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Why Canada needs more female judges

Gillian Hnatiw | posted Tuesday, Mar 14th, 2017

She was discovered by the police after 1 a.m. in the back of a taxi. Legs propped up against the back seat, passed out and naked from her breasts down. The taxi’s driver, who was unknown to her until she hailed his cab moments before, had his pants undone and his seat reclined in a manner that gave him access to her naked bottom. He was frantically trying to hide her urine-soaked underwear.

At the sexual assault trial that followed in Halifax last year, the woman testified that she had blacked out and had no memory of what happened in the back of that cab. Her blood alcohol level had been three times the legal limit. The driver — the accused — did not testify. As the only person who could presumably remember the encounter, he offered no explanation at all.

Astonishingly, earlier this month, the judge concluded that he was left with reasonable doubt about whether the driver had sexually assaulted the unconscious, half-naked women in the backseat of his cab. It was possible, he determined, that she had climbed into the cab and consented to sexual activity with the driver, a stranger, mere moments before passing out.

Possible? Yes, in the way it is possible that my daughter did not consume the chocolate that was once encased in the wrappers I found under her bed. I did not see her eat the chocolate, and thus it is “possible” those chocolates met a different fate.

But reasonable? Not in my eyes. Not in the eyes of most women, many of whom have protested the decision. For something to be reasonable, it must have more than a passing whiff of reality. The idea that the young woman got into that cab and propositioned the driver in a fit of uninhibited lust is the stuff of pure, pornographic, male fantasy.

In recent years, issues of sexual assault have been in the headlines constantly, often highlighting the various ways the justice system is failing victims. As a lawyer who regularly represents these victims, I am asked (a lot) about what needs to change. There have been numerous suggestions and initiatives for reform, many of which strike me as worthy of further study: mandatory sexual assault education for judges, providing meaningful legal assistance to victims before the testify, empowering judges to make “restitution orders” (by which the accused would be ordered to reimburse the victim for the cost of therapy, legal fees, and other out of pocket expenses related to the trial), and the creation of specialized sexual assault courts.

Ultimately, however, change for sexual assault survivors seeking justice must come through the police, the lawyers and the judges who make the system run. That is why, for my money, one of the most effective solution may also be one of the simplest: appoint more women to the bench.

Currently, only 37 percent of federally-appointed judges are women (and that is with the recent influx of female appointments under Prime Minister Justin Trudeau). The numbers are often low at the provincial court level, too, where the majority of sexual assault trials are heard, including that of the cab driver discussed above. In Ontario, just over 30 percent of sitting Judges are women.

The law is in love with the concept of “reasonableness.” The mythical “reasonable person” — the detached average citizen who, until the late 1980s, was most commonly referred to as the “reasonable man” — stands at the centre of many of the decisions judges make. In criminal law, “reasonableness” is the essential qualifier to the concept of doubt. Often, all that stands between a conviction and acquittal is the judge’s lingering uncertainty that the accused, who is presumed innocent, may not have done the thing alleged. Even if the judge believes that the accused is probably guilty, it is not enough. As long as the judge harbours some “reasonable” doubt, an acquittal must follow.

The arbiter of reasonableness is the judge. Despite their robes and their power, judges are just human beings like you and me. And, despite best efforts and training, they cannot help but bring their lived experience into the courtroom with them. Consequently, reasonableness is an imperfect and inherently subjective standard. Whether or not a judge finds an explanation to be reasonable will always depend, at least to some extent, on whether something resonates with his or her sense of reality.

Sexual assault is a highly gendered crime. Victims are overwhelming female. Perpetrators are overwhelmingly male. Consequently, when it comes to the intuitive framework judges use to evaluate reasonableness in these cases, gender matters.

There are some excellent, progressive men on the bench who are sensitive to these issues and committed to reform. However, it is difficult for male judges, particularly white ones, to understand at a cellular level what it means to be vulnerable to the threats of physical and sexual violence. Women, typically, cannot rely on their physicality to protect them. This difference in experience is how we get to a place where Justice Robin Camp, a 64-year old white man who stands more than 6 feet tall, openly wonders why a 110-pound indigenous teenager could not just “keep her knees together” in order to ward off an attack. The Canadian Judicial Council recently recommended that Camp be removed from the bench; he resigned before Parliament could act on the recommendation.

Unless you have demurred in the face of unwanted attention, hoping to normalize a situation until you think up an escape plan, a victim’s behaviour may seem inherently odd to you. Unless you have brushed off unwanted touching, hoping to avoid escalating a situation until a friend returns, a victim’s behaviour may seem inherently confusing to you. If you have never “made nice” with someone slightly menacing, in the hopes of keeping the situation in check until you can get to a place of safety, a victim’s conduct may seem inherently unreasonable to you. Women intuit on a different level the things that other women do when threatened. There are some experiences that training and education simply cannot replicate.

Powerful men, in a well-meaning attempt to empathize with crimes of violence against women, often reference their daughters or granddaughters. The judge in the Halifax case, for example, wrote in his decision that the cab driver is “not somebody I would want my daughter driving with, nor any other young woman.” Powerful women have been these daughters and granddaughters; they have been the woman in the back of the cab. They have navigated the world in different skin, and they bring that experience with them everywhere they go.

Diversity on the bench is about more than just tokenism. It’s about more than just facilitating opportunities for women to advance (though that is important), or ensuring that those who come before the courts see themselves reflected in those who sit in judgement of them (though that is important too). Gender diversity on the bench is essential to reshaping accepted, male-centric concepts of reasonableness, which are at the heart of the legal system and the decisions judges make.

If governments are serious about improving outcomes for sexual assault survivors, they should start by getting more women on the bench. That way, the next time a cab driver is found with an unconscious, half-naked woman in the back of his cab, the accused’s conduct might be measured by a sense of “reasonableness” that is more in line with women’s reality.

Gillian Hnatiw is a Toronto-based lawyer specializing in sexual assault, harassment and abuse.  She can be reached at ghnatiw@lerners.ca or on twitter @gillianhnatiw.

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