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Great strides but more work to be done for women: chief justice

|Written By Brett Hughes
Great strides but more work to be done for women: chief justice
Chief Justice Beverley McLachlin and Justice Rosalie Abella were given honorary degrees by Victoria University. (Photo: Alexandra Wong)

Delivering the keynote address at the University of Toronto’s Victoria University’s Charter Day Convocation, Chief Justice Beverley McLachlin kept her remarks focused squarely on equality, and the importance of obtaining more equal gender representation in “societal and democratic governance.”

She described a historical narrative in which much progress has been made, though considerable work remains ahead. McLachlin told a story about a 1939 visit to Canada by King George VI and his wife, Queen Elizabeth, the Queen Mother. While the King would usually attend and make remarks at public events, for some reason the Queen Mother took the stage at the laying of the cornerstone for Canada’s Supreme Court.

In what McLachlin described as “perhaps the only feminist speech given by a royal,” the Queen Mother said: “perhaps it is not inappropriate that this task should be performed by a woman, for a woman’s position in civil society has depended on the growth of the law.”

McLachlin said she liked to think the Queen Mother was invoking the 1929 Persons case, which established women were “persons” under Canada’s constitution and thus legally qualified to hold public office.

While “great strides” have been made, as evidenced by the honorary degree recipients this year and last, it is now 85 years since the Persons case was decided. The number of women in “parliament, law firms, or corporate board rooms [has] failed to mirror the 50-per-cent gender balance in society,” McLachlin said.

She turned to the work yet to be done.

“How do we move forward?” she asked. We need to challenge “hidden assumptions and stereotypes about the contribution that women should be allowed to make,” as well as the laws that perpetuate them.

McLachlin said education is “one of the most important” contributors to equality, as it helps “lift people over barriers, and to lead them to better, more equal lives.”

Charter Day was Victoria University’s 178th birthday on Oct. 8, which was celebrated by awarding honorary degrees to McLachlin and fellow Supreme Court Justice Rosalie Abella. Charter Day Convocation celebrates the grant of the University’s Royal Charter by King William IV in 1836. The event recognizes academic achievement by presenting scholarships and other awards to a select group of students.

Alumni of Victoria University include Lester Pearson, Margaret Atwood, and — as McLachlin noted in her remarks — SCC Justice Andromache Karakatsanis, who was awarded an honorary degree at last year’s Charter Day. Conferring honorary degrees to all three women sitting on the Supreme Court sends a powerful message “that women count, that women contribute, and that it is important that women be represented on the vital institutions of our democracy, including our courts,” McLachlin said.

Abella’s citation was presented by leading criminal and constitutional law scholar, Kent Roach. Fittingly, he is also a former law clerk to the Supreme Court’s first female appointee, Bertha Wilson. Towards the end of her term in office, Wilson famously delivered a speech entitled, “Will women judges really make a difference?” This year’s Charter Day honorees were testament to the fact that they have.

Roach lauded Abella as a “smart, courageous, and passionate pioneer.” He said Abella, who recently celebrated 10 years on the court, “has broken barriers, enriched our public and intellectual life, contributed to our shared sense of justice, and continues to do so today.”

In particular, he focused on the enduring legacy of Abella’s 1983 work as a “one-woman, one-year Royal Commission on Equality and Employment,” through which she developed the concept of “employment equity.” Her articulation of “equality” and “discrimination” was adopted by the Supreme Court in Andrews, the first s. 15 equality case under the Charter. The report itself was implemented by the Government of Canada, and also used by governments in New Zealand, Northern Ireland, and South Africa. Roach noted “the principles of the Abella report have continued to be the central, animating idea in our equality jurisprudence.”

Professor Sophia Moreau, one of McLachlin’s former law clerks, presented the citation for her former boss. Moreau, whose research focuses on equality, spoke about McLachlin’s “deep commitment to human rights and the rule of law,” “belief in a strong and cohesive judiciary,” and “concern for public outreach.”

Of course, Justice Louis LeBel’s mandatory retirement date is fast-approaching and the search for a replacement is surely well underway. McLachlin’s speech can be seen as a pretty clear suggestion LeBel’s successor on the Supreme Court should be a woman. After LeBel’s retirement, McLachlin and Abella will be the only two members of the Supreme Court not appointed by the present government. Five out of six SCC appointees by Prime Minister Harper have been male.

After McLachlin’s speech, Victoria University’s president, Paul Gooch, set the bar high for the student award winners. “We want you to . . . be like them,” he said, gesturing towards McLachlin and Abella. He elicited laughter from the chief justice (and the room) when he advised aspiring Supreme Court justices in the audience to “get yourselves appointed to the Quebec bar early.”

Ontario Attorney General Madeleine Meilleur, was also part of the platform party. Addressing the audience, she heralded McLachlin and Abella for breaking down barriers and their courage to “ignore the status quo.”

In keeping with Charter Day themes, the justices had to “slip away” early to catch a flight back to Ottawa that evening in order to hear a s. 15 equality rights case the next day. (“We must be there,” said McLachlin.) The case, Taypotat v. Taypotat, dealt with a challenge to a minimum education requirement in the Kahkewistahaw Election Act, and a long-time chief who became ineligible under the act having only obtained a grade ten education in a residential school.

  • http://ssrn.com/author=1398484

    Ken Chasse
    The new Treasurer of Ontario's law society is a woman.Its most serious problems: 1. the "unaffordable legal services problem; 2.alternative business structures (ABS's)-the conflict with professionalism by their additional "profit duty" with the fiduciary duty. Law society Benchers are enthusiastic about (2), but not (1). Money talks. Those firms having clients who can still afford legal services will benefit & their lawyers can become investors in strings of franchised law firms. But those lawyers having clients who can't afford legal ADVICE services won't benefit because advice can't be automated. ABS's will give them only automated routine legal services. Would more women judges decide that 2B "2-tier justice"- 1 tier for affordable legal services 4the rich, &the other tier 4those who can afford only automated routine legal services? Christie 2007SCC 21, para.27's words, "do not foreclose the possibility that a rt.2counsel may be recognized in specific & varied situations.." say so.
  • The Crucial Issues Are Not About Gender

    Chris Budgell
    This is a classic example of the orthodoxy that celebrates the denial of reality. If Justice Abella wants to promote equality / equity why has she done nothing to ensure that the vast majority of Canadians (irrespective of gender) have access to impartial and effective adjudication?

    Thanks to this article, I've found a copy - http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1764&context=ohlj - of Bertha Wilson's speech.

    Based on my own now substantial experience in court I cannot agree that women (and in particular judges) are any less committed to the adversarialism that is fundamental to our legal system.

    However, the record Bertha Wilson has left suggests to me that had she been Canada's first female Chief Justice we might well have seen by now the progress that continues to elude us.

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