McGILL LAW JOURNAL
REVUE DE DROIT DE McGILL
Volume 39 No 3
Montrdal 1994
Equality, Human Rights, Women and the Justice System
Rosalie Silberman Abella
The author discusses various notions of equality
which society has held throughout the ages and sug-
gests a more appropriate definition for our times.
Whereas Aristotelians advocated treating likes alike,
and the nineteenth century introduced the notion of
equality before the law, the twentieth century has
favoured a more interventionist approach to equality,
seeking to reduce discrimination.
Discrimination includes practices which limit an
individual’s opportunities. Society is not equal. The
differences which exist call for different treatment of
different people so that they may each attain equality in
society. The obstacles in the way of attaining this
objective are better understood after an explanation of
the broader societal context.
The author discusses society’s experiences with the
New Puritanism and the New Pluralism. The debates
raging in each “Ism” are unhelpful because they ignore
the arbitrary disadvantaging of some people.
The legal culture both responds to and creates soci-
etal norms. It therefore has a role to play in reducing
and eliminating discrimination towards women. The
receptiveness of the justice system depends on how the
issue is framed. The author argues that feminism
should be viewed as a call for openness so that all may
participate. This means reducing inequality and im-
proving access to opportunity. It means reversing dis-
crimination.
Women need to be treated differently in order to
relieve past discrimination, and to allow them to fully
benefit from, aid contribute to, society. This is not
reverse discrimination but rather a warranted change in
society’s point of view. This is the object of measures
like employment equity. Thus, in order to achieve soci-
etal equality, a better understanding is required of what
impediments have existed in the past.
L’auteure se penche sur les diverses conceptions de
l’6galitd telles que conques par la soci~t6 A travers les
sidles et sugg~re une definition plus adapt~e au temps
pr6sent. Alors que les Aristotdliciens preconisaient un
traitement semblable pour les gens semblables et que le
dix-neuvitme si~cle introduisait Ia notion d’6galit de-
vant ]a loi, le vingtibme sibele, quant a lui, a favoris6
une approche plus interventionniste de l’6galit6, pour
tenter d’attdnuer les signes de la discrimination.
La discrimination inclut le pratiques qui limitent
les possibilitds de l’individu. La socidt6 n’et pas 6ga-
litaire et done, les disparitda qui y existent doivent nous
amener h traiter diffdremment les personnes diffdrentes
de mani~re A ce que tous puissent jouir de l’6galit6. Les
obstacles qui nous emp&hent d’atteindre cet objectif
peuvent etre mieux compris suite bt un examen du con-
texte social plus large.
L’auteure discute des expdriences de ]a soci~t6 aux
prises avec le Nouveau Puritanisme et le Nouveau Plu-
ralisme. Les d~bats qui font rage dans chaque
ne nous sont d’aucune assistance puisqu’ils ne tiennent
pas compte du desavantage arbitraire subi par certaines
personnes.
La culture juridique r~agit aux normes sociales et
les erde. Elle a done un r~le a jouer afin de diminuer
et 61iminer la discrimination qui existe envers les
femmes. Cependant, la rdaction du syst~me judiciaire
face a ce ddbat ddpend de la manibre dont le probl~me
est pos6. Sclon l’auteure, le f~minisme devrait etre vu
comme une invitation & l’ouverture de mani~re a ce que
tous puissent participer. Pour ce faire, il est n6cessaire
de rdduire les indgalitds et d’amliorer les opportunits.
It faut inverser la discrimination.
Pour combattre la discrimination subie dans le pass6
et pour leur permettre de b~n~ficier et de contribuer A
la socirt6 dans laquelle elles vivent, les femmes
doivent Etre trait~es diffdremment. Ceci n’est pas de la
discrimination A ‘envers, mals plutdt un changement
justifi6 dans ‘attitude de la soci~t6. L’quit en mati~re
d’emploi et un exemple patent d’un tel changement.
Bref, pour atteindre l’6galitd au sein de la socidtd, une
meilleure comprdhension des contraintes qui ont exist6
dans le pass6 et n~cessare.
*Justice, Court of Appeal for Ontario. This lecture was delivered as part of the Encounters on
Human Rights Lecture Series, McGill University, Faculty of Law, 10 March 1993, and is dedicated
to Sam Freedman, former Chief Justice of Manitoba, who lived from 16 April 1908 to 6 March
1993, four days before this lecture was delivered.
McGill Law Journal 1994
Revue de droit de McGill
To be cited as: (1994) 39 McGill L.J. 489
Mode de rrfrence: (1994) 39 R.D. McGill 489
McGILL L4W JOURNAL
[Vol. 39
No one opposes equality. As a principle of democratized civilization, it is
accepted without controversy. It always has been. But its definition and appli-
cation produce controversy of a fundamental kind, and we find, on closer ana-
lysis, that although no one disagrees with the universal right to equality, few
principles attract a wider range of visceral debate. We must have a principled
approach to this ineffable principle so that even if we cannot in the end attract
universal approbation, we can at least develop an approach that has intellectual
integrity. To do this requires a sense of history, philosophy, politics, sociology
and law. It requires an understanding of what we are as a society.
For over 2,500 years pundits and polemicists have dissected equality. The
Aristotelian and Platonic notions of equality, which Aristotle equated with jus-
tice, were proportionate and based on the perceived ability to reason. Essenti-
ally, Aristotelians were of the view that persons who are equal should have
assigned to them equal things. This would create an elite meritocracy based on
clear distinctions between noble and commoner, men and women. With the pos-
sessive individualists, Hobbes and Locke, we find that equality was equated
with liberty; liberty being defined as the power to be free to do what one wants
without unreasonable state interference. The capacity to reason was equated
with the ownership of property, and equality was still based on this social strat-
ification. Like Aristotle, likes were to be treated alike in similar situations.
In the nineteenth century, we developed the concept of natural equality, the
notion that people were equal before the law. Flowing from Rousseau’s theories,
the equality theories of Arnold, Mill and Bentham, in the nineteenth century,
started to invoke the role of the State, and equality came to be seen as a moti-
vating and interventionist concept. The differences between rich and poor were
increasingly identified as inequality requiring readjustment. But essentially,
equality in liberal ideology was still a kind of formal equality, or, as Dicey
explained it, the rule of law required that law be equally imposed and equally
administered in the ordinary courts.’
Later, with the liberal-democratic theories of equality introduced in the
twentieth century, notions of social and economic equality were increasingly
invoked, with a concomitant demand for greater state involvement. We devel-
oped the theories of equality of opportunity and expected more from the State
in promoting it. As we moved towards what Roberto Unger called “post-
liberalism” after the Second World War, philosophers like John Rawls called for
redistributive justice, based on an approach which caters to the least fortunate
and keeps inequalities to a minimum or to a justifiable level.
Differences were to be taken into account and the recognition developed
that if people were all treated the same, or equally, inequality could result. As
expressed by C.B. Macpherson, ultimately we developed the notion that the
minimum acceptable equality was not an equal right to a certain standard of life,
or equal results, but an equal right to attain them by one’s energies.
‘Albert V. Dicey, hitroduction to the Study of the Law of the Constitution, 10th ed. (London:
Macmillan, 1965).
19941
EQUALITY AND THE JUSTICE SYSTEM
Equality over time has had two consistent features. First, it has been
equated consistently with theories of liberty and justice. And, second, it has
never been considered absolute. Both assist in the development of a social and
legal interpretative analysis.
The social development of equality, reinforced by the legal and political
environment, mirrors, not surprisingly, the philosophical trends. As long as
equality was based on the Aristotelian concept of treating likes alike, we were
unable to acknowledge the role differences played in preventing equality. As
Anatole France ironically observed, “[T]he majestic equality of the laws [for-
bids] rich and poor alike to sleep under the bridges, to beg in the streets, and
to steal their bread.”2 The social outcomes of the formalistic, Diceyan approach
to equality were the segregation and disproportionate disadvantage of women
and minorities.
We used to feel about women as did B.K. Sandwell, the editor of Saturday
Night, who said in 1938, “The business of women is to keep house and to keep
quiet.” We used to disenfranchise Asian Americans and Canadians and expro-
priate their property. We used to segregate Blacks. We used to exclude disabled
persons. We used to ignore native people. We no longer believe it is right to do
any of these things.
With the 1954 Brown3 decision of the United States Supreme Court and, a
generation later, with that court’s Griggs v. Duke Power Co.4 decision, we came
to re-evaluate how equality assessments were to be made. The Griggs case, in
particular, in developing the theory of systemic discrimination, radically altered
social and legal paradigms and boldly opened the door to the dramatic reduction
of social inequality and treated equality as synergetic with theories of discrim-
ination.
This leads necessarily to exploring the nature of discrimination, on the
premise that the objective of equality is the eradication or reduction of discrim-
ination. We must start with the relationship between prejudice and discrimina-
tion.
Prejudice is the holding of pejorative attitudes based on strongly-held
views about the appropriate capacities or limits of individuals or the groups of
which they are members. Discrimination is the behaviour which may result. Not
all discrimination flows from prejudice. It may flow from stereotyping, by
which we arbitrarily attribute characteristics to a person because we attribute
those characteristics to the group of which he or she is a member, or discrim-
ination may flow from indifference or neglect.
Discrimination in turn generates all three: prejudice, stereotyping, and neg-
lect or indifference, thereby closing the circle. Those who are prejudiced find
their views vindicated by the prevalence of discrimination; those who are dis-
criminated against have little opportunity to prove that the assumptions about
2The Red Lily, trans. Winifred Stephens (London: John Lane, 1930) at 95.
3Brown v. Board of Education. 347 U.S. 483 (1954).
4401 U.S. 424 (1971).
REVUE DE DROIT DE McGILL
[Vol. 39
them are wrong. Our discriminatory behaviour thus flows from self-perpetu-
ating and self-justified intellectual baskets into which we place the information
we receive. It is therefore systemic discrimination –
unjustified unequal impact
– we seek to change through state and judicial intervention.
What conclusion flows from these observations? That an intention to dis-
criminate is not the primary issue. By now most of us are sufficiently sophis-
ticated to understand that we ought not to articulate prejudicial views even if we
hold them, and further, most probably do not hold them. But there is often an
unconscious acceptance of historic patterns and behaviour which, however
innocently motivated, result in a discriminatory impact upon individuals in cer-
tain groups. We are thus left with a working definition of discrimination which
means practices or attitudes that have, whether by design or impact, the effect
of limiting an individual’s right to the opportunities generally available because
of attributed rather than actual characteristics. Equality does not mean treating
likes alike; it means knowing what outside action or remedy may be necessary
so that people are in fact treated as equals.
In a wider social context, we recognize that there are differences; we rec-
ognize that absolute equality is unattainable or may, in fact, in its formal appli-
cation, by refusing to recognize differences, create inequality; we recognize that
some social stratification and disadvantage exist, perhaps even inevitably,
because of immutable differences and the structure of our modem industrial
economy; we recognize the incremental nature of the process; and we recognize
that equality is a flexible, self-adjusting tool. We recognize that equality is both
procedural as a social strategy and substantive as an objective which seeks to
reduce stratification and disadvantage. Which brings us to the realization that
equality is realized in the reduction of inequality, and that inequality is the exis-
tence of discrimination. Equality is the antonym for discrimination, and section
15 of the Charter5 is the guaranteed right of everyone to be free from discrim-
ination.
What does this mean for women? First, a more general societal snapshot
is required.
In 1972, the year that I was called to the Bar, Margaret Atwood wrote in
her classic book Survival, “To know ourselves, we must know our own literature
… Literature is not only a mirror; it is also a map.”6 She could as easily have
been talking of law. The centrality of law and its institutions cannot be under-
estimated as either a reflection of or guide to human behaviour within national
boundaries.
Permit me to provide the following simplistic answer to the time-honoured
question of whether laws create or respond to social norms: they do both. This
may seem like laughing at the social ladder while climbing it, but I think there
is more truth to this observation than many would admit. Its importance lies in
5Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule
B to the Canada Act 1982 (U.K.), 1982, c. 11.
6(Toronto: Anansi, 1972) at 17-18.
19941
EQUALITY AND THE JUSTICE SYSTEM
being able to decide how to get to the fairest justice system, and whom we can
comfortably take as travel companions. If law both confirms and generates
norms, as I believe it does, then we can take everyone: the public whose views
seek legislated endorsement or statutory inspiration; the politicians from whom
the endorsement or leadership is sought; and the lawyers and judges who inter-
pret all of the above.
I start by asserting that we have to stop pretending that the justice system
is not about social justice. The public thinks law and justice are one and the
same thing, or intimate friends, or at least on speaking terms. If we continue to
tolerate the dissonant dichotomy between the public’s expectations of the justice
system as the deliverer of justice, and an internal passionate defence by those
inside that it merely protects process but not results, we risk perpetual mutual
frustration. We need not, and cannot, and should not guarantee any particular
result, but neither can we pretend that results are irrelevant. We have to start by
appreciating the wider culture and its anxieties under whose umbrella the justice
system is operating, so that we can better understand the culture and anxieties
of the justice system itself. And then, having played the overture, the play’s
women performers can come on stage and deliver their lines.
I want to start with the wider cultural picture, because I think the country’s
emotional environment is very much the context for a discussion on justice.
Then, with any luck as this lecture continues, the justice system may come into
increasing focus, like a Polaroid photograph, and the images should become
easier to identify and explain.
I think there were two main dynamics most recently directing the cultural
environment in North America, and they were both worrying for different rea-
sons. The first was the New Puritanism, and the second was the New Pluralism.
Both profoundly affect our capacity to create ameliorating strategies.
First, the New Puritanism or Fundamentalism. As far as I can tell, the Old
Fundamentalism was about religious orthodoxy and the maintenance of clear
distinctions between right and wrong, as ecumenically declared.
In their personal firmament, fundamentalists found answers to most of
life’s tough calls and were spiritually content to resist moral ambiguity. As time
went on, as is the case with many who feel they categorically know the differ-
ence between right and wrong, there grew a zeal to impose more universally the
moral certainty puritanism preached. By the 1950s, after decades of moral plu-
ralism, exhausted and wounded as we were by the horror and enormity of World
War II, puritanism as secular morality surfaced as a majority phenomenon. It
took the form of Dwight Eisenhower in the United States, Louis St. Laurent in
Canada, the suburbs, bungalows, 2.5 children per family, one spouse per mar-
riage, June Cleaver and her son Beaver, a station wagon and a matching dog.
The essence of the movement was conformity, and the majority bought in. The
“truth” was obvious, compliance was expected, and competitive truths and their
adherents were squeiched.
McCarthyism flourished in the name of this moral purity, and decent
people behaved unforgivably for years. The people who started the movement
McGILL LAW JOURNAL
[Vol. 39
were haters. Their followers were naive or worse. Anyone who resisted was
labelled undemocratic, unpatriotic, Communist or Jewish –
often interchange-
able terms in those days. Careers were ruined, injustices blatantly encouraged
or not discouraged, horrendous assumptions tacitly accepted, and all while the
continent yawned and stretched and felt proudly unified by the purity of its
monolithic and homogenous morality.
Is it any wonder that we had the turbulent 60s? Or the loquacious 70s? Or
the amoral 80s? A devastating world war shatters presumed civilities; the vic-
tims are humanism and humanity; the need for spiritual catharsis creates a
search for purifiers; the purification which starts nobly at Nuremberg, eventu-
ally ends ignobly at the House Committee on Un-American Activities in Wash-
ington; the purified parents of the 50s create predictably bored progeny in the
60s; and the 60s are spent overreacting to the overpurification and oversimpli-
fication of the 50s.
But the purification of the 60s created its own new tyrannical truths
about adults over thirty and whether you could trust them, about respectability,
about rules, and about traditions generally. The only thing that the people raised
in the 50s and those raised in the 60s had in common was that each group
thought that they had a monopoly on the truth.
And that’s why we did so much talking in the 70s. We had to try to figure
out which value system was better, which side was right. So we discussed the
environment, women, minorities, disabled persons, aboriginal people, marriage,
religion, children, sex, language and education. We changed some laws and
social norms, and started to regroup. We sought refuge in like-minded people,
battered as we were by the increasing stridency of the national and local con-
versations.
We also started to divide. By the time we finished talking to or at each
other in the 70s, we had no idea who was right and who was wrong. There were
no villains, but there seemed to be a lot of victims, and we were utterly con-
fused.
In the 80s we fervently became one of three things: conservatized, radical-
ized or self-absorbed. And each side of the triangle mocked the other two,
claimed to represent a broad consensus, and expressed frustration with public
institutions. We seemed to lose our compass –
and our tolerance. We held each
other under siege, but we didn’t know why we were giving each other ultima-
tums.
And on top of all of this was imposed a Charter of Rights and Freedoms.
I am a serious Charter fan and I always have been. But I think we have to be
aware of what we coincidentally accomplished in bringing in the Charter when
we did. On top of a cynicism about whether democratically elected political
institutions were properly accountable, we imposed unelected, unaccountable
inriqtq to decide whether right- and freedomcn
that no one understood, but every-
one passionately believed in, were being violated. On top of a debate about
whether individual rights or collective rights were supreme, we imposed a
Charter that was ideologically schizophrenic on the subject, and offered as a
1994]
EQUALITY AND THE JUSTICE SYSTEM
tool for brokering the issue the great jurisprudential problem-solving concept
found in section 1: “It depends.” On top of the public’s relief that at last the con-
cept of human rights was now constitutionally entrenched and therefore
supreme, we imposed a notwithstanding clause, assuring people that, in their
own interests and for their own benefit, governments could suspend their oth-
erwise constitutionally protected rights and freedoms (but not, ironically, their
constitutionally protected division of powers). And, on top of a nation increas-
ingly divided over how to unify whatever it was that was holding it together, we
imposed a unifying document that seemed to protect everyone’s right to stay
diverse.
The Charter, in short, gave voice to the lines. Somehow, this merger of
“Isms” was accompanied by the acquisition of noisy absolutes whose larynx
was fear and whose voice was therefore urgently strident. We forgot, it seems,
that nothing, not even rights, was absolute, and as a result, we were losing our
balance, even as a country.
So people who drew their lines through the debates of the 70s held tough
and stayed tough through the 80s, comforted by the notion that the lines had
become rights, and that the rights had been enshrined. In short, everyone now
began to claim a monopoly not only on truth, but on justice as well. What before
could have been labelled an individual’s personal and idiosyncratic point of
view, was now perceived by that individual as a constitutionally protected per-
sonal and idiosyncratic point of view. And when individuals start to perceive
that their points of view have constitutional validity, they start to take those
views and themselves very seriously. And from there it’s only a short leap to
intolerance, to the kind of Pavlovian urge to impose your views on others and,
more importantly, to exude the fumes of moral absolutism which fundamental-
ism exhales. In short, we’ve come full circle back to the puritanism of the 50s,
only now there are more truths demanding compliance and competing for pri-
macy. And the voices are louder and more urgently strident.
As for Pluralism, it represents the attempt at peaceful co-existence by dis-
parate groups who by choice or necessity are interdependent. It implies that
each group is equal and acknowledges that each group is different. Again, his-
torically, starting with the 50s, we find a burst of immigration adding to the
existing collection of ethnic, racial, linguistic and religious groups; the begin-
ning of human rights laws to protect them from discrimination; and a general
concern about how to fit everybody in, or more pointedly, whether they would
or should fit in even if we could. Many of these minority groups added their
voices to those of the reawakened female ones in the 60s, and spent the 70s add-
ing francophones outside Quebec, and disabled and aboriginal people to the dis-
cussion. And, by the 80s, as with the New Puritanism, lines had been drawn,
sides taken and expectations forcefully articulated.
When the Charter was introduced to this “Ism”, rights truly became Cap-
italiied, and people -,tarted vapitali7ina on their right- Thik “riohtm” fren7y pro-
duced an interesting phenomenon. As groups and the individuals in them spoke
with increasing confidence of their rights, bolstered by the Charter and inspired
by the Supreme Court of Canada, more and more people outside these groups
REVUE DE DROIT DE McGILL
[Vol. 39
started asserting their right to be free fi’om pluralism. People we used to call
“biased” now felt free to raise insensitivity and intolerance to the level of a con-
stitutionally protected right on the same plateau with the rights of minorities, or
women, or aboriginal people. We started to think that all rights were created
equal, even the right to discriminate.
Not all rights are created equal- Some are more equal than others. There
is a difference between disadvantage and inconvenience. We should not be
embarrassed to admit that yelling “fire” in a crowded theatre is fundamentally
very different from yelling “theatre” in a crowded firehall; or that teaching Hol-
ocaust denial is different from teaching about the Holocaust; or that promoting
racist ideas is different from promoting race. The harmful impact is different
and so, therefore, should be our attention. The issues in each equation are not
and should not be of equal weight on the scales of justice. Intellectual pluralism
does not and cannot mean the right to expect that racism or sexism will be given
the same deference as tolerance.
And yet, this is what the New Pluralism seems to tolerate: a variety of
groups and a variety of views about them, all of perceived equal legitimacy and
weight.
That is why it is important to appreciate the difference between civil lib-
erties and human rights; otherwise, we will throw ourselves hopelessly into ana-
lytical anarchy over which approach applies when, especially under the Charter.
Civil liberties represent the theory of individual rights developed by Locke
and refined by Mill, whose premise was that all individuals are equal in their
right to be free from arbitrary state intervention. Every individual has the same
presumptive right as every other individual to individual autonomy, subject only
to those limitations which the State can justify as reasonable.
With respect to human rights, on the other hand, we are speaking of indi-
viduals in their capacity as members of groups which are disadvantaged for
arbitrary reasons. It is about discrimination against individuals based on
ascribed characteristics, because a whole group has been stereotyped as having
those characteristics. So we treat the individuals in those groups differently to
correct the disadvantage only members of those groups face.
The reason why human rights do not treat all individuals the same is
because not all individuals have suffered historic generic exclusion because of
group membership. Where assumptive barriers have impeded the fairness of the
competition for some individuals, these barriers should be removed, even if this
means treating some people differently.
The fact is that, unlike the United States, we in Canada were never con-
cerned only with the rights of individuals. Our historical roots also involved a
constitutiona! a ppreciation that two groip,., thp Franh and the English, could
remain distinct and unassimilated, and yet theoretically of equal worth and enti-
tlement. That is, unlike the United States, whose individualism promoted assim-
ilation, we in Canada have always conceded that the right to integrate, based on
1994]
EQUALITY AND THE JUSTICE SYSTEM
differences, has as much legal and political integrity as the right to assimilate.
A melting pot, if necessary, but not necessarily a melting pot.
So on the one hand, we find different groups trying to integrate their dis-
tinctiveness into the mainstream, and on the other hand, we find other groups
trying to keep themselves or their distinctiveness out by setting homogenizing
terms and conditions at the gate. Just like the Old Pluralism, but multiplied and
with louder and more urgently strident voices.
It is this intensity which is new about these “Isms”, an intensity borne of
an intense fear of change, and an intensity that turned the national conversation
into a series of monologues and harangues. Too many people wouldn’t listen to
anyone else. Too many were locked in old struggles, wearing old scars as uni-
forms, and using old vocabulary as weapons. Creative imaginations seemed to
have failed, and too many minds retreated into familiar compartments and
labels. The issue is not about fundamentalism or pluralism, Old or New. It is
about whether some people are being arbitrarily disadvantaged.
Which brings me directly to the legal culture.
The legal culture responds to the rest of the culture in which it operates.
The system is best promoted by those who believe in its evolving relevance, and
least well served by those who suffer the slings and arrows of constructive crit-
icism badly and call it outrageous. Those intellectual baskets that form the shape
of the information we receive have to be changed to make room for new and
different information. We must be willing to see first and then define, otherwise
we will be unable to listen and respond.
When I started practising law in 1972, I was not personally aware that
women suffered any particular disadvantage at the hands of their communities
or laws. After all, getting from one year to another in school was a matter of
getting the marks; getting into law school was a matter of getting your parents
to support your professional aspirations; having children and working was sim-
ply a matter of not being told you couldn’t; and practising litigation was a matter
of making a living doing what you used to get put in the comer in kindergarten
for doing –
talking too much. I knew from the European novels I had read that
there was relentless poverty and human despair, but I did not know from those
books, or the teachers who taught them to me, that poverty and despair were dif-
ferent for women. I went through law school in the late 60s without hearing the
phrase “human rights”, and even the social turbulence I watched in the 60s out-
side the windows of my legal education spoke to liberation of a universal, not
a gender specific kind. Except for having been born in Europe after the War, to
Jewish refugees who had spent four years in a concentration camp, I would not
personally have known the unspeakable cruelty of discrimination. And, if any-
thing, being an immigrant to Canada conditioned me not to think in terms of
entitlements based on differences, but in terms of opportunities based on hard
work So I wa- rai.ed as a nerson and a a lawyer to develop an intellectual has-
ket which, while conscious at some level that harm could come to those who
were different, preferred to receive information in a shape that suggested that
those differences could be overcome with effort.
McGILL LAW JOURNAL
[Vol. 39
Then I had clients. And from exposure to their realities in the early 70s,
I learned that you could lose your children if a judge didn’t like the way you
were raising them, even if your husband wasn’t raising them at all; I learned that
you could spend a lifetime helping your husband earn a living, then get nothing
from that living if you left him for the wrong reasons; I learned that if you got
the kids, you rarely got the money you needed to raise them properly; I learned
that if you went to work or if you stayed home, someone was going to tell you
that it wasn’t what women were supposed to do; and I learned that a separated
woman’s economic security depended on the return and maintenance of her vir-
ginity. All this, assuming she could find and pay for a lawyer who would help
her, let alone enjoy the right to have her rights examined in the courts. And all
of this was practically irrelevant if you were a black, aboriginal, disabled, gay
or poor woman to whom the simple issue was often just getting through the day.
I saw almost no child-care for women; unpaid household evening work at
the end of underpaid daytime employment, if they had paid jobs; and a widening
gap between the new crop of professional women and the ninety-five per cent
who were not. None of this may have been the justice system’s fault –
after all,
the general culture has a trickle-down, supply-side impact on the legal one. But
it is the justice system to which we turn for a remedy because it is the system
our culture promotes as the one we assert rights in.
No one is accusing the justice system or its players of-deliberately creating
an insensitive environment. The message is, rather, that the justice system, as
the designated primary deliverer of justice, is expected to play a leadership role
in its equitable distribution. It is no more appropriate for the justice system
defensively to deny that it has a role in either the creation or resolution of the
problem, than it is for its consumers to lay responsibility for injustice exclu-
sively at its feet. It does no good for the system to pretend that impartiality pre-
cludes openness to wider points of view, nor is it fair to characterize the pleas
of women or minorities for empathy as special-interest politics.
What women and minorities in fact seek is impartiality, a genuine willing-
ness and capacity to listen with an open mind. The answers to many questions
depend on how the issue is framed. Being impartial is being open to new
frames. Walter Lippmann said that while people may be willing to admit that
there are two sides to a question, “they do not believe that there are two sides
to what they regard as a ‘fact’. 7 All too often what we call a fact is really a
judgment. Some people look at the canals of Venice and see rainbows; others
see garbage. Knowing what is a question and what is a question of fact is the
essence of being open.
Which brings us to feminism. For reasons I can explain, but not under-
stand, the word “feminist” seems to be the grown-up equivalent to saying
“Boo!”. I had always understood that feminism was that branch of human rights
that concentrated on women to ensure that no arbitrary barrier stood between
7Ronald Steel, Walter Lippmann and the American Century (Boston: Little, Brown, 1980) at
181.
1994]
EQUALITY AND THE JUSTICE SYSTEM
them and their aspirations. That, it strikes me, is not a controversial proposition.
So why is the word for it? What is so scary about getting rid of discrimination?
Feminism, for most feminists, means being open. It means reducing disad-
vantage and reducing inequality, not conferring benefits. It means ensuring
access to amenities which would have been available but for the existence of
discrimination. It means making the competition fairer.
Changing the rules of the competition may change who gets the rewards,
but if the new winners are people who ought to have been among the old ones,
the system is not being unfair –
it is catching up. And we will know when the
competitions are really fair when women and minorities start routinely occupy-
ing places they never used to occupy at all, let alone routinely.
Most women think they should have the right to be what and who they
want with no arbitrary barrier between them and their aspirations. Like men.
That is what femihism means. It is not something people should be shy about
calling themselves, or be labelled a biased radical for. Bias lies in not under-
standing that right, or that the status quo may inhibit it. Whatever we call it, the
philosophy of feminism represents the opposite of intolerance, not its tautology.
It wants to include rights for everyone by including women.
Adding layers of tolerance is good for everyone, not just women. Pre-
venting tolerance is bad for everyone, especially women.
There has undoubtedly been fantastic progress. In my lifetime, since grad-
uating from law school in 1970 with five other women, I’ve seen women grad-
uate as half their law school class, three women on the Supreme Court of Can-
ada, one woman federal Minister of Justice who eventually became Prime
Minister of Canada, several women broadcasters, dozens of women legislators
and senators, hundreds of women academics and artists, and thousands of
women in business. We have changed the support, property and custody laws;
expanded human rights laws; constitutionalized equality rights; and brought
sexual abuse and orientation out of the closet. We have come a long way in
twenty years and should feel no small amount of pride and wonder at the dis-
tances travelled.
” But for every woman in the thousands whose glass ceiling has been melted,
shattered or raised, there are women in the millions who think a glass ceiling
is just one more household object to polish. There is still a huge gap between
what the public thinks has happened to women because several thousand have
had the luck, guts, finances, friends, encouragement or supportive partners to
break barriers, and what is really happening for the majority of women.
Only the uninformed think the exceptions are the rule. I think we must
quickly move from a temptation to judge the general from our successful par-
ticular, to a tendency to resist judgmental generalizations, particularly about
success.
Too many women are struggling in the shadows cast by the public’s fixa-
tion with the credentialed, successful women, trying to get some help and des-
REVUE DE DROIT DE McGILL
(Vol. 39
perate to understand how so few at the top can take so much attention and inter-
est away from so many nearer the economic bottom.
Most women still earn less than they should, get hired or promoted less
than they should, experience or worry about assaults more than they should, and
suffer more stress than they should. They may not be women we know person-
ally, but they are out there and they are hurting.
Those women, and especially minority women who suffer double jeopardy,
are waiting for equality to hit them, for the rhetoric of equality they can hear
to turn into the reality of equality they can live. They expect, and I think they
are right to, that those who have been lucky enough to learn how to speak and
live equality will use those strengths to articulate and generate the same equality
for others. They expect, and expect us to agree, that all women should be flu-
ently equal.
And if, in response, the cry comes that equality for women and minorities
promotes reverse discrimination and violates the merit principle, I offer the fol-
lowing thoughts on the subject.
Reverse discrimination is all too often the rallying cry of those who find
their formerly exclusive competition opened up to new and numerous contend-
ers, and who therefore turn to the language of rights to justify retaining their
former hegemony. There never was and there never will be objective qualifica-
tions for any job, because no two people, articles, books or curriculum vitae are
identical. We can never say “all other things being equal” because they never
are.
The word “qualified” in recruitment searches or hiring discussions means
more than a degree from an educational institution. It means a largely subjective
assessment of collegiality, area of expertise, languages spoken, ideas promoted,
interests pursued, families produced, and so on. And essentially it means “Of all
these people with a B.A. or M.B.A. or M.D. or LL.B., which one is most likely
to fit in best?” And that, of course, depends on the assessor’s view of “best”,
and of the prevailing workplace culture he or she seeks to perpetuate. And that
usually means majoritarianism, which usually does not mean women or minor-
ities. Approaches like employnent equity acknowledge that most of this behav-
iour is unconscious, societal and unintended. However, the unintended conse-
quence of the unintended practices is nevertheless the unintended exclusion of
otherwise qualified women and minorities. So the object of strategies like
employment equity is to reverse discrimination, not to create it.
And far from employment equity threatening the merit principle, the merit
principle is exactly what employment equity is trying to introduce. It is a stag-
geringly insulting assumption to suggest to women and minorities that their
increased narticination is an invitation to violate the merit principle rather than
an attempt to acknowledge it. I would propose, instead, that it may be premature
to talk about how women and minorities are destroying the merit principle
unless we are satisfied that that is what we have had up until now.
19941
EQUALITY AND THE JUSTICE SYSTEM
So, how will we know if we have created the tolerance, fairness and equal-
ity for women we constitutionally guarantee? When we stop hearing things like:
“What do they want?” or “Who does she think she is?” or “Why can’t they get
their act together?” or “Who’s going to take care of her children?” or “Why
doesn’t she have any children?” or “My wife/colleague/daughter-in-law is per-
fectly happy with the way things are,” or “Do you think they’ll want to work
for her?” or “Won’t she make waves?” or “What will the clients say?” or “What
will her husband say?” or “Why doesn’t she have a husband?” or “If I made it,
anyone can with a little hard work.” When we have equality, all these remarks
will be gone because we will have come to understand how irrelevant and
ungenerous they are. We will no longer be blaming the victim because there will
be no more victims, of any gender, race, disability, religion, language, orienta-
tion or anything else we should respect and accommodate in people.
And that, as we reach the year 2000, is something we should want to be
able to say we helped achieve as we wander towards the millennium in the next
Millennium. That we made human rights a priority and spent the rest of our
lives growing it and taking pride in the fruits.
I want to close this lecture by dedicating it to the memory of the former
Chief Justice of Manitoba, Sam Freedman. Sam Freedman was the first Jewish
Chief Justice in Canada, appointed in 1971. He was a humane intellectual, a
wise populist, an unpretentious leader and a very funny man. This was a man
who never forgot who he was, where he came from and how lucky he was to
be who or where he was. He was as good a jurist as this country has ever pro-
duced, and one of its best speakers. His heart and brain worked happily together,
and the resulting fusion made him one of the fairest, most loved and respected
people I have ever met.
Why dedicate this lecture to him? Because he always felt grateful to Can-
ada for the opportunities it gave him. Yet it was a Canada that had kept Jews
like him out of law schools, medical schools, the judiciary and even neighbour-
hoods, during much of his early lifetime. He never complained. And he never
compromised. He waited for the doors to open and while he waited he stayed
hopeful, confident that he could remain true to his own personal history while
devoting his unique identity to his country’s future. As a close friend eulogized
at his funeral a few days ago, his lifetime commitment was to both his Jewish
and Canadian communities and it was seamless. It was also magic. His life
speaks to making sure the doors stay wide open to people’s uniqueness and
unique contributions. If we embrace their differences, the different genders and
minorities in this country, and allow them pride in their differences, Sam Freed-
man’s life shows us that they, in turn, will make us proud.
