Selwyn Pieters, B.A., LL.B.
On Thursday January 29, 2003, I received an email with seven nude pictures attached of an articling student at Goodmans LLP. The email indicated that the sender was the person to whom the pictures pertained and it was directed to Mike Harris, the former Premier and now Senior Business Partner at Goodmans LLP. Those of us who received copies were bcc'd or blind carbon copied on the email that was sent to the former Premier of Ontario. The criteria for selection of those of the class of 2003 from U of T Law Schhol and Osgoode Hall Law School that received the emails eludes me. However, it seems like I am on somebody's list.
When I received the email I asked the following questions of the firm: "Is the the new marketing strategy of Goodmans? Is this the way Goodman markets its female associates and articling students? What message is Goodmans sending to other females partners, associates and articling students who do not wish to be looked upon as sexual objects?"
I asked those questions because I thought that it seem to be going to the next level nude pictures of a member of the profession is infused into the workplace culture, the legal profession and is circulated throughout the profession.
I spoke to a partner from Goodmans LLP who contacted me in response to my email and the crux of what he told me is that the email did not originate from Goodmans LLP.
Any articling student, associate or even partner is free to pose nude or do whatever he or she wishes on their own time. The nude pictures in Playboy could be obtained for the simple price of purchasing the magazine or online through kaaza. It does get problematic if the activities is one that can impact upon the workplace in different ways. When one poses nude or do anything that puts them in the public eye, it is difficult to control the audience to whom that material would be disseminated. "I wish I could decide who gets to see the pictures and who doesn't" doesn't really cut it.
In this case, the articling student is sticking to her story that she was not the sender of the email with the nude pictures attached. This situation is difficult, because the nude pictures are the articling student, they were done for commercial use (Playboy and thus profit), they were send out legally or illegally through her email account.
In this particular matter, I was convinced early that the release of these nude photos to amongst others myself was no accident. One had to know who were in the class of 2003 at University of Toronto and Osgoode to effectively contact us in the manner in which that person did.
But does that mean that the person who chose to express themselves in this form should be subjected to harassment or not be gainfully employed as an articling studetn, associate or partner? The short answer is "no". Hiring a playboy bunny is perfectly legal. Harassing her or others through the dissemmination of the nude pictures to colleagues, clients and other discrimination based on sex. Rule 5 of the Rules of Professional Conduct, indicates that harassment is one incident or a series of incidents engaged in by someone who knows or ought reasonably to know, that the comment or conduct is unwelcome. For example, sexual harassment, which includes displaying sexually offensive materials, and sexually suggestive or obscene comments or gestures, is discrimination on the basis of sex.
The articling student who appeared in the 2002 "Girls of Canada" issue of Playboy alleged that she is being harassed by a fellow law student at the University of Toronto. In fact, an article in the January 2004 edition of the Ultravires speaks to the conflict that involves the articling student on the discussion group www.lawbuzz.ca. If that is the case the University of Torotno and the Law Society of Upper Canada has policies and processes to deal with those allegations if a complaint is made.
This case is one which demonstrates that Professional Responsibility component of the Bar Admission Course is not the only place where Rule 5 should be taught. "Sexual harassment can occur in the form of behaviour by men towards women, between men, between women, or by women towards men."
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