permits these unavoidable harms to be compounded by conduct that is neither ethically or legally permissible.” Using rape myths and stereotypes to imply that a complainant was not a victim because they didn’t report soon enough, didn’t respond in the right way, weren’t the right type of victim, or any other such discriminatory claim, makes it less likely that people will come forward to report sexual assaults, and undermines the administration of justice by allowing legal decisions to be influenced by untruthful, irrelevant, and misogynistic understandings of sexual assault. Defence lawyers must find a better balance between the needs of their clients and their obligations to the public.

Both Crown and defence made their closing statements in the Ghomeshi trial on February 11, 2016. The judge’s ruling is being held until March 24th when Canada will find out how strongly rape myths and discriminatory beliefs about sexual assault victims still unfairly influence our justice system.