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A Difference without a Distinction? A Comment on “Do Women Judges Make a Difference? An Analysis of Appeal Court Data” by Peter McCormick and Twyla Job

Published online by Cambridge University Press:  18 July 2014

Joan Brockman
Joan Brockman
Affiliation:
School of Criminology, Simon Fraser University
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Extract

This comment is approached with some trepidation. My eclectic background does not allow me the peace of mind I might have if I had arrived at this point in my life with a more connected or cohesive history. I therefore approach this review from at least three perspectives: (i) as a sociologist with training in traditional social science research methods and methodology, (ii) as a lawyer with some experience prosecuting in provincial court, and (iii) as an academic who has recently dabbled in feminist legal methods and methodology, in law and the social sciences. The first two perspectives require assumptions about social science research and law; the third perspective challenges, questions, and debunks many of these assumptions. Whether there can be an integration of the third with the first or the second is the subject of much debate among feminist academics in, and between, the social sciences and law. At times it is unclear which perspective is influencing my comments, and so I slide from one to another and back again.

Type
Exchanges/Débate
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 8 , Issue 1 , Spring/printemps 1993 , pp. 149 - 164
Copyright
Copyright © Canadian Law and Society Association 1993

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References

1. Some of these issues are explored in Miles, A. and Finn, G., eds., Feminism in Canada: From Pressure to Politics (Montreal: Black Rose Books, 1983; 2nd edition 1989)Google Scholar; McCalla Vickers, J., ed., Taking Sex Into Account (Ottawa: Carleton University Press, 1984)Google Scholar; Martin, S. L. and Mahoney, K., eds., Equality and Judicial Neutrality (Toronto: Carswell, 1987)Google Scholar; Tomm, W. and Hamilton, G., eds., Gender Bias in Scholarship: The Pervasive Prejudice (Calgary: Calgary Institute for the Humanities, 1988)Google Scholar; and Brockman, J. and Chunn, D. E., eds., Investigating Gender Bias in Law: Socio-Legal Issues (Toronto: Thompson Educational Publishing, 1993).Google Scholar

2. I am also quick to acknowledge that it is much easier to sit back and critique someone's research than to conduct it myself. For various reasons, we all work with the data we have rather than the data we wish we had.

3. While there are five-judge panels, the authors refer to these as “increasingly rare.” In the cases I examined, infra, all were three-judge panels.

4. Explanations of these and other concepts can be found in standard textbooks on social science research. See, for example, Palys, T., Research Decisions: Quantitative and Qualitative Perspectives (Toronto: Harcourt Brace Jovanovich, 1992)Google Scholar; Bailey, K. D., Methods of Social Research, 3rd ed. (New York: Free Press, 1987)Google Scholar; Babbie, E., The Practice of Social Research, 5th ed. (Belmont, CA: Wadsworth, 1989).Google Scholar

5. Harding, S., ed., Feminism and Methodology (Bloomington, IN: Indiana University Press, 1987) at 6–9.Google Scholar One cannot ignore the fact that the social construction of gender is implicated in the subordination of women. As Harding writes, “Whatever is thought of as manly is more highly valued than what is thought of as womanly.” Harding, S., The Science Question in Feminism (Ithaca: Cornell University Press, 1986) at 18.Google Scholar

6. The authors found that women trial judges are less likely to be reversed than men trial judges (“especially on sentence appeals and especially on defendant appeals”); however, they do not provide the data for sentence appeals.

7. This type of “quality-control” analysis is also done in other studies. See, for example, Walker, T. G. & Barrow, D. J., “The Diversification of the Federal Bench: Policy and Process Ramifications” (1985) 47 J. of Politics 596 at 611–13CrossRefGoogle Scholar, who report that there was no difference in the rate at which female and male trial judges were appealed and no difference in the rate at which they were reversed (when one woman trial judge, with an unusually high reversal rate, was removed from the analysis). The data offered no substantiation that “affirmative action judges would be inferior to the traditional candidates or that the largely white, male federal court system would not successfully assimilate nontraditional judges.”

8. The LEAF factum in Janzen and Govereau v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252, appears to have had an impact on Chief Justice Dickson's decision that sexual harassment is discrimination on the basis of sex, discussed in Brockman, J., “Social Authority, Legal Discourse and Women's Voices” (1992) 21:2Man. L. J. 212.Google Scholar His decision that discrimination against pregnant women was discrimination on the basis of sex (Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219), reversing the court's earlier decision in Bliss, also supports the proposition that women's perspectives are infiltrating the male dominated legal system. The Supreme Court of Canada has, however, held its options open in terms of how discrimination cases will be dealt with—see Majury, D., “Equality and Discrimination According to the Supreme Court of Canada” (1991) 4:2Can. J. of Women and the Law 407.Google Scholar

9. For a review of some of the literature, see Myers, M. A., “Social Background and the Sentencing Behaviour of Judges” (1988) 26:4Criminology 649CrossRefGoogle Scholar; Spohn, C., “The Sentencing Decisions of Black and White Judges: Expected and Unexpected Similarities” (1990) 24:5Law and Society Rev. 1197CrossRefGoogle Scholar; Walker, T. G. & Barrow, D. J., “The Diversification of the Federal Bench: Policy and Process Ramifications” (1985) 47 J. of Politics 596.CrossRefGoogle Scholar

10. McCormick, P. and Greene, I., Judges and Judging: Inside the Canadian Judicial System (Toronto: Lorimer, 1990) at 68–69.Google Scholar

11. This analysis is not intended either to support or to refute the authors' hypotheses; rather, it is an attempt to understand the variables in their database. There was nothing “scientific” about this selection of cases. A search of QL decisions from Alberta since January 1986 with the key words “Hetherington & appeal & Alberta” turned up 526 cases (I forgot to specify “criminal” and so the civil cases were included). For non-sentence appeals, I picked the first six cases that were reported in Canadian Criminal Cases (the reports are located on a shelf in my office). Madame Justice Hetherington was chosen because she was the first woman appointed to the Alberta Court of Appeal (in 1985). Four sentence appeals were also retrieved from this list of QL decisions.

12. I had an earlier opportunity to suggest this as a reviewer of the article, but did not.

13. See sections 675 (right of appeal of person convicted of indictable offence), 676 (right of appeal by the attorney general), 680 (review by Court of Appeal of interim release orders), 830 (appeal from conviction, acquittal or other final order in summary conviction proceedings), and 839 (appeals from a summary conviction appeal court).

14. See sections 683 (powers of Court of Appeal to make orders and revoke them), 686 (powers of appeal from acquittals, verdicts of insanity, etc.), 687 (powers of appeal against sentence), 689 (orders with regard to property and restitution), 834 (powers of appeal regarding summary conviction appeals under section 830), and 839.

15. This is explained in McCormick, P., “Conviction Appeals to the Court of Appeal of Alberta: A Statistical Analysis, 1985–1992” (1993) 31 Alta L. Rev.Google Scholar (forthcoming).

16. See, for example, Mossman, M. J., “Feminism and Legal Method: The Difference It Makes” in Fineman, M. A. & Thomadsen, N. Sweet, eds., At the Boundaries of Law: Feminism and Legal Theory (New York: Routledge, Chapman and Hall, 1991) 283Google Scholar; Mossman, M. J., “‘Invisible’ Constraints on Lawyering and Leadership: The Case of Women Lawyers” (1988) 20 Ottawa L. Rev. 567Google Scholar; Smith, Lynn, “The Courts and Different Kinds of Objectivity” (1987) 43 The Advocate 17Google Scholar; Smith, Lynn, “What is Feminist Legal Research?” in Tomm, W., ed., The Effects of Feminist Approaches on Research Methodologies (Waterloo: Wilfrid Laurier University Press, 1989) 71Google Scholar; Bardett, K. T., “Feminist Legal Methods” (1990) 103 Harvard L. Rev. 829–88CrossRefGoogle Scholar; Wishik, H., “To Question Everything: The Inquiries of Feminist Jurisprudence” (1985) 1 Berkeley Women's L. J. 64Google Scholar; Resnick, J., “On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges” (1988) 61 Southern California L. Rev. 1877Google Scholar; Menkel-Meadow, C., “Mainstreaming Feminist Legal Theory” (1992) Pacific L. J. 1493Google Scholar; and the many citations contained therein.

17. My brief meeting with Madame Justice Hetherington was in 1979 when, as a law student in dire economic circumstances, I filed my own divorce petition. Never having adopted or used the respondent's surname, I filed the petition in my name. The clerk rejected the petition because, according to her, the last name of the petitioner and the respondent had to be the same in order to obtain a divorce. I examined the Rules of Court, decided she was wrong, and returned to file the petition without any difficulty. The upset clerk then informed me that the petition would not proceed unless I amended it, and that once I was in court I would have to give evidence under the respondent's surname. She made an appointment for me to see Madame Justice Hetherington, who informed me that if I wanted a divorce I would have to amend my petition to change my surname. However, once in court (if I found myself in her court) I could swear I was whoever I wanted to be, so long as I swore to tell the truth (an interesting connection between using my own name and telling the truth). In the end, Donna Martinson (now a provincial court judge in British Columbia) obtained a fiat ordering the clerk to proceed with the petition. The divorce was put before a “sympathetic judge”—Mr. Justice Kirby.

18. This term is used here to describe the transition of women from “tokens” in a “skewed group” (up to a ratio of perhaps 15:85) to a “minority” in a “tilted” group (perhaps 35:65). According to Kanter, R. Moss, Men and Women in Corporations (New York: Basic Books, 1977) at 209Google Scholar, “[M]inority members have potential allies among each other, can form coalitions, and can affect the culture of the group. They begin to become individuals differentiated from each other as well as a type differentiated from the majority.” In the legal profession in Canada, women probably became a minority when their proportion reached and exceeded 20 percent. This is illustrated by the number of studies commissioned by law societies across Canada on women in the legal profession that took place in the late 1980s and early 1990s, as well as the number of women in the legal profession who started to differentiate themselves as a group. See, for example, Neallani, S., “Women of Colour in the Legal Profession: Facing the Familiar Barriers of Race and Sex” (1992) 5:1Can. J. of Women and the Law 148.Google Scholar Such issues were also addressed at the National Association of Women and the Law's Tenth Biennial Conference (February 1993), “Healing the Past, Forming the Future,” at a plenary on women in the legal profession, by Heather Raven, a member of the Dakota First Nation, and Cornelia Soberano, the first woman Filipino-Canadian lawyer in Ontario. It is more difficult to determine at what stage women judges might become a minority because of their relative small number. Many may remain tokens in their own particular working environment. Kanter in chapter 8 (at 341) describes the problems women face in this situation and how “in the absence of external pressures for change, tokenism is a self-perpetuating system.”

19. A number of cases are usually referred to for this proposition. See Wilson's, Madame Justice comments on abortion in R. v. Morgantaler, [1988] 1 S.C.R. 30 at 171Google Scholar, where she writes, “[I]t is probably impossible for a man to respond, even imaginatively, to such a dilemma,” and cases referred to in supra, note 8.

20. Russell, M., “A Feminist Analysis of the Criminal Trial Process” (1989–1990) 3:2Can. J. of Women and the Law. 552 at 559.Google Scholar

21. For a discussion, see Abell, J., “Women, Violence, and the Criminal Law: ‘It's the Fundamentals of Being a Lawyer that Are at Stake Here’” (1992) 17:1Queen's L. J. 147.Google Scholar

22. The reasons in favor of increasing the number of women judges have been canvassed by a number of authors (for a review of these reasons, see Grant, I. and Smith, L., “Gender Representation in the Canadian Judiciary” in Appointing Judges: Philosophy, Politics and Practice [Toronto: Law Reform Commission of Ontario, 1991] 57 at 63–78)Google Scholar and endorsed by a number of committees, organizations, and governments. See, for example, Judicial Appointments Advisory Committee, Final Report and Recommendations (Toronto: Judicial Appointments Advisory Committee, June 1992)Google Scholar; Ontario Law Reform Commission, Appointing Judges: Philosophy, Politics and Practice (Toronto: Law Reform Commission of Ontario, 1991) at 1Google Scholar; Minister of Justice and Attorney General of Canada, Federal Judicial Appointments (Ottawa: Department of Justice, February 1991) at 6.Google Scholar In 1987, the National Association of Women and the Law adopted a policy to promote the appointment of more women to the bench, and it has since consolidated its position in a paper entitled Creating Diversity on the Bench (Ottawa: National Association of Women and the Law, 1993).

23. This alludes to the fact that perhaps some women (particularly those committed to substantive equality for women, both in law and society) will have a great deal of difficulty making any impact on a legal system that was designed by men. Some feminists have raised the question of whether it is even possible to be a feminist judge in the present criminal justice system. See, for example, Boyle, C., “Sexual Assault and the Feminist Judge” (1985) 1:1Can. J. of Women and the Law 93Google Scholar; C. Boyle & S. Worth Rowley, “Sexual Assault and Family Violence: Reflections on Bias” in Martin & Mahoney, supra, note 1 at 312; and Russell, M., “A Feminist Analysis of the Criminal Trial Process” (1989–1990) 3:2Can. J. of Women and the Law 552.Google Scholar

24. See for example, Wilson, Madame Justice B., “Will Women Judges Really Make a Difference?” (1990) 28 Osgoode Hall L. J. 507Google Scholar, translated as “Est-ce que les femmes juges feront une difference?” (1991) 4:2 Can. J. of Women and the Law 359; Jack, R. & Jack, D. Crowley, Moral Vision and Professional Decisions: The Changing Values of Women and Men Lawyers (Cambridge: Cambridge University Press, 1989)CrossRefGoogle Scholar; Foster, J. C., “Antigones in the Bar: Women Lawyers as Reluctant Adversaries” (1986) 10:3Legal Studies Forum 287Google Scholar; C. Hotel & J. Brockman, “The Care versus the Adversarial Approach in Family Law Practice” (Paper presented at the Learned Societies Conference, Charlottetown, P.E.I., 4 June 1992).

25. Pyke, S., “Feminism and Method” in Esbensen, S. B. & Allard, M., eds., in collaboration with Dagenais, S., Social Science Research in the 1990s: Discipline or Issues Oriented (Ottawa: Social Science Federation of Canada, 1990).Google Scholar

26. Some of these issues are addressed in the works cited supra, note 1.