The Case for Judicial Diversity in Canadian Courts
Introduction
Canada is perhaps one of the most ethno-culturally diverse democratic countries in the world.[1] Almost annually, the United Nations selects Canada as the number one country in which to live. Internationally, Canada is perceived as a model for interracial and intercultural harmony.[2] However, there is a need for judicial diversity in Canadian courts because the judges in the legal system are not reflective of the diversity within society.[3]
My objective in this paper is to critically examine why representation and diversity are crucial within the Canadian judicial system. I will begin my analysis with a historical overview of the role Canadian courts and the legal profession have played in perpetuating racism in the legal system. Next, the link between political inequality and unrepresentativeness will be considered. I will then explore justifications of why the presence of Black and women judges is important within Canadian courts. The section on Black judges will have a case study on racial profiling, while the section on women judges will have a critique of how the Canadian Charter of Rights and Freedoms[4] has been used in gender inequality cases. Finally, I will provide recommendations and closing remarks and on this issue.
My conceptualization of the term “diversity” is informed by the following holistic definition:
Diversity refers to differences and variations, but it also includes some commonalities whether these be in goals, beliefs, space, allegiances, values, or political ideologies . . . Diversity is the all-encompassing term referring to differences and variations.[5]
The above definition can be used to explore Canada’s judicial unrepresentativeness based on race, ability, gender, sexual orientation, economic status and other factors. However, for the purpose of this paper, I focus solely on two socially constructed differences – race and gender – and its necessity within the Canadian judicial system.
The theoretical lens that informs my research is the Critical Race Theory (CRT). This theory looks at the impact of inequality in the legal system from the point of view of a minority person.[6] Carol Aylward, in her critically acclaimed book entitled Canadian Critical Race Theory: Racism and the Law, explains the framework of CRT as:
Critical Race Theory methodology requires a deconstruction of legal rules and principles and challenges the so-called ‘neutrality’ and ‘objectivity’ of laws that oppress Black people and other people of colour. Deconstruction is designed to confront subtle forms of discrimination perpetuated by law...To this day, race-based litigation in Canada is impeded by the paucity of Black lawyers to conduct the litigation and the unwillingness or inability of many White practitioners to make racial arguments before the courts.[7]
The above statement reveals that oppression and discrimination in the legal system can not be explained simply by reference to personal prejudice. Discrimination is a reflection of structured inequalities, which are built into institutional patters and organisational policies.[8] The Critical Race Theory facilitates the exploration of the broader experiences of people of colour in the legal system in order to indicate whether legal remedies would be of any assistance in their unique situations. In this paper, the need for judicial diversity in Canada is looked at from the CRT perspective, while also taking into account the broader implications for judicial diversity from the perspective of gender equality.[9]
I. Canadian Courts and the Legal Profession: Brief Historical Overview of Racism
The Supreme Court of Canada is intended to be an institution that one can access in order to seek solace and protection, yet it has been historically implicated in the affirmation of racial inequality, exclusion and discrimination.[10] Discrimination can arise from both the adverse effect of rules of general application, which may appear neutral, as well as from blatant inequality flowing from the distribution of benefits.[11] James Walker, in his path breaking book entitled ‘Race’, Rights and the Law in the Supreme Court of Canada,[12] has demonstrated how the Supreme Court of Canada had given legal approval to racial discrimination in the past. Walker chose four cases for detailed examination. The first case, Quong Wing v. The King involved a Chinese-Canadian who was charged under a Saskatchewan statute preventing Chinese men from employing White females.[13] The Supreme Court of Canada upheld the statue.
The second case, Christie v. York Corp, involved a Black Canadian who was refused service in a tavern because of his race. The Supreme Court also upheld the prohibition.[14] The third case, Noble and Wolfe v. Alley, involved a Canadian Jewish person who was denied the right to purchase a cottage because of a restrictive covenant preventing owners from selling to Jewish people. The covenant survived.[15] The fourth case examined was Narine-Singh v. Attorney General of Canada, which involved an East-Indian Trinidadian who was excluded by the Immigration Act[16] because he was of the “Asian race.”[17] The Supreme Court upheld the exclusion on racial grounds.
Professor Constance Backhouse of the University of Western Ontario, supplements the above historical analysis in her book entitled Colour-Coded: A Legal History of Racism in Canada1900-1950.[18] Backhouse details numerous cases where Canadian courts have upheld discriminatory laws and practices.[19] For example, Backhouse explores a case which challenged segregation along “race-neutral” lines.[20] This is the case of Viola Desmond, a highly respected Black Canadian businessperson from Nova Scotia, who was arrested in 1947 for challenging the segregated seating arrangements in the Roseland theatre in New Glasgow.[21] Desmond attempted to purchase a ticket to sit on the main floor of the theatre, but was instead sold a cheaper ticket for the balcony - a place reserved for Black patrons. She refused the imposed seating restrictions and sat on the main floor. Consequently, Desmond was physically removed from the theatre by the police and incarcerated.[22] Desmond challenged the theatre’s racist policy through the courts. She retained a White legal counsel who argued the entire case on the basis of common-law tort actions and in race neutral terms. Desmond’s counsel sought compensatory damages based on her assault, malicious prosecution and false arrest and imprisonment.[23]
The judge in this case focused solely on the fact that Desmond had occupied the main floor, the more expensive seating section in the theatre, while she had only purchased a ticket for the balcony, the less expensive seating section. The judge ignored the fact that Desmond was denied the right to purchase a main floor ticket.[24] Desmond not only lost her case, but was also portrayed as a common criminal who tried to deceive the theatre management by attempting to purchase a cheaper ticket to sit in a more expensive section of the theatre. Although race and racism were intended focal points of this trail, the entire White judicial system disregarded race because to acknowledge race would have been to acknowledge the existence of racism in the society.[25]
The legal profession has also been implicated in the history of discrimination and exclusion of racial minorities and women.[26] For example, Delos Rogest Davis, one of the first Black lawyers in Canada, completed his law studies in 1886. However, Davis was not called to the bar of Ontario because he could not find any law articles, a prerequisite to formal entry into the legal profession.[27] There were no formal prohibitions against Davis getting an articling position, but there were informal barriers embedded in society and, more specifically, within the legal system.[28] After eleven years of struggling to find an articling position without success, Davis petitioned the Ontario Legislature, declaring:
That in consequence of prejudices against his colour and because of him being of African descent he has not articled to any attorney or solicitor, or served any articles.[29]
Only through the intervention of the Legislature was Davis called to the bar of Ontario, first as a solicitor in 1885 and then as a barrister in 1886.[30] Davis went on to distinguish himself in the practice of law. He also served as town and county solicitor, held municipal office and became a King’s Counsel (K.C.) in 1910, the first Black person to achieve this title in the English Empire.[31]
Clara Brett Martin, the first woman lawyer in Canada, had been prevented not only by the law to pursue legal studies but also by the legal profession.[32] The Law Society of Upper Canada rejected Martin’s application to study law in 1891 by relying on a long tradition of English and American jurisprudence. The jurisprudence declared that legislation referring to ‘persons’ did not intend women to be included in that category and only ‘persons’ could study law.[33] This is the same law and jurisprudence that would later bar women from being appointed to the Senate and would lead the Supreme Court of Canada to declare that women were not persons.[34] Like Davis, Martin never involved the courts in her fight against discrimination, but instead sought political intervention.[35] However, the legislatures were not any more progressive than the legal profession. In fact, it was the legislatures that enacted the discriminatory laws; the legal profession simply turned them into exclusionary and discriminatory practices. The legal and political culture, while resistant to change, provided small spaces to challenge it.[36]
Cecil Foster, writing of the experiences of Black people in Canada, has noted that the presence of discrimination in the legal and political systems today is not much different from centuries ago.[37] Foster argues that White people still enjoy what he refers to as: “entrenched preferences.”[38] Foster believes that White people are: “purposely unwilling to . . . respect differences”[39] and that the present harsh climate, politically and legally, makes it: “fair game to pick on immigrants and to blame Blacks and other minorities for just about every wrong in the country.”[40] By way of example, Foster refers to the rise of right wing political parties, some of whose members openly espouse racist views such as taking back Canada for Canadians, meaning of course the promotion of an all White Society.[41] Foster’s observations suggest that the Canadian political system plays a significant role in how the legal system functions and responds to issues of race and gender inequality.
II. Political Inequality and Unrepresentativeness
Similar to the legal system, the political system has also remained unrepresentative of Canadian diversity.[42] The unrepresentative nature of the political system is the subject of Will Kymlicka's article, Group Representation in Canadian Politics.[43] Kymlicka argues that the Canadian political process is “unrepresentative,” in the sense that it fails to reflect the diversity of the Canadian population.[44] This was illustrated most vividly during the constitutional negotiations leading up to the Meech Lake and Charlottetown Accords, in which the fundamental terms of Canadian political life were negotiated by 11 middle-class, able-bodied White men.[45] A more representative process, Kymlica points out, would have included women, members of ethnic and racial minorities and people who are poor or disabled.[46]
One strategy to reform the current unrepresentative political process is to make political parties more inclusive, by reducing the barriers that inhibit women, racial minorities, and other marginalized groups from becoming party candidates and party leaders.[47] The use of proportional representation is another option that can transform the political sphere. This option has led to the nomination of greater numbers of women and racial minority candidates in other countries.[48] For example, proposals to guarantee seats for women, Black people and other groups have been brought forth in several states in the U.S. and in Britain. The same logic should apply to judicial diversity in Canada to ensure that all interest groups and marginalized members of society are represented within the judiciary. The particular role a diverse judiciary could play in the legal system is the subject of the next section of this research paper.
III. Justification for Judicial Diversity in Canadian Courts: Race and Gender Representation
While several Canadian academics have acknowledged the need for diversity within the judiciary, there are no sustained studies exploring reasons why the need for judicial diversity is necessary. However, there have been various general arguments calling for diversity within the judiciary. For example, according to Frances Henry, Carol Tator, Winston Mattis, and Tim Rees:
The lack of representation of racial minorities in the justice system contributes to the perpetuation of racial stereotypes in the system . . . although attempts were being made to address the gender imbalance in the judiciary ‘the general commitment to diversity the legal profession and judiciary is woefully lacking. It is hardly surprising that almost all judges are White, when fewer than 3 percent of lawyers are members of a visible minority and fewer than 1 percent are Native Canadian.’[49]
Similarly, Carol Aylward argues that the appointment of Black people and women to the judiciary is an important goal: “to ensure that the judiciary would reflect the experiences of a broader spectrum of society”.[50] In reference to women judges, Aylward quotes from Justice Bertha Wilson’s often quoted article, Will Women Judges Make a Difference?[51] to emphasis the following point:
Women view the world and what goes on in it from a different perspective from men; and … women judges, by bringing that perspective to bear on the cases they hear, can play a major role in introducing judicial neutrality and impartiality into the system.[52]
I am not suggesting that female judges automatically view cases through a feminist lens; or that male judges are unable to bring a perspective to the bench that is sympathetic to women’s experiences. After all, a man, Owen Shine, wrote the Ontario Board of Inquiry decision in Cherie Bell[53], the first case at any level to establish that sexual harassment was a form of sex discrimination. Similarly, skin colour alone is not sufficient criteria to found the pursuit of equality and justice. In the United States, Thurgood Marshal was the first Black person to be appointed to the Supreme Court. It has been argued that no other American judge exemplified the experience of racism and the desire to improve the justice system.[54] Clarence Thomas, a Black American judge, succeed Marshall. However, Thomas embraces conservation ideologies and performs an entirely contrary role to that of Marshall.[55]
In a Canadian context, a crucial case on racial profiling (R. v. Brown[56]) was decided by three male judges, two of whom where White. This case has shattered the prior judicial and prosecutorial demand for proof of racial profiling. Furthermore, Brown gives an opening where a judge may support a finding that racial profiling could be a factor and that he/she would dismiss the charge against the accused based on defect.[57] In other words, the judge can acknowledge that the arrest and charge of a person may have been defected by the factor of racial profiling. Similarly, in Brown v. Durham Regional Police Force, Justices Doherty, Weiler, and Goudge, whom are White, decided that if one of the purposes motivating a stop and detention is improper, the whole operation becomes unlawful and or unconstitutional despite the fact that there may have been valid or lawful reasons for the stop.[58] Despite these examples, it is also important to note that in a number of cases (which will be explored in this paper) it has been clear that having a woman or a Black person on the bench has often made a positive difference in the administration of justice.
Richard Devlin at al.[59] explore why judicial diversity is needed in their article, Reducing the Democratic Deficit: Representation, Diversity and the Canadian Judiciary or towards a “Triple P” Judiciary. The authors outline eight reasons why judicial diversity is essential. The first reason is related to the need to eliminate the existence of discrimination which has been responsible for injustice, exclusion and multiple forms of oppression faced by racial and other visible minorities.[60] The second reason deploys a functionalist argument. The authors argue that many racial minorities and women are talented and it is a waste of talent not to consider such people for positions within the judiciary.[61] The third point is based on a democratic argument. The authors suggest that a democratic institution, such as the court system, must be open to the input of those upon whom it has an effect.[62]
The fourth argument for judicial diversity highlights the need for giving voice to different people to reflect their diverse experiences in society. It is stated that the experience of marginalization generates a distinctive and authentic perspective on matters of law that requires the self-representation of the historically excluded so as to give voice to that perspective.[63] The fifth argument is based on what is called the deliberative argument. The inclusion of judges from historically excluded communities can open up the judicial conversation to introduce unfamiliar and unexplored contexts so as to facilitate and enlarge the perspectives of all judges.[64] The trust, confidence, and legitimacy argument for judicial diversity forms the sixth argument of why judicial diversity is essential in Canada.[65] For example, the legitimacy of the legal system has to be seen and experienced to be representative.
The seventh argument is referred to as the symbolic criterion. Judges are seen as symbols and role models. However, to perform this role, qualified lawyers from all social locations must have access to positions in the judiciary.[66] The eighth, and final argument, is that of moral virtue. It is believed that some groups are more morally sensitive than other groups, and this helps substantive decision making.[67] However, the authors expose the limitations of this argument by refereeing to Ann Phillips views on this matter: “no one group has a monopoly on virtue.”[68] With these eight reasons in mind, I will now specifically explore why there is a need for racial and gender representation in the Canadian judiciary.
A. Racial Representation
In the 21st century, there are less than 25 Black judges in Canada and most of them are in lower courts. Furthermore, there has been no racial minority judge on the Supreme Court of Canada bench in the history of that institution.[69] In my recent in the Toronto Star[70] article, I found that there are many highly qualified racial minorities who seek positions as judges in Canada. However, such qualified candidates are not offered equal access to employment opportunities due to systemic inequality in the legal system:
In the not so distant past there were no women, only White men, at the Supreme Court. Pierre Trudeau changed that practice . . . This demonstrates again that when it comes to Supreme Court appointments, nothing is cast in stone. There are many Aboriginals and minorities who could be appointed straight from private practice. Canada must look for them, as it did for White men and women.[71]
Linn Washington offers an African-American perspective on the importance of diversity in the judiciary in her book entitled, Black Judges on Justice.[72] Washington states that studies on race bias in American courts are unanimous in the assertion that increased representation of Black people as judges is an important goal for the judicial system.[73] Washington argues that the presence of racial minority judges can have a substantive impact on placing a “chill” on overtly racist behaviour within the judiciary.[74] It is further suggested that the presence of Black judges has symbolic importance that inspires racial minorities to excel and dispel the myth that non-White people have a place only on the margins of society. Most importantly, the increasing presence of Black people in paid positions at all levels of the judicial system improves the quality of quotidian justice.[75]
B. Case Study: The Role of Black Judges in Racial Profiling Cases in Canada
An exploration of racial profiling and the response of Black Canadian judges to this legal issue will helped to further illustrate the importance of diversity within the judicial system. The term “racial profiling” has been interpreted in several different ways. For the purposes of this research paper, the below definition of racial profiling will inform my understating of this phenomenon. According to the Ontario Human Rights Commission, racial profiling is:
Any action undertaken for reasons of safety, security or public protection that relies on stereotypes about race, colour, ethnicity, ancestry, religion, or place of origin rather than on reasonable suspicion to single out an individual for greater scrutiny or different treatment.[76]
The case of RDS v. the Queen[77] exemplifies what kind of decisions Black judges would likely make in racial discrimination and racial exclusion cases. This is the first modern case on racial profiling to be decided positively by any Canadian court. RDS is an important and path breaking decision because it was decided by Madame Justice Sparks, Canada’s first Black judge and Nova Scotia’s only Black woman judge in Youth Court.[78] Furthermore, all principal participants, excluding crown witnesses, were Black.[79] Justice Sparks used her knowledge and personal experiences to inform her decision based on findings of credibility.[80]
This case arose in Nova Scotia where a Black youth encountered a White police officer who had arrested the youth’s cousin. The youth protested by inquiring about the arrest. He was instead charged with assaulting the police officer in the execution of his duties.[81] Justice Sparks acquitted the Black youth in this case. It is contended that only a Black judge who is in tune with racial discrimination and the social context of racial inequality[82] would make the following observations as Judge Sparks made in this case:
The Crown says, well, why would the Officer say that events occurred the way in which he has relayed them to the Court this morning? I am not saying that the constable has misled the Court, although police officers have been known to do that in the past. And I am not saying that the officer overreacted, but certainly police officers do overreact, particularly when they are dealing with non-white groups. That to me indicates a state of mind right there that is questionable. I believe that probably the situation in this particular case is the case of a young police officer who overreacted. And I do accept the evidence of Mr. S. that he was told to shut up or he would be under arrest. That seems to me to be in keeping with the attitude of the day.[83]
The crown appealed the acquittal of the Black youth to the Supreme Court of Nova Scotia on the basis that Justice Sparks demonstrated racial biases.[84] While judges must be impartial and base their judgments on sound legal principles, they are also human beings- the product of their experiences.[85] It makes sense that judges from diverse backgrounds bring a different voice to their work and base their decisions within a social context.[86] The Nova Scotia Supreme Court overturned the acquittal and sent the case for retrial. The Black youth also appealed the decision to the Nova Scotia Court of Appeal which upheld the decision of the Supreme Court. The Black youth further appealed to the Supreme Court of Canada.[87]
In a seminal decision, the Supreme Court of Canada restored the acquittal and essentially agreed with the Trial Judge’s findings in this case. In establishing the framework that still resonates in racial profiling cases, the Supreme Court of Canada ruled that: “there was evidence capable of supporting a finding of racially motivated overreaction.”[88] An interesting development also occurred in this case, which suggests the possible way of effectively prosecuting cases of racial profiling, and that is the presence of numerous intervenors on behalf of the Black youth.[89] This unified advocacy approach is reminiscent of the strategies used by the Legal Fund of the National Association for the Advancement of Coloured People (NAACP) in the United States and the Legal Education and Action Fund (LEAF) in Canada.[90]
The case of Queen v. Campbell [91] is another illustration of a Black woman judge who explicitly identified racial profiling as a central problem in the stoppage of a Black youth by Montréal police. This case was decided in January 2005 by Québec’s first Black woman judge, the Honourable Juanita Westmoreland-Traoré. Justice Westmoreland-Traoré is just one of two Black judges ever appointed to the judiciary in Québec.[92] In this case, Justice Westmoreland-Traoré dropped drug charges against a young Black man because of racial profiling by the Montréal police:
The racial profiling practiced in this case, as shown by the unreliable testimony and cluster of indicators is also a serious concern of the Court. While the racial profiling may have been practiced unconsciously, the good faith of the officers does not restore the right of all citizens to non discriminatory treatment.[93]
Justice Westmoreland-Traoré’s above comments acknowledge that the police officer’s behaviour in this case could be due to their unconscious bias. The police officer’s unconscious exercise of power could be understood as ‘White privilege’.[94] White Privilege is a theory that substantiates the existence of an unconscious attitude that could affect the way in which White people see their position in society vis a vis individuals from racial minority groups.[95] Robert Jensen, a White man, admits that White privilege protects him daily by easily forgiving his ‘flaws’ because of his colour.[96] Jensen argues that there are individuals who still resist the reality that racism exists and has adverse effects on marginalized groups. Jensen’s perspective builds on the recognition made by Peggy McIntosh in her paper entitled, White privilege: Unpacking the invisible knapsack.[97] McIntosh argues that White people are deliberately taught not to recognize White privilege, therefore, this privilege is an unearned “benefit package” from which White people can “withdraw” each day.[98] She contends that White people must remain “oblivious” because to recognize or admit the existence of this benefit package requires the admission that “meritocracy” is a myth.[99]
Similarly, Backhouse submits that this privileged position is derived from power which is largely in the hands of the dominate White group.[100] According to Backhouse, the implications of White privilege are often unnoticed in the law:
While the property of ‘whiteness’ is clearly a definable asset from which all manner of privilege and power flows, it usually tends to disappear into invisibility in legal terminology.[101]
In the book, Looking White People in the Eye: Gender, Race and Culture in Courtrooms and Classrooms, Shereen Razack explores how these systems of oppression work in order to support and sustain each other. Razack concludes that the dynamic interplay of racism and sexism has a major role in sustaining White privilege because, invariably, White women are perceived to be “better off” than their Black counterparts.[102] By recognizing the existence of White privilege and by factoring this recognition into the way biases are formed, White police officers and judges could strive to achieve greater impartiality within the legal system. The cases explored in this section highlights two Black women judges that used their social context and personal understanding of discrimination to make decisions condemnatory of racial profiling, unequal treatment and violations of constitutional rights. This brief case study on racial profiling illustrates that the presence of Black judges in the Canadian judiciary is indispensable to the enhancement of justice and equal treatment of people under the law.[103]
C. Gender Representation: Feminist Discourses on Judges and Judging
Until the appointment of the first woman justice to the Supreme Court of Canada in 1984, all justices were White men and with the exception of Laskin, Sopinka and Iacobucci.[104] With the appointment of women to the Supreme Court of Canada and the strengthening of the feminist movement, the legal system began to yield decisions that reflected the experiences of women.[105] For example, one famous gender discrimination case is that commonly referred to as the Persons Case.[106] In this case, the judge upheld the notion that women were not persons for purposes of appointment to the Senate of Canada.[107] In the book, Toward a Feminist Theory of the State, Catherine McKinnon maintains that because of political, social and legal domination of women by men, the law has always adopted a male point of view.[108]
This section of the research paper discusses the topic of gender representation in the judiciary and why the presence of women is crucial. It is argued that the clamour for the appointment of women judges is a political struggle which aims at changing the nature of the players and legal decisions in the judiciary. This is a long term perspective on the transformation of justice and political uses of the Charter to ensure gender equality in the law. The concern with gender composition of the judiciary is increasing. It was observed, as early as 1989, that:
Ontario Judges were overwhelmingly White, male and out of touch . . . [and] a principal qualification for appointment as a judge was a good
connection to the Conservative party. Occasionally, it was the only
qualification.[109]
However, the shifting nature of Canadian politics has been reflected in the increasing appointments of women to the bench. The election of the first New Democratic Party (NDP) in Ontario in 1990, a sign of progressive politics, was immediately reflected in the increasing number of female judges in the Ontario judiciary. Clayton Ruby, a Toronto based lawyer and legal critic, has compared the NDP appointment of women to the Bench of Ontario to that of the Federal government:
The number of women increased steadily from 37 in 1984 (when Prime
Minister Brian Mulroney took office) to104 in 1992 – an increase from 2.3 percent of the total number of judges to 11.3 percent…This is progress? In 1990, Ms. Campbell appointed 11 women and 26 men: 29.7 percent women. In 1991, things went downhill: she appointed 17 women and 62 men: 21.5 percent women. In 1991, Ontario had no difficulty in finding competent women for 50 percent of its judicial appointments.[110]
Surprisingly, the concern regarding increased gender representation in the judiciary has not carried over to the concern over whether women will make better or more progressive legal decisions. Only in1988, in the matter of an abortion case at the Supreme Court of Canada, did the presence of a female justice raise the issue of the link between gender representation and the quality and type of decisions that are possible if women were represented in the judiciary.[111] According to the late Rosemary Brown, the first visible minority woman to win an electoral seat as an MPP on an NDP ticket in British Columbia:
One of the most significant recent victories claimed by the women’s movement has been achieved at least in part because of women’s presence in the courts rather than the legislature. The Canadian Supreme court decision of January 28, 1988 regarding abortion including the judgement of at least one Supreme court Justice who based her decision on a different set of questions from those of the male judges. Whereas they posed questions based on the right of the state to erect barriers to abortion, Madame Justice Bertha Wilson asked whether the state could compel a pregnant woman against her will to carry a fetus to term. And although a number of the male judges concentrated on balancing the interest of the state with the protection of the fetus-balancing women’s decision-making against the rights of the state-Madame Justice Wilson included in her examination the broader question of the right of a government to impose its view of morality on the individual and in an act of specific separateness she gave weight to the right of “women to dignity” in the development of her decision.[112]
It is uncertain if the presence of Madame Justice Bertha Wilson influenced the assenting judges in Morgentalier. What is known is that the wording of her judgements reflects women’s experiences and her presence meant one more vote for the strong affirmative position of the Supreme Court.[113] Brown, however, decried the fact that: “the Supreme Court’s decision has bounced the issue of abortion back to the brotherhood of premiers and the overwhelmingly male venue of the House of Commons.”[114] Bill C-43 (the abortion bill) was eventually defeated in the Senate – an undemocratic institution and another unlikely forum for the advancement of women’s interests. Madame Justice Wilson’s decision on abortion recognized abortion as a constitutional right for Canadian women.[115] Once the abortion issue was sent back into the political arena, the seemingly constitutional right of abortion implied by Justice Wilson in the 1988 decision was lost.[116]
Madame Justice Wilson’s decision was not left unchallenged. For example, the R.E.A.L Women of Canada[117], a women’s group that advocates for pro-traditional values of society and family, claimed that Justice Wilson was pandering to the feminist agenda in the above decision. This group argued that Justice Wilson was brining feminist bias and partiality to the forum that was supposed to be impartial.[118] After Madame Justice Wilson delivered a paper entitled, Will Woman Judges Really Make a Difference?[119], at Osgoode Hall Law School in February 1990, R.E.A.L Women of Canada brought a complaint against Justice Wilson for judicial bias. The complaint was directed to the Canadian Judicial Council and was later dismissed.[120] It is clear that the issue of gender, as it relates to the judiciary, is as much a question of gender representation as it is ideological beliefs.[121] Professor F.L. Morton of the University of Calgary states that: “the judicial philosophy of a judge is more likely to determine the outcome than the text of the Charter.”[122] This statement suggests that ideology is prevalent in the role of judges; therefore, the impact of women on the bench will to some extent depend on their ideological predilections. However, the debate regarding whether women judges will make a difference on the bench is still in its infancy.
It is important to highlight two areas of the law that have been well known sights of discrimination against women -criminal law and family law.[123] After the release of the previously mentioned paper by Madame Justice Wilson, Madame Justice Beverly McLachlin of the Supreme Court of Canada produced a paper entitled, How Criminal Law Has Discriminated against Women.[124] In this paper, Justice McLachlin classifies the three areas of criminal law in which women have experienced great inequality as being infanticide, abortion, and prostitution.[125] These areas of the law have been called “feminine”[126] crimes, but according to Madame Justice McLachlin, there are three unjust aspects to these so-called crimes targeted at women:
The first is that they often represent attempts to enforce moral rules through criminalization of the conduct. . . The second . . . they can be seen as attempts to deal with complex social issues in a way that has its primary impact on women. . . A third theme . . . is the tendency to “medicalize” complex social problems in order to provide a simple, sanitary solution.[127]
Of particular interest to this research paper is Madame Justice McLachlin discussion of whether these “feminine” crimes that discriminate against women in fact have had that result. Justice McLachlin observes that police, judges, and juries (most of whom have been men) have perceived an injustice as a result of the administration of these laws, which have victimized women. Accordingly, judges have usually refused to enforce the law by declining to prosecute or convict.[128] In relation to abortion, Madame Justice McLachlin states that: “the viewpoint of the law with respect to abortion cannot be characterized as exclusively masculine, since clearly many women supported it.”[129] Madame Justice McLachlin does not discuss the implication of the implied assumption, that justice is blind and gender plays no part in legal decision making. Justice McLachlin argues, however, that the crime of prostitution is such that it is insensitive to the particular needs and perspective of women, but she does not go further to suggest whether female judges trying such cases would be more understanding to the gender inequality issue related to prostitution.[130]
In terms of physical abuse, Madame Justice McLachlin acknowledges that there is a new “feminine perspective” that has been brought to old defences like the “battered wife syndrome.”[131] She cites as an example the case of R. v. Lavallee[132], wherein a unanimous decision written by Justice Wilson held that a woman may be justified in killing her husband in self-defence.[133] Justice Wilson argued that this defence applied to a husband who has repeatedly abused his wife over the years, even in conditions where there was no immediate apprehension of severe danger, of death or of grievous bodily harm.[134] The pivotal role of Madame Justice Wilson is especially evident in this case, as well as others mentioned in a book on Justice Wilson entitled, Judging Bertha Wilson.[135] However, the unique experiences of Black women with domestic violence are often overlooked in the judiciary.[136]
Razack argues that racism, poverty, language barriers and the lack of citizenship rights (non-landed status) are salient factors that affect the relationships between the criminal justice system and Black women.[137] Black women’s perception of, and interactions with, the police influence their decisions to report acts of violence.[138] For example, Black women are cognizant of police officers’ ambivalence towards them and their communities.[139] The dominate misconception that Black people are inherently violent precludes many officers and judges viewing violence against Black women in the same way that they view violence against White women:
At no time is the justice system examined for the ways in which it is organized to the cultural advantage of the dominate group. At no time does white domination enter the picture . . . when immigrant women plead for cultural considerations to be taken into account; they can very quickly find themselves backed into a multicultural corner.
In effect, racist and sexist stereotypes about Black women contribute to perpetuating violence against Black women. The judicial system must respond to the diversity that exists among women to better address these complex needs in the court.[140]
According to Madame McLachlin, another feminist viewpoint that has been used as defence is “premenstrual syndrome.”[141] It is unclear why Madame Justice McLachlin does not apply her analysis of feminine/female perspective vis-ŕ-vis defences to feminine/female perspective vis-ŕ-vis judging. Justice McLachlin also does not indicate whether her use of the term “feminine/female”[142] is equivalent to the concept of “feminist.” For the two terms are different. The former relates to purely gender experiences and belonging whereas the latter deals with a theoretical and ideological approach that reflects female experiences and progressive politics.[143]
D. The Charter and Gender Inequality
Studies on judicial biases against female victims of crimes are increasingly being critically examined, and the judges involved in the sentencing are often men.[144] There is strong evidence[145] to support the view that sentences given to sexual offenders by these male judges and the accompanying judicial statements often do not reflect the values embodied in section 15 of the Charter. Razack explains the roots of this discrepancy in Charter interpretation as follows:
It became evident that a disagreeable theme running through the organizing efforts around Section 15 was the sharp difference in options between male experts on the Charter and women with a knowledge of the Charter. This gender gap began with the betrayal of women during the November 1981 lobby over the issue of who could opt out of the equality clauses.[146]
Equality as articulated in section 15 of the Charter must be constructed as an individual right – that is, not as a means for attainment of social goods. In other words, section15 is an articulation of an individual right to equality and not a blueprint or directive for equalitarianism. Under the heading, “Equality Rights,” section 15 of the Charter reads:
15.(1) [e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethic origin, colour, religion, sex, age, or mental or physical disability.[147]
What is important to understand from the above sections is that section 15 (1) bestows and recognizes a discrete, individual right to equality before and under the law and confers a similarly individual right to the equal protection and benefit of the law. Moreover, it provides the negative entitlement of being free from certain unacceptable forms of discrimination, such as discrimination based on ones gender. It is not a stretch of the interpretation of section 15(1) to conclude that it stands for the idea that something exists in an individual that the state can not legitimately interfere with or violate without attracting the attention and disapproval of the court. However, until the impact of feminism was felt, sexual offenders were more easily given light sentences or absolved of their offences compared to other categories of offenders. With such conciliations toward the accused male, it was the woman victim who was questioned, first as a sexual assault victim and secondly as a witness at trial.[148] For example, the woman sexual assault victim was often put through a microscope by defence counsel, with an indifferent male judge presiding.[149] When it came to sentencing, the offender was generally presented in a positive light at the expense of the woman sexual assault victim:
Setting the promise of the Charter against the reality of women’s experience in courts makes it quite clear exactly how vulnerable and fragile women’s rights are to justice at the hands of [male] law.[150]
If section 15 of the Charter was used in balancing the interests of the offender with that of the female assault victim and if the values enshrined therein were in the forefront, judicial discretion in sentencing sexual offenders would ensure the benefit of the female victim. These are the arguments many women activist have been making with the Charter.[151] The aim of equality arguments in sentencing is to transform the law. It is curtail that some of the agents of such transformation be female judges.[152] Judicial and public education is also effective strategies for transformation.[153] It has been suggested that there be sentencing guidelines as recommended by the Canadian Sentencing Commission of 1987.[154] Such guidelines not only direct and curtail judicial discretion but educate the public as to how the sentencing system works. Patricia Marshall[155] recommends that recognition of equality issues in sentencing be the first step towards reform in sexual assault cases. Clearly the Charter has an important function in sentencing law, as well as substantive law.
The Charter should not only be administered by White men. Female judges should also be active participants, especially in cases where women are the victims.[156] As discussed in section two of this paper, the inclusion of the authentic and diverse perspectives of women judges in Canada ensures that the judicial system is more reflective and response to the needs of members within the diverse society it serves. In fact, as more people realize the tremendous political impact of judges and their decisions, it is understandable that the type of people appointed to the judiciary will increasingly become a highly contested terrain.[157] In Canada, women’s groups have already begun to campaign for the appointment of more women to the Supreme Court of Canada and have succeeded in having four women sit at the same time for the first time in history.[158] However, a judge does not operate in a vacuum. Madame Justice Wilson reflected on the nature of constraints a judge meets when appointed:
Change in the law comes slowly and incrementally, that is its nature. If one responds to changes in society, it seldom initiates them. And while I was prepared – and indeed, as a woman judge anxious to respond to these changes, I wondered to what extent I would be constrained in my attempts to do so by the nature of judicial office itself.[159]
Madame Justice goes on to explain that the constraints are more than the judicial office itself. They include traditions of legal reasoning and interpretative frameworks that have been handed down, which must be contended with whether a person is a female or a male judge. These constraints limit the decisions one can make or remedies one can issue in terms of furthering the interest of a particular constituency, such as women in relation to equality concerns or those seeking justice after centuries of being subjected to injustice.[160] However, judges still retain a great deal of discretion, despite various constraints placed upon them.[161]
One of the examples Dale Gibson[162] gives to explain why courts have been reluctant to envision new remedies is the reluctance of courts to make orders requiring continuous detained court supervision. But to avoid this responsibility, when a remedy calls for supervision, the courts will indicate that it is the responsibility of the legislature to make laws for the creation or destruction of certain institutions. In other words, the court will use deference (to the legislature) arguments. The courts can also refuse to award damages or other remedies to a wronged individual or collective by using balancing arguments, or to be more specific, section 1 of the Charter.
By balancing individual and state interests, the courts may lean more towards the state. This is in fact one of the major limitations of the Charter remedies as well as Charter rights because by using balancing arguments, the courts may come to the view that infringement of right was justified and reasonable in a democratic society.[163] The court may wish to avoid giving a more suitable remedy because it may interfere disproportionately with the implementation of legitimate government policy.[164] Most of these justifications can be found in the majority of the cases under the Charter.[165] Thus, the prevalent constitutional discourse may be used to cut back on possible remedies. These are the constraints that Madame Justice Wilson may have had in mind in her previously outlined quote.
It may be of some consolation to the proponents of the legalisation of politics thesis to be aware that despite the fact that the process of the legalization of politics is taking place, the judges still defer a great deal to Parliament and the legislatures.[166] Judges show this deference in many ways, including canons of statutory construction or in the various constitutional discourses. The discussion in this section illustrates a running thread of consistency - the gender and racial background of a judge can have a significant impact on constitutional discourses.
IV. Recommendations: What Does the Future Hold?
The main question that resonates at this stage of my analysis is - what is the solution to Canada’s present unrepresentativeness or lack of judicial diversity? Clearly, there are no simply solutions to this vast issue; however, Canada already possesses building blocks for making its judiciary diverse. Since its founding, Canada has recognised the importance of linguistic and provincial judicial diversity. It also had recognized the importance of judicial diversity in the Meech Lake and Charlottetown Accords.[167] The solution, therefore, is to untangle Canada’s history before its decision makers.
There is also a need to demand that the voice of multiculturalism is more active in the inclusion of racial minorities and Aboriginal peoples. For example, multiculturalism is widely accepted by academics and policy-makers as a liberal policy that enables racial minorities to preserve their own heritage and distinctiveness.[168] However, under multiculturalism, socio-economic and political power remains in the hands of the White majority. From its inception in 1978, multiculturalism upheld the dominance of the European culture, therefore defining “Whiteness” as normative in Canada.[169] Multiculturalism was constructed to promote cultural diversity within the dual frame of the French and English. The institutionalization of two official cultures, English and French, overlooks the diverse cultural composition of Canadian society that is largely non-English or French speaking.[170] This duality ultimately promotes the subordination of Aboriginal peoples, Black Canadians and racial minority groups within legal institutions and wider society.
To promote and further equity and diversity in the judiciary, judges should bring an open mind and an awareness of context consistent with the highest tradition of judicial impartiality to their court and acknowledge discrimination at the individual systemic and institutional level. For example, in her informative paper, “The Inequality of Emerging Charter Jurisprudence: Supreme Court Interpretations of Section 15(1),”[171] Andrea York examines the cases that constitute the trilogy: Egan & Nesbit v. Canada,[172] Miron v. Trudel,[173] and Thibadeau v. Canada.[174] She conducts this analysis with the overarching goal of shedding some light on where the Supreme Court of Canada is headed in terms of interpreting the equality guarantee. York seems to call for a more active, less parliament-deferent court to fulfill certain socioeconomic anti-discrimination equality goals.
According to York, Madame Justice L’Heureux-Dube’s attempt to widen the scope of section 15 by focusing on the definition of discrimination independent of analogous grounds is the most promising of all the justices’ judgments, during the Equality Trilogy, for the achievement of social goals. To this end, York cites L’Heureux-Dube’s often quoted ratio in Egan:
When members of that group have been made to feel, by virtue of the legislative distinction, that they are less capable, are less worthy of recognition or value as human beings or as members of Canadian Society, equally deserving of concern, respect and consideration [this definition] of “discrimination” . . . focuses on impact (i.e., discriminatory effect) rather than on constituent elements (i.e., the grounds of discrimination).[175]
L’Heureux-Dube’s reasoning echoes, prima facie, the above definition that a right to equality means a right to treatment as a human being, that is, as someone of equal worth under the law. York endorses L’Heureux-Dube’s reasoning, but expresses pessimism that such reasoning will have much effect on subsequent Supreme Court jurisprudence since Madame Justice L’Heureux-Dube was alone in articulating it. Hence, York concedes, “[a]ccordingly L’Heureux-Dube’s discrimination analysis may, in the end, be of little more than academic interest.”[176] York would be pleased that she is wrong in her pessimistic prediction, and that L’Heureux-Dube’s analysis ends up dominating subsequent equality jurisprudence.
Conclusion
A diverse judiciary enhances the credibility of the court and the entire legal system. Under-inclusiveness results in the undermining of respect for institutions and, ultimately, the rule of law because it will not reflect the demographic makeup of the public, whose interests it claims to serve. This research paper has explored the positive impact both women and Black people have made within the Canadian judiciary. While I explored the issue of racism and sexism separately, they are analytical categories and thus part of a wider and deeper social process, rather than distinct and unrelated forms of discrimination.
It is the cornerstone of any free and democratic society that its institutions be inclusive and representative of that society. Therefore, it is crucial that the Canadian judiciary address the problems of inequality within its ranks and ensure that the legal profession does a better job of reflecting society by increasing the number of women, racial minorities, and Aboriginal peoples. Active processes, such as researching and disseminating findings on the importance of judicial diversity in Canada, are the first steps to moving forward, promoting dialogue, and creating change. I intend to play an active role in the goal towards this transformative legal change.
BIBLIOGRAPHY
LEGISLATION
Canadian Charter of Rights and Freedoms, Part 1of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, s. 15.
Immigration Act, Sec. 5 (O).
JURISPRUDENCE
Brown v. Durham Regional Police Force 1998 CarswellOnt 5020 21 C.R. (5th) 1, 167 D.L.R. (4th) 672, 131 C.C.C. (3d) 1.
Cherie Bell, [1980] 1 C.H.R.R. d/155.
Egan & Nesbitt v. Canada, [1995] 2 S.C.R.513, online: QL.
Miron v. Trudel, [1995] 2 S.C.R. 418, online: QL.
Morgentaler v. The Queen, [1988] 1 S.C.R .30.
R v. Brown 9 C.R. (6th) 240, 36 M.V.R. (4th) 1, 170 O.A.C. 131, 64 O.R. (3d) 161, 105 C.R.R. (2d) 132, 173 C.C.C. (3d) 23.
R. v. Lavallee, [1990] 1 S.C.R. 852.
R. v. R. (D.S.), 1997 CarswellNS 302, 151 D.L.R. (4th) 193, 118 C.C.C. (3d) 353, 10 C.R. (5th) 1, 218 N.R. 1, 161 N.S.R. (2d) 241.
The Queen v. Campbell, 2005 CarswellQue 243.
Thibaudeau v. Canada, [1995] 2 S.C.R. 627, online: QL.
SECONDARY MATERIAL
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Aylward, Carol A. Canadian Critical Race Theory: Racism and the Law. (Halifax: Fernwood Publishing, 1999).
Backhouse, Constance. Colour-Coded: A Legal History of Racism in Canada, 1900-1950 (Toronto: Osgoode Society for Canadian Legal History by University of Toronto Press, 1999).
Bailey, Alison. “Despising an Identity they Taught me to Claim” in C.J. Cuomo & K.Q. Hall, eds., Whiteness: Feminist Philosophical Reflections (Lanham: Rowan and Littlefield, 1999) 85.
Biennan, William J. Jr.“A Tribute to Justice Thurgood Marshall” in Roger Goldman and David Gallen, eds., Thurgood Marshall: Justice for All (New York: Carroll, 1992).
Brown, Rosemary. “Women and Electoral Politics” (1988) 17 Resources for Feminist Research 107.
Devlin, Richard., A. Wayne MacKay, and Natasha Kim. “Reducing the Democratic Deficit: Representation, Diversity and the Canadian Judiciary, or Toward a ‘Triple P’ Judiciary” (2000) 38 Alberta L.R. 789.
Dranoff, Linda S. Women in Canadian Life: Law (Toronto: Fitzhenry & Whiteside, 1977).
Dyck, Rand. Canadian Politics (Toronto: ITP Nelson, 1998).
Fleras, Augie., and Jean Leonard Elliott. Unequal Relations: An Introduction to Race, Ethnic and Aboriginal Dynamics in Canada, 2nd ed. (Scarborough: Prentice Hall Canada, 1996).
Foster, Cecil. A Place Called Heaven: The Meaning of Being Black in Canada (Toronto: HarperCollins, 1996).
Gibson, Dale. “Enforcement of the Canadian Charter of Rights and Freedoms: Section 24” in Walter Tarnopolsky & Gerald A. Beaudoin, eds., The Canadian Charter of Rights and Freedoms, 1st ed. (Toronto: Carswell, 1989) 489.
Gotell, Lise. “The Canadian Women’s Movement, Equality Rights and the Charter” (1990) 16 Feminist Perspectives.
Hamalengwa, Munyonzwe. “Supreme Injustice” Toronto Star (3 September 2004) A17.
Henry, Frances., and Carol Tator. The Colour of Democracy: Racism in Canadian Society, 3rd ed. (Canada: Thomson Nelson, 2006).
Henry, Frances., Carol Tator, Winston Mattis and Tim Rees. The Colour of Democracy: Racism in Canadian Society, 2nd ed. (Toronto: Harcourt Brace Canada, 2000).
Isajiw, Wsevolod W. Understanding Diversity: Ethnicity and Race in the Canadian Context (Toronto: Thompson Educational Publishing, 1999).
Jensen, Robert. "White Privilege Shapes the U.S." Baltimore Sun (19 July 1998), online: <http://uts.cc.utexas.edu/~rjensen/freelance/whiteprivilege.htm>.
Kymlicka, Will. “Group Representation in Canadian Politics” in F. Leslie Seidle, ed., Equity and Community: The Charter, Interest Advocacy and Representation. (Quebec: The Institute for Research on Public Policy, 1993).
Mackinnon, Catherine . Toward a Feminist Theory of the State (Cambridge: Harvard University Press, 1989).
Manfredi, Christopher P. Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism, 2nd ed. (Toronto: Oxford University Press, 2001).
Marshall, Patricia. “Sexual Assault, the Charter and Sentencing Reform” (1988) 63 C.R.
(3rd) 225.
McCormick, Peter., and Ian Greene. Inside the Canadian Judicial System: Judges and Judging (Toronto: James Lorimer & Company, 1990).
McCormick, Peter. Canadian Courts: A Social Scientist’s Ground-Breaking Account of the Canadian Judicial System (Toronto: James Lorimer & Company, 1994).
McIntosh, Peggy. “White Privilege: Unpacking the Invisible Knapsack” (1990) 49 Independent School. 2.
McLachlin, Madam Justice Beverley M. “How Criminal Law has Discriminated Against Women” (1991) 5 Canadian Speeches.
Moore, Christopher. The Law Society of Upper Canada and Ontario’s Lawyers, 1797-1997 (Toronto: University of Toronto Press, 1997).
Morton, F.L. “The Meaning of Morgentaler” in I. Gentles, ed., A Time to Choose Life (Toronto: Stoddart, 1990) 179.
Morton, F.L. Law Politics and the Judicial Process in Canada, 2nd ed. (Calgary: Calgary Press, 1992).
Naiman, Joanne. How Societies Work: Class, Power and Change in a Canadian Context (Toronto: Irwin Publishing, 1997).
Ontario Human Rights Commission, Paying the Price: The Human Cost of Racial Profiling (Toronto: Ontario Human Rights Commission, 2003).
Poonwassie, Deo H. “Diversity and Education” in Stephen E. Nancoo & Subhas Ramcharan, eds., Canadian Diversity: 2000 and Beyond (Mississauga: Canadian Educators’ Press, 1995).
Razack, Sherene. Canadian Feminism and the Law: The Women’s Legal Education and Action Fund and the Pursuit of Equality (Toronto: Second Story Press, 1991).
Razack, Sherene H. Looking White People in the Eye: Gender, Race, and Culture in Courtrooms and Classrooms (Toronto: University of Toronto Press, 1998).
Rowan, Carl T. Dream Makers, Dream Breakers: The World of Justice Thurgood Marshall (New York: Welcome Rain Publishers, 2002).
Ruby, Clayton. “Lack of Quality Control for Canada’s Senior Judges” Globe and Mail (30 June 1992), A18.
Ruby, Clayton. “Ontario Judges: White, Male and Out of Touch” Toronto Star (6 November1989), A19.
“Victim Participation in the plea negotiation process in Canada” (2002), online: Department of Justice Canada
<http://canada.justice.gc.ca/en/ps/rs/rep/2002/vppnpc/vppnpc_3_3.html>.
Walker, James W. St. G. “Race,” Rights and the Law in the Supreme Court of Canada (Toronto: The Osgoode Society for Canadian Legal History and Wilfrid Laurier University Press, 1997).
Washington, Linn. Black Judges on Justice (New York: The New Press, 1994).
Wilson, Bertha. “Will Women Judges Really Make a Difference?” (1990) 28 Osgoode Hall Law Journal 507.
York, Andrea. “The Inequality of Emerging Charter Jurisprudence: Supreme Court Interpretations of Section 15(1)” (1996) University of Toronto Faculty of Law Review.
[1] Yasmeen Abu-Laban & Christina Gabriel, Selling Diversity: Immigration, Multiculturalism, Employment Equity, and Globalization. (Toronto: Broadview Press, 2002) at 11-12.
[2] Ibid.
[3] Carol A. Aylward, Canadian Critical Race Theory: Racism and the Law. (Halifax: Fernwood Publishing, 1999) at 84.
[4] Canadian Charter of Rights and Freedoms, Part 1of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, s. 15. [Charter]
[5] Deo H. Poonwassie, “Diversity and Education” in Stephen E. Nancoo & Subhas Ramcharan, eds., Canadian Diversity: 2000 and Beyond (Mississauga: Canadian Educators’ Press, 1995) at 251.
[6] Supra note 3 at 33-5.
[7] Ibid. at 82-3.
[8] Ibid. at 134-35.
[9] Joanne Naiman, How Societies Work: Class, Power and Change in a Canadian Context (Toronto: Irwin Publishing, 1997) at 260-70.
[10] Frances Henry, Carol Tator, Winston Mattis, Tim Rees, The Colour of Democracy: Racism in Canadian Society, 2nd ed. (Toronto: Harcourt Brace Canada, 2000) at 145-67.
[11] Wsevolod W. Isajiw, Understanding Diversity: Ethnicity and Race in the Canadian Context (Toronto: Thompson Educational Publishing, 1999) at 114-15.
[12] James W. St. G. Walker, “Race,” Rights and the Law in the Supreme Court of Canada (Toronto: The Osgoode Society for Canadian Legal History and Wilfrid Laurier University Press, 1997) at 3.
[13] Ibid. at 98-9.
[14] Ibid. at 158-68.
[15] Ibid. at 220.
[16] Immigration Act, Sec. 5 (O).
[17] Supra note 12 at 249.
[18] Constance Backhouse, Colour-Coded: A Legal History of Racism in Canada, 1900-1950 (Toronto: Osgoode Society for Canadian Legal History by University of Toronto Press, 1999).
[19] Ibid. at 17.
[20] Ibid. at 253.
[21] Ibid. at 226-71.
[22] Ibid. at 228-29.
[23] Ibid. at 252-53.
[24] Ibid. at 228.
[25] Ibid. at 267.
[26] Cecil Foster, A Place Called Heaven: The Meaning of Being Black in Canada (Toronto: HarperCollins, 1996) at 77-9 [Foster, “Black in Canada”]; Linda S. Dranoff, Women in Canadian Life: Law (Toronto: Fitzhenry & Whiteside, 1977) at 84-87 [Dranoff, “Women in Canadian Life”].
[27] Christopher Moore, The Law Society of Upper Canada and Ontario’s Lawyers, 1797-1997 (Toronto: University of Toronto Press, 1997) at 177.
[28] Ibid. at 177-78.
[29] Supra note 27.
[30] Supra note 28.
[31] Ibid. at 179.
[32] Dranoff, “Women in Canadian Life”, supra note 26 at 17.
[33] Supra note 27 at 181.
[34] Ibid.
[35] Ibid. at 182.
[36] Ibid. at 183-84.
[37] Foster, “Black in Canada”, supra note 26 at 51-2.
[38] Ibid. at 10.
[39] Ibid. at 9.
[40] Ibid. at 9-10.
[41] Ibid. at 28-9.
[42] Augie Fleras & Jean Leonard Elliott, Unequal Relations: An Introduction to Race, Ethnic and Aboriginal Dynamics in Canada, 2nd ed. (Scarborough: Prentice Hall Canada, 1996) at 336.
[43] Will Kymlicka, “Group Representation in Canadian Politics” in F. Leslie Seidle, ed., Equity and Community: The Charter, Interest Advocacy and Representation. (Quebec: The Institute for Research on Public Policy, 1993) at 61-90.
[44] Ibid. at 61.
[45] Ibid.
[46] Ibid. at 61-2.
[47] Ibid. at 61-3.
[48] Richard Devlin, A. Wayne MacKay, and Natasha Kim, “Reducing the Democratic Deficit: Representation, Diversity and the Canadian Judiciary, or Toward a ‘Triple P’ Judiciary” (2000) 38 Alberta L.R. 789
[49] Supra note 10 at 150.
[50] Supra note 3 at 98.
[51] Bertha Wilson, “Will Women Judges Really Make a Difference?” (1990) 29 Osgoode Hall L.J. 507.
[52] Supra note 3 at 99.
[53] Cherie Bell, [1980] 1 C.H.R.R. d/155.
[54] William J. Biennan, Jr., “A Tribute to Justice Thurgood Marshall” in Roger Goldman and David Gallen, eds., Thurgood Marshall: Justice for All (New York: Carroll, 1992) at 14-5.
[55] Carl T. Rowan, Dream Makers, Dream Breakers: The World of Justice Thurgood Marshall (New York: Welcome Rain Publishers, 2002) at 418-31.
[56] R v. Brown 9 C.R. (6th) 240, 36 M.V.R. (4th) 1, 170 O.A.C. 131, 64 O.R. (3d) 161, 105 C.R.R. (2d) 132, 173 C.C.C. (3d) 23 para. 7 [Brown].
[57] Ibid. at para. 105.
[58] Brown v. Durham Regional Police Force 1998 CarswellOnt 5020 21 C.R. (5th) 1, 167 D.L.R. (4th) 672, 131 C.C.C. (3d) 1 at 17.
[59] Supra note 48 at 734-866.
[60] Ibid. at 789-90.
[61]Ibid. at 790-91.
[62] Ibid. at 791.
[63] Ibid. at 792-94.
[64] Ibid. at 794-95.
[65] Ibid. at 796-97.
[66] Ibid. at 797-98.
[67] Ibid. at 798.
[68] Ibid.
[69] Munyonzwe Hamalengwa “Supreme Injustice” Toronto Star (3 September 2004) A17.
[70]Ibid.
[71] Ibid.
[72] Linn Washington, Black Judges on Justice (New York: The New Press, 1994) at xiii.
[73] Ibid.
[74] Ibid. at xii.
[75] Ibid.
[76] Ontario Human Rights Commission, Paying the Price: The Human Cost of Racial Profiling (Toronto: Ontario Human Rights Commission, 2003) [emphasis added].
[77] R. v. R. (D.S.), 1997 CarswellNS 302, 151 D.L.R. (4th) 193, 118 C.C.C. (3d) 353, 10 C.R. (5th) 1, 218 N.R. 1, 161 N.S.R. (2d) 241 [RDS].
[78] Supra note 3 at 95.
[79] Ibid. at 94.
[80] Ibid.
[81] Supra note 77 at para.
[82] Supra note 3 at 95-6
[83] Supra note 77 at para. 68-9.
[84] Supra note 3 at 95.
[85] Peter McCormick & Ian Greene, Inside the Canadian Judicial System: Judges and Judging (Toronto: James Lorimer & Company, 1990) at 247-249.
[86] Supra note 3 at 134-6.
[87] Frances Henry & Carol Tator, The Colour of Democracy: Racism in Canadian Society, 3rd ed. (Canada: Thomson Nelson, 2006) at 137-8.
[88] Supra note 77 para. 55.
[89] Supra note 3 at 100-01.
[90] Ibid.
[91] The Queen v. Campbell, 2005 CarswellQue 243.para 25-31.
[92] Supra note 69.
[93] Supra note 91 para. 115 [emphasis added].
[94] Supra note 3 at 35.; Supra note 18 at 136.; Supra note 87 at 353.
[95] Alison Bailey, “Despising an Identity they Taught me to Claim” in C.J. Cuomo & K.Q. Hall, eds., Whiteness: Feminist Philosophical Reflections (Lanham: Rowan and Littlefield, 1999) 85.
[96] Robert Jensen "White Privilege Shapes the U.S." Baltimore Sun (19 July 1998), online: <http://uts.cc.utexas.edu/~rjensen/freelance/whiteprivilege.htm>.
[97] Peggy McIntosh, “White Privilege: Unpacking the Invisible Knapsack” (1990) 49 Independent School. 31-6.
[98] Ibid. at 31.
[99] Ibid. at 34.
[100] Supra note 18 at 136.
[101] Ibid.
[102] Sherene H. Razack, Looking White People in the Eye: Gender, Race, and Culture in Courtrooms and Classrooms (Toronto: University of Toronto Press, 1998) at 12.
[103] Supra note 3 at 15.
[104] Lise Gotell, “The Canadian Women’s Movement, Equality Rights and the Charter” (1990) 16 Feminist Perspectives 8-13.
[105] Peter McCormick, Canadian Courts: A Social Scientist’s Ground-Breaking Account of the Canadian Judicial System (Toronto: James Lorimer & Company, 1994) at 48.
[106] Dranoff, “Women in Canadian Life”, supra note 26 at 91-4.
[107] Ibid. at 92.
[108] Catherine Mackinnon, Toward a Feminist Theory of the State (Cambridge: Harvard University Press, 1989).
[109] Clayton Ruby “Ontario Judges: White, Male and Out of Touch” Toronto Star (6 November1989), A19.
[110] Clayton Ruby “Lack of Quality Control for Canada’s Senior Judges” Globe and Mail (30 June 1992), A18.
[111] Morgentaler v. The Queen, [1988] 1 S.C.R .30, para. 161-84.
[112] Rosemary Brown, “Women and Electoral Politics” (1988) 17 Resources for Feminist Research 107.
[113] Supra note 111 para. 161-84.
[114] Supra note 112.
[115] Sherene Razack, Canadian Feminism and the Law: The Women’s Legal Education and Action Fund and the Pursuit of Equality (Toronto: Second Story Press, 1991) at125-26.
[116] Ellen Anderson, Judging Bertha Wilson: Law as Large as Life (Toronto: University of Toronto Press, 2001) at 227-34.
[117] Supra note 115 at 123.
[118] Supra note 116 at 197.
[119] Bertha Wilson, “Will Women Judges Really Make a Difference?” (1990) 28 Osgoode Hall Law Journal 509.
[120] Supra note 116 at xiii.
[121] Ibid. at xv.
[122] F.L. Morton, “The Meaning of Morgentaler” in I. Gentles, ed., A Time to Choose Life (Toronto: Stoddart, 1990) 179.
[123] Supra note 115 at 110-18 & 85-9.
[124] Madam Justice Beverley M. McLachlin, “How Criminal Law has Discriminated Against Women” (1991) 5 Canadian Speeches 48-61.
[125] Ibid. at 48.
[126] Ibid.
[127] Ibid. at 48-9.
[128] Ibid. at 49.
[129]Ibid. at 53.
[130] Ibid. at 53-5.
[131] Ibid. at 56.
[132] R. v. Lavallee, [1990] 1 S.C.R. 852.
[133] Supra note 124 at 56.
[134] Ibid.
[135] Supra note 116 at 150-66.
[136] Supra note 102 at 84.
[137] Ibid.
[138] Ibid. at 86.
[139] Ibid.
[140] Supra note 3 at 36.
[141] Supra note 124 at 57.
[142] Ibid. at 58.
[143] Supra note 115 at 137-38.
[144] Ibid. at 107-08.
[145] Ibid. at 117-9.
[146] Ibid. at 36-7.
[147] Supra note 4.
[148] Supra note 115 at 112.
[149] Ibid. at 111.
[150] Patricia Marshall, “Sexual Assault, the Charter and Sentencing Reform” (1988) 63 C.R. (3rd) 225.
[151] Supra note 115 at 29-35.
[152] Ibid.
[153] Ibid.
[154] “Victim Participation in the plea negotiation process in Canada” (2002), online: Department of Justice Canada
<http://canada.justice.gc.ca/en/ps/rs/rep/2002/vppnpc/vppnpc_3_3.html>.
[155]Supra note 150 at 216.
[156] Christopher P. Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism, 2nd ed. (Toronto: Oxford University Press, 2001) at 115-21.
[157] Ibid. at ix.
[158] Supra note 69.
[159] Supra note 51at 507.
[160] Ibid.
[161] Supra note 156 at 170-76.
[162] Dale Gibson, “Enforcement of the Canadian Charter of Rights and Freedoms: Section 24” in Walter Tarnopolsky & Gerald A. Beaudoin, eds., The Canadian Charter of Rights and Freedoms, 1st ed. (Toronto: Carswell, 1989) 489.
[163] Supra note 156 at 164-65.
[164] Ibid.
[165] Ibid. at 165-68.
[166] F.L. Morton, Law Politics and the Judicial Process in Canada, 2nd ed. (Calgary: Calgary Press, 1992) at 348.
[167] Rand Dyck, Canadian Politics (Toronto: ITP Nelson, 1998) at 44-8.
[168] Supra note 87 at 28.
[169] Ibid. at 49-50.
[170] Ibid.
[171] Andrea York, “The Inequality of Emerging Charter Jurisprudence: Supreme Court Interpretations of Section 15(1)” (1996) University of Toronto Faculty of Law Review. [York].
[172] Egan & Nesbitt v. Canada, [1995] 2 S.C.R.513, online: QL.
[173] Miron v. Trudel, [1995] 2 S.C.R. 418, online: QL.
[174] Thibaudeau v. Canada, [1995] 2 S.C.R. 627, online: QL
[175] York, quoting L’Heureux-Dube in Egan, at 37.
[176] Ibid. at 38.
