Texte de l'allocution présentée le 4 novembre 2014 par l'honorable Constance Hunt*, à la Section de common law de la Faculté de droit de l'Université d'Ottawa.
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It is a pleasure to offer some reflections on my 23 years as a judge in Alberta, the Northwest Territories and Nunavut. I have not been long retired, but the past few weeks have enabled me to do the sort of thinking about my experiences that you never have time for in the daily hurly-burly of judging. Most people-even in the legal profession-understand little about the realities of judging. This is not their fault, but is because the judiciary necessarily works behind closed doors. I hope to pull up the blind a little and let you peer through the window into the reality of the life that I had as a judge.
My remarks are in three parts. I begin with a brief look at my life before I became a judge and some of my early impressions of judicial life. Next, I talk about the first case I heard as an appellate judge, Vriend v the Government of Alberta. I finish with an overview of what I learned from the Vriend case.
1. EARLY BEGINNINGS
I never expected to be a judge. In fact, almost my entire career was an accident. I started law school in the late 1960s with a vague idea that the social change our society needed would be better accomplished from within the system than from without. Quand j'ai commencé mes études en droit vers la fin des années soixante, les manifestations aux États-Unis quant aux relations de race, la guerre au Vietnam, et des soucis naissants par rapport à l'environnement signifiaient la venue d'un temps turbulent. Il y avait très peu de femmes dans mon école de droit, et aucune femme professeure. Je n'avais pas de modèles. Je détestais mes études au début. Le droit était sec et inaccessible. Je m'endormais constamment dans la bibliothèque. Plusieurs de mes professeurs me semblaient arrogants et ne s'intéressaient pas à nous montrer à quoi servirait nos études d'un point de vue pratique.
By the time I graduated, my initial distaste for law had dissipated. In fact, I had fallen madly in love with it. But the profession was unwelcoming to women, which is why I took the unconventional route of articling and working as a lawyer in a legal aid office. We did defence work in three isolated aboriginal villages in northern Saskatchewan. Although I had grown up near a concentration of Indian reserves, I had never before met an aboriginal person. I was appalled by the social and economic conditions and how the police treated the local people.
Hoping that circumstances might be better in Canada's far north, I accepted a job with the national Inuit organization head-quartered here in Ottawa. Those were heady days. The Supreme Court of Canada had just handed down the Calder case, recognizing the possibility of aboriginal rights arising from unextinguished title. The federal government funded aboriginal organizations to research their land use and occupancy, with a view to negotiating claims in places there had never been treaties. In the case of the Inuit of what was then the Northwest Territories, now Nunavut, it would be 20 years before a comprehensive land claims agreement was signed.
Years later, while Dean at the University of Calgary's law school, I started to meet judges, who at that time were mostly older men. The chief justice of the superior court asked me to consider applying for a judicial appointment, telling me that "Ottawa is looking for women." I eventually agreed to apply, doubting that anyone would appoint a relatively young woman who had little practical legal experience. J'étais très surprise quand j'ai eu ma nomination. Cependant, par après, je passais des nuits blanches en me demandant si j'avais commise une grave erreur en échangeant une carrière stimulante dans le monde académique pour la vie mystérieuse de juge. Beaucoup de choses dans la vie de la magistrature m'ont surprise.
The first thing that surprised me about the judicial life was its collegiality. You are instantly accepted by your colleagues, no matter what your background. My more experienced colleagues willingly offered advice on the thorny problems I encountered in the courtroom. Les avis de mes collègues étaient donnés librement et étaient normalement sages et pondérés, ce qui m'a amené beaucoup de confort. Au milieu d'un litige difficile concernant la garde des enfants, par exemple, je n'avais aucune idée quoi faire car les deux parents étaient capables et sincères. Un de mes collègues m'a suggéré d'attendre jusqu'à la fin du procès, et puis dormir une nuit avant de rendre ma décision. Il m'a conseillé que très souvent la meilleure réponse arrive à la fin, et il avait raison.
Au moment de ma nomination, je me suis rendu compte tout de suite que les juges ne savent pas tout, car je ne connaissais certainement pas tout. C'était naïf de ma part de penser autrement.
One of my colleagues underscored that judges cannot know everything and that if I didn't understand something in the court room, I should ask the lawyers for help. He explained that this was a central part of the lawyers' role. Given my lack of litigation experience, there were lots of things I didn't have a clue about, and I never hesitated to say so.
Sometimes the result of my willingness to ask questions was unexpected. Once I was sitting in a small city where my sister-in-law, a former court reporter, often had coffee at the court house. In a family law case, a lawyer referred to a type of settlement agreement I had never heard of, so I asked her to explain what it was. Apparently my ignorance so astonished the court reporter that later the same day, in the coffee room, she exclaimed "can you imagine, Justice Hunt from Calgary didn't know what that kind of a settlement agreement was!" Despite this negative feedback, duly reported by my sister-in-law, I continued to rely on lawyers to educate me and never hesitated to expose my lack of knowledge, which was a small price to pay for getting to a better answer.
Any new job takes you out of your comfort zone, but a new job as a judge is especially scary because so much is at stake. I needed time to find my comfort level, whether about how a lawyer should address me in a grocery store on Saturday morning, or what conversations were appropriate with a lawyer whose case I had dismissed. Most lawyers were sensitive to these issues, but not all. Comments by a former student about the inadequacies of one of my colleagues, or by a lawyer about an evidentiary ruling I had made that he considered wrong, made me uneasy, and, especially in the early days, I became cautious about socializing with members of the bar. A colleague told me that judges should arrive late at lawyers' functions, and then leave early. Another early experience reminded me about the importance of judicial independence.
J'ai aussi commencé à comprendre l'importance de l'indépendance judiciaire. Après avoir déclaré coupable un homme de l'abus de sa femme, il s'est plaint à son avocat que ses parents m'avaient vue dans le corridor du palais de justice en train de converser avec la victime. Les deux avocats sont venus me voir pour me demander si c'était vrai. Ils étaient gênés, mais, en même temps, ils savaient que c'était leur obligation de protéger l'intégrité du système. Cette expérience m'a appris que les juges sont toujours très visibles et que nous avons l'obligation d'être prudents, surtout au milieu d'un procès. Par la suite, je leur ai dit que ces plaintes étaient mal-fondées, et comme cela la situation s'est résolue.
2. THE VRIEND CASE
After about three years on the trial court, I was appointed to the Court of Appeal. The ink was barely dry on the Order in Council appointing me when I was assigned to sit on Vriend v Alberta. The fact that the case was very high-profile had escaped me since it originated in Edmonton and I lived in Calgary. I had no idea that my first appeal case would turn out to be the most important among the many hundreds of cases I eventually heard.
Delwin Vriend was a young lab instructor who was hired by a private religious college. Two years into his employment, when the President of the College inquired about his sexual orientation he replied that he was homosexual. About a year later he was terminated for non-compliance with the College's policy against homosexual practices. The Alberta Human Rights Commission rejected his complaint because the Alberta Individual Rights Protection Act (IRPA) did not list sexual orientation as a prohibited ground of discrimination. He sought a declaration that certain provisions in the IRPA breached s. 15(1) of the Charter because they did not proscribe discrimination based on sexual orientation.
La juge du procès, la juge Anne Russell, a rendu un jugement déclaratoire disant que plusieurs parties de l'IRPA étaient incompatibles avec le para. 15(1) de la Charte et violaient les droits en raison de l'omission de l'orientation sexuelle comme motif de distinction illicite. Elle s'est dite convaincue que la discrimination exercée contre les homosexuels était si notoire qu'il y aurait lieu, pour le tribunal, d'en prendre connaissance d'office, à l'exclusion de tout élément de preuve. Elle a conclu que l'orientation sexuelle est à juste titre considérée comme un motif analogue à ceux énumérés au para. 15(1). À titre de mesure corrective, elle a inclus les mots orientation sexuelle dans les motifs de distinction interdits par les dispositions. Elle était également d'avis que le ministère public n'avait pas satisfait aux exigences de l'article premier, n'ayant présenté aucun élément susceptible de justifier la violation.
The government of Alberta appealed Justice Russell's decision to read sexual orientation into the IRPA. The Appeal Court panel included Justices John McClung and Willis O'Leary, both of whom had been on the bench much longer than me. More about that later. In two separate opinions they allowed the government's appeal, while I dissented.
In his scholarly opinion, Justice O'Leary concluded that the legislation did not create a distinction based on sexual orientation and legislative silence on this topic did not constitute discrimination. Any distinction between homosexuals and heterosexuals did not arise from the legislation but from outside forces. The legislation, he said, was not responsible for some individuals being worse off than others.
Justice McClung's judgment was full of colorful language. Re-reading his judgment now, almost 20 years later, it strikes me as an anti-Charter cri de coeur emphasizing the primacy of legislative sovereignty-especially at the provincial level- and his preference for judicial restraint.
He concluded that the legislation neither drew distinctions around nor discriminated against homosexuals, but gave them exactly the same protection as heterosexuals. The legislation "leaves heterosexuals the choice of contracting with, or employing, homosexuals…similarly, homosexuals may employ, contract, or deal with heterosexuals as they choose." He added that local legislators must be given the latitude to exercise their powers under s. 92 of the Constitution Act, and that Justice Russell's approach would be " a debacle for the autonomy of provincial law-making". In his view, legislative silence about sexual orientation was not "law" that attracted Charter scrutiny. He was unable to conclude "that it was a forbidden let alone a reversible legislative response for the province of Alberta to step back from the validation of homosexual relations, including sodomy, as a protected and fundamental right, thereby rebutting a millennia of moral teaching."
He derided "rights-restless judges [who] pitchfork their courts into the uncertain waters of political debate." He cautioned that judicial independence would suffer "if we continue to push the constitutional envelope as we have over the past 20 years", adding that "an overridden public will in time demand and will earn direct input into the selection of their judges as they do with their legislative representatives."
Before turning to my dissent and the Supreme Court decision, let me digress to explore briefly the history of human rights in Alberta and the pre-Vriend context of sexual orientation issues in Alberta.
Some commentators have said that Alberta's long history of social, political and legal inequalities were the product of circumstances unique to the people and its region. Discrimination against minorities and women was deeply rooted in social attitudes and state policy. Examples abound. The Hutterites, a Christian sect who own land communally, were the target of laws in the 1940s that restricted their ability to purchase land, required their new colonies to be located at least 40 miles from other colonies, and required them to obtain permission from a Board before purchasing more land. Parmi d'autres exemples de discrimination dans l'histoire de l'Alberta, on trouve un jugement de 1960 qui affirme la décision d'un propriétaire d'un hôtel de ne pas louer une chambre à une personne noire — malgré une loi interdisant aux aubergistes de refuser le service aux voyageurs. Avant la création de l'Alberta comme province, le gouvernement des Territoires du Nord-Ouest a illégalement aboli le bilinguisme. Une loi de 1928 a permis au gouvernement de stériliser, sans leur consentement, les personnes considérées comme démunies mentalement. And I could go on and on with other historical examples of discrimination in Alberta's early years. Things changed with the election of the Progressive Conservative government in 1971 under the leadership of Peter Lougheed. His government enacted the Alberta Bill of Rights and the Individual Rights Protection Act, established the Human Rights Commission, and abolished some of the offending legislation just mentioned.
But sexual orientation remained contentious. The government rejected the Human Rights Commission's recommendation to amend the legislation by adding sexual orientation. As late as 1989 a cabinet minister declared that the province would never ban such discrimination if it meant homosexuals could teach in schools, while another declared that "two homosexuals do not constitute a family". Evidence in Vriend showed that proposals to amend the human rights legislation had been made, but never adopted. A 1985 speech by the Minister responsible for the Act explained that the IRPA could not give homosexuals the kind of security they sought; the Act could not "put together a healthy relationship in the worksite if it has been destroyed through personality conflict"; and attitudes could not be changed through statute. It was apparent that the government had made a deliberate policy choice not to offer protection on the basis of sexual orientation.
Avant l'affaire Vriend, j'avais une connaissance maigre du droit concernant la Charte. À l'université de Calgary, j'étais experte quant au droit concernant les ressources naturelles. Il me semblait que la Charte n'était pas pertinente à mes sujets de recherche et je l'ai plus ou moins ignorée. À titre de juge de première instance, la Charte s'appliquait surtout dans le contexte des causes criminelles. Je n'avais jamais eu l'occasion de considérer l'article 15. Et de toute façon , la jurisprudence à cet égard n'était pas encore bien développée. By the mid-1990s when Vriend was argued in the Court of Appeal, s. 15 law was still in flux, and I knew almost nothing about it. Andrews—where in 1989 the Supreme Court found a provincial law limiting the practice of law to Canadian citizens to breach s. 15—remained the cornerstone case. Justice McIntyre had described s. 15's guarantee of equality as an elusive concept that lacks precision, an observation as apt today as it was when we were deliberating in Vriend.
After we heard oral argument, the Supreme Court issued the trilogy cases of Egan, Miron and Thibeault. Egan effectively took off the table two issues Justice Russell had decided: whether the Court could take judicial notice of discrimination against homosexuals and whether homosexuals were a discrete and insular minority entitled to s. 15 protection. This rendered our task superficially more simple, but since the trilogy revealed differences in approach to s. 15 among the members of the Supreme Court, we had to invite supplementary written submissions from the parties.
I will not linger on my dissent because the Supreme Court's view carried the day. I rejected the Alberta government's argument that our case concerned private rather than government action, pointing out the obvious: Vriend was challenging the government's inaction not the College's decision to fire him.
I noted that the issue in Vriend had not been determined by the Supreme Court: can legislative silence constitute the drawing of a distinction for the purposes of s. 15? I decided it could, depending on the context and purpose of the Legislature's failure to act. The evidence established that problems suffered by homosexuals had been brought to the attention of the Legislature and that there was hostility toward homosexuals unrelated to their characteristics as individuals but based only on their membership in a historically disadvantaged group.
I rejected the Alberta government's argument that there was no distinction drawn in this case because homosexuals had exactly the same protection as heterosexuals. I thought the facial neutrality of the IRPA was illusory. I considered the government's argument that courts should defer to legislative choice, but concluded that the courts' obligation to assess whether there were Charter breaches could not be ignored even in difficult s. 15 cases.
I held that the government's failure to protect from discrimination based on sexual orientation breached the Charter. The government had presented no s. 1 evidence, and its justification arguments (for example, that human rights laws cannot alter attitudes) were unpersuasive.
I struggled over the remedy, finally limiting it to the employment provisions of the IRPA in light of the Supreme Court's admonition that Charter cases should not be considered in a factual vacuum. I also took account of the Court's observation that reading in should employed only in the clearest case, expressing my concern that the term sexual orientation might need further definition, a task better left to the legislature. I declared the employment provisions of no force and effect to the extent that they did not protect sexual orientation, suspending the declaration of invalidity for a year to allow the legislature to decide how to amend the IRPA.
La décision de la Cour d'appel a incité plusieurs commentaires et beaucoup d'attention médiatique. Les pires commentaires venaient d'une revue, the Alberta Report. Normalement, je refuse de lire les articles qui discutent mes jugements, mais j'ai accepté quand The Alberta Report m'a demandé de prendre ma photo. J'ai pensé (probablement naïvement) qu'il était important de demeurer ouverte d'esprit à une publication avec laquelle je ne partageais pas la même philosophie.
Among the flurry of media attention after the Court of Appeal decisions was an article in the magazine the Alberta Report which said that "for over a decade, homosexuals, feminists, criminals and a plethora of other cause-pleaders have held sway in the courts…[using] the Charter of Rights and Freedoms to advance a stridently liberal agenda." It noted that this tide of judicial activism may have been halted by "veteran" Justices McClung and O'Leary, who between them had 70 years of legal experience. They described McClung as respected and said that O'Leary had equally impeccable credentials, underscoring that he had studied at Harvard Law School.
But in contrast, they said, I had worked in academia for the bulk of my career. No mention was made of MY Harvard LLM! They wrongly described Justice Russell as a former academic, ignoring her distinguished career as a provincial government lawyer. The message was clear. Two women who had supposedly been academics favoured gay rights, while two very experienced male judges did not.
The article quoted then University of Calgary political science professor Ted Morton who reportedly described me and Justice Russell as "Charter yuppies and clones or wannabes of the activist wing of the Supreme Court of Canada." He added that it would be a dream come true if Justice Jack Major-a Supreme Court judge from Alberta- were to "articulate McClung's common sense Alberta perspective" when the case arrived at the Supreme Court.
Devant la Cour suprême, il y avait au moins seize intervenants, ce qui démontre à quel point les gens se sont intéressés à cette affaire. Il y a eu au moins trois nouvelles décisions de la Cour suprême portant sur l'article 15 entre notre décision et l'argument devant la Cour suprême, parmi elles Eldridge, Benner and Eaton. Dans un jugement de 200 pages, la Cour était unanime que l'appel de Delwin Vriend devrait être accueilli. Le juge Major était en dissidence seulement quant à la réparation. La juge L'Heureux-Dubé était du même avis que la majorité sauf quand à la façon d'appliquer l'art. 15.
In its nearly unanimous 200 paragraph decision allowing Vriend's appeal, the Supreme Court relied on one fact that, as I recall, had not been before the Court of Appeal: in 1994 the Alberta government had received a report evaluating the IRPA. Its response to the recommendation that sexual orientation should be included as a prohibited ground of discrimination was that it would be dealt with through the Vriend case. As we will see, that position played a role in the Court's decision on reading in as the appropriate remedy.
For the majority, Justice Cory framed the main issue as whether Alberta's decision not to include sexual orientation breached s. 15.He rejected the argument that legislative omission should not be subject to Charter scrutiny, noting that the IRPA constituted a legislative act and s. 32 of the Constitution is not limited to positive acts. Underinclusiveness should not insulate legislation from Charter scrutiny, since otherwise form would govern over substance. He rejected Justice McClung's views about the role of the courts, pointing out that the Constitution rather than the courts limits legislatures. A failure by the courts to do a Charter analysis would undermine the Constitution and the rule of law.
He also rejected the argument that the case was about private rather than legislative activity, pointing out that the Alberta government's position failed to account for the difference between private activity and laws that regulate private activity. The latter, not the former, was at play in Vriend.
Justice Cory endorsed a two step approach to s. 15. There must be a distinction that denies an individual equal protection of the law, and that distinction must constitute discrimination on one of the listed grounds, or an analogous ground.
He described as "thin and impoverished" the Alberta government's notion of equality, pointing out that the way an exclusion is worded should not disguise the nature of the exclusion so as to allow differently drafted exclusions to be treated differently. The underinclusiveness of the IRPA drew a distinction between homosexuals and other disadvantaged groups on the one hand, and on the other between homosexuals and heterosexuals. Although the IRPA provided formal equality between those two groups, it denied substantive equality to homosexuals. The fact that the discrimination exists in society independent of the legislation was no answer but in fact revealed the context in which the S. 15 argument had to be assessed.
Justice Cory concluded that the distinction thus drawn denied the appellants equal benefit and protection of the law, and constituted unlawful discrimination. Among other things, it gave rise to a discriminatory effect by denying the affected group access to human rights remedies.
In his section 1 analysis, Justice Iacobucci examined the objective of the omission of sexual orientation. In its Supreme Court factum, the Alberta government had offered the same rationales for the omission as it had in the Court of Appeal (for example, that attitudes cannot be changed by legislation). Justice Iacobucci said this was not the sort of evidence required for a s. 1 justification. He doubted that the "moral' considerations alluded to by Justice McClung as likely having informed the legislative choice could constitute a pressing and substantial objective for the purposes of the first step in Oakes.
Time does not permit me to elaborate on Justice Iacobucci's analysis of the second Oakes step, except to repeat his response to the Alberta Government's argument that it wished to take an incremental approach to human rights: para 122: " On ne peut pas demander à des groupes qui sont depuis longtemps victimes de discrimination d'attendre patiemment que les gouvernments en viennent, étape par étape, à protéger leur dignité et leur droit à l'égalité."
His discussion on remedy considered the relationship between the courts and the legislature in the Charter age. He said para 136: "Les tribunaux n'ont pas, pour accomplir leurs fonctions, à se substituer après coup aux législatures ou aux gouvernements: ils ne doivent pas passer de jugement de valeur sur ce qu'ils considèrent comme les politiques à adopter; cette tâche appartient aux autres organes de gouvernement. Il incombe plutôt aux tribunaux de faire respecter la Constitution, et c'est la Constitution elle-même qui leur confère expressément ce rôle."
In concluding that reading in was the appropriate remedy, he relied heavily on a fact I mentioned earlier, namely, that in 1994 the government had said it would leave the issue of sexual orientation to the courts. He interpreted this as an indication that in light of the controversy surrounding the protection of sexual minorities, the legislature had invited the courts to read in if they concluded that the exclusion violated the Charter. He was thus able to hold that reading in was consistent with legislative intention.
I leave it to others more qualified to assess the long-term impact of the Vriend decision on Charter law and in particular on the extent to which sexual orientation is now protected on many fronts. I will finish this part of my remarks by tracking events in Alberta following the Supreme Court decision.
The Alberta Report continued to howl about unelected judges usurping the role of elected politicians. Stockwell Day, then provincial treasurer and later a federal cabinet minister, called on the Alberta government to invoke the notwithstanding clause. The Edmonton Journal reported that organizations had encouraged Albertans to flood legislative offices with demands to invoke the notwithstanding clause. But when Premier Klein announced the government would not invoke the notwithstanding clause, the Alberta Report turned on him, describing this as "his most grievous decision ever."
Après la décision de la Cour suprême, l'Alberta Human Rights Commission acceptait les plaintes concernant la discrimination quant à l'orientation sexuelle. Mais on a dû attendre presque 20 ans avant l'arrivée d'une nouvelle loi en Alberta qui interdisait une telle discrimination.
3. MY LESSONS FROM VRIEND
En guise de conclusion, qu'est-ce que j'ai appris de l'affaire Vriend quant à mon rôle comme juge d'une cour d'appel?
One of the first things I learned from the Vriend case was how much work is required of an appellate judge. When I recently reread the Vriend decisions, I was reminded how intellectually grueling the exercise had been. Being an appellate judge is plain hard work, and the work never ends. There are no short-cuts if you want to do a proper job.
Second, Vriend underscored the importance of judicial independence. One of my techniques for accomplishing this—ignoring controversy swirling around high- profile cases-is not the only means a judge might use, but it worked for me. It was fascinating to enlighten myself retrospectively about what happened in Alberta after the litigation. I am glad I did not follow these events at the time. I had made my decision the best way I knew how and had nothing to add. Plunging myself into the aftereffects of the case would have accomplished nothing. Moreover, the heavy workload of judges leaves them without the luxury time to second-guess decisions they have already made.
Troisièmement, j'ai appris beaucoup quant à la dynamique d'une cour d'appel. Même quand on est en dissidence, il faut signer son jugement et continuer à travailler avec ses collègues. Même si je ne partageais pas l'opinion du juge McClung dans Vriend, nous étions des collègues qui se sont respectés pendant plusieurs années. Il était travaillant et a bien servi les gens de ma province au fil d'une longue carrière. Nos différends dans un appel n'ont pas affectés nos relations.
In addition to learning about the importance of collegiality in the face of differences over a case, fourth, I learned about the art of writing an appellate judgment, a task that differs from writing a trial decision. The latter is of prime importance to the parties but has limited precedential value. In contrast, virtually every word in an appellate judgment must be crafted with care. Lawyers will inevitably try to use your words in ways you never intended. Over the course of my career, my approach to cases became more and more narrow. This is not, of course, the only possible approach. I spoke earlier about the need for each judge to find her comfort zone. This also applies to judgment writing. Some people will write like Lord Denning, others will have neither that skill nor inclination. Both types of writing can make a lasting contribution to the development of the law, so long as the judgment is clear.
Fifth, I learned about the role of an intermediate appeal court. Quelquefois, il est difficile de faire un grand travail dans un appel compliqué quand on sait très bien qu'il y aura un appel à la Cour suprême, malgré le résultat devant la cour d'appel. J'ai appris de l'affaire Vriend que chaque juge peut contribuer à la jurisprudence et que l'effort intellectuel de plusieurs personnes peut mener à un meilleur résultat quand l'affaire est très compliqué.
Having realized that the more minds that contribute to solving complicated legal problems the better the result, I also learned that a judge must be true to herself. Someone once commented that I had been courageous to dissent on my very first appeal case. I replied that it was not bravery but ignorance: it had simply never occurred to me to do otherwise! I knew there was something wrong with Delwin Vriend's treatment. Of course, many people are treated unjustly and the law does not always provide a remedy. But in this case I felt it could and it must, and ultimately the law did not disappoint me.
Recently, a former colleague asked me if my gender had influenced my thinking in Vriend. I could not answer. Undoubtedly a judge's own life experiences affect the lens through which he sees a case. As a young lawyer, I experienced both subtle and unsubtle gender discrimination. I understood how it felt to be part of the "other" group, being assessed by stereotypes about my group -women—rather than my individual qualities. Did this make me more sensitive to the circumstances of Delwin Vriend? Perhaps. But perhaps not. Because many of my male colleagues were as sensitive to and open-minded about differences as I ever could have hoped to be.
Indeed, a conversation with an older male colleague in my early years as a judge taught me everything I needed to know in this regard. I had been a trial judge only about a year and a half when the Canadian Bar Association released the report of its task force on gender equality in the legal profession. Chaired by Supreme Court Justice Bertha Wilson , the Touchstones report was a wide-ranging examination of what the profession needed to do to promote gender equality. It proposed mandatory education for judges on racial and gender equality.
The Report was criticized by some in our judicial dining room. I was only one of three women judges on the trial court in Calgary at that moment, in a group of 40 or 50 judges. Although I admired the ideas in the Report, for one of the only times in my life I was reluctant to state my opinion.
I shared these feelings with a group of judges who were studying French together. My colleague bluntly told me I should never feel silenced now that I was a judge. He pointed out that many others in our society have to be careful what they said. But not judges. Our freedom to say what we think, he explained, is the most precious thing a judge can have. That unforgettable brief conversation informed everything I did thereafter as a judge.
Being a judge is not easy. At the same time, it is one of the best jobs in the world. Few others go to work every day and learn new things in a stimulating environment. I was immensely privileged to spend more than two decades of my life doing this.
And I was immensely privileged to share these few thoughts with you today.
Thank you.
*I acknowledge with thanks the assistance of Caroline Magnan in improving the portions of this address that are in French.
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