Interview with Justice Claire L’Heureux-Dubé

March 8, 2018

For the International Women’s Day edition of our newsletter, PBSC volunteer Maude Cloutier, sat down with long-time friend of PBSC Justice L’Heureux-Dubé at her home in Québec city. In the interview, Justice L’Heureux-Dubé discussed her career as the first woman nominated to the Supreme Court, the importance of Pro Bono work, the #metoo and Time’s up movements as well as the issues facing women today.

 

Q. Why law?

My mother was very aware of the injustices in the world. I was really interested in this whole question of justice and it led me to study law. I was also inspired by a student who had studied at Bellevue College, which was where I was studying at the time. She had come to give a speech about how she was accepted into Law School.

 

Q. How did the beginning of your career unfold?

The Bar allowed women to access the profession in 1941 and when I applied in 1952, there was still a lot of reluctance. I looked for work, without hoping for much: lawyers didn't want to hire a woman. A lawyer who hired me as a secretary in 1951 accepted me as a partner. It was very special! I developed a practice in family law because there was a high demand and little supply: lawyers found that it didn't pay very well. At first, it was mostly women who would come to see me. Most didn't have money, but I helped them anyway and always ended up getting paid. In 1973, I was appointed as a judge to the Superior Court. I wasn't interested, but I didn't think that I could refuse. I was ready for the Court of Appeal, so I accepted with pleasure! When Prime Minister Mulroney wanted to appoint me to the Supreme Court, I refused at first, but then accepted, because I was the only woman in Canada at a Court of Appeal and at the time, candidates to the Supreme Court came from the Court of Appeal. Therefore, I had a responsibility towards women. When I was told that my male colleagues wouldn't be happy, I thought to myself that I would go there and show them what I could do!

 

Q. How did your colleagues from the judiciary welcome you?

The best time of my life was the eight years I spent at the Court of Appeal. Between 1982 and 1987, I was the only woman in Canada in a Court of Appeal. I worked with dedicated and extraordinary lawyers. There was an amazing sense of camaraderie and I never felt like I was excluded because I was a woman. I didn't receive as warm of a welcome at the Supreme Court. It was a boy's club. One of the judges didn't speak to me for three months. He later wrote me a card to congratulate me for passing the exam! Slowly but surely, they started getting used to me and I started getting used to them, but there wasn't the same camaraderie there as there was at the Court of Appeal.

 

Q. Can you talk about your experience as a Francophone judge in a mainly English-speaking court system?

Most judges didn't understand French. When we wrote in French, the judgement was published late because it needed to be translated before the English-speaking judges could take a position. It hindered the process, so I had to write mainly in English. Over the years, English-speaking judges learned French. I think that all judges at the Supreme Court should be bilingual. I am delighted with the appointment of Justice Sheilah L. Martin. She is living proof that it is possible to find bilingual judges from out West!

 

Q. How did the Supreme Court change throughout the years?

The Supreme Court evolves with society. For example, at the time of the Rodriguez case, society wasn't ready for assisted dying. Today, it is, which explains the decision in the Carter case. When an opinion becomes the majority, it often comes after society has changed its mind. Contrarily, dissent represents the law of the future and makes society think differently.

 

Q. You gave an interview recently where you spoke about how you despised the way that Justice LeDain was treated due to his illness. Can you tell us more about this?

We sat together for a year. He was the perfect colleague! At the time, he confided in me that he was suffering from depression. I told him not to resign. His wife had met the Chief Justice to ask if her husband could have time to get better. There is a provision in the Supreme Court Act that states that a judge cannot be absent for more than 30 days from Court without the consent from the Governor General. Did the Chief Justice use this provision? It is Justice LeDain who made the decision, but he was pushed to give his resignation. I was baffled, I thought that 30 days wasn't enough for him to get better, but I don't know very much about the circumstances.

 

Q. What is your perception of equality?

Equality relates to human dignity. It is the fact that everyone deserves to be respected for the simple fact that they are human beings.

 

Q. Could you tell us which was the most remarkable Supreme Court case about equality for you, as well as the cases of dissent which made you the proudest?

It is the CN v. Canada case, where the decision was rendered in 1987. Action Travail des Femmes represented a woman employed with the railway company who was unable to receive the same promotions as men. At the time, we read the decision from the bench and the ATF prosecutor, who had won, was shedding tears of joy. This left me very impressed. The Andrews case, where we established overarching principles in equality for the first time also struck me. I am very proud of my dissents in Seaboyer and O’Connor. Seaboyer dealt with the victim's sexual past, and O’Connor dealt with access to complainants' files in cases of sexual assault.

 

In the latter dissent, I explained that the psychological reports often showed that the victim considered herself responsible for the experienced assault, so imagine the prejudice if a jury had seen these documents! These two dissents became law.

 

Q. What is your perception of organizations that strive to improve access to justice, like Pro Bono?

These institutions are very useful and even necessary. As justice providers, it is our duty to foster a proper access to justice and we take a lot of pleasure in not invoicing. I was Chair of Maison de Justice, where we offered our services for free to guide people in resolving their issues. In the United States, several studies show that their lawyers can do 20%-30% of Pro Bono work as part of their responsibilities. I am in favour of all initiatives that follow that pattern, because a lack of access to justice leads to injustices. I think that justice should be free for all.

 

Q. What is your view of the different movements like #MeToo, #BeenRapedNeverReported and Time’s up?

It is important to make people aware of these issues. Until now, women weren't believed by the courts and didn't dare go forward because the consequences for these women were devastating. Therefore, I'm in favour of these movements. You have to be careful not to trivialize things that have nothing to do with sexism or sexual assault. French women, in their letter in Le Monde newspaper, say that they love chivalry, but that has nothing to do with the serious situations that were brought forward in the United States. All we ask for is respect towards women.

 

Q. Do you identify yourself as a feminist? Why?

I never identified myself as a feminist, but it depends on the definition of that word. At the time, we would say that the court was being taken over by feminists, which meant that the court was biased. Therefore, it is dangerous to identify yourself that way as a judge. I am in favour of equality based on human dignity and I am in favour of justice, so if that's being a feminist, then I'm a feminist.

 

Q. As we approach International Women's Day, what are the biggest issues for women and how can the legal system be useful in solving some of these issues?

The biggest challenge for women is the choice they need to make between family life and work life. Women need to be able to make their own choices, just like men, who make choices without the same obstacles. The fact of having a child shouldn't prevent us from choosing our salary and our career. The legal system needs to facilitate the choice and make sure that they have the same conditions in terms of salary, employment, and leave.

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