This is the second in a series of installments, representing only my personal views and experiences and not that of any association where I hold or have held any position in governance or otherwise, nor necessarily reflecting the views of my law firm or its staff. I am speaking only for myself here.

A MASS EXODUS OF WOMEN FROM THE DEFENCE BAR – ROME IS BURNING

There is (a) an exodus of defence lawyers going over to the Crown

See https://www.canadianlawyermag.com/news/opinion/canadas-great-criminal-defence-brain-drain/361899

and (b) most of those leaving are women.

I’ve spoken to a half-dozen young women in recent weeks who have gone over to the Crown’s office including four in the last two weeks alone and two in the last four days alone. Five women left the defence bar last week: 4 went to the Crown, one left the criminal law. These are just people I know about.

It’s not just because of the money. Indeed, it’s at best naive, at worst self-serving, to suggest that money is the sole, or even the main motivator.

Women in law are subjected to bad working conditions, MIA or abusive bosses, sexism in the profession and more, and worse. Criminal defence is hardly an exception or immune to these plagues.

In fact, women criminal defence lawyers are most horribly affected because they are effectively completely silenced. Women criminal defence lawyers are often treated very poorly by their employers, colleagues and in Court by decision-makers. But they cannot and do not complain. Because if and when they do, they are told they’re just too weak. They’re not cut out for this demanding and tough practice area. They’re too emotional. They’re not tough enough. Or they’re too needy, too soft, too demanding, too entitled, too greedy, or just plain too much.

Women in supposed positions of leadership tend to fare no better. They’re often put up to be seen as having been given space and authority, but really, they have none. All important decisions and strategy too often continue to be made, organizationally and on the ground, mostly behind closed doors, almost entirely by men.

Women in criminal defence have had enough. They are either: (a) applying to the Bench the moment they become eligible, or (b) going over to the Crown, or (c) leaving the criminal law altogether, because they want respect and maternity leaves and supports. They want the important files, credit for their work, reasonable accommodations and actual equality, not performative stuff.

Women want to be at the decision-making tables. They want to speak and be heard. They want to finish their sentences. They want to be left alone to express their own experience without some man telling them what they really mean or feel or think. Or, that whatever they say, feel, or think, is wrong.

Women are sick to death of the unspoken sub-text always being “How dare you?!?” Well, we dare. And men are threatened, offended, and busily applying themselves to protecting the boys’ clubs and the status quo. All the while paying plenty of lip-service to lofty goals of gender parity and prioritizing equality, diversity and inclusion. In theory. So much of the time, so disappointingly, this is all just a giant maze of smoke and mirrors. In fact. By an large.

There are, of course, leaders who are both men and manage to be respectful and genuinely inclusive. But they are, for now, the exception and not the rule. Even where they conduct themselves with integrity, decency and courage, they often don’t see the harm happening right under their nose. Misogyny is difficult to spot, unless you’re on the receiving end. When that’s where you find yourself, you know you’re being harmed. That cannot be missed. But identifying the underlying reason is more elusive because nobody wants to believe we’re living in a world that hasn’t really evolved.

At 55, 30 years at the bar, I say with confidence, if tremendous disappointment, that the sexism is not only rampant, it is the most glaring and at its worst, since I began working in this field. It’s so intolerable that I can no longer suggest to new women colleagues that all will be well. All is not well and I can’t in good conscience reassure them that things are improving or will do.

Adding insult to injury, while the defence bar is under siege with poaching by the Crown’s office happening as I write this, those who do leave are being chastised and those who choose to remain are being credited with integrity, congratulated for making the right choice or the principled decision. This all sends a terrible, malignant and manipulative message to women exercising their right to choose their path. A path they’re being pushed down, by organizational failures and misogyny, including within our own house.

I don’t think it’s fair to put any of this on the women who are leaving intolerable working conditions, abusive bosses, and a profoundly misogynist culture. Let’s please not pretend it’s all about the money. The women I spoke to wanted to stay. They tried very hard to stay. They don’t want to be Crowns. They don’t even necessarily want to be Judges. They just want basic human decency, to be heard and seen, to be respected.

We are getting none of that. Yes, women also want to be compensated fairly, and yes, cuts to Legal Aid make that harder and harder each day. But we have to do better by our women colleagues in all respects.

Fighting for sustained, enduring, and sufficient Legal Aid funding is an important and necessary aspect of the work ahead. But there are also more complex, more insidious, and more immediately pressing issues for women NOW that are fueling the current crisis.

It’s high time now that we all begin to address those issues on a fundamental level, together.

First, we must recognize, identify and admit the real issues, up front, transparently and honestly.

We must stop minimizing, dismissing and ignoring the trauma women in our bar are experiencing.

Stop blaming other justice system participants for their role in all of it without looking at ourselves.

Then lead by example. Give women colleagues real space and airtime to speak and be heard.

Support women to lead and to showcase their expertise, share their experience and wisdom, to teach.

Respect and include women equally at all levels of decision-making. Stop telling women how to be.

Then become true allies in advocating for respect and equality and genuine inclusion of women beyond the bar, in court and in policy and reform work. Advocate for systemic and structural change with us.

It’s not enough to create spaces for women to be together, but alone. It’s important. But not enough.

It’s also not enough to create space for representation, if it is not meaningful because it’s performative.

It’s necessary but insufficient to organize Women’s events. A series of Zoom CPDs may be informative, interesting, even joyful but they can do nothing about structural discrimination and profound sexism in the way men treat women, including within our own bar.

That’s the brewing crisis that is now bubbling over while Rome is burning, actually, via the exodus.

That’s all gotta change from the top down.

Women have to be in leadership positions with authority and power to really change the culture.

And where women do manage to get to the top in any forum, we cannot then give up the fight.

We bear a grave responsibility to our younger colleagues to blaze these trails and keep the path clear of debris so a new generation of lawyers can just practice law in the ordinary course, as it should be.

Respected, acknowledged, supported and celebrated, in all that they do, for all that they / we achieve.

All the things men in the legal profession get and take for granted every hour of every day.

I will reserve my ideas for how we stop the bleed and provide robust supports for women while changing the culture within the system for the next post. Stay tuned!