Windsor Faculty of Law… er… Social (In)Justice

Like most law schools across Canada, the University of Windsor Faculty of Law runs a Community Legal Aid (“CLA”) program in which students (under the supervision of real lawyers) provide basic legal advice to people who might not have access to a lawyer.  It’s a noble program intended to increase access to justice, especially for the poor or disadvantaged.  Which makes its recent announcement that it will no longer act for accused persons in domestic violence cases, unless that person is female, particularly appalling.  Yep, you read that right, that would be an honest-to-god faculty of law, under the guise of a program intended to increase access to justice, engaging in gender-based discrimination.

An email from the university explaining the policy reads:

“There will be no further intakes of domestic violence or peace bond cases unless the alleged offender is a woman.

If the alleged offender is a woman … CLA will attempt to find a defence lawyer familiar with the systemic issues surrounding the charging of women with domestic violence to take the case on a pro bono basis.

If it is not possible to find such a lawyer to take the case on a pro bono basis, CLA will take the case.”

In defense of the policy, David Tanovich, a law professor and one of the members of the committee that made this decision rationalized this policy on the grounds that there are “systemic issues” in the justice system:

“For example, the woman calls 911, saying ‘My partner has assaulted me.’ The police arrive, and they make credibility assessments that are biased, and they end up charging the woman — not the man…

That’s a social justice issue that the clinic wants to investigate… [w]e’re a social justice law school. We have a social justice mandate.”

A couple of points should be obvious here. 

First, the notion that, when a woman makes an allegation of domestic violence against her partner, the police are likely to charge her instead of him is, to anyone with more than two functioning brain cells and a passing familiarity with the justice system in Ontario, laughable.  Quite the contrary, the practice in dealing with domestic violence cases in Ontario for the last couple of decades has been to respond to any allegation of abuse, regardless of how facially ridiculous it may appear, by charging the accused (typically, but not always, the man) and letting the courts sort it out (a “zero-tolerance” practice that, privately, some judges and crowns will tell you is both a waste of scarce resources – often there is little or no prospect of securing a conviction – and one that is ripe for abuse).  That Professor Tanovich believes otherwise demonstrates a shocking disconnect with reality – even for a law professor.

More to the point, as Barbara Kay notes, there is an abundance of scholarly research which suggests that, when it comes to domestic violence, woman and men are equally likely to abuse their mates (although men account for a disproportionate portion of the people actually charged with domestic violence offenses – which fatally undermines Professor Tanovich’s contention).  If woman are being charged with domestic violence, it’s every bit as likely they’re as guilty (or as innocent) as amen charged with the same thing.  Professor Tanovich and his colleagues seem have based their decision on the long-ago discredited, and quite sexist, notion that, when it comes to domestic violence, woman are victims, and men are victimizers.  They should be ashamed of themselves.

Second, quite apart from the faculty thinking underlying the decision to deny legal services to men accused of domestic violence, there’s the other practical problem that such a practice is likely illegal and unethical.  Certainly, the decision not to provide services on the basis of sex is in clear violation of section 1 of the Ontario Human Rights Code  which provides that  “[e]very person has a right to equal treatment with respect to services… without discrimination because of … sex…”.  You might think that a “social justice” law school might be familiar with the human rights code and might be keen to avoid violating it (Lord know at least one of its professors have been keen to file human rights complaints against it).  

Equally, the proposed policy of the University of Windsor is inconsistent with both the text and the spirit of the Law Society of Upper Canada’s rules of professional conduct – which provide that:

“5.04 (1) A lawyer has a special responsibility to respect the requirements of human rights laws in force in Ontario and, specifically, to honour the obligation not to discriminate on the grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences (as defined in the Ontario Human Rights Code), marital status, family status, or disability with respect to professional employment of other lawyers, articled students, or any other person or in professional dealings with other licensees or any other person.

(2) A lawyer shall ensure that no one is denied services or receives inferior service on the basis of the grounds set out in this rule.” [emphasis added]

If the Windsor CLA program doesn’t want to represent people accused of domestic violence, hey, that’s its choice.  I can’t criticize, I don’t represent people accused of domestic violence either – not being criminal lawyer and all (I don’t, however, discriminate against people who come to me for tax advice based on sex or any other grounds).  But for Windsor CLA to choose to represent (or to not represent) people based solely on sex is simply inconsistent with the professional obligations associated with being a lawyer (and, I note, a law student under the supervision of a lawyer) in the Province of Ontario. It’s surely no coincidence that the local defense bar (to say nothing of the lawyers who supervise the CLA program) find this decision appalling – it’s questionable whether they can, in good conscience, continue to supervise the CLA program given this new practice.  You’d think that Professor Tanovich, as an “expert” on legal ethics, might take that into consideration.

Finally, apart from the legalities, there is something fundamentally repugnant about the law school’s decision.  A fundamental presumption of our legal system is that people accused of crimes are presumed to be innocent until their guilt is proven beyond a reasonable doubt.  But in deciding to represent only woman, on the fallacious grounds that they are inherently innocent, Windsor is denying that fundamental presumption.  To the Windsor faculty of law, everyone is presumed innocent, but some people (woman) are presumed to be more innocent than others.  That’s a terrible attitude for a law school to be imparting on its students – people accused of crimes are innocent, and deserving of representation, no matter who or what they are, until the crown proves otherwise. 

The Windsor faculty of law has, over the years, garnered a bit of a reputation in Ontario for being a second-rate law school.  To an extent that reputation is unfair -I know a number of Windsor graduates who are top-flight lawyers.  But with stories like this, it’s easy to see where that reputation comes from, and harder to argue that it isn’t richly deserved.

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