Oh! Canada…

As an individual, I have always considered myself to be very lucky to live in Canada. Given what occurs in many other countries in the world, Canada is recognized to be to be one of the best places in which to live. What makes Canada such a great place, of course, is the fact that it is a democracy and that it has an independent judicial system.

As a lawyer, I am involved in the judicial process all the time and know the importance of an independent judicial system. Judges to our Supreme Court of Canada are appointed by the government, but they are truly and clearly independent and often take positions that are contrary to the very governments that had them appointed to their position.

When we look at the United States, the great fear for me is that Donald Trump will have the opportunity to appoint at least one, and likely two, or possibly even more, judges to the United States Supreme Court. He can and will be able to affect the laws in that country for decades long after his presidency . He has clearly stated his intentions when it comes to picking his candidates for the United States Supreme Court, and the fact that he has a predominantly white male cabinet suggests that his intention appears to move backwards and to put women further behind in their attempts to gain equality.

We are not perfect in our treatment of women in Canada, but one would certainly have hoped that our judicial process and those who sit as judges would be leaders in the fight for the rights of women. Unfortunately, as the saying goes, “a few bad apples can spoil the whole bunch”.

As a lawyer and part of the judicial process, and as a male, I must hang my head in shame at some of the recent glaring examples that confirm that we still have a long way to go on the path to equality.

The absurdity that a judge sitting in courts here in Canada in a case of sexual assault could have the ignorance or arrogance to question why a woman could not just keep her legs together to prevent being sexually assaulted, or that a woman who is reportedly so drunk that she is refused entry to a bar and is then found passed out in a taxi cab half naked with her underwear removed could give consent to a sexual encounter with a taxicab driver that she clearly did not know, is beyond me.

Yes, we are much better than countries that put women in prison after they have been raped for having sexual relations with someone other than their husband or refuse to educate girls and young women, but we still need to take a hard long look at ourselves in the mirror.

As a lawyer, there is no question that one of the founding principles of our judicial system has to be that an individual is entitled to be assumed innocent until proven guilty. And yes, the statement that it is better to let 20 guilty people go free rather than to have one innocent person convicted is also a staple of our judicial system. Neither of those, however, have anything to do with the antiquated and prejudicial views of some male judges that seem to be stuck back in the fifties in their attitudes towards women.

In my opinion, simply sending someone to sensitivity training is not enough. If judges who represent our judicial system who are the foundation of our democracy and our rights and freedoms cannot or are unwilling to understand the rights of women to be treated as equals, then they have no right to be sitting on the Bench as judges and need to be removed.

It is these types of judges that will continue to keep women from reporting sexual assaults when the judicial system should be doing the exact opposite. As a male, and as a lawyer, and as part of the judicial system, I can only express my regret to women across Canada that we have judges so inclined.

As the father of three daughters, I want to encourage women not to give up as I have seen great progress in the judiciary since I first became a lawyer myself in 1980. The Bench (the name we give to judges who sit in our Courts) has changed significantly not just in terms of the numbers of women who have now become judges, but also in regards to better reflecting our society as a whole.  The Courts have become much more open minded and compassionate with regard to the rights and equality of women in our judicial process.

We have made great strides but we are not there yet. Lawyers, judges, the government and the public need to speak out and condemn any judge whose views sexual assault against women as being somehow the woman’s fault for not keeping her legs closed or who says that a women can consent when, it is reported, her level of impairment is such that she has no memory of the events.

Nigel Gilby

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