I first started musing about going to law school as I was finishing my undergrad degree in political science. The idea didn’t last long, though, because I couldn’t afford it (and this was long before law school tuition had even begun its climb into the stratosphere). Grad school, on the other hand, paid money to teaching assistants and otherwise and so I went on to my master’s and then my doctorate in political theory. I didn’t consider law school again for another three years or so.
The experience of speaking for a group advocating for the ward system in North Bay (I was teaching poli sci at [then Laurentian-affiliated] Nipissing University College) showed me the benefit of the skills I might learn in law school and when things went topsy-turvy at Nipissing, I applied to law school. I thought I might as well get paid for arguing instead of fired!
I knew next to nothing about law or law schools and applied to Osgoode and U of T. To my surprise, both accepted me. I went to Osgoode: I thought what I understood to be its emphasis on social issues was more in keeping with my own inclinations. The areas of law I gravitated towards were very similar to the areas of political science/theory that I’d studied and then taught in political science. After acquiring my master’s, I had a year’s contract to teach political science at a university in western Canada. One of the six courses I taught over that year was Canadian politics — my only exposure had been in the Intro course and so I walked around the McMaster University bookstore and retrieved as many books on the subject as I could. At Nipissing, I taught about Canadian federalism. That turned into a passion for constitutional law that continues to today.
I also had a chance to develop a course of my own during the contract year out west and I created a course on minority politics — the beginning of what turned out to be a bedrock of my work in law, inclusion and diversity. At least for this, I’d taken a sociology course that addressed the subject in a way I don’t remember now and maybe a political science course, too. My course was framed around the position in the political system of groups lacking power, which in 1971 or ’72 meant “black” Canadians, Indigenous peoples (called otherwise then), women and probably one or two other groups. Little did I know that one other focus in my subsequent legal career, pay equity, planted roots then. I found out that a male prof with lower qualifications. was earning more than I was ($9,000 to my $8,500); the dean of arts remedied that when I said I could see only one difference between the other prof and me, other than my higher qualifications.
I won’t dwell on law school. I didn’t particularly enjoy it. I mooted, was awarded a writing prize, did extremely well in some courses, less so in others and was glad to finish. During that time, I continued working on women’s issues, which I’d begun earlier — my “feminism”, although I’m not sure we called it that then, can be traced back to high school. I remember talking with my friend Lorraine, as we parted ways going home, complaining that female graduates were expected to wear white dresses for graduation, while the guys had more flexibility in their clothing. In the end, I didn’t go to graduation. In North Bay, I had been active in the women’s movement, a continuation of my involvement during university.
During law school, I undertook research for the Employment Equity Commission, chaired by Justice Rosalie Abella. I worked as a volunteer with Morris Manning on Henry Morgentaler’s defence and wrote and spoke on issues such as pornography and abortion. I marched on International Women’s Day and otherwise. I was one of a group of women who began the Feminist Party of Canada; a couple of years ago, a friend from those days brought a couple of us together to try to collect memories of those days, but I think we are past that. My commitment to women’s issues — which early became an evolving appreciation of women’s diversity — led to an appointment as the Chair in Women and Law at the University of New Brunswick Faculty of Law.
But I get ahead of myself. I thought I might go back to teaching when I graduated from law school. Instead, I took a position as counsel in the Policy Development Division of the Ontario Ministry of the Attorney General. Three of us were hired to work on section 15 of the Canadian Charter of Rights and Freedoms as that provision came into force. I also worked on pay equity for the Ministry, along with others, as it planned for the introduction of pay equity legislation. Justice Abella invited me to go to the Ontario Labour Relations Board when she was chair and I decided to leave MAG and move into adjudication. Next stop was the Pay Equity Tribunal as alternate chair. Once again, life didn’t turn out as I expected and I travelled east to UNB in Frederiction to take up the Chair inA Women and Law position. From there I moved out west again to become the dean of law at the University of Calgary. I ended my formal legal career as the founding executive director of the Law Commission of Ontario, finishing in December 2015.
I entered into my life in law with a fairly narrow understanding of it and developed over the some 40 years a far more nuanced appreciation for its role in how it controls our lives, on the one hand, and how it has the capacity, in the right hands, to lift the lives of the vulnerable, on the other. We have seen close-up how ineffective law can be, yet how effective it can be used to abuse the powerless. Law is not an independent entity that operates of its own volition, of course. It relies on human beings to give it life — or to let it die — and it is only as good as the human beings who control it. At the LCO, I brought everything I had absorbed since I began to think about inclusion way back in my poli sci days to help define the frameworks of our projects, our analysis and our recommendations, complemented by the work of our researchers who brought their own backgrounds.
We made sure that we found out from people in different communities themselves how the law treated them, how it helped and hurt them, how proposals might affect them, sometimes in ways we had not anticipated. We cannot understand the impact of law generally if we don’t appreciate how it has diverse impacts, how it needs to accommodate difference. These are not necessarily easy questions. It is part of the challenge of law that I enjoy, recognizing that it changes as we learn more. It grows more difficult to apply and it becomes clear that law cannot solve all the problems we want it to solve. To be effective, I’ve learned over the years,law needs to be viewed and to operate within a cluster of disciplines and with the collaboration of legally- and non-legally trained participants. I believe that we need to reorganize the legal system from that perspective.
In more recent years, I developed an interest in technology and its advantages for access to law and, especially, in its limitations.Technological ways of accessing the legal system and of enforcing law were treated by many as a panacea, and as so often, it outpaced our ability to use it constructively. As we rushed to develop websites, provide information, tout its advantages for decision-making, we too often lost sight of how technology can be a barrier for some, either perpetuating their exclusion from the justice system or actually increasing it. Technology changes quickly and some of the early problems have been addressed, but unless those who develop it and those who adopt it recognize its limitations, how just like law itself, it takes in the biases and lack of knowledge of those who create it, it will not answer some of law’s biggest challenges related to expanding access to justice.
When I came to law, I came with my critical lens gained from an understanding of systems as dominant players keeping subordinate players in line. I have come, though, to see how law, often restructured, can also be a force for good. But I have had to accept, as I watch developments to the south of us, that law and the constitutional structures it forms are tenuous. I have known this to be true elsewhere and I have known it to be true in different ways here in Canada and other places some of us, in our optimism, have believed to be governed by the rule of law. Despite a commitment to the rule of law, to notions of equality, the reality is that law has been used, deliberately or without conscious regard for its impact, as an oppressive force. It is an ongoing battle to shift that dynamic. It becomes more difficult when those who are responsible for maintaining law ignore it or twist it for a particular end. While there is much (in my view) to be concerned about in the United States, one of the most depressing developments for me has been the speed at which the legal system has been subverted by the willingness of those in power to ignore or deny the basic tenets of the legal system. The promise of law as acting as a bulwark against autocracy has been crumbling far more easily than one would have hoped. It would be naive to think this has not happened before in other places at other times, but seeing it happen is astonishing .
And so while I began my legal odessey thinking about “law” as a set of skills helpful to achieve social justice ends, then as a source of state control and oppression of those lacking power, and increasingly as appreciating its role for improving society if it is developed and enforced in conformity with a set of inclusive assumptions, it is its weakness — actual and potential — that strikes me now. Of course, we have seen how easily the constitutional framework can be undermined (viz Prime Minister Harper’s prorogations) And I realize that my view that political culture is the real protection for law matters. It matters that those responsible for enforcing law, whether the police or the courts, accept the political culture of a liberal democracy and understand that they are meant to be non-partisan. It turns out that the lessons of my polical science degree told me much more about law than could guess when I relocated from one discipline to the other.
So what keeps me here? The intellectual challenge, for sure. And knowing that while law seems powerful to those who don’t have control of it, it is can be a mechanism for maintaining power, a tool for societal and individual justice or something that simply stands in the way of those seeking to turn democracy into an autocracy.