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Judge who sexually harassed court staffer quietly quit; unlike the U.S., #MeToo hasn’t hit Canadian judiciary

Monday, March 19, 2018 @ 9:29 AM | By Cristin Schmitz

A superior court judge who subjected a court staffer to sexualized contact in the workplace quietly resigned after a Canadian Judicial Council (CJC) investigation, without the judicial disciplinary body publicly disclosing his actions until now.

The 2012 incident came to light only recently when The Lawyer’s Daily asked the country’s two largest judicial councils how many complaints of inappropriate sexualized comments or other sexualized workplace conduct have been made over the past decade by lawyers, law students or court staff against Canada’s 1,158 superior court judges, and Ontario’s approximately 350 provincial court judges.

The councils’ answers revealed, among other things, that the #MeToo movement — which has generated allegations against powerful men on Parliament Hill and at Queen’s Park, and has prompted the U.S. federal judiciary to re-examine its protocols for policing judicial sexual harassment — has not so far sparked sexual harassment complaints against the judicial branch of government federally and in Ontario.

“I have been here since 2008 and I have not seen any complaints of that nature” from lawyers or court staff, remarked Marilyn King, registrar of the Ontario Judicial Council and Justices of the Peace Review Council, which oversees the conduct of members of the Ontario Court of Justice.

Norman Sabourin

Norman Sabourin, CJC’s executive director and senior general counsel 

The CJC’s executive director and senior general counsel, Norman Sabourin, could recall only two relevant sexual harassment-related complaints against federal judges in the past decade. Both arose in 2012. (Neither is among the anonymized “sample of complaints” the CJC posts annually on its website).

Sabourin disclosed that one complaint involved a judge telling a court staffer she looked “really good with that tan” when she returned from holiday, and the judge making “inappropriate sexual gestures” — once putting his hands on her shoulders while she worked, and once touching her buttocks. The judge told the independent investigator hired by the CJC that he had been prescribed medication “for a medical condition that seriously affected his moods,” Sabourin said. “He recognized the gravity of his actions and its impact on the victim. On that basis, the judge offered apologies and decided to resign.”

In the second case, as outlined by Sabourin, the judge, who remains on the superior court bench, inadvertently exposed IT court workers he had asked to fix his work computer to the sexually explicit material he had downloaded onto the computer. The CJC required the judge to take training on “respect in the workplace” and on the negative effects his behaviour had. He also sincerely apologized to the affected court staff, Sabourin said. “In the circumstances, concern was expressed to the judge, but no further steps were taken by the CJC.”

In the light of the burgeoning number of sexual harassment complaints against authority figures in other fields, Simona Jellinek, a Toronto litigator who represents plaintiffs suing for sexual abuse and sexual harassment, said she would be “very surprised” if the 2012 incidents reported to the CJC were the only such problems that have occurred in courthouses in the past 10 years.

She explained that reporting sexualized judicial conduct in the workplace to a judicial council may not seem like a realistic option to many lawyers and staff, given the sensitivities, power dynamics and potential repercussions for a lawyer’s career and clients.

“The fear of not being believed is huge,” she noted. “Because of the huge power imbalance, the situation is such that a survivor is the person with very little power and a judge, for instance, or any kind of powerful professional, is someone with a lot of credibility, a lot of backing.”

Notwithstanding the dearth of complaints to the Ontario and federal judicial councils, Sen. Marilou McPhedran, a legal expert on sexual harassment by professionals, believes there is not enough current information to assess the extent of sexual harassment by judges in Canada.

“As far as I’m concerned, if you’re dealing with one complaint, you’re looking at something that is serious for the profession and needs to be addressed,” she said.

“We have to look much more closely at this cone of confidentiality that gets thrown over everything,” she suggested. “If you don’t have comprehensive reporting that’s on the public record, that has enough transparency to know the nature of complaints [and their number], then nobody is in a position to reach a conclusion that everything is just fine,” she said. “Because if we know anything about sexual exploitation by those in positions of power, we know that the reports are smaller in number than the incidents.”

Marilou McPhedran

Sen. Marilou McPhedran

McPhedran noted “we’re still hearing from women, particularly from women who are within a more junior stratum within the profession, that they are self-silencing, they are still very concerned about limiting their career opportunities, if they make themselves the known source for complaints against more powerful, influential members of the profession, be they judges, be they senior partners in a law firm.”

Allegations of sexual harassment against federal judges are “rare,” but they are taken “very seriously” by the federal judicial council, Sabourin stressed. “Anyone who has a concern about a judge’s conduct in this regard should not hesitate to raise the matter with the CJC, anonymously if necessary,” he advised. “I can assure you that, as executive director, I ensure that any allegation of sexual harassment, sexism, racism and other such serious matters is thoroughly examined.”

South of the border, the issue of sexual harassment by judges is part of an ongoing national conversation, following #MeToo and media investigations.

The U.S. federal judiciary is grappling with the fallout from the flurry of sexual harassment allegations against Alex Kozinksi, a life-tenured senior federal appeals judge who resigned last December after more than a dozen women, including law clerks and junior staffers, accused him of making explicit remarks, exposing them to pornography or touching them inappropriately.

Justice John Roberts

U.S. Supreme Court Chief Justice John Roberts

The incident prompted a letter to U.S. Supreme Court Chief Justice John Roberts and other judicial leaders last December — signed by almost 700 current and former federal law clerks and law professors — complaining that the U.S. federal judiciary is ill-equipped to handle allegations of sexual harassment, and that significant changes are needed to protect those working for the third branch of the U.S. government — including possibly a confidential national system for reporting judicial sexual harassment.

Acknowledging that the judicial branch “is not immune” to problems of sexual harassment, Chief Justice Roberts struck an internal working group led by the federal courts’ chief administrator that will report in May.

“The judiciary will begin 2018 by undertaking a careful evaluation of whether its standards of conduct and its procedures for investigating and correcting inappropriate behaviour are adequate to ensure an exemplary workplace for every judge and every court employee,” Chief Justice Roberts announced in his “state of the judiciary” report for 2017.

(An extensive CNN investigation in January into how the U.S. judiciary handles sexual harassment complaints — headlined “Sexual misconduct by judges kept under wraps” — concluded that “the abuse women have suffered in the nation’s courthouses has been a largely untold story and its system for complaints — where judges police fellow judges — is a world so closely controlled and cloaked in secrecy that it defies public scrutiny.”)

McPhedran argues doctors, lawyers and other self-regulating professionals — including judges — should not be the only ones involved in investigating and disposing of such complaints against their peers. There must be people with other perspectives who participate in representing the public interest.

 “There is just too much protectionism that is human nature in situations where we are talking about the sexualization of privilege,” explained McPhedran, who in 2000 led Ontario’s special task force reviewing the impact of the province’s Regulated Health Professionals Act, and its related codes and policies, on the response of health professionals to situations involving sexual abuse of patients by regulated health professionals.

She said the main justifications for self-regulation (independence to do one’s job and special expertise) do not apply when dealing with issues of sexual harassment (ranging from sexualized language, actions and gestures to physical violation) —whether it is doctors, judges or senators.

“Engaging in sexualized harassment or exploitation is not part of exercising our independence,” she said. “It’s completely outside the bounds, and in cases like that it’s entirely appropriate to involve non-senators, or non-judges in the review process of those kinds of cases,” she advised. “And if you don’t, then you have people talking to themselves, forgiving themselves, excusing themselves, very often — finding reasons that are comfortable to be able to say: ‘Well they promise not to do it again.’ ”

In Canada, the issue of sexual harassment within the judiciary has garnered little public comment from lawyers. However, at the initiative of some female defence counsel, the Criminal Lawyers’ Association is in the process of setting up a subcommittee that counsel can turn to if they experience sexually inappropriate conduct or comments by a judge or other justice system players. Its role will be to support counsel with “options” and track any such reports.

Angela Chaisson

Toronto criminal and civil litigator Angela Chaisson

“We’re not putting up and shutting up any more,” Toronto criminal and civil litigator Angela Chaisson told The Lawyer’s Daily recently. As a junior lawyer, Chaisson said she experienced an inappropriate sexualized comment from a judge shortly before she was to appear before him on her client’s behalf. “Now that people of my vintage are coming into positions of power, we’re in a position to do something about the conditions that we went through,” she said.

Jellinek agreed with McPhedran that transparency from the judicial branch about the existence, number and nature of sexual misconduct complaints made against its members — and the disposition of such complaints — “is of paramount importance to show that justice is being done.”

“There are a lot of situations where once one person finds the courage to go forward with a complaint, and it is made public, other people will gain strength from that, and gain support ... and that’s one reason why transparency is something any industry should strive to do,” Jellinek said.

She also said the CJC appears to have dealt appropriately with the court worker’s sexual harassment complaint in 2012 in terms of how the allegations were investigated and substantiated. “I am concerned that because it wasn’t made public [at the time] it falls short of the mark, frankly.”

Sabourin said he does not see a systemic issue of judges engaging in inappropriate sexual conduct or comments toward lawyers.

But he said the CJC is vigilant because it is well aware that staff lawyers, law clerks and court staffers “are in a vulnerable position, and they have to be afforded every possible protection.”

He emphasized: “I have a very good rapport with administrators across the country in the individual courts. My message is always the same: ‘Any situation, any situation at all, where there’s a problem with respect to staff should be raised with the CJC. … Because judges are in a position of authority, they are expected not only to abide by the policies of workplace respect in every area, but they are expected to [hold to] an even higher standard because they are judges.”

In the case which culminated in the federal judge’s resignation, the staffer first went to a senior colleague, who then referred the matter to the CJC, he said. The CJC began by asking the judge’s chief justice to ensure that the judge could not have contact with the staffer. The judge was then asked to comment on the allegations, and he “expressed concern that he might have acted in such a way,” Sabourin said. The CJC then hired a lawyer with expertise in sexual harassment issues to investigate.

Asked what lawyers, law clerks, law students and court staff can do if they are subjected to sexual remarks or conduct from judges in the workplace, Sabourin suggested “if you go to a trusted colleague, that’s usually the easiest step for somebody who feels victimized. And that trusted colleague, if they’re smart, will say: ‘We need to raise this, and let’s find a way to raise this with the registrar, with the chief [justice] or with the administrator in a way that protects you.’ … I know that administrators are very sensitive to the issues of judges being in a special office, and that if there’s an issue about the conduct of a [federal] judge, everybody is well aware that that’s an issue for the CJC.”

He noted the CJC, uniquely among judicial councils in Canada, to the best of his knowledge, considers anonymous complaints. It also protects the anonymity of complainants, if requested, to the extent consistent with a fair and thorough investigation.

Sabourin doesn’t see any gap in how the federal judiciary polices sexual harassment by its members, or in how it protects lawyers and staff. “Obviously we’re open to dialogue, and finding out if there may be a gap,” he remarked. “I’d be very interested in finding if there are other things we can do. But the one thing where I do not see a gap is if anything comes to my attention, or to whoever is the acting executive director here, we act on it.”

It is not clear whether the judiciary — through its judicial councils — considers it to be its role to actively encourage, and assist, people to report sexually inappropriate workplace conduct by judges — for example by posting notices in courthouses, or otherwise disseminating educational material.

Simona Jellinek

Toronto litigator Simona Jellinek

In the wake of #MeToo, Jellinek suggested “a good starting point” for all levels of the judiciary might be to re-examine their protocols for workplace sexual harassment, in light of Ontario’s Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016 which, among other things, mandates the development of workplace harassment programs and procedures for employees, including on how to report and with respect to the investigation process.

“If they look at their protocols and determine that they’re fair and just and supportive of [both complainant and judge] … then that is good,” Jellinek said. However, improving the judiciary’s protocols could help those “who may have been the victims of harassment, or the survivors of sexual assault come forward,” she said. “It may also help the situation where members of the judiciary become more educated as to what’s proper, because education is a lifelong process.”

McPhedran said #Me Too and #TimesUp have changed the discourse and context in respect of sexual harassment. “What they’re not changing yet are the systems,” she emphasized.

“Unless we are making changes to systems while the discourse is active — while the raising of consciousness has occurred and is continuing to occur — then we will simply have the elastic nature of the status quo snapping back, and we will have the same old system,” she warned. “It will be a very short period before the silencing is taking hold again.”

The issue of sexual harassment in the judiciary in Canada is not new. In 2004, the Ontario Judicial Council determined that Judge Kerry Evans, of the Ontario Court of Justice, had engaged in workplace misconduct in respect of six female court workers who said he improperly touched them, sometimes in a sexual manner, or made inappropriate remarks with sexual innuendos. He denied the allegations or insisted the physical contact was accidental. He resigned before the council could recommend his removal or impose another sanction.

Ontario provincial court Judge Walter Hryciuk was accused by an assistant Crown of kissing her without her consent in 1992. Another assistant Crown accused him of making a suggestive remark to her while drawing her attention to a sexually explicit light switch in his judicial chambers in 1988. A judicial public inquiry launched by the judicial council — which triggered further complaints before it against Hryciuk by other women — recommended his removal in 1993. That decision was overturned in 1996 by the Ontario Court of Appeal on the basis that the inquiry’s commissioner lacked jurisdiction over the additional complaints.

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