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Wednesday, January 12, 2000

National Post

Beginning today, the Supreme Court of Canada will have a woman at its helm. For most court observers, including this newspaper, that is simply an interesting historical fact. After all, Beverley McLachlin, the incoming chief justice, does not owe her success as a lawyer or judge to her womanhood; to suggest otherwise is insulting and retrograde.

Still, to those who share the court's fondness for "substantive equality" -- the feminist doctrine that subordinates equality of opportunity to equality of result -- Judge McLachlin's appointment heralds a greater "female perspective" on the bench.

"Speaking just as a woman myself, I think that being a woman does create a different awareness and understanding of issues," said Kathleen Lahey, a professor of law at Queen's University. "In all sorts of ways, women look at these issues differently," echoed Lorraine Weinrib, a professor of constitutional law at the University of Toronto.

Insofar as that is true -- and it is highly debatable -- it is certainly not something we should encourage in judges. A "gendered, perspective" is necessarily a biased one and, by its very nature, antithetical to judging. As Lord MacMillan, eminent jurist of Great Britain, once wrote, judges must approach their job with detachment; they must purge their minds "not only of partiality to persons, but of partiality to arguments." If it is true, as some feminists maintain, therefore, that the law is "systemically sexist," offsetting male bias with female bias would only compound injustice. The sensible response would be to correct the existing bias, not supplement it.

In an interview Judge McLachlin gave to Maclean's last November, however, she told a story from her days as a lower court judge about how, during a divorce proceeding, she had assured a nervous husband that "the fact I was a woman judge would not have any bearing on how I'd rule." Those are auspicious words. Can we count on Judge McLachlin to uphold them?

"Unpredictable" is the word that springs to mind when we examine the judge's track record on equality issues. On one hand, she showed courage in 1991 for striking down aspects of the so-called "rape shield law" and allowing a woman's sexual history to be used as evidence in sexual assault cases. Yet, in the divorce case of Bracklow v. Bracklow, another of her decisions, she broke with long accepted principles of contract law and ruled that a man's duty to pay spousal support to his ex-wife should continue ad infinitum.

On the very day Judge McLachlin's appointment was announced, fishermen in the Atlantic provinces were agitating against a September Supreme Court decision saying that Indians need not observe the same fish-conservation laws imposed on everyone else. Because she offered a subtle dissent from her colleagues in that case, she has been called "a moderate." But in every other decision on native rights before the top court, she has given the nod to racial preferences.

If Judge McLachlin is considered a "moderate" on equality issues, it is only by comparison to the radicals with whom she keeps company.

Nevertheless, having even such a "moderate" steer the ship of the current Supreme Court is worth cheering. In 1990, then-Supreme Court Judge Bertha Wilson wrote an essay in the Osgoode Hall Law Journal titled, "Will Women Judges Really Make a Difference?" No. But Judge McLachlin might.

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