Thursday Thinkpiece: Women in Criminal Justice – True Cases by and About Canadian Women and the Law

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WOMEN IN CRIMINAL JUSTICE: TRUE CASES BY AND ABOUT CANADIAN WOMEN AND THE LAW

Authors: Susan Lang , Nancy Morrison, Lise Maisonneuve, Danielle Coté, Iona Jaffe, Kim Pate, Jennifer Briscoe, Catherine Dunn, Kaysi Fagan, Deborah Hatch, Karen Hudson, Barbara Jackman, Lucie Joncas, Susan Kyle, Jill Presser, Rosellen Sullivan, Jennifer Trehearne

Foreword by: Rt. Hon. Beverley McLachlin

Editors: William Trudell, Lorene Shyba

ISBN: 978-0994735249
Page Count: 272
Publication Date: May 31, 2018
Excerpt: Chapter 8, pgs. 137 – 146.

Price: $29.95

Available via Amazon and Indigo.

© 2018. Durvile Publications Ltd. All rights reserved.

Honourable Lise Maisonneuve: “How to Shift a Culture”

On March 8, 2018, International Women’s Day, I was attending a meeting of our Court’s administrative judges. These are the judges who, among many other tasks, supervise the sittings of the Ontario Court of Justice (OCJ) and the assignment of judicial duties. In effect, they function as my delegates in the courthouses in which they sit.

That morning, as I looked out at the room and listened to comments from the audience, I was reminded of the progress our Court has made in terms of gender parity. Of the forty-eight judges attending, twenty-four were women.

Over the past several years, it has become the OCJ’s normal situation to have balanced numbers of women and men being appointed as Judges and Justices of the Peace. As of March 2018, 126 of 298 judges on our Court are women, which works out to approximately forty-two percent of that bench. Over the past year, twenty-seven of the fifty new appointments have been women. The trends are even more pronounced on the OCJ Justice of the Peace bench where 167 of 304 justices of the peace are women. In the most recent group of thirty-eight new justice of the peace appointments, twenty-two are female.

While we accept this diversity as the status quo today, I know full well we can’t be smug or wave aside any concerns about the continuing role of women in our Courts — thinking the battle is won and that women are firmly and permanently ensconced as equal members on our benches. It’s one thing to introduce a significant culture change, it’s quite another to maintain it over the long term. Further, I know that our Court isn’t a perfect reflection of the legal world from which we draw our judges. And, in turn, I know the legal world is not a perfect reflection of the diversity in today’s Canada.

Back in March 2016, on the cusp of a previous International Women’s Day, I addressed the Women in Criminal Law Conference in London, Ontario. The discussion that day focused on the challenges female defence lawyers face in building and maintaining a practice in a field still dominated by men and framed by men’s expectations. This conference came hard on the heels of the release of a report prepared for the Criminal Lawyers’ Association which clearly demonstrated that, for a variety of reasons, women were leaving the practice of criminal law at higher rates than men. Retention of women in the private practice of criminal law continues to be a live issue, despite strides in other sectors of the criminal justice system, including our Court.

That brings me to the crux of my chapter. I believe that our Court and its progress toward a more diverse bench, in terms of gender and other aspects of diversity, is far from complete. Nevertheless, the strides we have made as an institution provide a solid case study in how to shift a culture and move toward lasting, positive change.

Judges and Justices of the Peace are the lynchpins of our justice system. We shoulder a profound responsibility to administer the law with fairness and impartiality. Today, it is accepted that diversity on the bench is intimately linked to the provision of equal justice for all in Canadian courts. But it wasn’t always that way.

We’ve all heard the gurus of organizational change theory tell us that three basic elements are needed to effect lasting change. First, people must accept that change is necessary. Second, that process of transition must be premised on a shared vision for the outcome of that change. Third, systems need to be put into place to ensure change can take root and flourish. Simply put, people need to agree to pull in the same direction, and then they need to actually do some real pulling.

So, let me set the stage for the changes that have occurred in our Court.

Fifty years ago, when our Court was a magistrates’ court, a lawyer named David Vanek was appointed to the criminal bench. Writing about the progress he witnessed during his nearly twenty years on our Court, beginning with his appointment in 1968, he recalled:

Automatically I joined a select brotherhood of the judiciary. It was indeed a fraternal organization because not a woman graced the dais at this time or for several years thereafter.”

It wasn’t until 1979, over ten years after David Vanek joined the bench, that June Bernhard became the first woman to become a judge in the criminal court, serving with Justice Vanek and the ‘brotherhood’ in Ontario’s Provincial Court (Criminal Division). Even in 1979, her appointment was groundbreaking news, meriting newspaper coverage with headlines like “Woman Judge Makes History.” In fact, Bernhard recalled that when the Deputy Attorney General phoned to invite her to join the Court, she thought it was a prank call.

All of our progress has been achieved in one generation, just a few decades. Many of the judges sitting today in our Court remember the days when there was no maternity leave for judges, for example. Supreme Court of Canada Justice Rosalie Abella, who began her judicial career on our Court in 1976, presided until the day before giving birth. She stayed home with her baby for two months, still receiving her judicial salary. When she was told there had been a mistake and that there was actually no maternity leave program for judges, she returned that money.

Today, we shake our heads at these stories. So how did our Court so dramatically increase the percentage of women on its benches? How can we continue to attract women to apply to serve on our Court?

We must be vigilant. As I mentioned, it’s one thing to introduce change, it’s quite another to maintain it.

Many things must work in concert to ensure that our benches reflect our society.

Let me get personal here. I was appointed to be the Associate Chief Justice of the OCJ in 2013. At that time, I joined Faith Finnestad as Associate Chief Justice and Annemarie Bonkalo as Chief Justice. Three women in leadership positions. It was a first for any court in Canada.

At the time, both men and women congratulated me on my appointment. But a few of the men — and none of the women — asked me how it was working with the Chief Justice and the two Associates all being women. I could tell these men were genuinely concerned, or perplexed. I was afraid they might have thought that the three of us together lacked the collective abilities to lead what was then the largest trial court in Canada.

After I’d figured out the subtext to questions like this, I realized I had a responsibility to ‘normalize’ our situation for those who still found it unusual. So, I didn’t let these questions lie. I would enter into discussions with those who were questioning our leadership abilities, and making assumptions. I wanted to ensure that all were aware that I understood precisely what they were saying and that I wasn’t buying into the old views and rules. Our Court has changed. End of story.

Simply put, leaders must lead — vocally and unequivocally. I realize that, thanks to my position, I can contribute to changing the conversation. It’s important for me, and leaders like me whether they be men or women, to be direct in pointing out old and out-dated ways of thinking about the world of work and the place of women and men in that world. Gender does not restrict our choices. We should talk together about how we want to shape our work world and our places in it, then must do the work to make change happen.

I would argue that the progress in our Court began with strong leadership. In the late 1980s, changes were introduced to the appointments process used to select judges for our Court. A model was introduced by the Ontario government that emphasized and valued transparency, and promoted merit and diversity. This model still exists, now enshrined in the Courts of Justice Act, and it features a broad-based committee, the Judicial Appointments Advisory Committee (JAAC) that advertises judicial vacancies, interviews candidates, and forwards a short list to the Attorney General of those who are best qualified. I think it’s worth quoting from the Courts of Justice Act to see the statutory regime under which JAAC operates. JAAC not only should assess the professional excellence of candidates for the judiciary but also their “community awareness and personal characteristics” and, further, recognizes “the desirability of reflecting the diversity of Ontario society in judicial appointments.” The result of the introduction of JAAC — a profound systemic change — has been a steady stream of exceptionally well-qualified applicants to the OCJ.

I’d like to give you a bit more history.

Positive change didn’t just happen because of a change in appointments process. People, both women and men, actively pushed for this progress to occur. They made sure that the good intentions of a piece of legislation became reality. Active steps were taken. For example, in 1990, Howard Hampton, the Attorney General of the day, sent out a letter to all women lawyers in the province who had been in practice for more than ten years inviting them apply to the Court. The letter stated that the government’s goal was a Court comprised of at least fifty percent women. That approach was previously unheard of — and some of those women who were encouraged to apply because of that letter sit on our Court to this day. As a result of that strategic move, change occurred. The justice system has, as a whole, benefited.

But change doesn’t come pain free. Not everyone was pleased with the growing diversity of judicial appointments in the early 1990s and the push for more women to become judges. One significant example: the first chair of JAAC, Professor Peter Russell, recalled receiving a call from a male lawyer, upset by the active encouragement of women applicants. According to Russell, the lawyer said: “I want to be a judge but I don’t want to wear a skirt.”

The leaders of the Court took action. They determined it was time to invest significant time and effort in ensuring that the Court was welcoming of diversity — and systemic changes were made. During the early 1990s, the Court began delivering comprehensive gender awareness and sensitivity training for the judiciary, involving greater numbers of women in delivering such programs.

These education programs accelerated a real shift in the Ontario Court’s culture, as the judiciary of the Court began pulling in the same direction, recognizing the value of a broadly representative bench. The more varied the values, experiences and assumptions within a court as a whole, the more the court will be — and will be seen to be — open to the realities of the diverse public that appears before it.

One of our judges, Justice Manjusha Pawagi, recently expressed the value of diversity succinctly — and I can’t say it better

I recognize the value having a different cultural perspective than many of my colleagues. My cultural lens doesn’t take away the need to examine carefully, as all judges must, how my personal background and experience can affect the way I see the cases that come before me. The challenge for all of us is to use cultural sensitivity and avoid cultural bias.

History is instructive but the question remains, How do we move forward from here? I believe that Justice Pawagi has identified the critical issue for anyone considering the role of women in the criminal justice arena, or for that matter, the world of work generally. We must be aware of our own personal backgrounds and how they influence our careers and the myriad ways we do our work.

That brings me to my own experiences, the trajectory of my legal career and the responsibilities I believe each of us has as individuals to ourselves and our work lives.

I did not have any sort of firm career plan when I was called to the Bar in 1991. I had graduated from the University of Ottawa Faculty of Law and the two things I knew for certain were that I wanted to stay in Ottawa and I wanted to practice criminal law.

I joined a small firm where I had the opportunity to try my hand at every aspect of criminal law as defence counsel. In those days, my goal was very simple — to do my best at whatever role I was in. I remain firmly committed to this approach. I believe it has served me well.

I learned three vital things in those early years: to watch, to listen and to ask questions of those senior to me. I was persistent. I spent many hours in court, just watching various senior lawyers conduct trials. I was not a particularly confident person in those days and it required a real effort on my part, but I would screw up my courage and strike up conversations with experienced counsel, ask questions, and listen to their answers. After a few months, it became easier to do this. I realized that I was consciously developing confidence in my own skill, my own approach and my own way of communicating. I was learning to do things on my terms.

I talked to everybody. I wanted all the members of the Ottawa bar, both men and women, to see that I was part of their group of criminal defence lawyers. I joined the local criminal defence counsel association. I pitched in. As mentioned, I was persistent. I realize now that, to use a phrase Sheryl Sandberg coined, I was “leaning in.”

But that wasn’t enough. I knew I needed to continue learning. I asked a couple of the lawyers I’d met to mentor me. They were senior lawyers whose approach to both work and life I admired. I made a conscious decision to find both male and female mentors. They gave me important support in the development of my skills as a lawyer and as a person. They encouraged me to develop my own style and voice as a litigator — not simply to replicate their approaches. When my work was critiqued by my mentors, I paid attention to the comments and I took them seriously. I told myself not to take those criticisms personally. Again, like acquiring confidence, it took me time to get to that place where I didn’t feel personally deflated and defeated by criticism. I believe my ability to learn from the comments of others made me a stronger advocate for my clients — and able to withstand the rigours of practice.

I understand that the readers of Women in Criminal Justice will be a varied lot, but I know that many women will read it pondering their futures in the criminal law arena. In this book, you’ll read many essays from experienced criminal lawyers — all women — who, despite the many challenges they faced in continuing and succeeding in their careers, persisted. In turn, their contributions to the law have had important and positive impacts for both individuals specifically, and society as a whole. They are examples for us all. In light of those stories, I see one of my roles as Chief Justice as encouraging women to follow in their footsteps. Part of that role involves encouraging and maintaining the gender diversity of our Court today as an administrative function as Chief Justice. But another part of my role is personal — telling my own story and the lessons I have learned and can share.

On a personal level, I’d suggest that anyone interested in doing work similar to those who have contributed to this book look at their personal situations from two complementary perspectives: plan your career strategically, and think long term.

The act of planning strategically — finding mentors, talking with your colleagues, reading books like this one — allows you to imagine how you might react in various challenging circumstances and will make you more flexible when the future unfolds and you need to make personal and career choices.

Then, there’s thinking long term. I know many of the judges on our Court knew early on in their legal careers that they would one day apply for the bench, and so they made a point of speaking to judges and others about the steps they should be taking — for example, the sorts of activities and volunteer work in which they should participate. And, they went about building their resume. As many will tell you, a legal career will never unfold precisely as imagined. Nevertheless, you’ll be prepared for what does occur if you plan for the long run — and have considered the potential bumps in the road.

Being strategic means objectively assessing your strengths and weaknesses, thinking about the work-life balance that suits you. That objectivity will often come from listening to your mentors’ assessment of your abilities, both strengths and weaknesses. Being strategic will mean that you are not making rash decisions you might make without a plan in place.

To those readers of this book who have years of experience in the legal world, both men and women — consider offering a hand to those coming behind you. It serves no purpose to tell tales of how hard you had it, without committing to improving the lot of those who will be practising long after you’ve retired. Encouraging and supporting newcomers will only make the entire legal system better, fairer and more accessible to all. And isn’t that what we want?

As my walk through a slice of the OCJ’s history demonstrates, cultures and organizations change. Our Court has changed dramatically over the past few decades with the inclusion of women on our benches. Those changes will continue. The justice system and the legal profession have learned, and are continuing to learn, that diversity pays many dividends. Social fairness is just one.

Hearkening back to my earlier comments, for change to continue, people need to get behind those changes and keep pushing. Active steps must be taken, both individually and collectively. Change becomes reality when people come together, talk about ideas and, then, transform those ideas into reality.