 I'm going to do this without a mic. My name is Camille Cameron. I'm the Dean of the Schulich School of Law, and I'm really pleased to be able to welcome you all here to the Wyckwire Lecture. I would say welcome to the law school, and I think I can say that because we've got this sign here, but we have adopted the Scotiabank Auditorium for the purposes of this evening. I'd like to begin by acknowledging that Dalhousie University is located in Mi'gmagi, the ancestral and unceded territory of the Mi'gma. We are all treaty people. I'd also like to recognize that African Nova Scotians are distinct people whose histories, legacies, and contributions have enriched that part of Mi'gmagi known as Nova Scotia for over 400 years. I want to thank Professors Richard Devlin and Andrew Martin for the work they've done to put together this very interesting panel. This is the 32nd FB Ted Wyckwire Memorial Lecture. The law school is pleased that we've been a partner with the Nova Scotia Barrister Society and hosting this lecture for many years now, and we look forward to continuing that partnership. And on that note, it's my pleasure to introduce Cheryl Hodder Casey, Chief Executive Officer of the Nova Scotia Barrister Society. Cheryl will say a few words about Ted Wyckwire, the person for whom this lecture is named. Thank you so much, Dean Cameron. Good evening, everyone. Before we begin, as Dean Cameron indicated, I'd like to talk a moment about Ted Wyckwire. A few days ago, I spoke to Eve Wyckwire over the telephone to learn more about the life of her late husband, and Eve is with us here this evening. Amongst many things, he was an alumnus of this university. He was a gifted athlete. He excelled at basketball. He quarterbacked the football team. He was an avid volunteer who was engaged in politics, engaged in his community, and of course, he was a lawyer, and he was the president of the Nova Scotia Barrister Society. And you know, it's very easy to define Ted through his accomplishments because he had quite an accomplished professional life. But I think it's also important to celebrate his life outside of the office and the courtroom. And during our call, Eve reminisced about how social he was. What a wonderful family man he was. They hosted happy hours at their home on Fridays. And she reminisced about the fond memories of meeting with neighbors and family and friends over those gatherings. She also told me that he was really spontaneous coming home one evening and saying, I'd like to go to New York. And she said, well, let's do it next month. And he said, no, I want to go tomorrow. So I want you to have a little bit of a sense of the man. Ted tragically passed away at 52 years old. And during the time of his passing, he was the president of the society. And so to honor his life in legacy, the Nova Scotia Barrister Society partnered with the law school to create this lecture series on the topic of ethics and professional responsibility. And of course, they were topics that Ted lived in service of. So just briefly, some of the contributions that Ted Wickwire made to the profession include the development of our handbook on legal ethics and professional conduct. And while it's quite difficult to believe now that the legal profession in Nova Scotia didn't have an ethics guide for lawyers before the 1990s. And Ted was the chair of the society's first legal ethics committee. He was also the first chair of the Legal Aid Commission, which would reduce barriers for Nova Scotia in seeking access to legal services. He also initiated the conversations about making the lawyer discipline process public. This would only come to fruition about a decade after Ted passed away, but his guidance helped to prepare us for the change that would eventually come. Ted Wickwire represents the best of the legal profession, a person of unimpeachable integrity who dedicated his life to calling on others to do better and to be better. So thank you so much for joining us this evening and helping us honor the incredible life of Ted Wickwire. Do you guys don't know me? My name is Richard Devlin. I've been at the law school for a number of decades. I won't say how many, but they've been well. Elizabeth knows exactly how many, right? So let me just sort of thank Cheryl and the dean for their welcoming remarks. I'm going to say very little, except to set it up a little bit by saying the following. The issue of civility has been a very controversial conversation in the Canadian and the North American legal profession for about 25 or 30 years. On the one hand, the idea of civility has seemed to be a public good, right? We see it as showing respect. We see it as facilitating effective communications, and we see it as being part of a community, the legal profession. On the other hand, civility has seemed to be a problem, because whose definition of civility gets the count? Is it that of the elite, those who are included? And if you come from a different background, a different heritage, a different world view, then you seem to be on civil and not truly worthy to be a member of this particular community. So it's a contested concept and a challenging concept. And so this week, for example, for those of you who are the first years, I know most of you aren't first years, civility was actually an underlying theme in many of our discussions around legal ethics this week in our intensive course. Tonight we're lucky to have four leading thinkers on legal practice and legal ethics, particularly in the context of civility. And they come from very different backgrounds. I'm going to start with Andrew Bernstein. He's a partner in Tories in Toronto. His basic areas of practice are intellectual property, business law, and commercial law. He's a very experienced litigator, appearing many times in federal courts of appeal, then the Supreme Court of Canada. Before he was an academic, he clerked for the Chief Justice of Canada, Chief Justice Tony LeMere, and he says this, I did not make this up. This is what he says in his own bio. Once upon a time, he was identified as a leading lawyer under 40. But that was much longer to go than his good, boyish looks might sort of portray. Now you can take your mask off. See, there we go, right? You'd never guess. You'd never guess, right? So that's Andrew for us. Amy, beside him, Amy Salsen, is an Associate Professor of Law at the University of Ottawa. She has her LLM from Yale Law School, liked it so much, she stayed there for another couple of years, and did her JSD, her doctoral thesis there, focusing on judicial regulation of lawyers in various common law jurisdictions. Her areas of research are legal ethics, lawyer regulation, the use of technology and delivery of legal services, and access to justice. She also practiced in a litigation boutique in Toronto for a couple of years before joining the academy. Sam Singer is our third presenter. He's currently an assistant professor at the University of Ottawa, and Amy and Sam will be presenting together. His passions are, and I'm going to have a hard time saying this, tax law and policy, like putting those in the same sentence, but only Colin Jackson manages to do that. So I think you're in competition with our colleague Colin Jackson. His current research is on tax dispute resolution and the regulation of non-profit organizations and charities. He's also a longtime advocate for trans people, and he frequently presents his research on trans-legal issues to members of the legal profession. He graduated from McGill with his JDBCL and an LLM from Osgoode, and I think it was a second LLM or somewhere as well. He's forgotten, right? Our final presenter is Deanne Souter. Deanne is currently a doctoral candidate and Vanie Scholar at Osgoode Hall Law School in North York, Toronto, Upper Canada, just in case you're wondering where that is, right? She's also a research fellow with the Vanie Institute for Dispute Resolution in Toronto. Her focus of research is primarily on family law with a particular emphasis on legal ethics issues for family lawyers. Still a junior scholar. She's already got a very respected publication record in the Dow Law Journal, of course, the premier law journal in the country. Follow it up, of course, out of a youth law journal, right, of course. Can I borrow a few UBC Law Reviews? Her work has also been cited by the Supreme Court of Canada. She has her JD from Osgoode Hall and an LLM from University of Toronto and is now back doing her doctorate, as I said, at Osgoode Hall Law School. So there are panelists, they've got a variety of topics to present on. They have about 50 minutes for Andrew and for Deanne, and Amy and Sam are going to take about 20, maybe 20 minutes between two of them. So that's the plan. Demolition up for conversation. Thank you. Where's my applause? You applauded Sheryl. You applauded Steve. Now I'm unmasked. I'm going to just start my timer because I will go over without a timer. I probably will go over with a timer. I'll put them beside you. So first of all, I just want to say how honored I am to be asked to join this lecture with this extremely impressive panel. I am the lone practitioner on our panel, so you'll have to have reasonable expectations of me. But I like to think of myself as the opening act before Amy Schumer comes on or Trevor Noah. You have a lesser known comedian who might try to give you a few laughs, and that's what I'm going to try and do. So my topic is legal ethics, the view from the Twitter sphere. And I really want to talk about the law Twitter community in Canada. So we have, and you should think about joining, a robust law Twitter community in Canada where there are probably about 100 lawyers across the country, lawyers, law students and professors, who contribute on a regular basis. And I think that there's a lot of what I would describe as lurkers, and I don't mean that in a pejorative way. People who look and they see and they follow a bunch of legal topics, but they don't necessarily participate in the conversation for whatever reason. And it's great, and it's been extremely enriching for me, and I think you would find it extremely enriching. But as they say, where lawyers go, legal ethics problems follow. People do all kinds of things on Twitter that they shouldn't do, they from time to time reveal client confidences, they engage in misleading advertising, they use words like expert or specialist, or they make statements about the administration of justice. These are important rules and you should comply with them. The way to comply with them is to read them and remember them. They're not actually that difficult to comply with. So I strongly recommend you comply with them, but we're not actually going to talk about those today. I want to talk about what I consider to be some trickier problems in the world of legal ethics in the Twitter sphere. So what are they? Tweeting about cases you're involved in, what I've referred to as willy-nilly legal advice, civility with opposing counsel, a little bit of name calling, and some judicial lurking that I'm interested in talking about. We'll see if we get to all five topics. And I just want to say one thing, which is that I'm going to put some tweets up that I think raise issues. I've of course crossed out the names of the people who put up the tweets. And you could, if you so desired, go and find them on Twitter. I would strongly urge you not to go and find them on Twitter. I'm not here to shame anybody. I'm not here to accuse anybody of wrongdoing. And I don't think that anybody has done anything illegal, actionable, contrary to the rules of professional responsibility. So I'm not here to say these people are bad and we should shame them. I'm here to say that there are things beyond just illegal, actionable, or contrary to the rules of professional responsibility that we should be thinking of when we think about legal ethics. And it's really a question of how you conduct yourself as a professional and as a member of the profession. And so how do we evaluate these? I like to evaluate them with five questions I made up. Does your tweet detract from the administration of justice? Does it detract from the reputation of the profession? Might you confuse a non-lawyer? Does it detract from relatively well-established social values? I'm thinking about doxing in that case. And does it break the golden rule, you know, do unto others as you would have them do unto you? So let's talk about the first one, the reputation of the profession, and should you tweet about your own cases. One of the more disturbing things that's happened in 2022, from my perspective, is the Dobs decision from the United States Supreme Court. And I'm involved in a case, I'm lead counsel for the Civil Liberties Association in New Brunswick where we're trying to advance abortion rights in New Brunswick. So it's an issue that's very important to me and very close to my heart. And I was absolutely heartbroken to see the Dobs decision. There is an academic at a school that is consulting on this, and unfortunately I woke up the morning of the Dobs decision to find a tweet saying, aunties in Canada shouldn't prematurely rejoice. I'm quite certain your side will be giving a sound ass kicking in our court's suit. I was not happy, and I told this person that I was not happy, because what are you really doing here? Why, what are you accomplishing? And the questions that I want to ask yourself are, should you be tweeting about cases that you're counsel in that are ongoing, as opposed to cases that you were counsel in that have been decided? And you say, hey, I argued this decision and here's the reported case for everybody to read. Should you be threatening people with an ass kicking? What if you're wrong? What if you're wrong? I like our case in the New Brunswick courts, but you know what? I'm not the judge. And what if you're just wrong? How does that look and how does that advance this cause? And most importantly, what if your judge sees it? And I will say there are lots and lots of judges on Law Twitter, lots of them. They lurk. They don't actually like stuff. They don't comment on stuff. But I know that they do, because I run into them and they say to me, oh, I saw you on Twitter. We'll talk about the lurking in a little while if we get there. That's not to say you can't talk about your cases, right? I was, if you look at my colleague, my colleague's tweet back here, thrilled to appear in the Supreme Court today, you know, thrilled to report the Supreme Court granted us leave to intervene. I'm happy to report also accepted that I'm not going to repeat the word. I actually blacked it out because it's offensive is an offensive derogatory slur. This was an anti-trans slur. Even, you know, Catherine Marshall, who, yeah, she's a little bit more controversial than some. I've been retained to represent Mr. May. He will not be resigning. We will be issuing a public statement soon. None of these, from my perspective, raise any concerns. These are, you know, things that you can, you would say in public. And that's what you're doing when you're on Twitter. You're saying things in public. This is from a lawyer in the US. I wouldn't do this. I must confess. And I would not recommend that you do this. We demand answers, et cetera. Because we do have a judicial culture that's a little more conservative, small C conservative, when it comes to what lawyers shouldn't, shouldn't be saying. But, you know, if you think about a lawyer putting out a press release, which is essentially what they're doing. It's probably not the end of the world. Okay, so let's talk about something else. Willy-nilly legal advice. This is a lawyer that I know and I really like and respect. So some person on Twitter, I need some advice. My kiddo is going through a rough time at this job. She's listening to racist and misogynist comments all day from employees and customers what to do. So, my friend responds, the toxic work environment can give rise to a constructive dismissal where they'd have to pay her out. Documenting is a good idea and asking management to do something about it. They're legally obligated to address it. I do not give legal advice to strangers on the internet and neither should you. And there's a million reasons why. What if this person were to quit their job in reliance on your advice? What if this person was to decide that, hey, they gave, you got legal advice. They gave you, you gave them legal advice. So, I think you have to be very, very, very careful. What my note says here, you shouldn't practice law on the internet with strangers as your clients. And I understand the instinct to help people. We all want to help people. And actually we should be in this job because we want to help people. But trying to help people like this is probably not doing what they really need to do. Directing them to some resources, giving them some basic information, saying, hey, this raises some issues. You should consult a legal clinic, consult a lawyer. I mean, we don't even know where this person was. So different jurisdictions have very different laws but all of this. Same lawyer talking about Lisa LaFlam. Heads need to roll, starting with Melling for the organization to have any credibility. I'm not concerned about this one because there's no chance that Bell Media is taking advice from random lawyers on the internet. Now, if Bell's your client, and Bell is my client, you would not do this. Okay, even if you had nothing to do with this particular case, you would not be doing this. But I don't have any concerns about this particular thing. Let's talk about opposing counsel. So the Advocates Society, which started as an Ontario-based organization and is trying to move its way into becoming a national organization and has some great events in Nova Scotia, has principles of civility. And what it says is that advocates should avoid posting critical comments about an identifiable opposing counsel on social media. Why the Identify Ability Rule? Because, and I was part of the committee that created this, because actually social change comes from a lot of different places. And it's okay to complain about opposing counsel on the internet. It's okay to say, hey, I'm dealing with racist or sexist or just rude opposing counsel. How do I deal with this? Can somebody help me? And the Law Torture community is really good about this, but I would stay away from identifying the person for a whole variety of reasons. One, but the most important is you're not doing your client any favors, okay? You absolutely must think about your client first in all circumstances, no matter how frustrated you are with opposing counsel. You have to think about your client first and you're not doing your client any favors by essentially permanently and irreparably destroying the relationship between you and your opposing counsel, no matter how yucky they might be. And some of them, I will say, very yucky. But, you know, there's some really interesting stories about change coming about through a lot Twitter and I'm just, this isn't an opposing counsel one, but Osgood Hall in Toronto is kind of the heart of the, not that there's Osgood Hall Law School and then there's the Osgood Hall Courthouse and the Osgood Hall Courthouse is where the Law Society of Ontario is and also where the Court of Appeal sits and there were two sets of gowning rooms, a big and beautiful wooden and spacious room for men and a tiny little closet for lady barristers. And somebody went on Twitter and started a campaign with photos. I had never of course seen the lady barristers chambers and it was frankly embarrassing and now what we have is one co-ed set of gowning rooms with little rooms where people can change. So, you know, I'm not saying that you shouldn't advocate for social issues on Twitter. I'm saying please be very careful about identifying opposing counsel. I wanna talk for a few minutes about lawyer shaming. So, what do you do when you've got a really, what do you do in general? And I've certainly been in this position where you're taking a not extremely socially popular position for your client. In this case, a very famous American lawyer named Neil Katchel, one of the leading Supreme Court advocates in the United States was on for Nestle in the Supreme Court arguing that they shouldn't be liable under the alien tort statute for certain child slavery activities of all things that occurred from one of their suppliers in the Ivory Coast. And there were lots of people calling him lots and lots of names on Twitter and elsewhere, especially greedy and unethical. And I would just say calling somebody else unethical is a line that you probably do not wanna cross on Twitter. It's defamatory for one thing, but it also not really consistent with civility. I think there's a way of calling out certain kinds of behavior without actually going as so far as to saying it's unethical. And again, like if somebody's really engaging in unethical, that is to say, contrary to their professional conduct rules, report them to the law society. Don't go on Twitter and explain about them. That said, legitimate criticism is okay, right? Dude could represent literally anyone and he chose to line his pockets, arguing that Nestle could torture people and evade responsibility. I mean, do I agree with their position? Maybe, maybe not, kind of depends on the day, but do I respect that this is a legitimate critique of a lawyer and the choices that a lawyer makes? I do. And it's something we could argue about probably for hours about how should lawyers take on cases for very wealthy parties who are being sued? It's an interesting issue and I don't, this one really draws conclusions, greedy and unethical. And this one raises questions, right? Could represent anyone and he chose to line his pockets. This is a legitimate critique. Hard to draw the line at times, but that's what I would say. Interestingly enough, the Supreme Court of the United States sided with Nestle and a leading lawyer named Tom Goldstein, who's another one of the clique of about a hundred Supreme Court lawyers who argue all the Supreme Court cases in the US, just went on to say, do we say that Sonya Sodomai are supported child slavery by voting for Nestle? Of course not and Nestle's lawyers like Neil obviously don't either. So there are lots of different issues, lots of different issues to talk about. The last one I wanna talk about very briefly is judicial lurking. As I said, there are judges on Twitter and I know this for an absolute fact, one of them emailed me once and said, I like this, this was interesting or said, the reason that, what he emailed me in response to is when I say, if the judges are here, how come we never hear from them? And he emailed me and said, the reason you never hear from us is, we don't want anybody to argue that we're being acting improperly. They have two letter initials most of the time as their Twitter names and you would have no idea who it was but they're there and I think it's at least worth asking, should we have this? Should they be doing this? I don't really have a problem with it myself. The last thing I just wanna say to everybody before I wrap up is that I heard the description of Mr. Wickwire after whom this lecture is named and I just wanna say Twitter is great, a lot of Twitter is great, it's also kind of addictive and social media in general is also kind of addictive. So get yourself off social media and take Mr. Wickwire's example, play some sports, get together with some friends, volunteer in the community, do something other than hanging around on social media, your mental health will thank you. Thank you very much and over to the next. Thank you. Thank you. Thank you. Thank you. Thank you. Can you squeeze? Do you know if it's off on the bottom? Yes. Is that it? No. Oh, you helped it. There we go. I'm moonlighting in my help desk. I'm gonna let you guys come this way. Yeah. Yeah, that's awesome. Thank you. Let's let you get back. Enjoy. I got fired from the help desk but I'm gonna see what I can do. It's already the first time. Now it was that we were upset with, we wanted it to be absolutely perfect. There you go. Okay. Hi everybody, welcome. Thank you so much for having us here and we're honored to be with our fellow panelists. Today we're gonna talk about misgendering in the courtroom in the context of civility and we're really gonna try to go beyond civility. But before I get into this presentation, misgendering in the courtroom is personal to me and I think that people who are doing work on trans issues should be guided by trans people. So I'll just say that I have a lot of experience doing advocacy for trans people and I'm a trans person myself and I was very concerned about misgendering in Canadian courtrooms and Amy has a lot of experience working on ethics and so we got together and I'm really lucky that she worked with me on this. Thank you so much. Wow. Okay, so let's get going. So what we're gonna do in this presentation is talk about how misgendering in the courtroom might engage a lawyer's professional responsibility obligations and we'll provide some background on what we mean by misgendering. Don't worry if this is new to you and why it's a problem. But I also wanted to take a second to note that some of you are way too familiar with misgendering and some of this presentation has some pretty shocking incidents of misgendering recently in the courtroom and it's a lot and it's also a lot to be trying to convince the legal profession to treat myself and my people respectfully to call me what I wanna be called and be respectful in the courtroom. So I acknowledge that for some of you this is a little bit heavy. So let's preview a little bit about where we're going and our answer to this question about how should misgendering be understood in relation to a lawyer's professional responsibility obligations is that it engages the issue of civility but it also goes beyond. We agree of course that misgendering is deeply disrespectful but in our view it's very important to look deeper and to understand that lawyer's obligations not to misgender carry of course to their obligations to respect human rights law, to respect the rule of law and to facilitate the proper administration of justice. And with that I will turn us over to our ethics experts. Okay so before we get talking about ethics we thought we would spend some time setting the stage. Again people are probably coming here with different levels of information, different levels of experience. We wanted to make sure everybody was on the same page. So in the next few slides I'll just address some terminology. What is misgendering? And I also talk about why it's a problem in the courts and what we're actually seeing in Canadian courtrooms. So what is misgendering? Simply put misgendering occurs when a person is referred to using a name, a pronoun or a title that does not match their gender identity. This can happen to anyone but it certainly happens to trans and non-binary individuals at a much, much higher rate. And as we'll soon discuss it can be extraordinarily disrespectful and very harmful. Misgendering can be unintentional and intentional and indeed those aren't hard categories there's a spectrum there in terms of what people experience and see. Sometimes people make unintended errors based on unfounded assumptions. The impact of that can be different depending on the context. Take for example an infant whether an infant's misgendered as opposed to an older person can be a different type of situation there. And sometimes people struggle to first use an unfamiliar pronoun. The same time there's also individuals that fail to make efforts to address trans people respectfully. And it is important that people move beyond initial infamiliarity and do make real efforts. And then we have again moving on a spectrum categories of people that outright refuse to address trans people with dignity and on the basis they oppose trans rights. So that's our terminology here. And the next few slides will give some examples of how misgendering can arise in courtrooms. So we do know that misgendering happens in Canadian courts regularly. We can see examples in reported case law of trans and non-binary individuals being misgendered by judges, lawyers, parties. We also hear from trans and non-binary lawyers themselves. They say my experience in the courtroom is that I've been misgendered. And then of course that's kind of just what we see in reports. We know this is happening far greater than what we actually see reported. People aren't gonna raise this every time it happens. Of course we have reported decisions. They don't describe everything that happens in a courtroom. And so it's a phenomenon that no doubt happens more than we see or hear about. And there's certainly lawyers and judges that are sure that in their own minds they've never misgendered anyone in court and may say well you're talking about this issue but is this kind of a real issue that happens? But there's actually a really good chance they've been in a courtroom with somebody who has been misgendered. It just wasn't pointed out and it just wasn't visible to them. We do note the latest Canadian census data reports that over 100,000 Canadians are transgendered or non-binary. Look to this province, one in 200 Nova Scotians are reported to be transgender or non-binary. And that's census data and of course that's probably an undercount as well. People aren't marginalized, people aren't always gonna self-identify to the government as to their identity. And we'll also mention at the end of presentation that trans people legal issues far exceed that of the general population. They're engaged in the courts much more and so again they're gonna be more likely to be in the courtroom. So all that to say that gender diverse people are in Canadian courtrooms even if they're not always visible to everyone. And they're experiencing misgendering. And it's also important to note that we do have some examples in Canada some pretty blatant examples of intentional misgendering occurring in Canadian courtrooms. And provide one example, it's not the only example but the OJ and Wattcott case this was a 2019 British Columbia human rights tribunal case. So not that long ago. And involved a human rights complaint against William Wattcott that stemmed from his distribution of pamphlets that very aggressively disparage trans people and more particularly disparage Ms. OJ who is trans and was running for public office at the time. She was trying to prevent her from being elected. And the reported decision if you wanna look at it details extensive improper conduct during the hearing. The respondent repeatedly and intentionally misgendered OJ even after being ordered not to. He wore a T-shirt throughout the hearing that had a large picture of her and various anti-trans statements. The tribunal recognized and characterized the T-shirt as having the clear intent of denying Ms. OJ's gender identity and publicly humiliating her. The reported decision is there's many paragraphs of all this different type of conduct and just highlighting some. They also note that one of the lawyers for the respondent also frequently misgendered OJ but did find that those failures were inadvertent. Yes, overall it was a really horrifying experience for her to have to endure. And you'll see a quote from the tribunal itself noting that most people would not be able to withstand the level of discrimination that Ms. OJ faced during the tribunal's hearings. To her immense credit, Ms. OJ comported herself with grace and dignity in the face of persistent efforts to insult, undermine and humiliate her. And I do think this quote takes me nicely to the next slide in the next discussion just outlining how harmful this behavior is and why it's particularly harmful in courtrooms. So misgendering has significant negative impacts on the health and wellbeing of trans people. There's ample research to demonstrate this and there's no disputing this. On the screen you'll see a quote from Chan to of Maconera, an American academic who notes that misgendering is a critical stressor that is experienced as humiliating, stigmatizing, psychologically distressing and dehumanizing. So it's a denial of dignity. To refuse to call someone by their name to not address them as who they are is an affront to who someone is. What type of harm is this cause in the courtroom? Well first, and hopefully the dots are connecting now, that the prospect of being misgendered can be a really strong disincentive for trans and non-binary people to participate in court proceedings. I just read a quote from the BC Human Rights Tribunal that said most people would not be able to withstand the level of discrimination that Miss OJ faced. So people don't feel that the courtroom's a safe place for them and they have good reasons to feel that. A second, where trans individuals do find themselves in court, either of their own choice or certainly, sometimes you're in court because you're pulled into it involuntarily. Their ability to participate fully can be compromised by misgendering. Please take a moment if it's not something that's happened to you to imagine us being repeatedly called by the wrong name, title pronouns. And while you're seeking justice through the courts, you're not gonna be able to be fully present and fully participating. A recent Canadian Bar Association submission said the misgendering unfairly takes a person's focus off the proceedings and onto questions as to whether or not they're safe, have equal standing before the court and whether to make a correction. And we've heard from trans and non-binary lawyers that they say when this occurs to them they have to decide in a moment, is this something they're gonna raise? Do they possibly be concerned about how might derail or detract from their submissions and their presentation from their client's case? This adds a whole new set of considerations and stressors to appearing in the courtroom. And that's on top of the dignity harm that they're experiencing by being misgendered. And of course, you know where you have this deliberate misgendering occurring as part of an intentional intimidation and harassment strategy, it just creates a very hostile situation for individuals. And finally, it is important to note that there are safety implications here when the private gendered history of individuals is disclosed in the public record. Trans people not only face a public airing of their legal issues, but also potentially their outing and that can result in real risk to the social, financial and personal security. And in his work, my colleague Sam's written about this imposing a sort of double punishment for individuals. Okay, and I'll turn it over to now move to talking about lawyers' obligations. Thank you so much, Amy. Okay, so I think we've established very clearly that misgendering in courts happens regularly, that it's harmful. And now let's talk about lawyers' professional obligations and how misgendering intersects with them. So this is my favorite civility superhero. Maybe you've seen them around lately. And so, you know, it's very tempting to think about civility to the rescue, right? We can think that civility is what's going to help us get through this and that we're gonna talk about how everybody has an obligation to be respectful to each other. But I think we have problems with the limitations of that discourse, right? And so when we look it up in the dictionary, we see conversations about manners or the ideas of being generous to each other. Please be generous to me and call me by the right name. It doesn't feel right, does it? Please have some basic manners because this goes to, I think, much more deeper issues about our identities. So at the heart of this matter, it's not about politeness. It's not about favors or generosity. And certainly misgendering isn't giving someone a gift. And I just want to acknowledge that Amy did that gift of the gift. Took about three hours. It's amazing. It is a gift. I tried sound effects, but that wasn't gonna take another four. Boom, I can do them for you. Okay, so what is at stake is respect for human rights. Canadian human rights laws have long and clearly affirmed trans people's right to be free from discrimination. So you may have heard recent talk about adding trans rights, gender identity and gender expression to various human rights instruments, but trans rights have been recognized as far back as 1982, 1998 and forward under the ground of sex. So there's a long history of trans people being protected from discrimination. And there's a long history, particularly in the last 10 years, of trans people's rights to have their proper pronouns used and their names used, wait for it, even if it's not legally changed. Okay, and that's under the duty to accommodate. So human rights laws have already consistently engaged and pronounced on this issue. And lawyers, as you can see on the screen here, have an explicit professional responsibility to refrain from discrimination. And this includes a special responsibility to respect the requirements of human rights law enforced in Canada and obviously not discriminating and respecting human rights law as we just established means not misgendering others. This is a clear professional obligation. So what's also at stake here is equal access to the courts. Okay, I saw a lot of people have talked about in trans communities and trans legal communities after OJ about an advocacy chill. Because why would you go into the court and fight discrimination if it's gonna be a place where you may be surrounded by people who are wearing t-shirts that say you don't have the right to exist, where it's going to be harassing context. So we know definitively that there's issues in terms of trans people's access to the courts and there's an advocacy chill. And equality before the law is foundational to the rule of law and to the proper administration of justice. So again, we're getting beyond civility here. And our commitment to equality before the law, as we all know, is recognized throughout our legal system. We can see this in the Supreme Court of Canada case law, our constitution, that's that old and new document, familiar? Okay, our and our ethics guidance for judges, it's integral to a courts and our concept of justice. Now we're gonna talk about the very exciting issue of zealous advocacy zealously. Okay, okay, I'll get my best zealous voice on. So there's been discussions about misgendering lawyers obligations and some people have raised this issue of zealous advocacy. They note that zealous advocacy is a fundamental building block or a brick in lawyers ethics. And that's absolutely true. And they ask, what if a client wants me to misgender someone because that aligns with their beliefs or that aligns with their case strategy? And the simple answer, certainly our answer that we think is simple is to note that, just because a client believes something, however sincerely, it doesn't mean that they can implement those beliefs through their lawyers in court speech. There's absolutely no right for a lawyer to say whatever they want in court, even if it reflects their client's beliefs or even if they would think it helps their client's case. And lawyer speech, even when it's in pursuit of zealous advocacy can be and is restrained. We don't, for example, allow lawyers to use sexist and racist slurs just because a client might want them to. The Supreme Court itself has noted that speech is not set for saying just because it's uttered by a lawyer. And of course, there's so, so many ways that speech is already controlled in courtrooms. The entire process of adjudication in a courtroom is predicated on when and where courtrooms after speak, what they say. The rules dictate the order in which lawyers speak, where they stand, whether or not they're sitting or standing, the form and content of their questions. Can it be a compound question or not? Even to that level of detail, even their tone. We already have rules about how lawyers need to address people in a courtroom, including using honorifics, such as your honor when addressing judges. Doesn't matter if the client doesn't believe the judge is honorable, you still say your honor. And so in short, an appeal to zealous advocacy does not offer a convincing justification for misgendering or negate the lawyer's professional responsibility not to misgender. Lawyers actually must be committed to a client's cause. They must be resolute. That doesn't include being able to harm trans and non-binary persons by refusing to address them respectfully. And before moving on, we thought it might be helpful to just make one more contextual point. And that is that courtroom speech has always responded to changes in our legal system and to the broader social context. And one really interesting example is if you look back in history, we know that about 50 years ago when we started seeing women judges be introduced to the courts, there was a lot of discussion about how these judges should be referred to. And on that screen here you'll see the picture of Mabel Van Cap, the first woman appointed to Ontario Superior Court of Justice in 1971. And our colleague Constance Backhouse, who I'm permitting the room know what a great legal scholar you read perhaps some of her work in your studies for the students, she looked at the history and saw that when Justice Van Cap first was appointed, they said, well, this call you Mr. Justice like everyone else. That was something that she objected to. But then there was great consternation about what they should call her, how she should be referred to. It was perceived and experienced as very challenging. If we can't call her Mr. Justice, what are we gonna say? Our usual terms doesn't work. And so then they had a look, well, she married, unmarried, because she was unmarried, they said, well, how about Ms. Justice? And other people said, Ms. Justice, that sounds like injustice. We can't use that. This is historical things. And eventually Van Cap settled on Madam Justice without an E. There was a debate about what Madam and particular references that could bring up. So that was also the E or not, E was the subject of debate. And by getting this example, I found it so interesting. It just shows how courtroom speech has always evolved as our legal system and society have evolved. And what might seem like easy questions to us now, common sense questions, we're actually experiencing this challenging at the time when they're first to rose. It was a new issue people had to deal with. But as who was in the courtroom changed, as women in the courtroom became more visible, the language we used had a change too. And we were able to do that. Okay, so we're wrapping up pretty soon here. Where do we go from here? We discussed misgendering in the courts. We've connected that to lawyers, professional responsibility obligations. Will this be quickly to moving forward and how we might reduce the amount of misgendering in Canadian courts? So, just three things on the slide here. We think continuing education, led by trans experts, is key to building the trans competency of lawyers and judges and preventing misgendering. And you my colleague, Sam, has done such great work across the country in that area. I know it's something that the Barist Society here has done excellent work in. We commend you for that. Also the CBA, the judges in Nova Scotia, you've done great work in that area. And it's a matter to continue doing that work. Court should be proactive and adopt practices to prevent misgendering. And so some courts have adopted standard procedures. So when you have a counsel slip or when people introduce themselves at the beginning of the courts, they simply indicate their pronouns, their titles to be used. A number of Canadian courts have instituted practices. I know some Nova Scotia courts have as well. And we think that's a great step forward. And finally, if there are lawyers or judges who are simply and unintentionally not living up to their professional obligations to refrain from misgendering, the possibility of discipline should be there. Again, this isn't about favors, it isn't about manners. It's fundamentally about ethics and legal obligations, about equality and maintain the integrity of our justice system. I am optimistic that once people become aware, become educated, that we won't see this type of intentional behavior. But again, this ultimately goes back to it being a professional obligation or needs to be treated as such and treated seriously when you have, like it says on the screen, repel sufficient actors. Thank you so much. So just as a final note, we focused on a very specific narrow issue which is misgendering in the Canadian courtroom and in legal proceedings, we did not go further and talk about misgendering really outside of the court, actually in the broader legal case context. We didn't talk about what happens when you leave the courtroom and you need to go to the washroom if you're a lawyer or a party and there's nowhere for you to go, which, you know, so it's part of a larger package of issues. We didn't talk about court forms or any of those other misgendering related issues. So there's a lot of work to be done specifically in this area, but also more widely trans people have much higher rates of legal issues than the general population. We have the data here from a 2018 study and there's also actually a new study that just came out from the Department of Justice. And so really preventing misgendering is just a small step towards beginning to improve access to justice for trans people. And I thank you all for the work that you're doing to help. That was so great. Thank you. Thank you. That was great. You need to check down on me. Oh, I see. I think I need to check out. Yeah, I'm coming. Honour's coming. I really need the practice check. Right? Let's do it first. I even know how to use case lines. The order. Of course. You know the kind of grief we get? Okay, case line. Okay. I'm just gonna check again. Yeah. Yeah. I know. We're all the theorists. Yeah, the arrows. Take care. Okay, bye. And there's no microphone. We're not using microphone. Oh, okay. Oh yeah, that's fine. It's the only problem is you can't have to make a joke when you're not. No, it's not. This is the problem. Is this the one? All right, hello everyone. I'm really happy to be here and to be here in person and to see you all. So this research really began with a few family law decisions that were making the rounds in family law circles. This quote on the slide is from Justice Kurtz and it was 2020. And it was after a motion for exclusive possession of a matrimonial home. And the judge said, and I quote, a rhetorical fierceness that one would expect of a mixed martial arts cage match. He offered what he called a few words of caution to the profession. He included a list of conduct that counsel should refrain from including not providing evidence of the other spouse's moral failings or infidelity and not exaggerating. He counseled parties and their lawyers to take the moral high ground instead of responding to incivility in kind. The following year was this case. This was Justice Himmel and it was in the context of a motion for spousal support. And she observed and I quote, a culture of unreasonableness that plagues the court. She provided a list of examples of unreasonable conduct including ignoring spacing and font size to comply with page limitations, using court resources to delay and seeking unreasonable costs and unrealistic, non-child-centric relief. She ended the decision with this quote, ending with enough is enough. So I started to wonder how often incivility was actually occurring in family law where things actually as bad as they seemed. And it seems like an obvious it happens a lot answer given what we assume about the way people behave when their relationship is ending. But I wanted to find out. So I did a search of the case law on Canley and Westlaw for incivility cases from BC and Ontario between February, 2019 and 2022. So this captured the post-Groya era of civility and the COVID-19 pandemic. So I searched for the terms civility, incivility and uncivil which resulted in 262 cases. I narrowed those to family law and got 55. The numbers are basically unchanged from the prior three years, meaning there's no real change in the post-Groya era. But once I removed the noncivility cases and the nonfamily law cases, I only had 17. And this is both disciplinary and family law. So less than 1% of the cases with those variations of the word civility involved family lawyers. But I also wanted to make sure that I found them all. So given the vagueness about what civility is, so I did a few more searches which gave me nine more cases. So in a three year period, I had found 26 incivility cases dealing with family lawyers. Now some of these only deal with civility-like issues. So commentary by judges about uncivil conduct like I showed you at the beginning. And two of them involved self-represented litigants and they were complaining that the opposing council was being uncivil towards them. And both times the judge, the court disagreed. So this is a snapshot but it's a really generous one. If I just looked at cases where there was a finding of uncivility by a family lawyer, the number would be even lower. But the cases that I did find were troubling. One thing stood out right away. There was four lawyers who represented themselves in their own family law matter and that was either the case they were uncivil in or it was what led to their incivility when they were representing a client. For example, one lawyer said that his own family law matter was his own quote personal hell and it was the reason for his uncivil conduct when he was representing clients. There was a lot of threats. 10 of the law society decisions involving seven lawyers included threats. Threats were made as an advocacy tactic. One lawyer threatened to report a lawyer to the law society if an offer was not accepted. Lawyers who were self-representing made threats to their former spouses. The impact of incivility was also an obvious issue. Discussions about civility tend to circle concerns about the administration of justice and sometimes bullying. But in family law, the harm inflicted on vulnerable parties is also an important consideration. These cases showed that lawyers in civility contribute to the victim's stress and increase their vulnerability. This slide shows who the incivility was directed at and in terms of the types of conduct there was improper speech, oral and written, vulgar and offensive. There was lies, there was exaggerations, rhetorical excess and written documents, emails between counsel bordering on unprofessional and so on. The results showed that lawyer incivility is rarely isolated. Incivility is typically part of a pattern of unprofessional behavior, a personal problem that informs a loss of objectivity or a high conflict narrative. And this is where things start to get muddier. A lot of the cases that I found were high conflict family law files, 17 out of 26 of them were. So there's no universal definition of high conflict and it's really hard to tell the difference between high conflict and family violence. Judges rarely do that work for us. Indeed, research shows that they often use the terms interchangeably. There's also disagreement about whether family violence can be folded into high conflict cases. I tend to prefer not. I tend to prefer a line between the two. The key distinction being the power imbalance. But at the same time there's significant overlap and it's somewhat of a spectrum between these two columns. Now this is important because high conflict cases seem to suggest that it's expected that there will be incivility. Whereas in family violence cases, incivility could amount to abuse. So it's an important distinction. It's about finding a line between something that's unprofessional and something that's abusive. In one of the cases the lawyers for both parties were admonished for their incivility by several courts. For instance, the BC Court of Appeal observed and I quote, and this was an object lesson in professionalism. Lawyers should never get so absorbed in their clients' cause that they lose objectivity and the detachment necessary for good judgment. In a lower court decision with the same parties, the judge said that one lawyer became and I quote, an active participant in the ongoing and counterproductive hostilities between the parties through her preparation of the documents. He said the lawyers should not be drawn into the party's conflict and become part of the problem rather than the solution. So how did they do this? Among other things, pardon me, they engaged in an uncivil speech. The BC Court of Appeal found they were sniping at each other and they engaged in excessive letter writing. For example, seven letters were exchanged in trying to set up a hearing. In the context of a disqualification hearing the wife's lawyer prepared a chronology to help the court but the judge found it unhelpful because it was an quote, decidedly adversarial in tone making it largely unhelpful in content. In contrast, the father's materials were included inadmissible material including arguments and excessive language aimed at the wife and her lawyer personally and insinuations that the court was biased against him. The lawyer's incivility was framed as being explainable due to the high conflict nature of the litigation. Both lawyers made complaints to the respective law society of the other but there was no disciplinary decisions for either. Interestingly, the wife's lawyer believed that she was protecting her client. When the husband tried to have the wife's lawyer removed from the record her lawyer claimed that she had and a quote successfully insulated her from his demands, claims and harassing conduct. And the wife had said that she was happy with her lawyer. I also noticed that some of the cases either explained away the conduct because of the family law's emotionality or they framed it as a professionalism issue. So this case is a law society decision. One of the cases where the lawyer represented himself. The professional misconduct in this case seemed to be the culmination of nine years of family law litigation. The lawyer was found and I quote to take extreme positions often divorced from reality and engaged in angry bullying and intimidating behavior to make his point. He engaged in a steady stream of harassing conduct designed to malign his former spouse and the eyes of various institutional authorities including the courts, the CAS and the church. He made false allegations about her mental health. He sent her threatening messages and eventually had a restraining order issued against him. So the tribunal seemed to suggest that the lawyer's incivility was somewhat predictable not excusable but understandable given the emotionality of family law. They found that he had and I quote no sense of proportion. All tools and weapons were brought to bear by a lawyer in what would normally have been an acrimonious and frustrating exchange between two parents. That family law proceedings are difficult and emotional but family law does not need to be acrimonious and frustrating and threatening to complain to a former spouse's regulator in an attempt to sabotage her livelihood making unfounded complaints to CAS and sending threatening messages or all examples of abuse. The tribunal said his conduct was calculated to exact an advantage and in seemingly incessant litigation. It was designed to tip the scales in favor of the ongoing conflict with his former spouse. He sought to gain an advantage and a benefit in the ongoing contest for authority over parenting. But framing conduct as something that was designed to tip the scales or gain an advantage legitimizes the violence, recasting the abuse as misconduct or a professionalism issue. This brings me to my last example. In this case, the trial judge observed that the lawyer's conduct throughout the litigation had been unacceptable. And I quote, he added much unnecessary additional stressed litigation. Despite that, he continued to behave the same way including by yelling at opposing counsel and making baseless allegations of misconduct against her. He also commenced a civil claim with unfounded allegations of child abuse against his former spouse's new partner as a way to pressure her to negotiate on child support arrears. Now, in this case, the Law Society of BC does clearly state that he used the court process as a means of harassing and intimidating his former spouse, which does seem to acknowledge systems abuse. That said, they also focused on the honor of the legal profession and the emotionality of family law, like the quote on this slide. There seems to be an implicit assumption that the lawyer's emotions got the better of him, excusing the way he treated opposing counsel and his former spouse. The emphasis on his lack of professionalism and the coinciding impact on the justice system softens the misconduct, recasting it as simply a professionalism or a manor's issue. Now, I just wanna say quickly that the family justice system also masks family violence. And like I explained a few minutes ago in the context of high conflict, masking family violence is not a new and unusual thing. And these are just a few of the ways. But my focus here is on legal ethics. And the question is, how might we reframe civility to incorporate concerns about family violence? How might we unmask violence? So an obvious question is whether there's a hire or a different duty of civility required in family violence cases or even family law cases. A typical concern about lawyers in civility is the problematic impact on procedural fairness and the administration of justice. The concern with regulating civility is the risk of encroaching on the duty of resolute advocacy. If those concerns were to be reframed for family violence, the concern about lawyers in civility would include the lawyer as a tool of abuse and the problem of revictimization. The concern with regulating civility would include concerns about hindering lawyers who are defending victims when a focus on civility disciplines a lawyer and imposes a chilling effect on protective assertiveness. But I'm really not convinced and maybe the question should be whether we need to reframe in civility or just move away from it. Does the concept actually do the work that we need it to do? There's no definition of civility, but there is a gentlemanliness that gets imported into ideas of professionalism and civility, which is unhelpful. Drawing from ideas of gentlemanliness brings permissions to perpetuate abuse. Recall that husbands were allowed to beat their wives as master of the household. Under British law upon marriage, a wife was considered the husband's personal property to do with whatever he wished. Justice Wilson and Lavely reminded us of the old English law that a man is entitled to beat his wife as long as he used a stick, no larger around than his thumb. So violence was condoned. The law provided little assistance for women and penalized them financially if they sought to escape a violent marriage. Faults and conduct were early in significant elements of divorce, determining whether divorce would be granted, whether espousal support would be owed, and who would have custody of the children. As Constance Backhouse framed it, it was thought that wives did not need the law to protect them because they had husbands to do that, even though it was husbands that they needed protecting from. So I do look to the law and family law needs to do some of the work, but the model code too. The model code is completely silent with respect to family violence. So there's a lot of work that needs to be done and we can create some hard edges about what is not permitted and what is expected. I've included a list of some of those sections here. In addition, we could include a definition of family violence. We could include new rules about clients who are victims of abuse. We could include a rule about systems abuse that says a lawyer can't misuse the justice system to perpetuate abuse. I acknowledge, however, that the law has limited utility in effecting behavioral change. If society and legal actors continue to turn away from meaningful engagement with victims' experiences, the cycle of abuse will continue. A consistent recommendation for responding to family violence by feminist scholars and anti-violence groups is education. Judges are not required to have any education or training in family violence. Given the recent amendments to the Divorce Act, family lawyers need training for competent practice so education is key. So to wrap up, incivility is not as pervasive as we might think in family law, but when it does occur, it's a serious problem, not just a gentlemanly one, not just a manor's issue. In my view, it's time for the law governing lawyers to do some work in preventing violence against women.