International Women’s Day looks at whether women judges have made a difference

Have women judges really made a difference? This question echoed the title of Justice Bertha Wilson’s famous speech at Osgoode Hall Law School in 1990, and was posed to the panellists at the International Women’s Day Forum held Monday March 2 at the Law Society. 

Co-hosted by the Law Society, the Barbra Schlifer Commemorative Clinic, the Feminist Legal Analysis Section of the Ontario Bar Association, the Women’s Law Association of Ontario and the Women’s Legal Education and Action Fund, the panel was chaired by the Hon. Justice Geraldine Sparrow, and featured Professor Jamie Cameron from Osgoode Hall Law School, Mary Anne Eberts, Barrister & Solicitor, Sonia Lawrence, Associate Professor at Osgoode Hall Law School and the Hon. Justice Micheline Rawlins.

Justice Wilson argued that the law has no gender, said Professor Cameron, who painted a sensitive picture of the judge who was the first woman to be appointed to the Ontario Court of Appeal and the Supreme Court of Canada. A modest and unassuming woman, she never thought of herself as a feminist, but she was appointed to the bench at the same time the Canadian Charter of Rights and Freedoms was enacted and women’s rights cases were moving through the courts.

Two of Justice Wilson’s important decisions included the Morgentaler case, which decriminalized abortion, and R v Lavallee, which allowed the defence of battered wife syndrome in a murder trial.

Do women judges make a difference? The question is a relevant one, as women now represent 32 per cent of the bench in the Ontario Court of Justice and the federal courts. The hypothesis that women make judgments contextually with consideration of the effect on people, while men are more abstract in making their judgments, was largely dismissed. Indeed, Justice Sparrow cited Justice Sandra Day O’Connor as rejecting the notion that women on the bench are more sensitive as a Victorian view of how women’s personalities operate.

Mary Anne Eberts reminded the audience that Canadian women were enfranchised in the 1920s, except Quebec, which was not until the 1940s. She stated that if women were not judges, “they would forever be subalterns of the profession,” and true equality depends on women having access to the bench. Women judges have been involved in seminal decisions that have affected women, including Morgentaler, Lavallee and Daigle, and in each instance, brought their experience to the decision-making process.

A recent study by Stribopoulos and Yhaha found some statistical evidence that in criminal cases involving sexual or domestic violence, as well as in family cases involving custody and support disputes, judges of each sex tend to favour their own gender.

However, they also found that in mixed panels, these effects are moderated, supporting the value of gender diversity on the bench. Sonia Lawrence extrapolated from this to support the view that greater diversity on the bench in terms of race and gender will better serve the public while at the same time increasing the confidence of the public in the justice system.

Justice Rawlins, the first Black woman appointed to the bench, wrapped up the afternoon program with personal observations of her experience. She encouraged women lawyers to apply to be judges, and said that judges must bring their personal perspectives to the bench without fear of being called less than impartial, and that the definition of perspective does not necessarily equate to male privilege.

At the reception following the event, Justice MacLeod Beliveau reiterated this sentiment, saying that greater diversity on the bench means that different life experiences are brought to the decisions that are made. “We are not a homogeneous society and we need to have increased sensitivity to the diverse experiences of those before the courts,” she said.

Women Benchers appointed to the Bench

In 1897, the Law Society of Upper Canada became the first body to permit women to practise law. In 1943, a Canadian woman, Justice Kinnear, became the first woman judge in the British Commonwealth.

Thirteen women benchers have been appointed to the bench, and their success was celebrated on International Women’s Day. They are (with the years they served as Law Societybenchers):

Justice Judith Oyen Bell (1982-86)
Justice Mary Lynne Hogan (1986-87)
Justice Helen MacLeod-Beliveau (1987-89)
Justice Frances Kiteley (1987-95)
Justice Denise Bellamy (1988-97)
Justice Sandra Chapnik (1990-91)
Justice Joan Lax (1991-96)
Justice Carole Curtis (1991-2008)
Justice Harriet Sachs (1995-99)
Justice Nancy Backhouse (1995-2000)
Justice Eleanore Cronk (1995-2001)
Justice Kim Carpenter-Gunn (1995-2008)
Justice Bonnie Warkentin (2003-08)

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