Introduction

• Author: Elizabeth Sheehy
• Pages: 5-37

Two

Introduction

ELIZABETH

SHEEHY

My

actions

clearly

signal

that

women

have

a

major

role

to

play

in all

facets

of our

national

life,

and

this

is a

further

indication

of

the

genuineness

of our

commitment1

These were

the

words

of

then

Prime Minister Brian

Mulroney

on his

decision

in

1987

to

appoint Claire L'Heureux-Dube

to the

Supreme Court

of

Canada.

Justice

L'Heureux-Dube

took on

this responsibility with

her

characteristic

joy

and

dedication

of

purpose.2

From

her

first

dissent

on the

Dickson Court

in R.

v.

Martineau3

in

1990,

in

which

she was the

only

justice

to

question

the

"sub-

jectivist

orthodoxy"4

that ultimately

led the

Court

to

declare unconstitution-

al

most

of our

Criminal

Code

formulations

of

murder,

to her

many other

fiercely

independent judicial opinions

on

such matters

as the

constitutional-

ity

of

legislation

and

practices that undermine

the

rights

of

women

who

have

been raped, that exclude

gays

and

lesbians

from

human rights protections,

and

that criminalize child pornography, L'Heureux-Dube

J. has

turned

her

"major

role" into

one of

mythic proportions.

Her

productivity

is

legendary,

and it is

fair

to say

that

her

keen sense

of the

challenge ahead

fuelled

her

remarkable output

in

terms

of

hours worked, judgments meticulously

researched

and

penned, articles published,

and

speeches delivered.

She

became, during

her

fifteen

years

on the

Supreme Court, more,

not

less, out-

spoken

on

human rights

and

women's issues

in her

judgments

and in her

scholarship. Instead

of

experiencing isolation,

she

gained

an

ever-larger circle

of

colleagues

in

Canada, South

Africa,

the

United States, Australia,

New

Zealand, India,

and

other countries,

who

collaborated with

and

supported

her

5

6

ADDING FEMINISM

TO LAW

work

as a

judge,

and

admired

her

intellect

and

profound humanism.

Feminists

in and out of the

legal profession absorbed Justice Claire

L'Heureux-Dube's

announced retirement

from

the

Court

in

July 2002 with

great

sadness, knowing that

it

would

be

years before another self-proclaimed

feminist

was

appointed

to our

highest

court.

At the

same time,

we

knew that

it

was

critical

to

attempt

to

capture

and

assess

the

contribution that this

one

woman

had

made

to

furthering

a

feminist analysis

of the law in

Canada. With

the

assistance

of the

Shirley

E.

Greenberg Professorship

in

Women

and the

Legal

Profession

and the

Social Sciences

and

Humanities Research Council,

the

University

of

Ottawa Faculty

of Law

convened

a

conference

on the

27th

of

September 2002 devoted

to

examining L'Heureux-Dube J.'s doctrinal, method-

ological,

and

leadership interventions that have enhanced women's access

to

justice.

The

majority

of the

papers

is

included

in

this volume; others have

been published

in a

special issue

of the

Canadian

Journal

of

Women

and the

Law/Revue

femmes

et

droit.5

Claire

L'Heureux

was the

oldest

of

four

daughters, raised

by a

mother

who

lived with multiple sclerosis

and

spent

forty

years

of her

life

in a

wheel-

chair.

She was

clearly

an

accomplished student

in her

undergraduate work,

where

she

graduated

magna

cum

laudewith

her

B.A.

in

1946

and

received

the

Lieutenant

Governor's Medal.

Her

application

to law

school

in

1948 required

her to

convince

the

Secretary General

of the

University that

she did not

wish

to

study social sciences. When eventually admitted that same year

to the

Universite

de

Laval,

she was

ineligible

for

scholarships despite

her

academic

merit

and

financial need because these awards were reserved

for

men.

Claire

L'Heureux

was one of two

women

in her law

school class. Both

women were "excused"

from

classes

for the

week

in

which rape

law was

dis-

cussed.

In

spite

of her

exclusion

from

this aspect

of her

criminal

law

class,

she

won the

prize

for

this course, underlining,

as she

recently

commented,6

the

profound

lack

of

interest

in

this crime against women.

She

also received

recognition

for her

academic excellence

in the

form

of

special awards

for

Civil

and

Labour Law. Claire L'Heureux received

her

LL.L.

cum

laude

in

1951

despite

the

constraints that women

law

students laboured under

at

that time.

Upon graduation,

she had

trouble finding

an

articling position

but was

finally

hired

by Sam

Schwarzbard (also known

as Sam

Bard),

one of two

Jewish

lawyers

in

Quebec City

at

that time. Justice Claire L'Heureux-Dube

has

frequently

paid tribute

to him for the

space

he

gave

her to

develop

a

family

TWO

*

INTRODUCTION

7

law

expertise, which

in

time became

an

acknowledged

field of

legal practice,

and the

mentoring

that

he

provided

as a

lawyer

who

served

the

public

and

pursued human rights with vigour (for example

he

argued

Saumur

v.

Quebe^).

She

began publishing

in

1969,

the

same year that

she was

made

a

Queen's

Counsel. While achieving these distinctions,

she

also married

Professor

Arthur

Dube

in

1957

and

raised

two

children. This

was at a

time

when other

law firms

would

not

even hire women,

let

alone accommodate

their

lives

as

mothers.

By

the

time

of

Claire

L'Heureux-Dube's

first

judicial appointment

in

1973,

her

twenty-one years

at the bar had

earned

her the

positions

of

President

of the

Family

Law and

Family Court Committees

of the

Quebec

Civil Code Revision

Office,

Vice

President

of the

Vanier

Institute

of the

Family,

and

Counsellor

of the Bar of

Quebec,

as

well

as

recognition

for her

expertise

as a

family

law

lawyer, lecturer,

and law

reformer.

She was the first

woman appointed

to the

Quebec Superior Court,

and she was

immediately

confronted

by the

resistance

of her new

colleagues when

the

daughter

of a

neighbour,

a

judge

of

that court, excitedly told her: "Guess what,

a

woman

has

been appointed

to the

court

and my dad

says she's

a

nobody!"8

Not

long

after,

she

was

named

the

commissioner

of the

inquiry into alleged questionable

practices

at

Montreal's immigration

office,

the findings of

which were pub-

lished

in

Report

of the

Commission

of

Inquiry Relating

to the

Department

of

Manpower

and

Immigration

in

Montreal

(1976).

Her

second judicial appoint-

ment came

in

1979, when

she

became

the first

woman appointed

to the

Quebec Court

of

Appeal.

In

1987,

on the five-year

anniversary

of the

proclamation

of the

Charter,

celebrated

as

"Law Day,"

L'Heureux-Dube

J.

received

her

third judicial

appointment

and was

elevated

to the

Supreme Court

of

Canada. This

appointment made

her the

second woman ever

to sit at

this level

of

court

and

the first

woman

from

Quebec

to

reach this

position.

By

this

time,

she had

become Chair

of the

Editorial Committee

of the

Canadian

Bar

Review,

President

of the

Quebec Association

for the

Study

of

Comparative Law,

and

Vice

President

of the

International Society

of

Family Law.

She had

already

served

as the

former President

of the

Canadian section

of the

International

Commission

of

Jurists

and

Vice

President

of the

Canadian Consumer

Council.

The

press reported that

she was a

"canny" choice

for

Prime Minister

Mulroney because

she had no

political ties

to him and

came

from

the

same