Keeping Kitchen on the Bench

Late last year, with the appointment of Sheilah Martin to the Supreme Court of Canada, Penny Collenette of University of Ottawa Law reflected in the Toronto Star on whether we appreciate our Supreme Court justices enough,

…it is not uncommon for justices to retire from the bench before their retirement date. The case load and the isolation of the position can be wearing. Working intensely with eight colleagues from different backgrounds and different regions of the country in an austere setting can cause friction.

She refers to a new book by Prof Backhouse, A Life, which covers the life of Claire L’Heureux Dubé, with specific reference to the isolation of the job,

L’Heureux Dubé described it as “living like a hermit in Ottawa,” similar to a “monk’s existence.” She felt “cut off” from her friends and her life, suspended in “rarefied air.” Once again, she found that her gender posted an added challenge.

It is always difficult to diagnose why one is treated as an outsider and held at arm’s length, and certainly some of the male Supreme Court judges must have also felt estranged from their colleagues at times.

As one of the few women on the bench, only the second to the Supreme Court, gender divisions were still a significant factor at that time.

The book also describes a skeptic work environment at the Quebec Superior Court, as a single woman surrounded by twenty male judges. She was greeted on her first day by Justice Jean-Robert Beaudoin, who warned, “You are happy today, [but] you’ll be a slave for the rest of your days.” Backhouse explains,

He was referring to what many of his brethren though of their task: poorly paid drudgery, endless cases, all nose-to-the-grindstone. “There were no smiling judges on that bench,” recalled L’Heureux Dubé. “No joke types, just down to business.”

Backhouse explains that L’Heureux Dubé’s isolation was perhaps even more significant, given that her decisions often put her at odds with her colleagues on the bench. This was no more apparent than the Court’s decision in R. v. Ewanchuk, dealing with implied consent for sexual assault.

L’Heureux Dubé provided a scathing opinion, which although agreed generally with the opinion of the majority, felt it necessary to address some of the inappropriate myths and stereotypes around sexual assault complainants. In particular, McClung J.A.’s statement at the Alberta Court of Appeal drew her ire:

“…it must be pointed out that the complainant did not present herself to Ewanchuk or enter his trailer in a bonnet and crinolines.”

Her opinion relied heavily on the statistics of the pervasive nature of sexual assaults, demonstrating the highly gendered nature of the offence, and emphasized how violence against women was itself a conception of human rights protected by ss. 7 and 15 of the Charter,

87 In the circumstances of this case, it is difficult to understand how the question of implied consent even arose. Although he found the complainant credible, and accepted her evidence that she said “no” on three occasions and was afraid, the trial judge nonetheless did not take “no” to mean that the complainant did not consent. Rather, he concluded that she implicitly consented and that the Crown had failed to prove lack of consent. This was a fundamental error…

This error does not derive from the findings of fact but from mythical assumptions that when a woman says “no” she is really saying “yes”, “try again”, or “persuade me”. To paraphrase Fraser C.J. at p. 263, it denies women’s sexual autonomy and implies that women are “walking around this country in a state of constant consent to sexual activity”.

The case is credited by Backhouse for acceptance of the term, “no means no,” in the popular culture of Canadian society, as it was derided by McClung J.A. in his decision.

However, this hardline position towards gender equality did not earn L’Heureux Dubé much affection from some sectors of the legal community or the public at large. McClung J.A. was a friend and colleague of Justice Major, who was chosen by Justice Lamer to write the decision for the unanimous court, despite her seniority on the Court. It made her wonder if Justice Lamer, who himself was known for having a close hunting friendship with McClung J.A., was attempting to shield him from public criticism. Instead, she took a very firm stance against the lower court’s decision,

95 This case has not dispelled any of the fears I expressed in Seaboyersupra, about the use of myths and stereotypes in dealing with sexual assault complaints (see also Bertha Wilson, “Will Women Judges Really Make a Difference?” (1990), 28 Osgoode Hall L.J. 507). Complainants should be able to rely on a system free from myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions. The Code was amended in 1983 and in 1992 to eradicate reliance on those assumptions; they should not be permitted to resurface through the stereotypes reflected in the reasons of the majority of the Court of Appeal. It is part of the role of this Court to denounce this kind of language, unfortunately still used today, which not only perpetuates archaic myths and stereotypes about the nature of sexual assaults but also ignores the law.

[emphasis added]

Those hunting trips must have gotten much more interesting after the release of this decision, but the isolation facing L’Heureux Dubé would also have been accentuated further. McClung J.A. took to publicly attacking her in the media in the newly-launched National Post, citing her “feminist bias” and “personal convictions,” even making a snide remark about suicide given her own husband’s death. Her decision even resulted in a complaint by a right-wing women’s organization to the Canadian Judicial Council, which was of course dismissed.

A recent CBC interview with the daughter of Justice Gerald Le Dain further helps illustrate the burdens of the bench. Prior to the 1988 fall sitting, Justice Le Dain was feeling anxious, not sleeping well, and was just diagnosed with depression. He approached the Chief Justice for some time off, but was instead asked to step down from the bench,

He didn’t have any choice. What could he have done. Get a lawyer? Could he have fought it? He was ill. This was something that clearly, they didn’t want it to be public. They didn’t want him back. What do you do at that point? That was a devastating time for him, for the whole family.

The CBC also interviewed Justice L’Heureux Dubé, who was on the Court at the time,

Well, Bertha Wilson and I, we were shocked. We all felt it was unfair. The problem of the chief justice not being able to hand out judgments — that is a consideration. But to me, that consideration is secondary. Justice Le Dain, being an exceptional mind and very great for the court, should have been given the time to get back healthy. And we thought that wouldn’t be that long. Being forced to resign in such a position, it must have been terrible…

He was the type of person that should have remained on the court — with his mind, his wonderful ability to decide cases. He could have contributed much more.

While we’ve come quite a long way to better understand and support the struggles of mental health in the profession, at that time it was assumed that mental health was a form of permanent brain damage, and would impact Justice Le Dain’s future ability to preside over the Court. Alternatives such as hiring more clerks, or having seven judges sitting for some time, did not even appear to be investigated at the time.

Sean Fine in The Globe describes how the past Chief kept the Court together,

During one fractious period within the court, she invited her colleagues to prepare a meal at her home, under the direction of the Supreme Court chef, Mr. Binnie recalled: “So we were all instructed to clean fish and peel vegetables, which brought people together on a personal level at a time when there were some professional differences that needed to be healed.”

With a new Chief Justice, and a new composition of the Court, it’s worth remembering the “drudgery” that still exists in the role of the bench, as well as the increased pressures and demands of the bar and the public. Lower level courts are under even more significant pressure with the rising rates of unrepresented parties, which itself exists because legal services are largely unaffordable to the general public.

Judging has always been about more than the pay in the common law system – it is the creation and development of legal principles, sometimes in opposition to those around you. Intellectually that is challenging enough, without even considering the social impacts of doing so when taking a difficult stance.

If we don’t properly support the bench, we risk not attracting the best and the brightest in the bar to take the role. The health of the legal system invariably depends on the supports that we provide to an independent, yet collegial judiciary.

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