Trailblazer women in the Supreme Court of Canada

ABSTRACT

How do judges decide issues of equality? While prior scholarship demonstrates that judicial attributes such as partisan identification, gender, race, age, and career backgrounds help elucidate judicial decision-making, considerably less attention has been devoted to how judicial empathy may influence or condition judicial decision-making. Such scholarly attention is especially lacking in the study of courts outside of the United States. To bridge this critical gap, we examine how judicial empathy affects decision-making behavior by analyzing data from the Supreme Court of Canada from 1982 to 2015. We find compelling evidence that trailblazer women’s unique personal experiences exert a strong influence on judicial behavior within the Canadian Supreme Court. In fact, our findings demonstrate that the effects of judicial empathy extend across a broader array of discrimination cases in Canada compared to previous findings on the American courts. We find that trailblazer women have a greater propensity to vote in favor of discrimination claimants compared to their male peers. Normatively, these effects manifest as judicial empathy in discrimination cases where trailblazers themselves likely faced upward mobility challenges.

KEYWORDS:

• Female trailblazers
• judge gender
• comparative courts
• equality
• Supreme Court
• empathy

Acknowledgement

An earlier iteration of this paper was presented at the annual meeting of the Southern Political Science Association. We are grateful to Susan Haire and Laura Moyer for the inspiration on trailblazer effects in their article on the U.S. Courts of Appeals. We thank Shane Gleason, Benjamin Kassow, and the anonymous reviewers for their helpful comments and suggestions. We dedicate this article to the memory of Donald Songer, who was an early pioneer and consistent advocate for greater scholarly engagement on the Canadian courts.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 The Court is comprised of nine justices appointed by the Prime Minister who serve until a mandatory retirement age of 75. Three justices must be from Quebec by law, and by custom three are appointed from Ontario. Two of the remaining three justices are commonly from the western provinces with the remaining one from the Atlantic provinces (Hausegger, Hennigar, and Riddell 2009). At least one female justice has served on the Court since 1982 with Bertha Wilson’s appointment as the first female justice.

2 However, see Manfredi and Lemieux (1999) for a discussion of sexual assault cases which split justices along a criminal defendant and victims’ rights dimension.

3 Other work shows women’s presence on the panel affects decision-making in Canada (Jilani, Songer, and Johnson 2010) with increased numbers of women on the panel leading to more liberal decisions overall.

4 The Canadian Bar Association was unable to provide yearly statistics for women’s law school enrollment over time.

5 Though reformists continue to call for efforts to further diversify the legal profession overall, especially in private practice where women remain underrepresented (Lopez 2011).

6 Legal education and recruitment in Canada are similar to the US. Canadian law firms recruit students in their second year of law school with the expectation that the position will lead to an articling position with the same firm and then a permanent associate position after the call to the bar. Competition among elite law firms for students from prestigious law schools result in higher employment prospects overall (Krakauer and Chen 2003). As such, elite law schools traditionally dominated by men results in men dominating the legal profession. However, as more women enter law school, the gender gap narrows.

7 We explicitly test for competing explanations of equality decision-making, such as panel effects, in the Appendix.

8 The dissenters in the case argued that the law was justified because “parliament had taken an incremental and flexible approach that slowly extended social benefits to different minority groups in society” (2017, 244).

9 Further, as the law focuses on one category at a time in Canada (similar to the treatment of equality claims as discrete characteristics in the US), it then requires judges to choose which grounds of discrimination most likely contributed to the unequal treatment without regard to multiple discriminatory factors. While legal scholars have made great strides in calling attention to this paradoxical treatment of discrimination in equality law (discriminating by comparison) (Grabham 2002; McCarthy and Radbord 1999), judicial scholars have not yet fully addressed how individual judges respond with empathy to the discrimination cases appearing before them.

10 For Charter claims generally the Court determines “whether the law creates a distinction based on an enumerated or analogous ground” and then separately determines whether the distinction is discriminatory (Government of Canada 2018). The burden of proof rests with the claimant in demonstrating that the law has an “adverse effect” or “adverse impact” on the protected group (Government of Canada 2018). If the claim reaches the final stage, the burden then shifts to the government under Section 1 of the Charter, and applying the test developed in R. v. Oakes (1986), the Court determines whether the government’s goal nevertheless constitutes “reasonable limits demonstrably justified in a free and democratic society” (Government of Canada 2018; Wetstein and Ostberg 2017; Lepofsky 1992; McCarthy and Radbord 1999; Grabham 2002).

11 Wetstein and Ostberg (2017) describe an evolution of sex discrimination law across the Dickson (1984–1990), Lamer (1990–2000), and McLachlin (2000–17) Courts. Some early sex discrimination claims heard by the Dickson Court focused on issues of pregnancy discrimination, overt sex discrimination in employment, and sex harassment. The Lamer Court, however, limited findings of sex discrimination to public, not private fraternal organizations, with the women justices on the Court arguing in dissent that “adverse effect discrimination” was as detrimental to women’s advancement as “direct discrimination” (Wetstein and Ostberg 2017, 262). By the time McLachlin ascends to the chief justiceship in 2000, sex discrimination claims arriving at the Court largely involved the “jurisdictional authority and the power of labour arbitration boards and human rights commissions” (Wetstein and Ostberg 2017, 264).

12 Differential treatment of individuals because of language falls under Section 16 of the Charter, which protects equally English and French-speakers, while many government policies related to First Nations’ indigenous peoples fall under Section 25. Since jurisprudence largely differs in these two categories from Section 15 analysis, we exclude them from our analysis, noting however, that these cases often raise questions of equality. Wetstein and Ostberg (2017) control for non-Section 15 equality cases in their model, noting distinctions between legal interpretations in these separate sections of the Charter.

13 The High Courts Judicial Database (HCJD) is a public access database supported by the National Science Foundation (NSF). The data and its documentation are available at http://www.songerproject.com/national-high-courts.html. The HCJD data cover the period 1970–2002 for the SCC with an extension of that data through 2008 funded by the Canadian Embassy in the US, Canadian Studies Grant Program. Using the same coding scheme, the authors extended the data through 2015.

14 We separately analyze civil liberties cases as a baseline (available in the Appendix) and equality cases as our main case category of interest.

15 The Canadian Bill of Rights of 1960, a statutory document, contained equality provisions applicable only to the federal government (Lepofsky 1992). The Charter of Rights was adopted in 1982 but its Section 15 protections did not come into effect until 1985. We include the entire period women served on the Court since our analysis includes both Charter and non-Charter discrimination claims. Including the pre-Charter years also increases our number of observations for the earliest trailblazer justices. However, we provide results in the Appendix testing Charter interpretation over time to ensure that Charter maturation effects are not driving the results.

16 Accessible at https://scc-csc.lexum.com/scc-csc/en/nav.do

17 Alternate specifications are presented in the Appendix.

18 Only one case was excluded from the analysis where a clear direction could not be discerned.

19 Available at https://scc-csc.ca/judges-juges/cfpju-jupp-eng.aspx

20 To demonstrate the robustness of the results, we estimate the impact of female trailblazers on all civil liberties cases in addition to equality cases. Estimating the effects of separate models allows us to isolate the key hypothesized effects from potential confounding effects. There are also significantly more observations with the broader set of civil liberties cases. The results are highly consistent with the results reported in Table 1 and Figure 1. This analysis is provided within the Appendix.

21 We also conduct our analyses using the political party of the appointing Prime Minister as a robustness check. Other ideology measures similar to Segal-Cover scores (Ostberg and Wetstein 2007) and Martin-Quinn scores (Alarie and Green 2009) exist for some Supreme Court justices. However, for our longer period of study, we utilize career scores and party as the best available measures of political ideology across all justices in the data.

22 We also include birthdate as a potential generational explanation since Wetstein and Ostberg (2017) find generational differences between Supreme Court of Canada justices in equality cases. We note here that they do not include conditional relationships between gender and generation in their models. In our data, birthdate and law school graduation date have a correlation of 0.982.

23 Since the expanded data through 2020 only include equality cases, we substitute party of the appointing PM as the ideology measure in our analyses for later years since data are unavailable to calculate civil liberties career scores beyond 2015. We provide this analysis in Appendix B. The expanded data through 2020 increase the observations in non-unanimous equality cases to n = 9 each for Côté and Karakatsanis and n = 3 for Martin.

24 We also estimated models with decade dummies and year fixed effects to capture temporal changes. The results are nearly identical to the main analysis. Therefore, following convention, we default to reporting the results from the more parsimonious model. We report the multilevel model with year fixed effects in the Appendix.

25 Within our data, justices voted in favor of claimants overall 45 percent of the time. During the Dickson Court (1984–1990), justices favored equality claimants overall at a rate of 46 percent. This support level dropped to 44 percent in the Lamer Court (1990–2000) and 45 percent in the McLachlin Court (2000–2015).

26 Unfortunately, we do not have a sufficient number of observations within sex discrimination claims to analyze these cases separately. In our data, sex discrimination cases comprise 20% of cases, age discrimination comprises 28%, 9% are religious discrimination cases, and 19% are LGBTQ discrimination issues. The cases are distributed across Courts as follows: sex discrimination (Dickson Court = 24%; Lamer Court = 54%; McLachlin Court = 22%); religious discrimination (Dickson Court = 36%; Lamer Court = 19%; McLachlin Court = 44%); age discrimination (Dickson Court = 49%; Lamer Court = 36%; McLachlin Court = 16%); LGBTQ discrimination (Lamer Court = 50%; McLachlin Court = 50%).

27 The number of non-unanimous equality cases women decided are as follows: L’Heureux-Dubé (n  =  35), Wilson (n = 16), McLachlin (n = 52), Arbour (n = 9), Abella (n = 22), Deschamps (n = 18), Charron (n = 11), Côté (n = 9), Martin (n = 3), and Karakatsanis (n = 9).

28 This finding is consistent with that of Johnson and Reid (2020) who find about a 10-percentage point difference in men’s and women’s voting patterns from 1984 to 2015 in equality cases, mostly due to dissenting behavior by women justices in this category of cases.

29 Using political party of the appointing Prime Minister (Songer and Johnson 2007) as an alternative ideology measure yielded similar results.

30 See Cochrane and Perrella (2012) for a discussion of why regional differences in Canada may not explain cleavages across various issues.

31 Altering the reference category for the regional variables produces nearly identical results.

32 Importantly, Wetstein and Ostberg (2017) did not interact justice sex and birth year because in testing Ronald Inglehart’s (1997) theory of post-materialist value change, they predicted generational differences based on birth year among the justices overall rather than gendered effects due to differences in educational and professional socialization. When we interact year of birth and justice sex, our findings are similar to the findings presented for law school graduation date and date of appointment.

33 See also Hausegger, Riddell, and Hennigar (2013) and Lawlor and Crandell (2015) for discussions of how selection impacts ideology on Canadian appellate courts.