Michael Ford (post until Oct. 31/18)

Tackling gender bias requires full commitment from profession

With many of the most prominent positions in the criminal justice system now held by women, it may seem that the battle for equality in the legal profession is over — but this would be an inaccurate assumption, Toronto criminal lawyer Breese Davies writes in Lawyers Weekly.

“While more women than men are being called to the bar every year, we cannot keep them in the private practice. The Criminal Lawyers’ Association (CLA) recently released a report on the Retention of Women in the Private Practice of Criminal Law. The report confirmed what many of us already knew: women are leaving defence practice in greater numbers than men,” writes Davies, vice-president of the CLA.

As the report notes, 73 per cent of women who started their careers doing criminal defence work had left the practice after 20 years. Women are also 10 times more likely than men to leave defence practice for the Crown Attorney’s office.

“While things have certainly improved, we are still treated like second-class citizens by some judges, prosecutors and colleagues. A full 78 per cent of the women surveyed as part of the CLA study said that women are treated differently than men in the system,” writes Davies.

Sharing her own story of experiencing gender bias in the courtroom, Davies explains that more than a decade into her career, she was involved in a case as co-counsel with a more senior male lawyer.

“Throughout the trial, the presiding judge referred to me as ‘the junior,’ never by my name. He would only name my co-counsel when he told the jury he had consulted with defence counsel on legal issues that arose. I was not worthy of mention. The judge would listen thoughtfully when my co-counsel made legal arguments. With me, he was often impatient, annoyed and patronizing. It was humiliating and demoralizing. Again, I did not speak up. My co-counsel did say something whenever he could, but the conduct continued,” writes Davies.

Davies says that by the end of the trial, she was angry, and faced with an unfair dilemma.

“If I spoke up for myself, it might have a negative impact on my client, to whom I owe a duty of loyalty. After the trial, I did not know how to raise the issue in a productive way. I was also afraid of the professional implications of taking on a respected judge,” she explains.

“I’m still angry at myself for not speaking up. I consider myself a fearless advocate for others. For the last five years, I have been actively involved in the CLA’s initiatives to retain and promote women in the profession but I was paralyzed to address an issue that involved me personally. The result is I feel like a hypocrite,” she adds.

Eliminating entrenched gender bias will be a difficult problem to tackle, says Davies — however, right now, the legal profession is ignoring the issue. 

Part of the solution must include mandatory education for judges and lawyers on identifying and avoiding biased treatment of lawyers, says Davies. "But beyond that, there needs to be a mechanism (other than a complaint to the judicial council) by which any form of bias can be reported and redressed without fear of professional reprisal,” she adds.

“And the burden of speaking up must not be left to those affected by discrimination alone. Anyone who witnesses bias in the system in any form should speak up and advocate for equality. Until our profession fully commits to this, discrimination will surely continue and so will the exodus of women from our ranks,” says Davies.

To Read More Breese Davies Posts Click Here
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