Claire L'Heureux-Dube: Reflections from Down Under
| Author | Reg Graycar |
| Pages | 81-107 |
Six
Claire
L'Heureux-Dube:
Reflections from Down Under
REG
GRAYCAR
Introduction
In
1997
a
Federal Court judge
in
Australia opened
a
speech
she was
giving
to
a
group
of
women lawyers
by
telling
an
anecdote that
she had
heard
at a
recent function
to
celebrate
the
appointment
of a
member
of the New
South
Wales
(NSW)
bar to the
state's Supreme
Court.
What
was
said
on the
occa-
sion
was to
this
effect:
"X's
appointment
to the
Supreme Court, while most
welcome, took
us all by
surprise:
after
all he is a
male, heterosexual, came
from
the
inner Bar,
and he
knows something about
the law
having practised
it for
many
years."1
Of
course,
as the
judge went
on to
point out,
the
story
is
not so
simple.
It
never
is. The
figures
the
judge referred
to
later
in her
speech
made
it
very clear that
in
Australia,
a
woman
on a
superior court
is
about
as
rare
a
phenomenon
as a flying pig or a
fish
riding
a
bicycle.2
By
comparison
with Canada, Australia still
has a
judiciary that
is
overwhelmingly white,
male, Anglo, heterosexual, able-bodied,
and—dare
I use the
word because
it
is
so
contentious—unrepresentative.3
How
does
all
this relate
to
Justice L'Heureux-Dube? When
I set
about
reviewing
the
impact
of her
work
in
Australia,
I
came across
a
range
of
dis-
parate
references
in
various judicial forums.
As
feminist judges
are
even rarer
in
Australia than women judges, Justice
L'Heureux-Dube's
work
has not yet
had an
overt
influence
on
Australian judgments.
In
this paper,
I
will
therefore
81
82
ADDING FEMINISM
TO LAW
examine
the
impact
of her
judgments
on
judicial discourse outside
the
court-
room setting
in
Australia.
In
particular,
I
will
use her
joint judgment with
now
Chief Justice Beverly McLachlin
in
R.D.S.4
and her
elaborated views
on
neutrality
and
impartiality
as a
case study.
What
particularly intrigues
me is
that
her
judgment
in
R.D.S.
is the
only thing that
has
actually provoked
two
judges
in
Australia
to
step,
at
least metaphorically,
off
their benches
and
ven-
ture into
the law
journals
to
engage with
her.5
Having
had a
long-standing
interest
in
"bias"
and
"perspective,"
how
these tags
are
frequently
attached
to
"outsider
judges,"
and the
complicated issue
of
whether "women judges make
a
difference,"6
it
seemed
fitting to
revisit these issues
by
examining
the
responses
to
Justice
L'Heureux-Dube's
work expressed
by
these judges.
In
what follows,
I
will
first
briefly
review R.D.S.
I
will then discuss
the
responses
to it by two
Australian judges (Justices
Ipp
and
Mason).
In
partic-
ular,
I
focus
on the
criticism that they
(at
least, Justice Ipp) make
of
judges like
Justice
L'Heureux-Dube,
who
analyse equality claims from
a
premise
of
wide-
spread
inequality.
I
also briefly
consider
whether
the
absence
of an
entrenched constitutional guarantee
of
equality limits
the
ability
of
judges
in
Australia
to
engage with these issues.
I
conclude
by
highlighting
the
contri-
butions that Justice L'Heureux-Dube
has
made
to
exposing
the
partiality
of
the
orthodoxy
of
judicial neutrality
and by
highlighting
her
effort
to
bring
the
knowledges
and
perspectives
of
outsiders
into
her
work
of
judging.
H.D.S.
The
facts
of the
R.D.S. case
are
reasonably well known,
at
least
in
Canada.
Judge
Corinne
Sparks,
a
provincial
court
trial
judge
in
Nova Scotia,
was
hear-
ing
the
case
of a fifteen-year-old
African
Canadian youth
who was
alleged
to
have
interfered with
the
arrest
of
another youth.
He was
charged with unlaw-
fully
assaulting
and
resisting
a
police
officer.
While delivering
an
oral judg-
ment dismissing
the
charge, having found that
the
prosecution
had not
proved
its
case beyond
a
reasonable doubt,
the
judge stated:
The
Crown
says,
well,
why
would
the
officer
say
that
events
occurred
the way in
which
he has
relayed
them
to the
Court
this
morning.
I am not
saying
that
the
Constable
has
misled
the
Court
although
police
officers
have
been
known
to do
that
in the
past.
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