Globe and Mail

Gatecrashing the old boys club

RIDICULED, censured, accused of gender bias, Madam Justice
Claire L'Heureux-Dubé withstood sexist attacks from fellow
judges, KIRK MAKIN writes, and carved a path for women in
the legal world. In her 15-year tenure on the top court bench,
she has become a hero to those who advocate on behalf of women,
minorities and victims of violence

By KIRK MAKIN
Graeme Smith
Thursday, May 2, 2002 – Print Edition, Page A8
The Globe and Mail

A pioneering woman in the legal world, Madam Justice Claire L'Heureux-Dubé had endured many affronts in her career. But upon being appointed to the Supreme Court of Canada, she was shocked when a fellow judge flat out refused to speak to her.

"He wouldn't talk to me for three months," she recalled, without naming the judge. "After that, he sent me a note saying: 'You've passed your probation.' "

The judge would surely not have done the same thing to another man, Judge L'Heureux-Dubé thought at the time. The incident took its place on a long list of slights that has helped fuel her lifelong quest for equality.

"There was discrimination, yes," she said. "As [former Supreme Court judge] Bertha Wilson used to tell me, when you are a woman, you have to prove yourself every day."

Judge L'Heureux-Dubé, 74, told Justice Minister Martin Cauchon last night that she will step down on July 1. The most senior judge on the Supreme Court -- and arguably its most controversial during her 15-year tenure -- Judge L'Heureux-Dubé spoke candidly in her first preretirement interview about her goals, her trials and her legacy.

She said that she will retire confident that women are now equal partners on the court. But there were tough times in her early years, when she and Ms. Wilson felt the sting of exclusion from an otherwise male court.

"When I was appointed to the Quebec Superior Court, I was the only woman among about 30 men," she said. "At the Quebec Court of Appeal, I was the only woman among 24 men. I am used to that; it has never really bothered me. What bothers me is the stereotypes and chauvinism.

"The old boy's club was more active before on the court than it is now. I feel very comfortable now -- particularly now that we [female judges] are three."

But inasmuch as the court may be a newfound haven of equality, Judge L'Heureux-Dubé said she has little doubt that misogyny lies at the heart of the rough ride she has suffered at the hands of critics in the legal and media world. She said this is typical for female judges, whose rulings and comments would usually pass unnoticed had they come from a man, but may be attacked and discredited because they come from a woman.

"I was flabbergasted that you could be attacked so personally," she said. "I don't mind criticism of my judgments -- that is part of the territory -- but personal attacks? As far as I'm concerned, it's not acceptable. I believe it is an attack on the independence of the judiciary.

"But criticism never deterred me," Judge L'Heureux-Dubé added. "My temperament is a rebel. It is more likely to make me determined to go on with the road I have chosen."

As evidence of this unequal treatment, she cited the high-profile gay-rights case of M v. H, in which the female judges who wrote all of the lower-court judgments were harshly criticized. However, when two male judges of the Supreme Court upheld those rulings, it was suddenly accepted in most quarters and even praised as a wise and timely affirmation of rights.

"It just gives you a little bit of the script for what is happening," Judge L'Heureux-Dubé said. "Judge Bertha Wilson was also attacked very badly by some media sometimes. They called her St. Bertha and ridiculed her. And other women judges have been attacked -- mostly women judges who stood up for human rights.

"I've thought a lot about it, but I have no idea of the reason for it. Do they think we are weak, that we are easy targets? Do they think we are stronger, and have to be attacked because of our views? It takes a lot of courage to go through that and remain faithful to your mission to render justice."

Within a vocal portion of the criminal defence bar, legal academia and the right-wing media, Judge L'Heureux-Dubé has been reviled as an ideologue with a feminist, equal-rights agenda. Her enemies see a personal agenda at work in Judge L'Heureux-Dubé's endorsement of the "battered woman's defence," tax deductions for working mothers, expanded spousal-support provisions, and protecting the privacy of sexual-assault complainants. But Judge L'Heureux-Dubé is adamant that her views are not bias, but an embodiment of the values Canadians have always stood for -- equality and humanitarianism.

"It is not an agenda," she said. "It's a perception of what the law is. You wouldn't want someone here who has a blank mind and hasn't any idea about the role of the law in society.

"When I talk about domestic violence, I know what I'm talking about. I've been in the trenches as a family-law practitioner. When I talk about equality, I know what I'm talking about.

"Having an agenda and pursuing it are quite different things," she added. "A good judge has an open mind. They don't have an agenda. I don't know any judge who has an agenda."

The most notorious incident of her judging career involved a tempest over comments Judge L'Heureux-Dubé made two years ago in the rape case Regina v. Ewanchuk.

The furor erupted after the court decided unanimously to reverse Steve Ewanchuk's acquittal because the lower courts had erroneously said that Mr. Ewanchuk mistakenly believed the victim was consenting to sex. The trial judge -- and later, Alberta Court of Appeal Judge John McClung -- observed that the victim's clothing had conveyed a message that was far from chaste.

A concurrence from Judge L'Heureux-Dubé and Mr. Justice Charles Gonthier branded Judge McClung's thinking as stereotypical and outdated -- prompting him to write a letter to a newspaper lambasting Judge L'Heureux-Dubé and saying her attitude helps explain why so many males in Quebec commit suicide. Several legal commentators and editorialists joined the unprecedented attack on his behalf.

As it happened, Judge L'Heureux-Dubé's husband, Arthur Dubé, had committed suicide several years earlier. Judge L'Heureux-Dubé retreated into shocked silence as the attacks continued.

Noting that Judge Gonthier was left unscathed, she now says that it is highly doubtful that there would have been any stir had she been a man. "I can tell you, it hurt -- because of the personal attacks on my family, my husband," Judge L'Heureux-Dubé said. "The implication was that I was responsible [for Mr. Dubé's 1978 suicide].

"There is always a kind of stigma about suicide. My husband was the most wonderful human being you could imagine, but he had this very deep depression, and that's it. You know, you miss these people that you love. The attacks brought back all these memories. It was a very difficult period. Judges are just human beings, and we have feelings and reactions. I sometimes think people don't realize that we are not mechanical; we are not robots."

Judge L'Heureux-Dubé added that when she included what she thought was a commonsense observation in the Ewanchuk concurrence, she "never, never imagined it would bring out this whole saga that has lasted for years."

As a postscript, a few months after the incident, Judge L'Heureux-Dubé learned that Judge McClung was ill. She wrote him an encouraging letter, and he conveyed his thanks. "For me, that was the closing of the book."

There has been a silver lining to the incident, she added. "That decision has been used all over the world in judicial education programs. It's incredible, that something so small and ordinary and inconsequential brought such fury and had such influence."

It is certainly not the first time her work as been referred to abroad. Judge L'Heureux-Dubé's equality-rights rulings have been influential in many countries, said lawyer Mahmud Jamal.

"Her framework for analyzing equality and discrimination has been largely adopted by the South African Constitutional Court, which is a huge accolade for her and for Canada," Mr. Jamal said in an interview. "The South African court had its pick of the world's best minds -- and it picked her approach."

On a bench that is known for working long hours, Judge L'Heureux-Dubé occupies a niche of her own. She rarely left the court before midnight, and habitually slept just four hours each night.

"Here, the job is 24 hours a day, 365 days a year," she said. "It is a bit like slavery -- but it is a slavery I appreciate."

Judge L'Heureux-Dubé's gruelling work habits are in part the product of her belief that judges must be voracious readers not only of law, but of developments in all fields.

However, there is another reason. Work has also been an antidote for a life punctuated by a disproportionate measure of tragedy. The first blow came when her mother developed multiple sclerosis when Judge L'Heureux-Dubé was just 9. She lived almost 50 years virtually without the use of her arms and legs. Then, at 24, one of Judge L'Heureux-Dubé's three sisters died of rheumatic fever.

In 1978, her husband killed himself, and in 1994, her only son died suddenly. Work became a refuge. "If I had not done that, I would not have survived my husband's suicide," she said. "I live in the future rather than the past. You have to build up some resistance to pain -- a shield; a way to survive. I have the ability to compartmentalize my life. I can put my pain somewhere, and then work. The fact that I was able to work during all those periods -- I think it helped a lot."

A hero to those who advocate on behalf of women, minorities and victims of violence, Judge L'Heureux-Dubé maintains that her critics were naive if they didn't know where she stood from the very start.

"My main interest in the Charter [of Rights and Freedoms] is the equality provisions," she said. "Through all my legal opinions, I think it is very evident this was a constant preoccupation. If there is a legacy I would like to leave, it is that particular concern about equality."

A chronology

1927: Born in Quebec City

1940s: After attending school at the Monastère des Ursulines, Madam Justice Claire L'Heureux-Dubé takes a job at the office of a cod-liver-oil processing plant in Rimouski, Que., but quits at the age of 19 to continue her education.

1951: Graduates cum laude from the University of Laval law school.

1952 to 1973: Practises law at L'Heureux, Philippon, Garneau, Tourigny, St-Arnaud & Associates. She is among the first female lawyers in Quebec to handle divorce cases.

February, 1973: Appointed to the Superior Court of Quebec, its only female jurist.

1973 to 1976: Heads a federal commission on immigration problems in Quebec.

1978: Her husband, Arthur Dubé, commits suicide.

October, 1979: Appointment to the Quebec Court of Appeal. Once again the only female among her colleagues, the famously hard-working judge writes 1,200 judgments in eight years.

1981: Co-edits a book about family law entitled Family Law: Dimensions of Justice.

April, 1987: Prime minister Brian Mulroney telephones her to offer a position on the Supreme Court of Canada.

During her 15-year tenure, she champions the equality rights of women, immigrants, gays, lesbians and other groups.

1994: Her only son, Pierre, dies. (Her other child, Louise, is a lawyer.)

1998: Earns the title of president at the International Commission of Jurists in Geneva.

July 1, 2002: The date on which Judge L'Heureux-Dubé plans to resign from the Supreme Court of Canada.

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