A lot has been written about the sexual predator Harvey Weinstein this past week and has prompted much discussion about men sexually harassing and assaulting women. As we all know this behaviour is not limited to the Hollywood elite, but invades the lives of all women.
The Canadian legal landscape is not immune. We have our Weinsteins too. As Professor Amy Salyzyn wrote “women know who the predators are”. We whisper their names among ourselves. We tell stories of “remember that time when . . .” and often try to laugh it off.
Nevertheless, when the #MeToo campaign began on Twitter and Facebook, my first thought was “Well, I’ve been relatively lucky, should I write #MeToo?” But I let my mind process that for a bit. And then I remembered “that incident” and “the other incident” and the “oh my goodness, how could I forget THAT time”. We learn to grin and bear it, try to forget it, and move on. We are taught not to make waves and a career self-preservation mode kicks in: “If I complain will I be punished?" "Will other male lawyers not want to work with me?” “Will I become known as the trouble maker and not make partner?” This is often followed by an immense sense of guilt for not saying anything.
This weekend Leanne Nicolle wrote an opinion piece for the Globe and Mail talking about her 2015 complaint against the president of the Canadian Olympic Committee. In 2015 the president of the COC was Marcel Aubut, who is also a lawyer who worked for several years at Heenan Blaikie. As lawyer Bob Tarantino noted on Twitter:
I read about Mr. Aubut in the book Breakdown: The Inside Story of the Rise and Fall of Heenan Blaikie. The author, Norman Bacal, noted that the “road was littered with bodies of those whom Marcel had steamrolled after he decided they stood in the way of his dreams or objectives”. While there is a whole chapter devoted to the powerful Mr. Aubut, the following paragraph by Mr. Bacal (who had been the co-managing partner of Heenan for several years) stands out:
“[Marcel] understood at a cerebral level that a man in his position should not be taking the slightest risk with female support staff or associates, especially since he knew a misconstrued comment or touch could taint a successful career. I could not begin to speculate on how his behaviour may have been perceived by those who worked for him when he was president of the Canadian Olympic Committee. His resignation from that position in 2015 may have been construed by some as a day of reckoning, but for those of us who knew the man well, it was simply a very sad day.”
Mr. Bacal’s response is just as telling as the allegations against Mr. Aubut. The concern here being the affect a complaint could have on Mr. Aubut’s career (not how his behaviour would affect the female support staff or associates) or how his behaviour could be “misconstrued”. I can’t tell you the number of times that sexual harassment I have witnessed has been labelled as “misconstrued”, taking the blame from the harasser and laying it squarely on the harassed: “You’re too sensitive, can’t you take a joke?” or “Oh, he was raised in a different time; it’s just an innocent comment”. Note that over 100 people came forward to share their experiences with Mr. Aubut in the formal review. The findings of the review concluded that a majority of COC staff interviewed reported "experiencing or witnessing harassment (both sexual and personal) during the President's tenure, both inside and outside of the COC's offices". Oh, but I'm sure these actions were just "misconstrued".
Ethics professors Alice Woolley and Adam Dodek have written thoughtful and insightful articles on the issue of sexual harassment in the legal profession and the potential for abuse of articling students. Professor Salyzyn noted that Professor Woolley’s article was “written roughly three years ago and we have not yet, as a profession, full-throatedly taken up Professor Woolley’s call to begin the conversation and progress towards the type of change we need. I’m optimistic that we will eventually reach a tipping point. But, whether we’ll have the moral leadership and courage to reach this point ourselves or, alternatively, have it externally thrust on us, as have other industries, remains to be seen.”
When I’ve talked to people about the systemic discrimination of women in the legal profession I’ve often naively said, “Well, at least we aren’t being slapped on the butt and called ‘toots’ anymore”. . . I don’t think I will be saying that again.
 Bacal, Norman. Breakdown: The Rise and Fall of Heenan Blaikie. Toronto: Barlow Books, 2017. See my feminist review of this book here.
Erin C. Cowling is a freelance litigator, researcher & writer at Cowling Legal Freelance and President and Founder of Flex Legal Network Inc., a network of freelance lawyers.