week 6 Flashcards
what should we know about women in judges
One woman in politics does not represent every woman in politics.
Women judges make a difference, but they do not make all the difference.
Not fair to expect a woman judge to take up the issues of all minority groups.
Judges cannot make crucial changes on their own, they still must be impartial, be within the
majority, they must be judged fairly with their counterparts
Currently, all judges are white, heterosexual women – many barriers still need to be
overcome
9 judges in the Supreme Court. 1 chief justice, the rest are puisne (pyue-nay) justices
bio of bertha wilson
Died in 2007. Served in the Ontario Court of Appeal for 7 years (75-82), Supreme Court for 9
years (82-91)
what are notbale decisions of bertha wilson
Andrews v. Law Society of British Columbia – endorsed substantive equality reading
S15
o R v. Morgentaler – concurrence, women’s experience of pregnancy and abortion
- Decriminalised abortion, prevented government from making laws that would inhibit
access to abortion. She argued that it was a deeply personal decision based on many
different factors
o R v. Lavallee – women’s experiences of domestic abuse, inability of women to leave domestic relationships
what were her views on women judges
Compared to the other women judges, Wilson was not overly optimistic that women judges
would make a huge difference
Being the first woman judge, she felt a lot of pressure from society
She emphasised that legal change is slow, and they cannot expect an instantaneous shift
When Wilson was first appointed, the Charter had only just been introduced, and many
people did’t understand how much the Charter would open up the courts to progressive
changes
what does wilson argue
If you think that women judges will make a difference, then you think one of two things:
1. Judicial activism
Judges are trying to advance their own agenda (individual or political) by judging in a
particular way
2. Redefining impartiality and independence
That these terms have been defined implicitly by male standards and norms and
they need to be reassessed
Wilson tended to be of this position
what were wilsons views of impartiality
- Often argued that the belief in total impartiality left biases unchecked, unacknowledged.
Exist without being examined, implicit biases are built into the system
Importance of having judges acknowledge that their impartiality requires them to educate
themselves in particular areas that are out of their expertise, otherwise they will simply bring their bias into their decision making
-can’t relace male with femal biase
phyrric victory
what is a pyrric victtory
A pyrrhic victory: you won the battle, but you lost more than you gained.
Wilson said that it would be a pyrrhic victory if women judges are simply introduced into the
mix, because it wouldn’t change what all judges do (the majority). she says that it is more
important for women perspectives to be fused into the process and perspective all judges
take
explain r. v lavalee
Self defence – imminent danger, no other option
o Difficult to understand how shooting someone in the back of the head indicates
imminent danger
o Legal team used comment from psychiatrist who testified that Lavalee was an
example of battered spouse syndrome
o Lavalee had been severely assaulted on multiple occasions; she knew that there
would be another assault in the future. The opportunity to stop him from killing him
would not occur again. She was financially dependant on him, no bankable job skills,
significantly and consistently emotionally degraded – she could not subjectively think
of a way out
o Lavalee was acquitted of the murder
what is the lavalee judgement based off of
ethics of care
what is ethics of care
Carol Gilligan – observed the moral reasoning of men and women
The majority of men and women applied different moral reasoning to a particular situation.
Although there were some men who used the same as women and vice versa, on the whole,
there was a distinct difference
how does gilligan argue e.o.c exists
Heinz dilemma – is it wrong to steal the expensive medicing that he can’t afford to save the lfie of heinz’ wife?
o Men, the Justice Perspective – no, stealing is morally wrong; yes, human life is more
important than stealing. Black and white, right and wrong options, absolute morals
o Women, the Ethics of Care – viewed the situation on the whole, saying that both
options are morally corrupt, and that there must be another way to be able to
negotiate something. Women were more likely to emphasise contextual situation
and change over time
Note: these two things are not opposing, they can work in tandem
who is claire l’heureux dube
Quebec Court of Appeal 8 years (79-87), Supreme Court 15 years (97-02)
- the feminist judge
- She has many famous cases because she often dissented.
-She did not often dissent purely
for the sake of it, because she found that she did often have different opinions to other
people.
-She found that there were multiple reasons and perspectives, and it was duty to make those visible when others may have ignored them
- 7 years aqfter the appointment of LHD, there is an increase in women lawyers
and judges, more diversity in the courts
- Expresses that women are not a homogeneous group, highlights this on a frequent basis
notable decisiosn of l’heureux dube
Moge v. Moge – women’s experiences
o Mossop v. Canada – family means many things
o Vriend v. Alberta – equality law should be flexible and expansive. Social vulnerability
o R v. Ewanchuk – rape is rape regardless of anything.
what are similarities between lhd and wilson
entry of women to the ranks of judiciary to bring social change – pyrrhic judiciary.
Still have no achieved perfectly equality or judicial parity. Rather, we need to
sensitise both men and women judges to gender bias issues
differences between lhd and wilson
- Let’s not put the burden of educating law professionals on the backs of those
oppressed people in the industry (eg. judges themselves). It is not the job of the
oppressed person (coloured, female etc) to educate those around them. The judge
should go out of their way to educate themselves
o A representative bench is not about fulfilling quotas from each group, but rather
being able to conceptually represent diverse interests and people without belonging
to that group explicitly yourself
Drew on compassionate justice approach by the Chief Justice Brian Dickson –openness
should be instilled in all judges, sensitive to differences and willing to LISTENING and trying
to understnad other’s stories, empathy
what is the charter of values in quebec
goign to ban muslim women from wearing hijabs who worked in any public sectior - teaching nurses etc.
what did LHD say about charter of values
believer of the COV
- said religious freedoms was a private matter, and rules of public places did not apply to religious rules
who disagreed with LHD charter views and why
-Justice Rosalie Abella – Supreme Court judge. -Knew religious persecution first hand (growing
up as a Jewish woman in Nazi Germany).
-Said that a Muslim woman was not a Muslim onemoment and a woman another moment, was a Muslim woman.
-Said that restricting
someone from expressing their religious beliefs was a violation of the Charter that already
existed
explain r. v. ewanchuk
The defendant sexually assaulted a woman
Justice McClung – Alberta Court of Appeal. Stated in ruling that it was the boys hormones,
that it was her fault because she was dressed provocatively, boys will be boys
LHD wrote a very direct concurrent dissent to mcclung
- In response, mcclung wrote to national post stating lhd’s
feminist agenda is a cause of increasing male suicides
Was unaware that lhd’s husband committed suicide
Very rare and uncommon for judges to openly criticise each other in this way
explain moge v. moge
1989
Mrs Moge – worked part time at nights in addition to home making and child rearing
Mr Moge – professional job, breadwinner
Terminate spousal support 12 years after divorce, as Mrs Moger had enough time to build
self sufficiency
Mrs Moge continued to work part time whilst being primary caregiver to children during the
12 years
what happened in court of moge v. moge
In Court of Appeal, Mr Moge won his case to have spousal support terminated
In SCC – women who chose to be home makers and child care takers were sacrificing
opportunities for education, work in order to benefit the shared goal of both partners, while
the other advanced personal goals. Disadvantage to Mrs Moge, while advantage to Mr Moge.
It was unrealistic to expect her to be able to become self sufficient AND look after
the children after being out of the work force for so long
lhd did not view mr and mrs moge as two separate entitties who parted ways, but “viewed the shades of grey”
who is beveryley mclachlin
Longest sitting Chief Justice in the Supreme Court
British Columbia Court of Appeal (88-89)
SCC – 2000
what does mclachlin argue about law
Talks quite a lot in the article about what lawyers should do rather than judges
Acknowledges that legal change is a signpost for where social equality battles are. Argues
that legal change is a signpost for where socia equality battles are
- argues that law is an important tool in reaching social equality but can’t do it on it’s own
- We can have laws prohibiting discrimination against women in the workplace, and
protection of women against sexual assault, but law cannot do anything about social
attitudes, social hierarchy or structural things such as providence of full day child care
Highlights importance of listening to marginalised voices and judging accordingly, but
people cannot expect law to fix the problems outside the courtroom
what does mclachlin say about other judges
Agrees with the other two justices in saying that women cannot simply be present in the
courtroom for change to occur, but judges need to be educated (pyrrhic victory). Agrees
with other two justices ins saying women cannot simply be present in courtroom for change to occur, but that judges need to be edducated (pyrric victory). agrees with lhd that judges need to take it upon themseleves, and issues cannot beburdened to those judges who are marginalised
