The Scarlet Letter | Season 2 | Episode 8 | Janet Mosher

In this episode, we're graced with Professor Janet Mosher from Osgoode Hall Law School where she speaks about her incredible work in gender violence, poverty law, and access to justice for marginalised communities. She takes us on a journey from her grade eight feminist awakening to her passion for helping vulnerable populations. Revealing the tangled web of multiple legal systems, Professor Mosher shares her current research on access to justice for survivors of domestic violence.

First published 2017.

The Scarlet Letter podcast is produced by the Feminist Legal Studies Group. This podcast features interviews with feminists connected to the law, discussing their life, work, and feminist perspectives. It's perfect for anyone passionate about feminist legal scholarship.

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Transcript | The Scarlet Letter | Season 2 | Episode 8 | Janet Mosher

Becky Batagol: [00:00:00] Good morning, I'm Becky Batagol and welcome to this episode of The Scarlet Letter, the monthly podcast of the Feminist Legal Studies Group at Monash University's Faculty of Law. Today we're recording from Toronto, Canada, and I think this is probably the first time recording from a vault. We're recording at the vault at the Green Beanery Café in Toronto.

I'm joined today by Professor Janet Mosher of Osgoode Hall Law School at York University. Welcome Janet. Thank you. Professor Mosher has been a Professor of Law at Osgoode Hall since 2001. She'll shortly return to being Editor in Chief of Osgoode's Journal of Law and Social Policy with colleague Amar Bhatia, and has served as the English Language Editor of the Canadian Journal of Women and Law.

Professor Mosher has also served as Academic Director of Osgoode's Clinical Program in Poverty Law at Parkdale Community Legal [00:01:00] Services, and also the Feminist Advocacy Clinical Program at the Barbra Schlifer Commemorative Clinic. A clinic providing legal and other services to women identified as survivors of violence.

Professor Mosher researches in the areas of gender violence and legal interventions, access to justice for marginalized populations, welfare policy, poverty law, homelessness, legal aid and clinical legal education. In addition to her clinical teaching, she also teaches legal process, law and poverty, and legal ethics and evidence.

Janet, perhaps you could start by telling us a little bit about whether or not there was a point in your life you began to identify as a feminist.

Janet Mosher: I think the first time I identified as a feminist was in grade eight. So that goes back a long ways. At the time all female students were required to take home economics where you learn to sew and to cook.

And the guys in the class did shop, so they learned to use power tools. [00:02:00] And I had a home economics teacher who challenged some of those gender norms and introduced our class to feminism. And it was also about the same time as there was a campaign in Canada called Why Not? Very much informed by liberal feminism, but directed at women or perhaps girls to say, why not you could be anything.

And so I had a big button that I har pin that I often wore that said, why not? And so I think that the identification with feminism was back. So did you do the, did you use the power tools or did you do the sewing? Oh, we, so we didn't have a choice. Not so long afterwards students were given a choice.

Then, no, you didn't have a choice. Girls had to do home economics. Yeah. And your work today involves thinking and working with marginalized, vulnerable and disadvantaged people. Did [00:03:00] you start out working with these communities?

When I was a law student I spent a great deal of time working in our student legal aid clinic.

In Ontario, each of the law schools has a a legal aid clinic, which is designed to provide particular legal services to low income individuals on the street. Communities in designated areas of the law. And so from my very first year, I volunteered at the student legal aid clinic and then I became what they called a group leader.

And I stayed really involved over my three years of law school which I think Helped a great deal in understanding what was going on in my other law classes, but it really exposed me as well to the way in which law was playing out in the lives of low income people. And that's what triggered my and then when I did my Master's at the University of Toronto was a time when we just had a [00:04:00] major review of our welfare programs here in Ontario and so I was interested in understanding what those welfare reforms meant for women and especially low income women.

I would say my interest in the issues, the multiplicity of issues facing marginalized populations and the way in which law regulates their lives really started as a law student. And do you think that lawyers have a responsibility to change the world they live in? Absolutely. Yes. And I actually think that is part of our civic duty

statutory mandate in Ontario anyway. Under the legislation that governs lawyers here, lawyers have a duty to advance the public interest and also to facilitate access to justice for Ontarians.

Becky Batagol: That's in, in the statute governing the regulation of

Janet Mosher: Yes. So then there's the question, of course what does it mean to advance the public interest?

And there are no doubt many competing views of [00:05:00] the public interest, but it does require, I think that lawyers seriously engage with that question what does the public interest require? And what are my individual obligations to facilitate the public interest and then what kind of obligations do I have as a member of a profession that has a lot of power in shaping what that public interest looks like.

And in fact a while ago, I was part of a group at Osgoode to create a new first year course for students that we called Ethical Lawyering in the Global Community. And students start that course. school, an intensive first week and introduction to law into the profession. And part of the idea there was just from the very beginning to signal lawyers have these duties and responsibilities.

Also interesting that this goes back some time now there was a review of access to justice issues and in that report, which was led at the time by a retired justice of the Supreme Court of Canada, the [00:06:00] conclusion was that the legal profession didn't deserve to be self regulating unless it could actually demonstrate that it was capable of regulating itself in a manner that promoted public interest and facilitated access to justice.

Yes, I would say absolutely lawyers have a duty to be paying attention to not just their individual clients but also what are the systemic impacts of law and to take steps to change law where those impacts are harming particular populations.

Becky Batagol: So do you think that requires advocacy on the part of all lawyers?

Janet Mosher: I think it doesn't necessarily require all lawyers be involved in advocacy. And so one of the things that I often have conversations with students about, and these are students who are graduating or interested in social justice work is that they will often say, the opportunities and I think that the opportunities in [00:07:00] social justice are so narrow.

They say it may be that there are relatively few opportunities to be employed by community legal clinics or not for profits doing environmental justice and sustainability work or whatever it might be, but I think there's just all kinds of ways in which lawyers can play a role in furthering social justice broadly conceived or facilitating the public's interest.

And that can range from volunteering your time to serve. on a board of directors of an organization to internal to if you're working with a law firm seeing how the firm is maybe supporting particular kinds of organizations that might be financially that might be providing excellent legal representation in relation to Any matters ranging from incorporation to litigation so I think there's just a huge variety of ways in which lawyers can pick up and engage with the public interest in access to justice.

Becky Batagol: I love it. Janet, what are you working on at the moment?

Janet Mosher: Ah, so [00:08:00] currently my major research project is looking at access to justice issues for survivors of domestic violence and at the intersections of multiple legal systems. That in more particularly would be about looking at what happens when cases are simultaneously or sequentially involved, for example, in criminal law and family law and immigration law and child welfare some combination of those and other areas of law.

Very often those different systems that families have to engage with have contradictory requirements or expectations or they render inconsistent orders. And of course there is just the problem of the time and resources and energy that's required to engage with a multiplicity of different systems.

Janet Mosher: And then how abusive partners can use those systems as a way to further their power and control. That's the [00:09:00] main project.

Becky Batagol: That's quite a complex project because Canada, I think, has around about 11 different jurisdictions. Am I right? Did I count it up correctly? It's a lot of provinces.

Janet Mosher: We have a number of provinces and territories, yes, and then there is also a federal jurisdiction. Yes. And then there's different jurisdiction on reservations so it's a complicated jurisdictional picture, and one of the things we were actually talking about the other day is just the layers of intersectionality, so when we talk about intersectionality.

People are often talking about intersecting. Parts of one's identity, your race, your gender, sexual orientation, so that's clearly relevant here. Then you also have the intersecting legal systems, and we have the intersecting jurisdictional issues. And then you have another layer, which is the way in which legal problems intersect with a multiplicity of non legal problems as well.

These cases are [00:10:00] intersectionally multi layered.

Becky Batagol: And so what are you hoping to do with this project?

Janet Mosher: In this project, we still have a ways to go. So we've done some mapping of statutes and regulations. We've done a lot of case law research that's not quite complete. And then we're moving into the, into interviews with service providers and lawyers and hopefully with litigants as well.

And I think ultimately what we would like to be able to do is to come up with some recommendations, I think some of which might be directed to providers of legal aid. We've already persuaded legal aid providers here in Ontario to alter the basis on which they give certificates in the criminal law context.

So they used to be only where there was a probability of incarceration and we persuaded them that sometimes criminal convictions have really important ramifications for outcomes in other domains, so family law in particular, and immigration, I can imagine. [00:11:00] Immigration, absolutely, yes. So altering the basis on which those certificates are given.

But legal aid providers clearly one of the audiences I think the judiciary and judicial education another audience service providers one of the things that at least in the Canadian context that's started to get a fair bit of attention is the role that trusted intermediaries play in enabling access to legal information in particular.

So if you think about settlement workers for newcomers to Canada, or if you think about Frontline Shelter Workers and Violence Against Women's Shelters. They're often the people, because they're entrusted, to whom individuals turn for information. How do we enable and facilitate their ability to be able to provide information?

Actually, we just got a new grant that will help us create a particular website geared to the trusted intermediaries, really to give them current information about what are all of the statutory and regulatory [00:12:00] provisions across the across the country.

Becky Batagol: And do you think that women in particular face problems accessing justice to deal with their legal issues and their legal problems?

Janet Mosher: Yes. I think they do and I think that takes different forms and there's various reasons. This won't be comprehensive, among them certainly, in the Canadian context, it's pretty clear that men continue to earn. Significantly more money than women, and women have higher rates of poverty, for example, and women are more likely to be the ones responsible for the care of children.

Just in terms of the financial ability, for example, to be able to hire a lawyer I think that's quite gendered. Even if one is self representing, if you're a single mom and you're the one responsible for the care of children, access to care for your children to be able to participate.

And then there are, a range of issues in my context of the work around domestic [00:13:00] violence, which is highly gendered we know that in many contexts there are a lot of decision makers who really don't understand the dynamics of domestic violence, and when they don't understand those dynamics, they make decisions.

Which have really important ramifications for the safety and well being of both women and children. So that lack of knowledge and understanding or appreciation among decision makers has very significant effects for women. And conceptualize access to justice, I think which fails currently to pay adequate attention to the The kind of different experiences of not only between men and women, but if we looked at, again, a number of identity categories.

A while ago I did a research project with racialized youth in a low income community in Toronto. And, their experiences of what accessing the justice system looked like were so different than if you took, a well to do [00:14:00] Caucasian male from downtown Toronto. Importantly there, one of the reasons why they, and I think this is true for other populations too, don't access the legal system is because if they challenge a school authority or in other cases, if you challenge a welfare authority, those systems can retaliate against you.

And that worry about retaliation and also, concerns about how you're regarded the kinds of stigma and stereotyping that you experience. So most of these were young black men who, in a contest with a school principal or a police officer come in already with what we might call like a credibility deficit.

And so they're really cognizant of that. So they know Perhaps they're not going to engage the legal system, even if there is formally a legal right that exists and even if from a procedural fairness perspective, the procedures all look fine, they're not going to engage because [00:15:00] the, as I said, the system might retaliate and they're not likely to be believed.

Yeah, absolutely. I think, all of these issues around access to justice are really significantly affected by who one is and what your social location is and how others identify you and how you're stereotyped or perceived.

Becky Batagol: And you've been working on violence against women for quite a lot of years and you've also been teaching.

Yeah. Is there a good way to teach law students about violence, particularly violence against women?

Janet Mosher: That's an interesting question. One of the things that I think is a problem, and this has come out in Ontario, We've had a couple of recommendations, one coming out of we have a special process that reviews all deaths that result, that occur in the context of an intimate relationship, so it might be deaths of children as well as of an intimate adult partner.[00:16:00]

And also we had Some work done in another context by the Law Commission and coming out of those were recommendations that law schools make education around violence against women mandatory. And I guess what I would say is, It's important, I think, that all law students have an understanding about violence against women and how it arises in a whole variety of different legal contexts and areas.

So I think that's important, yet at the same time I I resist the idea of just saying make it mandatory because I think what matters so much is not that it's, someone identifies it and speaks to it, but How they do it, and what what is it that students learn about violence against women, and so how it's taught, and so I think that's a really important question.

There, among the things that I think are important would be dealing [00:17:00] with some of the, or using some of the materials that have been generated by women with lived experience. So what both their experiences of violence and how that manifests. So in the context of domestic violence, for example, in the legal system, There's an incredible focus on discreet acts of physical violence.

In many relationships, that's just one of a huge number of tactics that are used for men to maintain their power and control. And that includes a lot of psychological. abuse, and that includes many threats to destroy property, to take children, to ensure she's deported and to use threats of violence destroying property or pets again, to indicate what power he has.

extreme forms of social isolation, lots of belittling remarks. And women often say those manifestations of the control were much [00:18:00] more harmful and much more difficult to recover from than the physical assaults, but the legal system prioritizes physical harm. So again, if we think about how do we teach this I think really important for, would be lawyers to understand from women what this experience is so that they have an appreciation of that and also, understanding harm so that we don't just do the harm calculus based on physical violence, but we understand these other forms of harm.

And that also means, that lawyers have a responsibility to pay attention to women's safety. So we also know that engaging legal processes sometimes can make women less safe, and that includes contacting the criminal justice system. Lawyers or other professionals whose, you know, immediate reaction to hearing about violence is, or about, Other forms of abuse and control, such as they call the police that's a problematic response, because in many circumstances, contacting the police for a whole host of reasons makes things [00:19:00] much worse and not better for women.

And again, part of that, conveying that Experience to law students means then also focusing on what are women's experiences of engaging the criminal justice system or the family law system. And then what that might mean for how you provide your representation and. What and what what information you give, what characterization you give to different legal processes, and what advice you give.

Becky Batagol: So it's, I think what you're, where you're talking to, leads us towards clinic, and that was, I want to ask you about your experience as a clinical legal educator and You're, you've been leader of the Feminist Advocacy Ending Violence Against Women program at the Barbara Schleifer Commemorative Clinic.

Can you tell us about your work there and what you and students do there?

Janet Mosher: Sure. This is a clinic in Toronto that was started a number of years ago. It has a very tragic story that led to its [00:20:00] creation. Barbara Schleifer was actually a graduate of Osgoode Hall Law School. And on the night of her call to the bar was brutally murdered in the stairwell of her building.

And she was a feminist and a social activist and had planned to go into practice with some of her friends from law school. So they decided that they would then create this clinic in her honor and to do the work that she wanted to do. The clinic in, at least in the Ontario context, I think in the Canadian context is quite unique in that it's the only clinic that is focused on those who identify as women and who have experienced any form of violence, and violence is broadly construed.

And then it's unique in that it attempts to provide a form of wraparound service, so There are legal services, there's counseling services there are women who work there who help connect women to housing and to income support. And they have also a cultural [00:21:00] interpretation program because many of the women who they work with English is not their first language and they've actually developed that part of their work into a social enterprise that provides that.

Translation interpretation services throughout organizations around the province that work with survivors of violence, which is really terrific because these are interpreters who are trained not only with respect to how one does interpretation, but also they're trained around violence against women.

So unique in that it has this kind of a wraparound service. That is, serves a huge number of women, but has quite limited resources, so can only, for example, take on individual counseling and full representation for, a relatively small number of women. I think last year they served 7, 000 women.

A lot of those would have been women for whom they could provide summary advice, they could provide warm referrals they could provide get women into forms of group counseling et cetera. For students, again, back to [00:22:00] your question, how do we do how do we train students or help students learn and understand this the phenomena so they can do good work in this field?

Area good legal work in this area. This is one kind of intensive way to do that and exposes a relatively small group of students to a particular model or vision of legal work and gives them some in-depth knowledge about violence against women, what that is. And then how various areas of law respond.

So in the clinic, they provide legal representation in. Family and Immigration Law and Criminal Injuries Compensation. And we'll go through those areas of law and look at the specific provisions dealing with violence against women. But then also we always invite in very senior feminist practitioners in those areas to talk about what it looks like on the ground.

We can see the statute and often the things in the statute look very different. Promising, hopeful but sometimes the reports [00:23:00] from what's going on the ground look very differently. But I think also inviting in senior feminist lawyers has been really helpful because they also talk about their own career.

So how it was that they got to the place that they are now and those pathways are often, or perhaps even always quite circuitous. And so I think that's been really valuable for students to hear those stories and back to an earlier question to see the ways in which they can be involved in this work, even if they don't have a job at the Stryford Clinic.

Becky Batagol: Thank you so much, Professor Janet Mosher of Osgoode Hall Law School. It's always a pleasure. To talk to various academics who come and speak to us and I feel like you've shown us that there's so much more that needs to be done and that there is a possibility of doing that and in an area like working with violence against women it's tough, but it's nice to know that It's good to know.

It's important to know that there, there is a path through there to do work to make change. So thank you all for [00:24:00] listening to this episode of The Scarlet Letter. You can catch us again next month on iTunes on our blog which is found at feminist legal studies.wordpress.com. And don't forget to subscribe to the Scarlet Letter to make sure you never miss an episode.