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Page 6 February 3, 2014 • Law Times www.lawtimesnews.com COMMENT Balancing requests for gender segregation t's ironic that a University of Toronto student who signed up for a course in the school's Women & Gender Studies Institute decided he was uncomfortable being in a class full of women. While it's unfortunate he was the only man to sign up for the class, it's no surprise the majority of the students were women. And given the likely nature of the course material, it shouldn't have mattered anyway. But Wongene Daniel Kim, arguing he was too shy to enter the classroom due to the gender ratio, wanted accommodation that would allow him not to attend the class without suff ering the loss of his 15-per-cent participation mark. e professor refused his re- quest. He didn't attend anyway but completed the assignments. His grades weren't high enough, however, for him to pass the course. He then took the university to the Human Rights Tribunal of Ontario over an alleged failure to accommodate based on gender. In a ruling on Jan. 17, HRTO adjudicator Mary Truemner dismissed Kim's claim. " e applicant stated that he did not want to interact with the other students because they are women, and thought that they would not be willing to interact with him because of his gender," wrote Truem- ner in Kim v. Governing Council of the University of Toronto. " is is merely speculation, as he never gave the class, or the wom- en, a chance. e applicant has no evidence to establish that he has been excluded, disadvantaged or treated unequally on the basis of the grounds claimed, nor does he have any evidence that he would have been, had he attended class." It's a reasonable decision given the very questionable nature of Kim's claim. It's a case, in fact, that has some similarities to the recent controver- sy over a York University student's request for religious accommodation egal Aid Ontario has announced it's hiring senior staff lawyers starting this month. LAO characterizes this new development as a "service enhance- ment." Its intention is to hire 10 senior lawyers commencing in January. Presently, duty counsel typically serve the indigent with bail hearings, remands, diversion, and guilty pleas. ese new staff lawyers will fulfi l a diff erent role: mentoring, conducting criminal tri- als, and representing LAO's interests in court. A big focus will be on assisting vulnerable and hard-to-serve clients. Of course, the private bar views these new staff lawyers as public defenders. But as there will be only one in each region and two in Toronto, they'll only be able to serve a limited number of clients. One of the new staff lawyers' roles will be to represent LAO's interests in Rowbo- tham applications in which the private bar is bringing payment applications before the trial courts and on occasions when LAO becomes a party to a proceeding or subpoenas are served on its employees. ese staff lawyers will also rep- resent complainants and witnesses in O'Connor applications in which defence lawyers are seeking access to third-party records. ere's sometimes diffi culty in fi nding defence counsel to represent com- plainants. LAO is fi lling the fi rst se- nior staff counsel positions in Newmarket, Barrie, London, and Hamilton, Ont. In addressing defence counsel in Ottawa recently, David McKillop, vice presi- dent of policy, research, and external rela- tions at LAO, advised that the private bar would continue to be the foundation of the delivery of services. However, in some jurisdictions there have been uptake is- sues with cases involving aboriginal cli- ents, youth, and complainants. In addi- tion, there's a great deal of mental-health work in Newmarket and Barrie. In a con- sultation with east region lawyers, Nye omas, director general of policy and strategic research at LAO, said the organi- zation is considering having some lawyers on retainer to deal with such clients and noted that up to 50 per cent of certifi cates involve clients with mental- health or addiction issues. McKillop advised that the anticipated budget for hiring these lawyers is $1.2 million annually and that the salaries of those with roughly 10 years of experience would be $120,000 a year. e money will come out of LAO's operational fund rather than from certifi cates. LAO doesn't plan to rent space or hire staff for them. Instead, it would fi t them into its lim- ited space at Ontario courthouses. Staff lawyers, McKillop indicated, will be able to take some matters to trial where LAO isn't issuing certifi cates. For example, LAO doesn't issue certifi cates to those not facing incarceration, but the staff lawyer could take on cases where the clients might lose their livelihoods or suf- fer severe immigration consequences. Naturally, the private bar would be happy to have those matters on a cer- tifi cate basis. Defence counsel are al- ready doing some of that work on a pro bono basis or on very modest retainers. Presently, the biggest impediment to the issuance of certifi cates in criminal and family law cases in Ontario is the fi - nancial means test. Dollar for dollar, the fi nancial criteria has remained the same since 1995. If the government adjusted the criteria for infl ation, far more Ontar- ians would have counsel in the family and criminal courts. McKillop said LAO would advertise the 10 positions internally fi rst and not- ed that while some of the lawyers might not have that much experience, they would get training. He emphasized that these aren't entry-level positions. Given the limited nature of this new public defender eff ort, it appears that de- fence lawyers will wait and see if it has any impact on their practices. I just attended the six-minute criminal court judge program off ered by the Law Society of Upper Canada where there was talk of many more Rowbotham applications than we've been seeing. If that's the case, the new counsel may be very busy re- sponding to those applications. LT Rosalind Conway is a certifi ed specialist in criminal litigation. She can be reached at rosalind.conway@gmail.com. ©2014 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. 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Ultimately, the student relented and par- ticipated in the class, but the case sparked a vigorous debate about an alleged overreach of human rights rules and accommodation versus the need to uphold gender equality and secular values. While York University has come under much criticism, it's not clear that its decision to accom- modate was entirely unreasonable. We don't know the details on the student's religious beliefs, and it's possible the university made its decision in part based on the possibility of a legal case such as Kim's and the likelihood of just as much criticism had the student chosen to make a public issue out of a refus- al to accommodate. But as Kim shows, the HRTO can — although it doesn't always — make good de- cisions on these types of matters and universities such as York and U of T can trust it to balance the appropriate factors. U of T was right to let the legal process run its course to get a better sense of what the expectations around accommodation might be. — Glenn Kauth A Criminal Mind Rosalind Conway L I

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