National Post

Thursday, January 21, 1999

Female justices tend to disagree with male colleagues
Seven-year study reveals gender trend on Supreme Court

Janice Tibbetts
Southam News


L'Heureux-Dube


McLachlin

The two women on the male-dominated Supreme Court of Canada are "outsiders" who seem to be on a different wavelength than the men, concludes a study based on seven years of rulings.

Justices Claire L'Heureux-Dube, 71, and Beverley McLachlin, 55, were most likely to disagree with decisions by signing the majority opinion less than half the time, says the study, published in the latest edition of the Osgoode Hall Law Review. "The two women judges appear to be isolated at one edge of the court," wrote the author, Peter McCormick, a University of Lethbridge political scientist.

Mr. McCormick's findings come at a time when the federal government is about to start searching for a replacement for retiring

justice Peter Cory. The appointment is widely expected to be a woman, to provide better gender balance on the nine-member bench.

The study, however, notes that the two women do not appear to stick together against the men.

"It's clearly not the case that men look at things one way and women do the other," Mr. McCormick, a well-known political commentator, said in an interview.

"Maybe the argument is a very simple one. Maybe to have succeeded as a woman lawyer and judge in the early days of the sexual equality revolution has required very strong and forceful personalities. Maybe the women who have survived are the ones who have learned to dig into their own foxhole and stand everybody off, and the lone-wolf style carries over onto the bench."

Retired justice Bertha Wilson, the only other woman to sit on the Supreme Court, also seemed to be out of sync with the majority, said Mr. McCormick.

"It's not knee-jerk but it puts them off the same wavelength as the men over and over again." Judges on the high court handed down split decisions just over 40% of the time, says the study, which is based on 770 reported rulings.

The two judges most likely to side with the majority were Justice Cory and Justice Frank Iacobucci, who did so more than three-quarters of the time.

"Summed over hundreds of panel appearances, these differences are significant and it must mean for lawyers arguing their cases before the court that they usually have greater optimism if Cory and Iacobucci are nodding their heads than if McLachlin or L'Heureux-Dube are looking pleased," the article says.

Although there is no pattern of her teaming up with Justice McLachlin to champion women's rights, there are examples.

The women joined forces in 1995 to disagree with the seven men in a ruling that struck down Susan Thibaudeau's bid to avoid paying taxes on child support.

In 1993, the case of Toronto mother Elizabeth Symes pitted the two women judges against the seven men, who ruled that child-care costs aren't a tax-deductible business expense for self-employed women.

On the other hand, feminists felt betrayed when Justice McLachlin wrote the 1991 majority opinion striking down the federal rape shield law which protected sexual assault complainants from being questioned about their past sexual history. Justice L'Heureux-Dube wrote for the minority.

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