Canada’s democratic system is comprised of three branches of government – the executive, the legislature, and the judiciary. As Greene (2006) argues in his Courts, the relationship between the Courts and democracy is somewhat paradoxical: judges are unelected and often intervene in the policy making of democratically elected politicians, yet democracy requires an independent judiciary where judges can offer independent and impartial application and interpretation of the laws. In the context of this paradox, however, one thing is clear – as in the legislatures and executives across the country, women have been and continue to be under-represented on the Supreme Court of Canada and recent trends in federal court appointments in general challenge judicial commitments to equality.
During the process of consultation on the repatriation of the Canadian Constitution, the National Association of Women and the Law (NAWL) warned that a ‘full understanding’ of the Canadian people necessary for the judiciary to play its role would not be possible with only one sex represented (NAWL, 1980). Both NAWL and the National Action Committee on the Status of Women (NAC; formed in 1971 to rally support for the Report of the Royal Commission on the Status of Women, 1970) recommended that women’s representation be ensured by quotas similar to those used to guarantee geographic representation among appointed judges. While these proposals were rejected, Bertha Wilson (1923-2007) became the first female Justice on the Supreme Court of Canada in 1982 after appointment by Liberal Prime Minister Pierre-Elliott Trudeau. In January 2000, Beverley McLachlin (1943-), appointed in 1989 by Conservative Prime Minister Mulroney, became Canada’s first female Chief Justice. In 2004, with the appointment of Justices Rosalie Abella (1946-) and Louise Charron (1951-), women became four of the nine judges. With the latter’s retirement in 2011 and that of Marie Deschamps (1952-) in 2012, the numbers fell to three of nine when two men and only one women were appointed.
Only seven women have ever been appointed to the country’s highest court. Perhaps this should not come as a surprise – most law schools did not admit women till half way through the 20th century and a 1993 report by then Justice Bertha Wilson found that women face significant barriers often in the form of overt sexism to career advancement in law firms. Yet, the problem is not an historical relic; women still remain over-represented among paralegals and legal secretaries but under-represented among lawyers. Further, of the five judges Prime Minister Harper has appointed between 2006 and 2012, only one, Andromache Karakatsanis, has been a woman. Worryingly, she has been described as “struggl[ing] to make an impact” by the editorial team at the Globe and Mail (14 April, 2013). Her professional experience seems more defined by her years as a senior civil servant, during which she served for a time as second-in-command to Jim Flaherty, then Ontario’s attorney general and now the federal Minister of Finance, than by her contributions on lower benches. Since her appointment, Karakatsanis has written only three decisions on her own. Her appointment occurred despite other strong candidates, including two women, on Ontario’s lower courts.
The presence of women on the Supreme Court has more than symbolic importance. The presence of female judges has shifted the discourse and jurisprudence cases involving violations of sex equality under s. 15 of the Charter of Rights and Freedoms. Justice Wilson herself argued that while gender may not make a difference in areas such as contract law, the representation of women is sometimes fundamental. In 1993 the Court heard Symes v. Canada, where a petitioner sought to deduct her childcare expenses as a business cost. The majority decision, while agreeing that women were responsible for a disproportionate amount of childcare, argued there was no proof they were disproportionately responsible for the cost of childcare and thus no violation of sex equality. The two female judges on the Supreme Court dissented, providing an important alternative perspective. Another example occurred two years later. In Thibaudeau v. Canada the majority decision declared that the tax burden on single parents was not unfair or in violation of s. 15, despite the fact that a substantial majority of single parents were women. Again, both female judges dissented, arguing that the tax code did unfairly burden women. While their dissents did not change either outcome, they highlighted the role of government, the law, and social services in the maintaining, rather than addressing, of inequity.
Women judges have also been found to offer alternative opinions in other arenas. Singer and Crews-Meye (2001) use a statistical approach to assess the impact of gender on legal decisions and find that women Supreme Court judges at the state level in the United States are more liberal than their male counterparts. In a 1994 study (1994), also examining judges in the United States, Singer and his colleagues found no gender differences on some issues (obscenity or criminal search and seizure), but did observe important differences in cases of employment discrimination. Peresie (2005) finds that women judges in American appellate courts decided more often in favour of the plaintiffs, in fact twice as often as their male counterparts in cases of sexual harassment and discrimination cases. Gender, Peresie suggested, mattered more than ideology. In Canada, Belle and Johnson have found that women on the Supreme Court offer important, alternative perspectives and write a disproportionate number of dissenting opinions.
While the proportion in Canada of all judges who are women increased from 6% in 1990 to over 25% in 2001 (Greene, 2006) and rose to 32% in 2011 (The Globe and Mail, 2011), recent trends point to a worrying future. In 2010 women comprised only 25% of federal appointments to the courts and the proportion fell to 16% in 2011 (8 women and 41 men). This retreat from gender equality (not to mention that of race, class, etc.) compromises Canada’s capacity to recognize different perspectives in the making and the breaking of the law. In the context of the ‘law and order’ agenda of the Conservative administrative of Stephen Harper (Nadeau), this shift is all the more worrying. Justice has yet to be an equal opportunity affair.
Sources and further references.
Belleau, M. & Rebecca Johnson. (2005). Les femmes juges feront-elles véritablement une différence? Réflexions sur leur présence depuis vingt ans à la Cour suprême du Canada. Canadian Journal of Women and the Law, 17:1.
Globe and Mail Editorial. A Supreme Court justice struggles to make an impact. http://www.theglobeandmail.com/commentary/editorials/a-supreme-court-justice-struggles-to-make-an-impact/article10748372/. April 14, 2013.
Greene, I. (2006). Courts. Vancouver: UBC Press.
Makin, Kirk. Appointments of female judges slump under Harper’s Tories. In The Globe and Mail. November 11, 2011. Retrieved from http://www.theglobeandmail.com/news/politics/appointments-of-female-judges-slump-under-harpers-tories/article4183464/
Nadeau, C. (2011). Rogue in Power: Why Stephen Harper is Remaking Canada by Stealth. Toronto: Lomier.
Peresie, J. (2005). Female Judges Matter: Gender and Collegial Decision making in the Federal Appellate Courts. Yale Law Journal, 114.
Songer, D. & Kelley Crews-Meye. (2001) Does judge gender matter? Decision making in state supreme courts. Social Science Quarterly, 81:3.
Songer, D., Davis, S., & Susan Haire. (1994). A Reappraisal of Diversification in the Federal Courts: Gender Effects in the Courts of Appeals. Journal of Politics, 56:2.
For a full list of current and past Supreme Court Justices see – http://www.scc-csc.gc.ca/court-cour/judges-juges/atoz-aaz-eng.aspx
For a full list of Supreme Court Decisions, including Thibaudeau v. Canada and Symes v. Canada see http://scc.lexum.org/decisia-scc-csc/scc-csc/en/nav.do-