As the judicial inquiry unfolded last year into the conduct of Lori Douglas, associate chief justice of Manitoba’s Court of Queen’s Bench, many horrified students observed her humiliation at the hands of justice. The judge was being investigated because nude photographs of her were reportedly posted to the Internet by her husband, placing her credibility as a judge into question.
Suzanne Côté, independent counsel at the Canadian Judicial Council’s inquiry, pushed to have the photographs made available to the inquiry panel. Douglas’ lawyer pushed for the photographs to remain sealed, saving Douglas from further victimization. The shamed judge then resigned from the judiciary to have the inquiry stayed. Ironically, while Douglas’ career dissolved, Côté was appointed by Prime Minister Harper to the Supreme Court of Canada.
The mistreatment of Douglas frustrated many law students, including this writer, yet we went about our business compiling CANs and preparing for December exams. Thankfully, one ardent student decided to take action.
With help from professors, Esther Mendelsohn, a second-year law student at Osgoode Hall Law School, penned a letter to the CJC expressing her concern over Douglas’s treatment.
“I was just so upset about what had happened to Justice Douglas given the distribution of her photos without her consent and then on top of everything becoming the subject of this inquiry, which, to my mind, was both inappropriate in the way it was conducted and perhaps shouldn’t have been conducted in the first place,” she told me in a recent phone conversation.
Mild-mannered and humble but articulate as a seasoned politician, Mendelsohn set measured objectives.
“It was just important to me to put those ideas out there for anyone else who had heard about what was going on to know that there was dissent, there was support for Justice Douglas and that people did care about what was going on,” she said compassionately. “And honestly, perhaps naively, I had hoped that maybe it would come to her attention and she would feel supported and that’s pretty much it.”
To strengthen her position, Mendelsohn and some friends circulated the letter and within days, more than 350 additional signatures came from law students, professors, and lawyers from across Canada. When I first learned of the letter in December, I was among a group of University of New Brunswick law students who added our names and were grateful for her effort.
The CJC’s executive director Norman Sabourin responded to Mendelsohn’s letter in a letter of his own that addressed her arguments. But in interviews with the news media, Sabourin’s response then shifted gears towards the student’s credibility.
“I hate to say something like this, it’s not my style, but a second-year law student saying one of the most esteemed lawyers in Canada didn’t do things the way she should have is something I reject entirely,” Sabourin is quoted as saying in " target="_blank"]The Globe and Mail.
I have never met or spoken with Sabourin and I won’t judge him on one comment but I certainly cringed as I read the swipe. It harkened back to a jab that Trinity Western University president Bob Kuhn took at me in his remarks following my presentation to the Law Society of New Brunswick.
In my presentation on behalf of OUTLaw, UNB’s society for queer law students and allies, I encouraged members to vote against the accreditation of graduates from the school given its discriminating code of conduct. Before responding to my arguments, Kuhn addressed me as, “My friend from OUTLaw, and I say my friend because I think that’s appropriate among individuals even though he is not yet a lawyer.”
Not yet a lawyer. Suggesting my arguments on behalf of LGBTQ students and allies were inferior, the statement stung and left me deflated.
“I have certainly been called worse than a second-year law student at Osgoode,” Mendelsohn said jokingly of Sabourin’s comment. “I’m not personally bothered by it. I don’t think there was any ill intention. When your position is attacked or questioned or challenged in any way, the easiest way to retaliate is to attack the person’s credibility or say something like ‘well, what do you know, you’re just a law student.’
“But ultimately, I think ideas need to be met with ideas, arguments need to be met with arguments, facts with facts and ultimately the person or the identity of the person raising an issue is less import than the substance of that issue.”
While she brushed off the remark and said it has even fired her up a little to persevere, Mendelsohn admitted, “I don’t think my mom liked it.”
Nicole O’Byrne, a UNB law professor, is concerned about the consequences of ignoring or discrediting the opinions of students.
“The anxiety of the average undergrad law student is overwhelming and I think colours their attitude towards organizing and voicing their own concern,” she said. “As a faculty member, I don’t know how many students have told me privately of concerns but they refuse to go on the record. They even refuse to tell their student government representative because they are so worried that it will come back to them and it will hurt their ability to secure employment and to service their student debt.”
Consequently, O’Byrne sees students who speak up and put their foot down, like Mendelsohn, becoming a rare breed.
“My experience is that some people will take a stand and if they’re not respected, that’s the last time they’ll ever voice an opinion.” It’s a worry but one to which she can empathize.
As a law student at the University of Saskatchewan and McGill University for an LLB and LLM respectively, O’Byrne was a vocal student leader on faculty council and in student government. She certainly met opposition.
“After advocating strongly on an issue regarding aboriginal-non-aboriginal relations at the law school, one of my profs asked me to come to his office,” she said. “He told me that my views weren’t welcome and that I was ‘the worst fucking thing that had ever happened at the university.’”
For O’Byrne it was a shocking and unsettling “example of student intimidation.”
The professor’s observation of anxiety among students is bang on. Finding our voice is challenging enough without being dismissed or discredited for our status in the midst of what is arguably Canada’s most academically challenging undertaking.