Law Times

Law Times • November 20, 2017 Page 7 www.lawtimesnews.com No freedom to remain silent BY MICHAEL FENRICK T he heated debate over the Law Society of Upper Canada's decision to require licens- ees to adopt a statement of principles relat- ed to diversity and inclusion has become a distraction from the work that needs to be done. While I am in favour of the requirement, the real issue, from my perspective, is not compelled speech; it is that all lawyers, and especially white lawyers like me, do not have the freedom to remain silent on these issues if we hope to maintain the public's confidence, irrespective of the obligations our regulator establishes. In the legal profession, promoting diversity is not about political speech or belief; rather, the public rightly expects that the justice system ref lects our broader community, and so diversity is at the core of what it means to be a lawyer. We should not rely on or expect people of colour to educate people like me; the onus is on white lawyers to do the work necessary. My hope is that lawyers, es- pecially white lawyers, will become agents advancing these issues rather than spectators. But I believe that many people are uncertain — and, in some cases, un- comfortable — as to how to best approach issues of di- versity and inclusion in the profession. Uncertainty is not a bad thing. In fact, uncertain- ty in this context can be a good instinct, as long as it does not prevent one from moving on to take action. The mischief is so often caused by claims of certainty (about race, about culture, about individuals). We would be better served by understanding that truth in this context is a function of debate and discus- sion among a broad (and broadening) group of speak- ers, rather than approaching the issue from the per- spective that we are trying to discern a single "truth." Similarly, discomfort can be a signal that a person wants to do the right thing, respectfully, and caution (but not inaction) in these matters can be a sign of such respect. I do not purport to have the solution to the crisis we as a profession face. However, I hope identifying cer- tain values that I think we can collectively share will help to frame the discussion in a productive way. The first of these values is humility. To me, humil- ity in the context of diversity and inclusion means a willingness to listen to others (and more particularly to racialized people), to learn and to explore our limits, imperfections and assumptions. Humility is an active, not a passive value. It requires one to take steps to develop cultural competence, to question assumptions one has about different cultures as well as the manner in which "things are done" in the legal profession or in the workplace and to initiate con- versations and change. Humility also means amplify- ing the voices of people of colour when appropriate to facilitate them being heard. The second value that I think is vital to this discus- sion is compassion, which includes respect and appre- ciation of other people and other experiences. Com- passion also includes the understanding that race and culture are not monolithic or homogeneous. Different people will understand their experience and their cul- ture differently, and that difference does not render those experiences invalid. Under the umbrella of compassion I include not simply compassion for others (which is critical) but also compassion for one's self: One should recognize and affirm the steps that one is taking to address these issues without becoming complacent. No one can ever be an expert on all cultures and differences, so treating one's self with compassion while acknowledging that there is more that can be learned and experienced is important. Third, solidarity is key. This does not mean ignoring differences, and especially not ignoring the different experiences of racialized people. However, discussions over the statement of principles are marked by unfor- tunate "we" statements that aim to exclude people who may have legitimate concerns but who do not ascribe to one's preferred absolute values related to free speech, equality or otherwise (e.g. "we" value free speech and this requirement is an assault on our values). Many who oppose the statement of principles most vo- cally are properly criticized for their inf lammatory rhetoric, as are some who defend it. As Hadiya Roderique — who wrote a thought- ful and well-publicized essay on her experiences in the Toronto legal community as a woman of colour and a person from a less privileged socio-economic back- ground — recently told the CBC: "If you're one of the lawyers who is objecting to this, how do you think all of the people of colour and the women at your firm feel? What kind of a message are you sending to your em- ployees? What kind of people are going to want to join your firm?" I agree. Similarly, critical comments could be made about some who assert that anyone who objects to the state- ment of principles is a racist. The value of solidarity is best expressed by trying to expand on who is included in that "we" when we speak, rather than deliberately shutting down debate by casting another person's views as unconscionable; that can be challenging, in- cluding for me. As a person who values equality over free speech in the context of a regulated profession that I believe has the authority to pronounce on that profes- sion's core values, I have fallen prey to these same ten- dencies. They are not helpful. In practical terms, there are many things one can do to manifest these values. Some small ideas include: embracing as a firm and as an individual some of the changes the law society is making such as taking a course on cultural competence and establishing appro- priate policies robustly; respectfully asking someone how to pronounce their name if it is unfamiliar to you, rather than mispronouncing it; having the courage to acknowledge one's colleagues', clients' and others' ex- periences and asking about them; and deliberately rais- ing diversity as a value whenever possible, including in discussions about hiring and advancement decisions, but not only in those contexts. The important thing is that we do something. LT uMichael Fenrick is a partner at Paliare Roland Rosen- berg Rothstein LLP and adjunct faculty at Osgoode Hall Law School. A wake-up call on sexual harassment BY DORON GOLD M any years ago, in my early days working in lawyer assistance, I received a call from a young lawyer, about two years out. She was in extreme distress, having been fired from her job at a well-respected firm. She was feeling depressed and acutely suicidal, feeling that she was a failure and "not cut out to be a lawyer." We arranged to meet at a hospital emergency depart- ment to secure urgent assistance for her. As we sat in the emergency room waiting for her to be interviewed by a psychiatrist, we talked and her story began to come into clearer focus. This vulnerable, young lawyer had been sexually harassed by two of the partners of the firm and when she was not compliant, she was deemed not a corporate fit and was unceremoniously dismissed. She didn't feel aggrieved or angry. She felt helpless and incompetent and unfit for law practice. She ostensibly thought that sexual harassment must have been part of being in law practice and so, if she couldn't take it, she didn't have what it takes. The essence of what I felt compelled to tell her at the time was that she wasn't unfit for law practice. She was unfit to deal with sexual harassment. You'd have to be living under a rock in the past month to have missed the avalanche of sexual harassment, abuse and assault revelations coming to light from every corner of society. We've seen such allegations surface before and they seemed sensational in their time — think Bill Cosby or Clarence Thom- as — only to fade once again into the background, replaced by other news stories. Sexual harassment was notable, but, for most, especially men, it was viewed as rare and mostly innocuous. Noth- ing fundamental changed. More than 20 years ago, a U.S. president caught in an affair with a 22-year-old in- tern was chalked up as a "vast right-wing conspiracy." He left office quite popular. More recently, a U.S. presidential candidate was heard on videotape admitting to sexual assault with those revelations ultimately having been brushed off as mere "locker room talk." After all, boys will be boys. He's the presi- dent now. This time, it appears to be different and, as a mental health practitioner, I have no hesitation in declaring that it's about time. For the first time that I can remem- ber, women (as well as men) are coming forth courageously and in significant numbers. For the first time that I can re- member, they're being believed, and the powerful men who abused them are be- ing ostracized and condemned. It's about time. For the first time, they're not being ref lexively called hyperbolic or hysterical, vile epithets historically designed to di- minish and dismiss women. The #metoo movement on the inter- net is empowering women to tell their stories of sexual violation and the numbers are stagger- ing and difficult to conceive. The sheer magnitude of the movement is shedding un- mistakable light on a problem women have always known about but most men had little insight into, whether in actu- ality or through wilful blind- ness. We had the luxury to miss it because it didn't affect us directly and it was hard to imagine that the problem was so pervasive. We're now waking up to the fact that it very much is and it's on us to be part of the solution. Sexual harassment involves comments about appearance, sexist jokes, comments of a sexual nature including demands for sex, as well as sexual touching, all of which are unwelcome and not consensual. Sexual assault is a physical assault of a sexual na- ture that is ultimately about violence and power, not sex. These behaviours are per- petrated primarily by men toward women, but it can also occur to men as well. It is also particularly insidious when exercised by a person with power and authority over the victim. The adverse health effects on victims is staggering. Sexual harassment has been observed to cause depression, Post- Traumatic Stress Disorder, hypertension, sleep disturbance and, as I mentioned, suicidal ideation and completion. In Canada, only two lawyers have had their licences to practice revoked for sexual harassment. One incident occurred in Al- berta in 2000 and one happened recently in Ontario, where a lawyer had his licence revoked for inappropriate sexual behaviour with a former client and a legal assistant. The reckoning has come at long last. We men need to get real about consent and sexual predation and the impact it has upon women primarily. Most of us never really got how systemic and epidemic it is in their lives. The impact is relentless and profoundly harmful to mental and physi- cal health. To those men who behave in this manner — stop it. To those who see it occur but don't speak up — say some- thing. And to that overwhelming number of women in law who experience this per- vasive assault, don't be alone with it. Some will fight back and services such as the Ontario Discrimination and Harassment Counsel can be a good place to start for information. Some understandably won't feel safe speaking up, but they still need help. Lawyer assistance programs in each province are there to support you, as are rape crisis lines, other women and going forward, good men. LT uDoron Gold is a registered social worker who is also a former practising lawyer. He works with lawyers and law students in his role as a staff clinician and presenter with the Member Assistance Program as well as with members of the general public in his private psychotherapy practice. He is available at dorongold.com. u SPEAKER'S CORNER COMMENT The Lawyer Therapist Doron Gold

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