Juno News - February 13, 2021


Canadian Lawyer magazine pulls article criticizing mandatory pronouns in BC courts

Mentioned
Andrew Lawton Show D. Jared Brown Tim Alberta Paul
A closer look at Facebook's new COVID-19 misinformation rules Canada says Palestine isn’t a country

Episode Stats


Length

12 minutes

Words per minute

174.66

Word count

2,268

Sentence count

115

Harmful content

Misogyny

1

sentences flagged


Summary

Summaries generated with gmurro/bart-large-finetuned-filtered-spotify-podcast-summ .

In the wake of a controversial article published in Canadian Lawyer Magazine, an open letter was sent to the editor-in-chief asking for the article to be taken down, and the magazine complied. Now, the article has been removed from the website, and an apology has been issued by the magazine, Key Media, and its related entities. In this episode, we talk about why the article was removed, and why we should be concerned about it.

Transcript

Transcript generated with Whisper (turbo).
Misogyny classifications generated with MilaNLProc/bert-base-uncased-ear-misogyny .
Hosts, guests, and mentioned names generated with spaCy (en_core_web_sm), reconciled against Wikidata.
00:00:00.000 I want to read a headline for you.
00:00:08.120 British Columbia's practice directions on preferred gender pronouns in court are problematic.
00:00:13.920 Now, this was published in Canadian Lawyer, a magazine that deals with issues of relevance to the Canadian legal community, as the publication's title would suggest.
00:00:23.400 And it sounds like if a court is putting in place a policy that affects lawyers, that perhaps different perspectives on those would be a good idea.
00:00:31.560 I'm glad the magazine ran the article.
00:00:33.820 Well, a few lawyers were not.
00:00:35.920 An open letter was published calling out this as being problematic itself, despite the fact that it was calling out behavior that was problematic in another way.
00:00:45.820 And what did the magazine do?
00:00:47.440 Commit themselves to supporting diverse viewpoints?
00:00:50.140 No, of course not.
00:00:51.280 It's 2021.
00:00:51.920 They yanked the article and put up in its place an apology, saying that it did not reflect the views of Canadian Lawyer magazine, Key Media, and its related entities.
00:01:01.440 That's signed by Tim Wilber, the editor-in-chief for Law of the Canadian Lawyer magazine.
00:01:07.640 D. Jared Brown is a lawyer.
00:01:09.560 You may know him on Twitter as the litigation guy.
00:01:12.200 And he was very clear in pointing out this open letter calling for the article's withdrawal, all the names of lawyers that apparently don't support free speech.
00:01:21.280 Jared, good to talk to you.
00:01:22.420 Thanks for coming on today.
00:01:23.820 Thanks for having me, Andrew.
00:01:25.140 So I want to—there's two aspects to this.
00:01:27.800 There's the initial discussion about pronouns, which we'll get to in a moment.
00:01:31.700 But I'd say the bigger issue now is that a magazine that you'd think would have differing perspectives, would have even dueling perspectives on key issues that are relevant to lawyers, is now memory-holing one side of the argument.
00:01:44.920 Yeah, I mean, Canadian Lawyer magazine is traditionally a pretty moderate, up-the-middle publication.
00:01:51.660 What we see here, though, is that not only are they going to fall victim to the mob in terms of the pressure to remove a particular article,
00:02:00.100 but it would seem to me that they're not prepared to publish anything outside of what I would venture as a very narrow, defined, and I would even say radical ideology.
00:02:08.980 One of the things that I would point out is that the magazine does not have the final say on what Canadian lawyers think.
00:02:16.100 But I'd say that industry publications have always been, I thought anyway, or should have always been,
00:02:21.780 the last bastion of being able to hash out what are intra-industry battles and really discussions and debates that lawyers could talk about
00:02:30.880 because they're all operating from the same basis and on the same wavelength, at least in some areas, you'd hope.
00:02:37.740 And at the same time, I find that quite distressing because when you're talking about these things,
00:02:42.920 what a bunch of the lawyers who signed that letter were saying is that, you know what,
00:02:46.980 we're not allowed, even us as professionals, to have these discussions.
00:02:50.820 Yeah, I mean, it's evidence of sort of the ideological capture that's happened in the legal profession.
00:02:59.820 The profession itself is increasingly becoming a monoculture, one that is subscribing to sort of one side of the politics,
00:03:12.400 one side or one particular ideology.
00:03:14.960 Right now, it happens to be a very leftist viewpoint on things.
00:03:18.900 And because of that ideological capture, because the legal profession is increasingly becoming that monoculture,
00:03:25.400 it's shunning viewpoints that are independent or outside that bubble.
00:03:31.000 And so Canadian Lawyer Magazine and what's just happened is simply evidence of that movement,
00:03:37.800 of that, I guess you'd say, consolidation of viewpoints in the legal profession itself.
00:03:42.320 Yeah, and there's still an archived version of the now censored article that you can find online.
00:03:50.100 And, you know, I've read through it after it ended up being yanked, so I'm glad that version was still available.
00:03:55.520 And a lot of the arguments, I mean, maybe I'm just immune to these things that are supposedly cancelable offenses,
00:04:00.620 but a lot of the arguments are, you know, perhaps disagreeable to some.
00:04:04.520 But we're not talking about unprofessional.
00:04:06.620 We're not talking about offensive.
00:04:08.120 We're talking about arguments that are grounded in a legal basis, in a legal argument.
00:04:14.200 Arguments against compelled speech, arguments against the infringement on privacy rights, supporting judicial impartiality.
00:04:21.520 I mean, these are all things that you shouldn't find controversial.
00:04:25.200 No, no, if you read the article, and like you said, it's still available, you know, out on the Internet and out in the ether,
00:04:32.860 it's a pretty milquetoast approach to something that is, you know, an interesting issue politically.
00:04:40.100 I don't think that there's anything in that article that goes beyond the Paul or, for that matter, goes beyond the law.
00:04:46.760 It was a one woman of color's perspective on a dictate that came down for how the courts in B.C. are to operate. 1.00
00:04:56.360 And I think it was, you know, reasonably well considered.
00:05:00.020 I'm not sure I agree with everything that was presented.
00:05:02.980 I think she could have gone further in enunciating the compelled speech argument.
00:05:07.220 But given the time and space constraints that you usually see in columns like that, I think it was fine.
00:05:13.480 There was nothing offensive about it, unless, of course, you subscribe to a single sort of radical leftist ideology.
00:05:21.560 At that point, you can't even have that debate.
00:05:24.180 I mean, I'm sure many people who signed that joint letter, and there were law firms as well that were in that letter.
00:05:30.860 I'm not sure they're even aware that there are more than one side to some of these arguments and some of these issues.
00:05:39.320 I think what happened, more than anything, is that this particular article punctured their bubble.
00:05:47.200 It punctured their safe space.
00:05:49.380 And their only reaction that they have in that instance is, rather than engage with the arguments and deliver the counterpoint, was to memorable it.
00:05:59.020 Yeah, and that was, I found it interesting when I was just scrolling through to see if I knew any of the names.
00:06:05.880 The lawyer who fought against True North and I, True North and me in the Leaders Debates Commission case against the government was on there.
00:06:12.840 So, I mean, that's the only personal connection I have to anyone on this list, is someone that was on the wrong side of another issue.
00:06:18.000 But you are very right when you point out that there's a risk here.
00:06:22.700 And I saw a lot of articling students that were naming themselves as such that I'm looking at them like, you're coming into the legal profession from a place of we should not be standing up for diverse perspectives.
00:06:34.860 And that makes me very pessimistic about the future of the profession.
00:06:38.840 Yeah, I mean, like I said, the legal profession is not immune to what we see going on in wider society with the outlawing of certain viewpoints, particularly those that would be more, I guess, centrist or right of center even.
00:06:53.100 But what was most shocking to me is that it wasn't simply a group of lawyers that signed that article, but they were lawyers from major law firms, Bay Street law firms.
00:07:02.340 And I guess, you know, I put that list up, that joint letter up.
00:07:07.820 I did so because I think it's important that the public realize that the profession has been captured at its highest levels and that, you know, when their back is up against the wall, I'm not sure you can look to some of these law firms and some of these lawyers to sort of be the bulwark against tyranny and oppression that the legal profession used to be.
00:07:30.960 Yeah, and I don't want to focus entirely on Canadian lawyer magazine because I feel that the point of the op-ed in question, even if, as you know, you might not agree entirely with what's being said, was an important issue.
00:07:44.280 And this was a practice directive issued by the B.C. Supreme and provincial courts to lawyers that require parties and lawyers to state their preferred gender pronouns at the beginning of all court proceedings.
00:07:56.320 And that's where, in the context that the author of the piece brings it up, there's a potential violation of privacy rights, there's a judicial impartiality issue, and there's a compelled speech.
00:08:07.000 You now have to say something as part of this.
00:08:09.720 We don't have this in Ontario, and you actually were instrumental in a group to take over the Law Society of Ontario Board of Governors, basically, the benchers, as they're known, to try to put in a very robust fight against compelled speech.
00:08:24.100 But when you see something like this coming down the pipe, I mean, what's your response?
00:08:28.900 Yeah, I mean, it's a sensitive issue, and it's a deeper issue than what it appears to be on its face.
00:08:34.740 It's positioned as one of, obviously, respect for the individual litigants and participants in the judicial process.
00:08:40.420 And I think we'd all acknowledge that there needs to be some modicum of respect, and also I think that the courts absolutely have the authority to sort of control their own process and those that appear before them.
00:08:51.480 The problem was is that this was making the issue of pronouns, pronouncing an edict on what I would say is a highly political and I would even say controversial issue.
00:09:01.160 And that is this idea that, you know, implementing, I guess you could call it the social constructionist theory on gender.
00:09:07.640 I mean, not everybody subscribes to that.
00:09:10.280 And when the court decides to take a position on those issues, highly political issues, then it's right that we have this discussion, that we have this debate, and that it should and ought to play out in the pages of Canadian Lawyer magazine.
00:09:23.780 As it stands right now, the court can and will make directives as to how you address certain participants in the proceedings.
00:09:31.580 The difference was, though, that this one, this directive requires that everyone walk into court and identify their gender identity at the outset of the proceedings.
00:09:42.660 And, you know, as the article points out, you know, that's problematic on a variety of levels.
00:09:48.620 And perhaps the court didn't consider that when it pronounced that edict.
00:09:53.940 But, yeah, I mean, setting aside simply the compelled speech argument, we should be able to have this discussion about whether or not the courts should be making these orders.
00:10:04.920 And the article points out some interesting examples as to when that could jeopardize the impartiality of the court.
00:10:12.260 I mean, there's the instance that they mentioned the case over in the UK where a victim of rape was directed to refer to her attacker by female pronouns when, in fact, the attacker was a biological male.
00:10:28.500 You can see where that would be an issue.
00:10:30.580 It's almost as if the court is prejudging the issue.
00:10:33.060 Yeah, and that was when I first heard, before I even saw the magazine essay, when I first heard of this directive, the concern that I had is what if the issue of pronouns or gender identity were central to the case?
00:10:46.300 And I don't want to dwell on hypotheticals, but I could see a number of cases where, including one, by the way, in British Columbia, where forcing someone in the court proceeding to be referenced a certain way would actually get to what was in part the pith of the case itself.
00:11:03.060 Yeah, absolutely.
00:11:05.880 And I mean, that's the most obvious example of where this would be an issue.
00:11:09.740 And I mean, the courts already traditionally had the tool to deal with that.
00:11:13.880 They were allowed to step in in the middle of or at the beginning of a proceeding and give a directive one way or the other.
00:11:18.920 And we were trusting the bench to deal with the issues that come before them as they come.
00:11:24.580 But now with a directive from on high, you're requiring all courts to start the proceeding in this way.
00:11:30.640 And I mean, it's obvious why that's going to be an issue.
00:11:33.880 But more than that, like I said, it shows a lack of confidence in the bench to be able to deal with these issues delicately and appropriately and respectfully as they arise.
00:11:42.980 Yeah. And beyond that, going back to the yanking of this column, it shows an inability or an unwillingness for people to entertain that, hey, when something like this is coming in the context of a social or political debate, you should be able to hash that out and not have one side just summarily censored by the other.
00:12:03.720 Well, you would hope so. You would think that the law would be the last bastion of the freedom of speech, freedom of conscience.
00:12:11.480 You'd think that we would continue to be that bulwark against the state encroachment on our rights.
00:12:18.600 But unfortunately, like I said, the legal profession is not immune to what we see happening in wider society.
00:12:23.820 And there is an increasingly illiberal, I would almost say authoritarian perspective.
00:12:29.980 And it is happening within the law.
00:12:32.200 And it's happening, as we just saw in that joint letter, across all levels of the profession and right up into the highest towers in law firms.
00:12:41.720 D. Jared Brown is a lawyer with Brown Litigation and also a bencher with the Law Society of Ontario.
00:12:48.000 Jared, thanks so much for coming on today. Great chatting with you.
00:12:50.520 Thanks for having me, Andrew.
00:12:51.300 Thanks for listening to The Andrew Lawton Show.
00:12:53.880 Support the program by donating to True North at www.tnc.news.