1
GENDER-EQUAL REPRESENTATION ON THE SUPREME COURT BENCH:
ADDING THE MISSING PERSPECTIVE TO JUDGING
Monica Podgorny*
*Monjca Podgomy is an articling student with the Ottawa office of McMillan LLP in 2012-2013
and presented this paper at the 5th Annual Canadian Law Students Conference at the University
of Windsor, Faculty of Law in March 2012.
2
Introduction
The legal profession and law as an institution continue to be inherently patriarchal. Both
realms have been historically represented only by men and have created rules that reflect and
benefit the male experience. This has created not only hostility to women who enter the field but
has created legal doctrines that are saturated with male bias purporting to be neutral. This paper
argues that a solution to alleviate this discrimination, both in the legal profession and in
Canadian jurisprudence, is to have gender-equal representation on the Supreme Court bench.
Note that in this paper, gender-equal representation is referred to in a broad sense. Since the
bench sits 9 justices, a possible way of achieving this result would be to have a 5:4 split that
switches from a majority of women to a majority of men every x amount of years, or when there
is a new appointment. There are many possible ways of achieving this gender-equality, however
the purpose of this paper is to acknowledge that gender-equal representation on the bench is
necessary for the advancement of women’s equality in Canadian society. This argument is
substantiated by evidence showing that women judges have alleviated female stereotyping and
have dispelled myths about women in Canadian jurisprudence by advocating a contextual
approach to adjudication. This paper then presents and rebuts common arguments that have been
made against having equal representation on the bench. Ultimately, this paper concludes that
equal representation on the bench is necessary so as to alleviate gender discrimination in the
legal profession and to add the missing perspective to Canadian jurisprudence.
Women Judges Have Impacted the Law by Adding the Missing Perspective
3
This section discusses a few famous judgments by Justice Bertha Wilson and Justice
Claire L’Heureux-Dubé, respectively, to demonstrate how women judges have alleviated gender
discrimination in the adjudication process. These women were chosen for this analysis because
they are the first two women appointed to the Supreme Court bench and thus were the first ones
to break into the “boy’s club” that was the Supreme Court. Their judgments are clear examples
of how women offer a perspective that is different from how men think and accordingly add the
missing perspective to Canadian jurisprudence.
Madam Justice Bertha Wilson was appointed the first woman Justice of the Supreme
Court of Canada on March 4, 1982.1 Although she fully understood that women looked to her to
advance the rights of women, as evidenced by all the media attention her appointment received,
2
she remained very aware of the impartiality expected ofjudges. Her vision was to incrementally
integrate modem values into the adjudication process,
3 without allowing her decisions to become
entirely subjective or gendered.
4 She introduced a compassionate approach to judging that
accounts for the contextual circumstances of the individual. A brief look of her more famous
judgments exemplifies her vision for alleviating some social injustices women have faced in
Canada, namely by adding context to spousal abuse and by giving women a legal right to control
their own bodies.
1
About the Court, Judges of the Court: The Honourable Madam Justice Bertha Wilson, online: Supreme Court of
Canada <http://www.scc-csc.gc.ca>.
2
See “Finally, a woman on Canada’s Supreme Court” (4 March 1982) (podcast), online: CBC Digital Archives <
http://:archives.cbc.ca.>. (CBC News interviewed Conservative MP Flora McDonald who predicted that Wilson J.’s
appointment would allow issues that face women to be analysed in greater depth than they have in the past, and
Jean Wood for the Status of Women Committee commented that Wilson J.’s appointment shows women “in legal
profession that they have a right to that top job” and that the highest court “should be representative of the
experience of Canada and women are 52% of the experience of Canada.”)
3 Bertha Wilson, “Will Women Judges Really Make a Difference?” (Paper delivered at the Fourth Annual Barbara
Betcherman Memorial Lecture, Osgoode Hall Law School, 8 February 1990).
4 Bertha Wilson, “Decision-Making in the Supreme Court” (1986) 36 UTU 227 at 231 [Wilson, Decision-Making],
cited in Elizabeth Halka, “Madam Justice Bertha Wilson: A ‘Different Voice’ in the Supreme Court of Canada”
(1996) 35 Alta L Rev 242 at 24 [Halka].
4
In R v Lavalee,
5 a case where a battered wife killed her husband out of fear, Wilson J.
recognized that judges are “not all-knowing and need to be educated about circumstances and
situations with which they may have little or no 6
experience.” Thus, she encouraged the
submission of expert evidence on studies of domestic violence against women so as to frame the
context for the case. Through this extrinsic evidence, she urged the Court to remove its previous
stereotypes of battered women from the adjudication process, including the popular myth that
either the wife “was not as badly beaten as she claims or she would have left the man long ago.
Or, if she was battered that severely, she must have stayed out of some masochistic enjoyment of
7 A significant challenge that Wilson J. brought against the Court was to assess
it.”
reasonableness within the context of the facts of the case. Traditionally, reasonableness has been
measured against a male standard; however in the context of a battered wife, this legal test
seemed ludicrous. In support of this argument Wilson J. explained that “[ijf it strains credulity to
imagine what the ‘ordinary man’ would do in the position of a battered spouse, it is probably
because men do not typically find themselves in that situation.”
8 She thus added a gendered
perspective to the law where it was needed
—
domestic violence is a social problem that affects
mainly women, so much so that the imputing system of the Victim/Witness Assistance Program
of the Crown Attorney’s Office has ‘female’ as the default victim. Through her use of expert
evidence to contextualize the issue, Wilson J. redirected a traditionally male legal test, “that had
R v Lava/lee, [1990] 1 5CR 852 [Lava/lee].
ibid, cited in Claire L’Heureux-Dubé, “Making a Difference: The Pursuit of a Compassionate Justice” (1997) 31 UBC
L Rev 1-15 at para 17
Supra note 5 at 872-73, cited in supra note 4 at 24.
Lavallee, ibid at 872, cited in Halka, ibid at 24.
6
5
previously been posed without any reference to the experiences of women”
9 so as to rightfully
reflect the “gendered patterns of everyday life.”
0
In R v Morgentaler,
Canada’s landmark abortion case, Wilson J.’s solitary voice
ultimately gave women the legal right to control their own bodies. Her female perspective on
pregnancy added a much needed voice to the male-saturated bench and ultimately prevailed in
granting women control over their sexuality and their very personal decision of whether or not to
give birth. She disagreed with the majority’s view that pregnancy can be objectified into an
individual-against-the-state issue with a focus on procedural equality, but argued that the
decision of whether or not to terminate a pregnancy is a “profound social and ethical issue;”
2
one that involves the subjective and personal decision of the pregnant woman that the state has
no right to usurp. Her view added a new perspective that articulated a contextual approach to
3
Charter’
interpretation that ultimately promoted the rights of women. As Halka eloquently
describes in her article, Madam Justice Bertha Wilson: A ‘Different Voice” in the Supreme
Court of Canada,
14 Wilson J. urged the court to “address and protect the well-being and dignity
of Canadian women... take into account their experiences, their unique reproductive capacity,
and their struggle for more equitable 5
treatment.” Although Wilson J.’
5 judgment was sensitive
to the complexities of abortion (the moral, psychological, economic and social consequences a
woman would face), she was equally aware that the pregnant woman’s rights might need to be
curbed in cases where society’s objective interest in protecting the developing foetus and the
Regina Graycar, “The Gender of Judgments: Some Reflections on “Bias” (1998) 32 UBC L Rev. 1-21 at para 38
[Graycar].
10
Supra note 4 at 24.
R vMorgenta!er [1988] 1 SCR 30 [Morgentaler].
12
Ibid at 37.
13
Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (UK), 1982, c 11.
Supra note 4.
4
‘
15
Ibid at 24.
6
health of the mother would be dominant,
16 such as in the second trimester)
7 This shows that
while she was providing the previously-missing voice on a male bench about a uniquely female
issue, she preserved her commitment to judicial impartiality and her understanding that law can
only incrementally promote women’s equality. These two sample cases demonstrate how gender
on the bench makes a difference. Wilson J. developed a new approach in legal reasoning which
is more aware of the context surrounding a case so as to alleviate gendered injustice.
Madam Justice Claire L’Heureux-Dubé has also made an incredible contribution to
correcting the gender bias in Canadian jurisprudence. The fact that her female perspective was
different from the rest of her colleagues on the bench is evident in the famous amount of dissents
she wrote during her time on the bench. Often she was joined by another female perspective, that
of Madam Justice McLachlin (as she was 18
then). During her time on the bench, L’Heureux
Dubé J. dispelled a number of female stereotypes and myths that affected the development of
Canadian legal analysis, especially in family and criminal law. Her vision was to change the
language of the law and to make all judges gender-sensitive, believing that although women on
the bench do make a difference they cannot be relied on alone to impact the social change that
needs to occur in order for women to be finally equal with men in Canadian society. Madam
Justice L’Heureux-Dubé’s commitment to analyzing academic writings so as to bring into the
courts a more contextual approach to adjudication has earned her respect among the academic
feminist community, including law professor Elizabeth Sheehy who is optimistic in the new
Supra note 4.
6
‘
17 note 11 at 170.
Supra
‘ Peter McCormick, Birds of a Feather: Alliances and Influences on the
Lamer Court 19904997 (1998) 36
Osgoode U 339, cited in J. Tibbetts, “Female Justices Tend to Disagree with Male Colleagues” The National Post (21
January 1999), cited in Mimi Liu, “A ‘Prophet With Honour’: An Examination of the Gender Equality Jurisprudenc
e
of Madam Justice Claire L’Heureux-Dubé of the Supreme Court of Canada” (2000) 25 Queen’s U 417-478 [Liul (a
seven year study shows that they were most likely to disagree with decisions by signing the majority opinion
less than half the time).
7
social-contextual approach to litigation,
19 law professor Constance Backhouse whose writings
are referenced throughout this paper, and lesbian legal theorist Didi Herman who praised her “for
including lesbian feminist theory in her consideration of the meaning of “family.”
20 The
following discussion demonstrates how she promoted her vision in various areas of the law.
In family law, Justice L’Heureux-Dubé’s dissent in Svmes v Canad
21
a highlighted that
the stereotypes businessmen have of businesswomen and child care are not reflective of reality.
She disagreed with the male majority of the Court who ruled that women do not
disproportionately incur child care expenses, regardless of the fact that women pay the social
costs of child care. She reasoned that the majority came to the conclusions they did because the
average “businessman.. .is unlikely bear the primary duty [of child care]”
22 and thus the male
judges “failed to recognize the reality of the 23
businesswoman.” When explaining to her male
colleagues that the amount of money they were proposing was inadequate, she asked them how
much milk costs and received the response, “I don’t know, my wife does the market
24
.” Thus as
Justice L’Heureux-Dubé said, “women ground the case in 25
reality” and a female perspective
gravely needs to be represented on the bench.
In Moge v Moge
26 Justice L’Heureux-Dubé, writing for the majority, gave legal
recognition to the disproportionate impact that child-bearing, marriage and divorce have on
women. She recognized that although the Divorce Act
27 is drafted in gender-neutral language, its
‘
Andrew Goldsmith, “Is There Any Backbone in This Fish? Interpretive Communities, Social Criticism, and
Transgressive Legal Practice” (1998) 23 Law & Soc Inquiry 373 at 411, cited in, Liu, ibid at para 16.
20
Ibid.
21
Symes v Canada, [1993] 4 5CR 695.
22
Supra note 6 at para 14.
23
Liu, supra note 18 at para 7.
iustice Claire L’Heureux-Dubé, Guest Lecture: Supreme Court of Canada Seminar, (Faculty of Law, University of
24
Ottawa, 2011) [L’Heureux-Dubé, Guest Lecture].
25
Ibid.
26
Moge v Moge, [1992] 3 5CR 813.
27
Divorce Act, RSC 1985, c 3 (2nd Supp).
8
practical effects often have gender-specific 28
consequences. She instilled a contextual approach
that challenged judges and litigators “to ground family law in both common sense and reality
29
.”
In doing so, she rejected the self-sufficiency model of divorce and replaced it with a
compensatory framework that more adequately responds to the actual reality of many divorced
women. This new framework rebutted the traditional “simplistic assumption that, because the
wife had worked during the marriage or returned to the workforce after divorce, she had
achieved self-sufficiency and support was not necessary.”
30 Justice L’Heureux-Duhé’s female
perspective in family law
—
an area of law where women have high involvement
—
has eliminated
a traditionally patriarchal assumption about women’s financial and non-financial contributions to
families, thus showing that a new, female perspective to the bench has alleviated some of the
discrimination that exists in family law.
In criminal law in R v Seaboyer,
’ a case which dealt with the constitutionality of the
3
“rape shield” provisions in the Criminal Code,
32 Justice L’Heureux-Dubé’s dissenting opinion
dispelled myths about women’s sexuality that had been used against women in sexual assault
cases
—
an opinion which would be reflected and promoted in R v 33
Ei’anchuk eight years later.
The majority’s opinion was that a woman’s past sexual history is relevant evidence to the sexual
assault case at issue. This ruling practically translates to the reasoning that if a woman has
consented to sex with other men in the past, she likely had consented to the accused. L’Heureux
Dubé J. recognized that bringing in evidence of a complainant’s past sexual history has a severe
28
Liu, supra note 18 at para 41.
Claire L’I-leureux-Dubé, ‘Making Equality Work in Family Law” (1997) 14 Can i Fam L 103 at 123 [LReureux
Dubé, Making Equality Work], cited in ibid at para 19.
°
Claire L’Heureux-Dubé, “Economic Consequences of Divorce: A View From Canada” (1994) 31 Hous L Rev 451 at
481, cited in Liu, ibid at para 40.
31
R v Seaboyer, [1991] 2 5CR 577.
32
Criminal Code, RSC 1985, c C-46.
R v Ewanchuk, [1999] 1 5CR 330 [Ewanchuk].
29
9
prejudicial effect on the trial that extremely outweighs its probative value. She writes that the
stereotyping of women victims of sexual assault has been so prevalent, that legislative efforts to
stop this discriminatory treatment were futile, so she felt obligated to correct the injustices
34 In her commanding 85 page dissent, she urged the law to “consider various
herself.
perspectives, think about the experiences and realities of disadvantaged groups, and examine the
assumptions on which our laws and jurisprudence are based.”
35 It can be argued that her dissent
became black letter law when Parliament amended the Criminal Code
36 the following year and
passed a rape shield statute which reflected many of her written concerns.
37
Justice L’Heureux-Dubé’s decision in Ewanchuk,
38 another criminal law case, is arguably
the best evidence of her struggle to add a female perspective to the law, and arguably the
decision where she received the most public criticism (as will be discussed below). The trial
judge, dealing with a woman’s implied consent to sexual activity, acquitted Ewanchuk for sexual
assault because the female complainant had not communicated “by words, gestures, or facial
expressions that she was ‘frozen’ by a fear of force.”
39 The Crown lost its appeal because Justice
John McClung (who wrote the majority decision) and Justice Peter Foisey issued a decision
steeped in offensive stereotypes about women. McClung J. “reasoned” that an unmarried woman
who had a child and lived in a common law relationship with a man “was not capable of refusing
40 and so her repeated “no’s” to the accused are irrelevant. He criticized the Crown for
consent”
using the court’s resources for a case where “going too far in the boyfriend’s car was better dealt
34 note 6 at para 13.
supra
Claire LHeureux-Dubé, “A Conversation About Equality” (Address to the Faculty of Law, University of Manitoba,
4 February 1999) [unpublished, notes on file with author], cited in Liu, supra note 18 at para 45.
Supra note 32.
36
M.A. Wagner, “Canadian Rape Shield Statutes” (1993) 16 Hastings Intl & Comp L Rev 637 at 657-661, cited in
Liu, supra note 18 at para 61.
supra note 33,
38
Constance Backhouse, “The Chilly Climate for Women Judges: Reflections on the Backlash from the Ewanchuk
Case” (2003) 15 Can J Women & L 167-193 at para 5 [Backhouse].
40 Ibid at para 6.
10
with on site--a well-chosen expletive, a slap in the face, or, if necessary, a well-directed knee.”
’
4
He went as far as to reprimand the complainant for wearing shorts, commenting that she “did not
present herself to Ewanchuk or enter his trailer in a bonnet and crinolines.”
42 The only other
judge on the Court of Appeal bench was a woman, Chief Justice Catherine Fraser, who seemed
to be the only voice of reason on that bench when she rejected in dissent the defence of implied
consent, arguing that it denied women’s sexual autonomy as well as their section 15 equality
rights because “[w]omen in Canada are not walking around this country in a state of constant
consent to sexual activity unless until they say ‘No’ or offer resistance to anyone who targets
them for sexual activity.”
43
Fortunately for all women who like to walk around in shorts and not be legal targets of
sexual assault, the Supreme Court of Canada allowed the Crown’s appeal, registered a conviction
against Ewanchuk and held that there is no defence of implied consent for sexual assault in
Canada. The majority decision was written by Justice John Major, and Justice L’Heureux-Dubé
wrote a concurring judgment onto which Justice Charles Gonthier signed in agreement. Chief
Justice Beverley McLachlin wrote her own concurring opinion which also expressed agreement
with Justice L’Heureux-Dubé’s characterization of the issues. Justice L’Heureux-Duhé’s writing
focused on women’s equality rights, the sexist myths and stereotypes that persist in legal
reasoning and the resulting impartiality. She criticized McClung’s decision by saying that his
judgment “perpetuates archaic myths and stereotypes about the nature of sexual assaults”
44
which mythically portrays women who say no to sexual advances as “really saying ‘yes,’ ‘try
Ibid.
ibid.
Ibid.
suprc, note 33 at para 95.
44
42
11
again,’ or ‘persuade me.”
45 She emphasized that this case “is not about consent, since none was
given, [i]t is about myths and stereotypes”.
46 In the separate judgment written by McLachlin C.J.,
the Chief Justice supported Justice L’Heureux-Dubé’s opinion by stating that “such stereotypical
assumptions” about women’s attire and physical resistance “find their roots in many cultures,
including our own. They no longer, however, find a place in Canadian law.”
47 This discussion
has shown that Justice L’Heureux-Dubé fought for fairness in law for women because she
believed that women deserve a legal process that does not rely on sexist myths.
These above cases demonstrate that female judges have influenced Canadian law by
adding the missing perspective. As Madam Justice Wilson articulated, “[ifj women lawyers and
women judges through their differing perspectives on life can bring a new humanity to bear on
the decision-making process, perhaps they will make a difference. Perhaps they will succeed in
infusing the law with an understanding of what it means to be fully human.”
48 Through their
contextual approach to justice, these women strived to “enter the skin of the litigant”
49 to develop
an approach to adjudication that is aware of context, existing gender bias in the law and that tries
to alleviate gendered injustice.
Solution: Equal representation on the Supreme Court Bench
The new perspective added to the bench by female judges and the resulting effects of
their judgments on society calls for the need to have equal representation on the bench. Women
do make up slightly more than half of Canadian society (50.4% in 20l0°) so their unique and
much needed perspective on the law should be represented by approximately half as well. In
Ibid at para 87.
Ibid at para 82.
47
Ibid at para 103, cited in Backhouse, supra note 439 at para 8.
48
Supra note 3 at 521-22.
supra note 5.
49
°
Covadonga Robles Urquijo & Anne Milanhttp, Female Population, online: Statistics Canada
<http://www.statcan.gc.ca>.
12
order for women judges to be able to stand up to the patriarchal institution that is the law, their
opinions need to be respected, and they need to feel confident and secure in their positions.
’ By
5
achieving an equal representation on the bench, women judges will meaningfully contribute to
Canadian jurisprudence in two fundamental ways. Firstly, women bring the missing perspective
that is grounded in their experiences of living in a society that still continues to impose cultural
expectations of gender-based roles.
52 This female perspective would achieve several objectives
in the process of alleviating gender discrimination. It would “shatter stereotypes about the role of
women in society” ‘ that are held by players in the court system. It would also add “a special
expertise to the adjudication process”
54 that would readily identify and overcome gender bias in
legal reasoning, especially influential in family and criminal law. Secondly, equal representation
would create an atmosphere in the courtroom that is welcoming of both female counsel
5 and of
the arguments brought by female litigants,
56 discussed in more detail below.
However this paper does acknowledge that there are several concerns that critics of equal
representation have noted about why adding more women and stirring will not produce the effect
some feminists believe it will. The following section addresses these concerns and offers rebuttal
arguments so as to demonstrate that women judges do make a difference.
Counter-arguments and Rebuttals
Concern: It is biasedjudging
Perhaps the most significant and popular concern about the argument that more women
are needed on the bench is that it promotes politically-motivated partiality and biased judging.
51
Backhouse, supra note 39 at para 47.
Supra note 6 at para 7.
S. Sherry, “The Gender of Judges” (1986) 4 Law & Equality 159 at 160, cited in supra note 3 at 517.
supra note 6 at para 7.
54
Supra note 3 at 518, cited in Robert Hawkins & Robert Martin, “Democracy, Judging and Bertha Wilson” (1995)
41 McGill U at 54 [Hawkins & Martin].
Supra note 6 at para 7.
56
52
13
To demonstrate this point this paper presents the arguments of Robert Hawkins, Associate Dean
of the Faculty of Law at the University of Western Ontario and Robert Martin, Professor of Law
at the University of Western Ontario who express this concern in an article entitled Democracy,
Judging and Bertha Wilson.
57 They argue that Justice Wilson was politically motivated during
her appointment on the bench and that her contextual approach is subjective interpretation and
offends established legal principles. They emphasize that she was insistent on “transforming the
judiciary into a super-legislature adjudicating on the merits of public policy beyond the reach of
any parliament”
58 by continually reassessing the scope of a right in “light of changing social
circumstances and contemporary social theory.”
59 The authors quote her decision in Edmonton
Journal v Alberta (AG)
° as proof of the subjectivity and political activism of her approach.
6
Justice Wilson wrote:
One virtue of the contextual approach, it seems to me, is that it recognizes that a
particular right or freedom may have a different value depending on the context. It may
be, for example, that freedom of expression has greater value in a political context than it
does in the context of disclosure of the details of a matrimonial dispute.
61
They emphasize that her contextual approach “frees the judge to further his or her personal
political agenda by making the meaning of words infinitely 62
flexible” and thus allowing a judge
to interpret the law in favour of the biased ideological positions the judge holds. They criticize
her for often disregarding precedent in favour of a result that she felt was right and fair
63 in light
of subjective Charter values.
64 In this context they lead a discussion of her decision in
‘
Hawkins & Martin, supra note 55.
Bertha Wilson, “Constitutional Law Section 7” (Lecture given at College of Law, University of Saskatchewan,
March 1987), cited in ibid at 54.
Peter Hogg, Constitutional Law of Canada, 3d ed (Scarborough: Carswell, 1992) at 567, cited in ibid.
60
Edmonton Journal v Alberta (AG), [1989] 2 SCR 1326.
61
Ibid at 1355, cited in Hawkins & Martin, supra note 55 at 54.
62
Hawkins & Martin, ibid.
Wilson, Decision-Making, supra note 4 at 231, cited in ibid.
64
Rawls, A Theory ofJustice (Cambridge, Mass.: Belknap Press, 1971), cited in Hawkins & Martin, ibid.
58
-
14
65
Morge
ntaler which they argue is simply a reflection of her personal views and criticize her
belief that the Charter stands to protect marginalized groups against the state. They accuse her of
thinking that “men were the villains”, and that she cannot know that “a man cannot ‘respond’ to
the ethical ‘dilemma’ faced by a pregnant woman contemplating an abortion.”
66 They reason that
if she believes that a man cannot understand a woman’s situation, then the reverse is true as well,
which they argue is nonsense. Ultimately, they argue that where Justice Wilson advocated her
contextual approach, she was really just trying to decide cases according to her own subjective
values. They are concerned that she used the Charter and her appointment on the bench to
legislate her personal views, thus turning the Court into a political, unaccountable institution that
represented the interests of marginalized groups in society and “did damage to our very idea of
67 Their article is an example of the criticism female judges receive for appearing to
democracy.”
be biased.
Justice L’Heureux-Dubé also received more than her fair share of public criticism for her
“progressive” views. The following brief survey of attacks against her personally and against her
concurring decision in Ewanchuk
68 demonstrates the tremendous public backlash accusing her
of: “feminist bias” and a “graceless slide into personal invective” (Justice McClung J. published
in an open letter to the National Post),
69 judicial misconduct, subjectivity and lack of
70 “a feminist out of step with ordinary Canadians”
impartiality,
’ and “a radical feminist who sits
7
65
Supra note 11.
Hawkins & Martin, supra note 55 at 54.
Ibid.
Supra note 33.
68
69
Justice J.W. McClung, Court of Appeal of Alberta, Edmonton, Letter to the Editor, National Post (26 February
1999), cited in Backhouse, supra note 39 at para 10.
70
Backhouse, ibid.
71
Shawn Ohier, “Women’s Group Turns Tables on LHeureux Dube,” National Post (4 March 1999), cited in
Backhouse, supra note 39 para 13.
66
15
on the bench and uses her position to promote her own personal agenda”
72 (REAL Women of
Canada), a “ridiculous” and “radical feminist judgment” (Toronto Star quoting Alan Gold, a
prominent Toronto defence lawyer),
73 a “totalitarian” judgment (The Calgaty Herald),
74 a
“declaration of war against all men and their very sexuality” (The Globe and Mail),
75 and a
“feminist cant” that was “a manifesto on feminist legal theory” (The Ottawa Citizen).
76 The
comments made by Edward Greenspan, a prominent Toronto defence lawyer (in his first attack
at her) are worthy of reproducing here to show how strongly he felt about Justice L’Heureux
Dubé’s decision and her response to McClung J’s personal and public attack against her:
It is clear that the feminist influence has amounted to intimidation, posing a potential
danger to the independence of the judiciary Feminists have entrenched their ideology
in the Supreme Court of Canada and have put all contrary views beyond the pale.. Judge
L’Heureux-Dubé was hell-bent on re-educating Judge McClung, bullying and coercing
him into looking at everything from her point of view. She raked him over the coals for
making remarks that may, in fact, be accurate in the given case. I don’t know. But just as
he had no empirical evidence to support his view (if you discount all of human history),
she has no empirical evidence to say what she says (if you discount Catharine
MacKinnon’s collected works)
Madam Justice L’Heureux-Dubé has shown an
astounding insensitivity and an inability to conceive of any concepts outside her own
terms of reference and has thereby disgraced the Supreme Court.
77
...
.
.
...
These public statements were meant to educate the public that female judges who demonstrated
feminist views could not be impartial, and would only see the case through a biased and political
activist lens. It is worthy to note that her judgment in Moge
78 received similar tones of criticism
72
Ibid.
Tonda MacCharles, “Judges Sex Case Ruling Delights Women,” Toronto Star (26 February 1999), cited in
Backhouse ibid.
Naylah Ayed, “L’Heureux Dube Attacked as Support for McClung Builds,” Calgary Herald (4 March 1999), cited in
Backhouse, ibid.
s
Marjaleena Repo, “The Ewanchuk Ruling Is No Reason to Rejoice,” Globe and Mail (4 March 1999), cited in
Backhouse, ibid.
76
“Consent Means Consent,” Editorial, Ottawa Citizen (2 March 1999); “Judging the Judges,” Editorial, Ottawa
Citizen (3 March 1999), cited it Backhouse, ibid.
Edward L. Greenspan, “Judges Have No Right to Be Bullies,” National Post (2 March 1999), cited in Backhouse,
ibid at para 15.
Supra note 26.
78
16
of being politically motivated.
79 Ultimately, this public outcry meant that “feminists were
unqualified to render judicial decisions.”
° However, there are several rebuttals to this concern,
8
which will be discussed in turn.
Firstly, a challenge to the “unbiased” status quo is initially accused of bias but ultimately
becomes the law. As is evident to most people with legal training today, Wilson J.’s views
became the law and ultimately are the basis for how law is argued today. Contextualism is a
prevalent legal framework in 2011 and what seemed progressive and against established doctrine
is now the status quo. This paradigm reflects a catch-phrase coined by Justice L’Heureux-Dubé:
“dissents are the law of the future,”
’ and as Professor Backhouse states, “[nb one would deny
8
that a feminist judge is different from the judicial norm.”
82 Women judges have paved the way
and provided the tools so that, as Professor Mahoney emphasizes, the Court “no longer writes
like it used to...and very seldom [does it] ignore issues of equality.”
83 Her voice of the future has
earned Justice L’Heureux-Dubé the title among academics as “a prophet with honour.”
84
Secondly, these women are unveiling a bias that already exists in the law. Since it has
historically been men who have been the politicians, the legal drafters, the clients, the lawyers
and the judges, the law has evolved by answering to a men’s worldview but has been
masquerading as “people and the law.”
85 In addition to sexist laws, legal judgments have often
reinforced stereotypes and myths about women. Rape cases are notorious for this, as discussed
‘
i.G. McCleod, “Case Comment: Moge v. Moge’ (1993) R.F.L.(3d) 455 at 455456, cited in ED. Pask, “Canadian
Family Law and Social Policy: A New Generation’ (1994) 31 Hous L Rev 499 at 502, cited in Liu, supra note 18 at
para 43.
80
Backhouse, supra note 39 at para 17.
81
LHeureux-Dubé, Guest Lecture, supra note 24.
82
Backhouse, supra note 39 at para 36.
83
Interview with Kathleen Mahoney, Professor at the University of Calgary (10 April 1999), cited in Liu, supra note
18 at para 58.
84
Liu, ibid at para 60.
85
Christine Boyle, Review of R.J. Sharpe, Injunctions and Specific Performance and S.M. Waddams, The Law of
Damages, Canada Law Book Ltd., 1983 (1985) 63 Can Bar Rev 427 at 430-31, cited in supra note 7 at para 46.
.
17
above and such as in Jane Doe v Metropolitan Toronto Commissioners ofPolice
86 where
women’s claims of rape were discounted because the raped women were not hysterical enough to
be credible. In R v McCraw,
87 the question of whether rape constitutes serious bodily harm made
it all the way to the Supreme Court. It is argued that if any woman was asked this question, the
answer would without hesitation be yes
—
however, it stirred up much debate amongst the men of
the courts who were analyzing it from a statutory interpretation perspective
—
which stands in
stark contrast with the contextual approaches advocated by Wilson J. and L’Heureux-Dubé 3.
A very recent and similar case is R v ..L4
88 where the question of whether a person can give
advance consent to sexual acts being performed on them while unconscious also made it all the
way to the Supreme Court. Chief Justice McLachlin wrote the majority decision
by all the women on the bench: Abella J., Charron J. and Deschamps J.
—
—
concurred to
with three men in
dissent. It was held that the answer is no, so as to “ensure that women and men are not the
victims of sexual exploitation.
89” Although, practically speaking, in the majority of situations
where this case would apply, it would be the woman who would be unconscious while the sexual
act was being performed. The dissenting opinion expressed concern that the holding would
criminalize what was described as “the sleeping kiss” amongst spouses
—
however this entirely
misses the point. The “most important message that the court is communicating is that
unconscious women are not sexually available,”
90 as expressed by Professor Sheehy who
intervened in this case on behalf of the Women’s Legal Education and Action Fund. It is
unfortunate for women that society had to be told this by the Supreme Court in 2011.
Doe v Metropolitan Toronto Commissioners of Police (1998), 39 OR (3d) 487 at 489-522 (Ont Ct (Gen Dlv).
R vMcCraw, [1991] 3 SCR 72.
88
R viA, [2011] 2 SCR 440 hA].
Ibid.
°°
Alison Crawford, “No Consent in Unconscious Sex Case: Supreme Court” CBC News (27 May 2011), online: CBC
News <http://www.cbc.ca>.
18
Further, entire doctrines of law have been made for men at the expense of women, such
as the defence of provocation. This defence has been established to privilege how men respond
to anger and thus allowing them to murder when provoked. Professor Sheehy states that the
doctrine has been built upon the bodies of women and it is their deaths that are rationalized.
’
9
Further, it perpetuates a double standard
—
men can claim homophobic advance and will be
excused of homicide
92 however women have a hard time even proving no consent to sexual
assault. Professor Sheehy joked in a lecture that if women were allowed to use provocation when
claiming an “advance” akin to Camplin
93 and Hill
94 then there would likely be many male bodies
littered on nightclub floors. This double standard can be explained that because the “victim” in
homophobic advances (that is, the murderer) is a man the courts have been sympathetic, however
in most cases of sexual assault the victim is a woman and has to extraneously prove her
credibility. This discussion shows that judgments rendered by courts have often produced sexist
law that perpetuates a double standard.
Further, when women judges write judgments that favour women, there is an outcry that
it is biased judging, but no one accuses male judges of bias when their judgments favour men.
Male judges are simply judges, no questions asked. This point is exemplified by the media
outcry against Justice L’Heureux-Dubé after she penned her decision for Ewanchulc
95 but the
fact that a male judge, Gonthier J, signed onto her opinion was not even brought to light.
Another example of this pattern is when Constance Backhouse, a Canadian law professor who
specialized in sex discrimination law and held a part-time appointment as a human rights
Elizabeth Sheehy, Lecture: Criminal Law and Procedure, (Faculty of Law, University of Ottawa, 2010).
DPP v Camplin, [1978] 2 All ER 168 AC 705 (HI) [Camplin]; R v Hill, [1986] 1 5CR 313 [Hill]; cases suggest that a
defence to provocation can be a possible sexual assault.
Campun, ibid.
Hill, supra note 94.
supra note 33.
95
‘
92
19
adjudicator, was removed from a sex discrimination case for bias. The “sufficient grounds” for
removal was her expertise and because she had been one of 120 complainants in a systemic
discrimination case against a university.
96 However, consider in contrast that if a man held
expertise in field, he would be encouraged to sit on that case and no one would question him for
biased judging. These are just two examples in the popular trend of alleging gender bias against
women for expressing opinions that favour women.
Thus the law as an institution needs women judges to recognize the bias, uncover it, and
then alleviate it. Reality is a constructed concept,
97 thus departure from a male perspective does
not necessarily mean bias but instead draws attention to the assumed unspoken norms that inform
the “neutral” position from which deviations are evaluated and called bias.
98 Male judges bring
to the court their own personal life experiences and beliefs about the role of gender in society,
women should not be criticized for doing the same. The bench needs the minds of both sexes in
order to render a complete judgment. If there is to be any significant equality between the sexes,
there is a need to challenge and change the theoretical starting point of the law. This can be
achieved by equal gender representation on the bench.
Concern: Women are not a homogenous group
Another popular argument promoted by many female legal scholars, especially non-white
women, is that women themselves do not constitute a homogenous group and so simply adding
more women to the bench will either not make a difference or will marginalize one group by
96
The Great Atlantic and Pacific Company of Canada Ltd v. Ontario (Human Rights Commission), 109 DIR (4th) 214,
cited in supra note 9 at para 12.
supra note 9 at para 19.
97
98
Martha Minow, “Stripped Down Like a Runner or Enriched by Experience: Bias and Impartiality of Judges and
Jurors’ (1992) 33 Wm & Mary I Rev 1201 at 1206-7, cited in ibid.
20
elevating another,
99 thus widening the soci-economic gap that already exists in society. One can
even argue that within their own groups they disagree about women’s issues, using the example
of Seaboyer’°° where Justice McLachlin (as she was then) wrote the majority opinion and Justice
L’Heureux-Dubé wrote her famous dissent. Surely both are women, and the case is about
whether a woman’s sexual history is relevant evidence
—
which is clearly a feminist issue, but
they disagree. This argument that women are not a homogenous group can be substantiated by
political scientists F.L. Morton, Peter H. Russell, and Troy Riddell who researched Supreme
Court decisions from 1982 to 1992 and concluded that “[j]ust as there is no evidence of a ‘typical
male’ judge, so there is no evidence of a ‘typical woman’ judge.”°
1 Peter McCormick in his
book Supreme at Last’
02 analysed this point in the context of voting blocs in the Dickson Court
and concluded that it “is clear that there was no more of a “women judges” bloc on the Court
than there was a “men judges” bloc.”
03
However, several rebuttals can be made to the concern that women do not form a
homogenous group. Firstly, they may differ in the end but not in the means. A face value contrast
of Justice L’Heureux-Dubé’s judgment in Seabover,’°
4 discussed above, with the majority
opinion written by McLachlin J.
—
which seemed to brush off women’s interests in a fair trial by
focusing on the belief that women are just embarrassed by disclosure of their past sexual history
—
could show that simply adding more women on the bench does not make a difference.
However, it is important to focus on their reasoning in this case in order to do a true comparison.
Richard Devlin & Dianne Pothier, “Redressing The Imbalances: Rethinking The Judicial Role After R. v. R.D.S.”
(1999-2000) 31 Ottawa L Rev 1-37 at para 57 [Devlin & Pothier].
100
Supra note 31.
F.L. Morton, Peter H. Russell and Troy Riddell, The Canadian Charter of Rights and Freedoms: A Descriptive
Analysis of the First Decade, 1982-1992” (1995)5 NJCL 1 at 50, cited in Backhouse, supra note 39 at para 29.
102
Peter McCormick, Supreme at Last: The Evolution of the Supreme Court of Canada, (Toronto: James Loriner &
Company Ltd., Publishers, 2000).
103
Ibid at 116.
Supra note 31.
104
21
McLachlin J. was concerned about the accused’s right to a fair trial, but she did acknowledge
that using the evidence to solely infer consent or impeach credibility was prohibited. Justice
L’Heureux-Dubé invoked this reasoning as well but took it a step further by focusing on the
stereotyping and discrimination of women that this type of evidence enforces. Justice
L’Heureux-Dubé “used feminist jurisprudence, legislative history, statistics and a contextual
analysis to demonstrate how rape myths and misogynist stereotypes compromise the impartiality
of the judiciary and effectively deny equal justice to women.”
05 This demonstrates her
commitment to using a contextual approach, one that she believes all judges should be sensitive
to and one that McLachlin J. agreed with expressly in Lw anchuk. 106
Secondly, women’s life experiences differ from those of men in significant and shared
ways. Most women, regardless of their colour or class can sympathize with any woman who is
subject to a sexist ruling. Also there are many issues where the majority of women would agree
regardless of colour or class, for example: equal pay with men (an ongoing problem for most
women in the workforce), protection against domestic violence (a woman does not have to have
suffered violence herself to know how it feels be the physically weaker sex), dispelling rape
myths (a woman does not have to have been raped to know how it feels to be a woman walking
alone in the dark, or even in broad daylight in shorts), and giving women a choice in their
reproduction (a woman does not have to have been pregnant or have contemplated an abortion to
know how the consequences of potential pregnancy can change her life forever
—
physically,
emotionally, socially, financially etc.). This indicates that although women are not always in
agreement amongst themselves, there are cases where their shared experience as women will add
the missing perspective to the bench because “the law has failed in the past to recognize women’s
‘°
Liu, supra note 18 at para 49.
note 33.
22
07 This argument is substantiated by Justice L’Heureux-Dubé’s support of studies
experience.”
done by Dean Lynn Smith and Professor Isabel Grant of the University of British Columbia that
discuss this point and conclude that “women’s perspectives are thus equally important to men’s
in determining a just result to a legal question or
and therefore denoting that equal
representation is needed on the bench.
Concern: Women wi//just conform to men anyways
There is an argument to be made that adding more women to the bench will not make a
difference because they will just conform to the institutionalized male standards anyways. It
must be acknowledged that female judges and lawyers have had traditional, male-oriented legal
training, and are using legislation and jurisprudence that has been largely written by men, for
men. Corroboration for this argument can be found in a study of women judges by two political
scientists, Peter McCormick and Twyla Job who concluded that “women professionals were
fundamentally the same people, represent[ing] fundamentally the same mix of values and
personalities as male 9
professionals.”° Women may also try to deny their difference so as to fit
in. This view can even be supported by Wilson’s famous lecture Will Women Judges RealLy
Make a Dijjerence?”° where she said that she is “not confident that simply by adding women to
the bench and stirring we will automatically change the male-centredness of law and legal
reasoning. .while increased representation is absolutely necessary, it may not be sufficient.. .the
.
107
Supra note 6 at para 12.
Grant & 1. Smith, “Gender Representation in the Canadian Judiciary” in Appointing Judges: Philosophy, Politics
and Practice (Toronto: Ontario Law Reform Commission, 1990) at 67, cited in ibid at para 6.
°g
Peter McCormick & Twyla Job, “Do Women Judges Make a Difference? An Analysis by Appeal Court Data”
(1993) 8 CJLS 135, cited in Backhouse, supra note 39 at para 29.
HlSupra note 3.
108
23
“institution” of law remains”.
111 A similar view is held by Justice Constance Glube of the Nova
Scotia Court of Appeal who admitted at a retirement dinner for L’Heureux-Dubé J. that she had a
“difficult time” being a woman “in a male dominated world.”
2 She explained that she backed
away from expressing too many controversial views about equality as “it was easier to try to be
one of the boys and to not rock the boat.”
3 This seems to be a common opinion held by women
judges; not all women can be as brave and confrontational as Madam Justice L’Heureux-Dubé.
However a couple simple rebuttals to this concern can he made.
Firstly, it is by the mere appearance of more women on the bench that allows women to
not conform to male standards. They will be more comfortable in speaking their mind, raising
points of contention, demystifying myths and challenging male assumptions of a “neutral” view.
Women have experienced difficulty in speaking up because they been the minority. Wilson J.
explained that she could not even speak out about the gender discrimination that she experienced
because of the high level of apprehension amongst the male judges “about having a woman join
that group.”
4 Both Wilson J. and L’Heureux-Dubé J. realized that they were under an unspoken
probationary period by the male judges, being ostracized by them both socially and
professionally’
5
and having to prove themselves every day so as to gain their
6
Unfortunately, their experiences are not unique; countless women in the legal profession have
admitted to being discriminated against because of their sex. In 1993, then-retired Bertha Wilson
J. conducted a study under the known title Task Force on Gender Equity in the Legal
“Ibid, cited in K.L. Scheppele, Facing Facts in Legal Interpretation” in R. Post, ed., Law and the Order of Culture
(Berkeley: University of California Press, 1991), cited in supra note 9 at para 22.
112
“Moge Ruling Termed a Masterful Invention, Lawyers Weekly (17 May 2002) 6, cited in Backhouse, supra note
39 at para 46.
113
Ibid.
114
Susan Lightstone, “Bertha Wilson: A Personal View on Women and the Law,” National (August/September 1993)
12 at 13-14, cited in Backhouse, supra note 39 at para 45.
115
Backhouse ibid at para 21; L’Heureux-Dubé, Guest Lecture, supra note 24.
116
Supra note 116; LHeureux-Dubé, Guest Lecture, ibid.
24
7 where she concluded that 44 % of the women judges reported having personally
Profession”
experienced discrimination while on the bench.”
8 The results also showed that this
discrimination was not only personally hurtful, but that it was “directly affecting women judges’
ability to discharge their full responsibilities. [t]he women reported sarcasm, ill-disguised
. .
hostility, sexual harassment,
.
.
.
[and] amused tolerance,” when dealing with male judges and
9 Further, women were not pennitted to sit on cases where male judges believed that
lawyers.”
women judges are unqualified, claiming that the case is either too complex for them or the nature
of the case was such that women “were not capable of exercising the required degree of
20 (especially in sexual assault and domestic violence cases). Conversely, women
objectivity”
were pushed to judge family law cases “so as to relieve their male colleagues of the demeaning
duty of ‘women’s work.”
’ This is further evidence of discrimination as well as men defining
2
the role that women are to fill. Thus having equal representation will create a more welcoming
environment where women judges will be respected as judges, will feel comfortable in their
positions and will be able to perform their duties more effectively.
Secondly, it is by saturation of women on the bench that male norms will cease to exist.
More women judges equals more women being comfortable to speak their mind, equals more
women influencing law, equals male norms no longer being the norms. Too simple of an
equation? Perhaps. However, it is this idea that must prevail in order for there to be a real sense
of equality not only in the legal profession, but in law as an institution and in society as a whole.
117
Touchstones for Change: Equality, Diversity and Accountability, Report of the Canadian Bar Association Task
Force on Gender Equality in the Legal Profession (Ottawa: Canadian Bar Association, 1993) [Task Force].
118
Task Force, ibid at 192-4, cited in Backhouse, supra note 39 at para 24.
119
Task Force, ibid at 185-99, cited in Backhouse, ibid at para 25.
120
Backhouse, ibid.
121
Backhouse, ibid at para 28.
.
.
.
25
These simple rebuttals offer the solution to the concern that female judges will conform to their
male colleagues.
Concern: men can be gender sensitive too and so equal representation is unnecessaiy
There is an argument to be made that equal representation is unnecessary because men
can be taught and socialized to be gender sensitive. Justice L’Heureux-Dubé herself
acknowledges that Chief Justice Dickson and Justice Beetz were “both extremely gender22 She highlights that Chief Justice Dickson “showed a deep sensitivity to concerns
sensitive.”
facing women
23
” in his many opinions which broadened what constitutes gender discrimination,
such as in Brooks v Canada Sqfeway Ltd’
24 which ruled that distinctions regarding pregnancy in
employee health benefits is sex discrimination. Further, Chief Justice Dickson delivered a
convocation address to the University of Toronto Faculty of Law in 1986 where he referred to
his compassionate approach to justice. This is interesting because compassion is typically a
quality that feminist writers attribute to women
125. He elaborated: “[b]y compassion, I mean a
feeling of empathy, or sympathy for the hardships experienced by others a feeling, which extends
to a sense of responsibility and concern to alleviate hardship at least in some measure.”
26 This
shows that male judges are aware of gender issues and do try to fight for the rights of women.
Justice L’Heureux-Dubé is a strong advocate of the belief that “[t]he education ofjudges seems
perhaps the most logical and obvious place to begin creating a more sensitive judiciary”
27
122
Supra note 6 at para 22.
Ibid.
124
Brooks v. Canada Safeway Ltd., [1989] 1 5CR 1219, cited in ibid.
IZS
D. Tannen, “You Just Don’t Understand” in Julie Macfarlane, John Manwaring & Ellen Zweibel, eds, Dispute
Resolution: Readings and Case Studies, 2d ed (Toronto: Emond Montgomery Publications Limited, 2003) 58.
126
Brian Dickson, “Judges and Judging” (Address at the Dinner with the Justices of the B.C. Supreme Court at
Government House, 9 May 1986) [unpublished], cited in supra note 6 at para 24.
127
Supra note 6 at para 32.
123
26
because women alone cannot effect the equality change that is necessary in society. These
arguments can be countered with the following rebuttals.
Firstly, to invoke a popular idiom: old habits die hard. Most judges who reach the
supreme bench are of a ripe age, and it seems to be that those over 55 years of age are the worst
offenders of sexism and the least responsive to education about alleviating gender bias.’
28 Bertha
Wilson J. suggested that some of the younger male judges are even “seriously grappling with the
question of whether the law was predominantly influenced by a male perspective and should be
29
rethou
ght.” It is true that law schools today have introduced many feminist classes and hold
gender education workshops
—
however they are mostly populated with female students who
proudly label themselves as feminist. To add the missing perspective to the Supreme Court
bench, women who can readily recognize and alleviate discrimination against women are
needed. For example, McLachlin J. (as she was then) was able to convince Chief Justice
Dickson, and others on the bench, in Tremblay v 3
Daigle’ to continue the case after the issue
°
became moot by suggesting that they put themselves in the shoes of a “desperate young woman’
determined not to bear the child of a man who had beaten her.”
’ McLachlin J. recognized that
3
this case needed to be viewed from a woman’s perspective, “not that a man couldn’t see it that
way
—
ultimately they did, but it wasn’t the way it immediately hit them”
32 This shows that
women are more apt at identifying injustices against women and so having equal representation
on the bench achieves more efficient results than educating men to see the world from a
woman’s point of view. This leads to the second rebuttal.
note 119, cited in Beverley Spencer, “Judge’s Letter to Bertha Wilson Raise Question: Gender bias
affecting ability of female judges to do their jobs?”, Lawyers Weekly (7 February 1992).
12
Ibid.
130
Tremblay V Daigle, [1989] 2 5CR 530.
131
Lori Hausegger, Matthew Hennigar & Troy Riddeell, Canadian Courts: Law, Politics, and Processes (Toronto:
Oxford University Press, 2009) at 103.
132
Ibid.
27
Empirical studies show that men and women view the world from different perspectives.
Many empirical studies of the courts have been done to determine whether women and men
inhibit different voting tendencies regarding particular issues. Some feminist scholars (such as
Carol Gilligan, a psychologist and Professor of Education at Harvard University, whose writing
were relied on by Wilson J.) even argue that not only are men and women’s perceptions
different, but so are their moral and cognitive developments. While it is interesting to note this
argument. this discussion will focus on more recent studies.
A 2007 empirical study of the Ontario Court of Appeal done by Stribopoulos and
33 found that gender appears to make a discernable difference mostly in criminal cases
Yahya’
involving sexual or domestic violence and family law cases regarding custody or support. They
explain that “while there is a statistically significant tendency on the part of female judges to
favour the interests of complainants and mothers.. .[t]he converse of male judges voting in
favour of the interests of accused persons and fathers is also true.”
34 The following survey of a
few of their statistical findings illustrates their point: in criminal cases where the accused was
acquitted through a Charter remedy, male panels sided with the Crown and overturned the
acquittal 92% of the time while mixed panels did so 73% of the time.
135 In sexual assault cases
where an accused appealed the sentence, male panels affirmed the sentence at a rate of 73%
while mixed panels did so at a rate of 78%, suggesting that either a slight tendency of female
judges to be against men convicted of these offences or, alternatively, a slight tendency of male
judges to favour the convicted male.’
36 In sexual or domestic violence cases where the charges
were stayed at trial, male panels overturned the decision 82% of the time, female judges sitting
Stribopoulos & Mom Yahya, “Does a Judges Party of Appointment or Gender Matter to Case Outcomes?
An Empirical Study of the Court of Appeal for Ontario (2007)45 Osgoode Hall U 315.
134
Ibidatpara5.
135
Ibid at para 68.
136
Ibid at para 69.
28
with other females overturned the decision at 86% of the time, however their number dropped
down to 79% when two male judges sat with a single female judge.’
37 Similarily, where a
Charter challenge was successfully asserted at trial, male panels affirmed the result 70% of the
time while mixed panels affirmed 82% of the time, meaning an accused has a 10% greater
chance of having his/her acquittal affinned on appeal when a female judge is on the panel.’
38
The authors suggest that these findings show that gender diversity on the bench has an
equalizing effect as they noticed that “the voting of male judges seems to be influenced
considerably by the presence of a single female colleague.”
39 This adds support to a statement
made by Wilson J. who explained that because women view the world from different perspective
from men, they can add that perspective to the cases that come before the court so as to “play a
major role in introducing judicial neutrality and impartiality into the justice system.”
°
4
Stribopoulos and Yahya propose that it would be an “easy task”
’ to have a process that ensures
4
gender diversity on court panels which “would go a considerable distance toward eliminating
reasonable perceptions of bias that this study would now seem to have empirically
To extrapolate these findings to the Supreme Court, a study done by Ostberg and Wetstein,
which examines Supreme Court cases from 1984 to 2003,’ concludes that female Supreme
Court of Canada Justices have been 25°% more likely than their male colleagues to protect the
interests of vulnerable minorities in all equality cases and 54% more likely to rule in favour of
ibid at para 101.
Ibid at para 66.
139
Ibid at para 104.
140
Supra note 3 at 515.
141
How easy is this task is a question yet to be determined, however there are many options of how to pursue
more equal representation to the bench: such as putting the Supreme Court Act a requirement that at least 4
women judges are to be on the bench, and if more happen to be appointed due to “natural selection” then all the
better so as to correct past injustices.
142
Supra note 135 at para 109; supra note 133 at 132.
143
Cynthia Ostberg & Matthew Wetstein, “Reality Check: On the Uses of Empiricism: Critical Notice: Attitudinal
Decision-Making in the Supreme Court of Canada; The Empirical Gap in Jurisprudence a Comprehensive Study of
the Supreme Court of Canada” (2008) 21 Can U & Juris 447-457; see also supra note 133 at 132.
29
non-unanimous equality cases.
144 The overall conclusions are that there is a need for greater
gender diversity on court panels so as to balance out the voting tendencies. This discussion
rebuts the argument that equal representation is unnecessary because men can be educated and
socialized to be gender sensitive. Equal representation will correct injustices more efficiently and
empirical studies have shown that men and women have inherently different voting tendencies
because they view the world from different perspectives.
Conclusion
This paper concludes that equal representation on the Supreme Court bench is necessary to
alleviate the gender discrimination that exists in the legal profession and in Canadian
jurisprudence. An analysis of case law, scholarly articles, and empirical studies reveals that
women judges have an inherently different perspective that is more attuned to recognizing the
myths and male bias that exist in legal reasoning. Women judges have been able to effect change
in jurisprudence through their judicial writings and even by their mere presence on the bench.
Their increased numbers change the Court atmosphere by creating a more welcoming
environment to different ideas, an environment that is necessary in the highest court of the land
and is more reflective of its population and experience. To sustain progress for women’s equality
in the legal profession and in Canadian jurisprudence there must be gender-equal representation
on the Supreme Court Bench.
‘44
30
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Graycar, Regina. “The Gender of Judgments: Some Reflections on “Bias” (1998) 32 UBC L
Rev 1.
Halka, Elizabeth. “Madam Justice Bertha Wilson: A Different Voice in the Supreme Court of
Canada” (1996) 35 Alta L Rev 242.
Hawkins, Robert & Robert Martin. “Democracy, Judging and Bertha Wilson” (1995) 41 McGill
U 1.
L’Heureux-Dubé, Claire. “Economic Consequences of Divorce: A View From Canada” (1994)
31 HousLRev45l.
L’Heureux-Dubé, Claire. “Making a Difference: The Pursuit of a Compassionate Justice” (1997)
31
31 UBC L Rev 1.
L Heureux-Dubé, Claire. “Making Equality Work in Family Law” (1997) 14 Can J Fam L 103.
Liu, Mimi. “A ‘Prophet With Honour’: An Examination of the Gender Equality Jurisprudence of
Madam Justice Claire L’Hcureux-Dubé of the Supreme Court of Canada” (2000) 25
Queen’s U 417.
McCleod, J.G. “Case Comment: Moge i’Moge” (1993) RFL(3d) 455.
McCormick, Peter. “Birds of a Feather: Alliances and Influences on the Lamer Court 19901997” (1998) 36 Osgoode U 339.
McCormick, Peter & Twyla Job. “Do Women Judges Make a Difference? An Analysis by
Appeal Court Data” (1993) 8 CJLS 135.
Minow, Martha. “Stripped Down Like a Runner or Enriched by Experience: Bias and
Impartiality of Judges and Jurors” (1992) 33 Wm & Mary L Rev 1201.
Morton, F.L., Peter Russell & Troy Riddell. “The Canadian Charter of Rights and Freedoms: A
Descriptive Analysis of the First Decade, 1982-1992” (1995) 5 NJCL 1.
Ostberg, Cynthia & Matthew Wetstein. “Reality Check: On the Uses of Empiricism: Critical
Notice: Attitudinal Decision-Making in the Supreme Court of Canada; The Empirical
Gap in Jurisprudence a Comprehensive Study of the Supreme Court of Canada” (2008 21
Can U & Juris 447.
Pask, E.D. “Canadian Family Law and Social Policy: A New Generation” (1994) 31 Hous L Rev
499.
Sherry, S. “The Gender of Judges” (1986) 4 Law & Equality 159.
Stribopoulos, James & Mom Yahya. “Does a Judge’s Party of Appointment or Gender Matter to
Case Outcomes? An Empirical Study of the Court of Appeal for Ontario” (2007) 45 Osgoode
Hall U 315.
Wagner, M.A. “Canadian Rape Shield Statutes” (1993) 16 Hastings Int’l & Comp L Rev 637.
Wilson, Bertha. “Decision-Making in the Supreme Court” (1986) 36 UTLJ 227.
‘
SECONDARY MATERIAL: BOOKS
Grant 1. & L. Smith, “Gender Representation in the Canadian Judiciary” in Appointing Judges:
Philosophy, Politics and Practice (Toronto: Ontario Law Reform Commission, 1990).
Hausegger, Lori, Matthew Hennigar & Troy Riddeell, canadian Courts: Law, Politics, and
Processes (Toronto: Oxford University Press, 2009).
Hogg, Peter. Constitutional Law of Canada, 3d ed (Scarborough: Carswcll, 1992).
McCormick, Peter. Supreme at Last: The Evolution of the Supreme court of canada, (Toronto:
James Loriner & Company Ltd., Publishers, 2000).
Rawls, John. A Theory ofJustice (Cambridge, Mass.: Belknap Press, 1971).
Scheppele, K.L. “Facing Facts in Legal Interpretation” in R. Post, ed., Law and the Order of
Culture (Berkeley: University of California Press, 1991).
Tannen, D. “You JUst Don’t Understand” in Julie Macfariane, John Manwaring & Ellen Zweibel,
eds, Dispute Resolution: Readings and Case Studies, 2d ed (Toronto: Emond
Montgomery Publications Limited, 2003) 58.
SECONDARY MATERIAL: INTERNET
About the Court, Judges of the Court: The Honourable Madam Justice Bert/ia Wilson, online:
Supreme Court of Canada <www.scc-csc.gc.ca>.
“Finally, a woman on Canada’s Supreme Court” (4 March 1982) (podcast), online: CBC Digital
32
Archives <http://:archives.cbc.ca.>.
“Moge Ruling Termed a Masterful Invention,” Lawyers Weekly (17 May 2002).
Spencer, Beverely. “Judge’s Letter to Bertha Wilson Raise Question: Gender bias affecting
ability of female judges to do their jobs?,” Lawyers Weekly (7 February 1992).
OTHER MATERIAL
Ayed, Naylah. “L’Heureux Dube Attacked as Support for McClung Builds,” Calgary Herald (4
March 1999).
“Consent Means Consent,” Editorial, Ottawa Citizen (2 March 1999).
Crawford, Alison. “No Consent in Unconscious Sex Case: Supreme Court” CBC News (27 May
2011), online: CBC News <http://www.cbc.ca>.
Dickson, Brian. “Judges and Judging” (Address at the Dinner with the Justices of the B.C.
Supreme Court at Government House, 9 May 1986) [unpublished].
Greenspan, Edward L. “Judges Have No Right to Be Bullies,” National Post (2 March 1999).
Interview with Kathleen Mahoney, Professor at the University of Calgary (10 April 1999).
“Judging the Judges,” Editorial, Ottawa Citizen (3 March 1999).
L’Heureux-Dubé, Claire. “A Conversation About Equality” (Address to the Faculty of Law,
University of Manitoba, 4 February 1999) [unpublished, notes on file with author].
L’Heureux-Dubé, Claire. Guest Lecture: Supreme court of Canada Seminar, (Faculty of Law,
University of Ottawa, 2011).
Lightstone, Susan. “Bertha Wilson: A Personal View on Women and the Law,” National
(August/September 1993) 12.
MacCharles, Tonda. “Judge’s Sex Case Ruling ‘Delights’ Women,” Toronto Star (26 February
1999).
McClung, J.W. Court of Appeal of Alberta, Edmonton, Letter to the Editor, National Post (26
February 1999)
Ohier, Shawn. “Women’s Group Turns Tables on LHeureux Dube,” National Post (4 March
1999).
Repo, Marjaleena. “The Ewanchuk Ruling Is No Reason to Rejoice, “Globe and Mail (4 March
1999).
Sheehy, Elizabeth. Lecture: Criminal Law and Procedure, (Faculty of Law, University of
Ottawa, 2010).
Tibbetts, J. “Female Justices Tend to Disagree with Male Colleagues” The National Post (21
January 1999).
Touchstones for Change: Equality, Diversity and Accountability, Report of the Canadian Bar
Association Task Force on Gender Equality in the Legal Profession (Ottawa: Canadian Bar
Association, 1993).
Wilson, Bertha. “Constitutional Law Section 7” (Lecture given at College of Law, University
of Saskatchewan, March 1987).
Wilson, Bertha. “Will Women Judges Really Make a Difference?” (Paper delivered at the Fourth
Annual Barbara Betcherman Memorial Lecture, Osgoode Hall Law School, 8 February
1990).
Urquijo, Covadonga Robles & Anne Milanhttp, Female Population, online: Statistics Canada
<http://www.statcan.gc.ca>.
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