Are they making a difference?

by Shelley Bentley

Madam Justice Wendy Baker addressed Gender Issues Section members recently to examine some issues surrounding the impact of women in the judiciary on the law.

Madam Justice Baker reviewed reasons why some are pessimistic about the opportunity of women judges to contribute to positive changes in the law. Major factors are the male socialization of women in the law, the rigid role of stare decisis in our legal system and the duty of judges to make decisions based on the evidence before them.

Many view the socialization of women in the law as one which sees women change rather than women changing the profession. Typically the women who survive long careers in the Bar are those who have become socialized or have conformed to the traditional “male” world of law as a result of similar education, practice and experience. Given the length of service required before being appointed to the Bench, it is logical that such women are the ones who are often appointed to be judges.

Only in the last 10 years we have seen a significant increase in the representation of women on the Bench. Given that historically our legal system has been male-dominated and based on the principle of stare decisis, many feel that women can only have a limited impact.

A judge is bound to observe the evidence presented and the claims made at trial by the parties. A judge cannot change the law without an evidentiary basis for it. For example, in Lavallee, the battered wife syndrome would not have been developed without bringing forward such a theory and supporting it by evidence.

In support of the position that women judges are having an impact, Madam Justice Baker reviewed the participation of women in the judiciary. There are 85 full time judges at the BC Supreme Court level, 24 of which are women. In the BC Court of Appeal, seven of the 20 full time judges are women. Approximately 30 per cent of BC Provincial Court judges are women. These ratios correspond to the representation of women in the BC Bar according to the Law Society’s 1997 Annual Report which estimates that women represent 29 per cent of the Bar.

In Madam Justice Baker’s view the backgrounds and life experiences of judges influence their perspective and therefore influence the law. Family Law is one area of law in which women and other special interest groups or advocates who are sensitive to equality issues have had a significant impact. The Moge decision recognized the socio-economic disadvantages women face as a result of being the primary care giver and often leaving their careers, temporarily or permanently, to raise families. Other important decisions have been rendered in the area of evidence. Of significance are the decisions in Lavallee in which the court adopted the battered wife syndrome, in R. v. Khan which relaxed the hearsay rules pertaining to children’s evidence, and in others which have extended the limitation periods in civil sexual assault cases.

Madam Justice Baker also spoke of her observations of the impact of women judges on the functioning of the courtroom. She noted that the introduction of women to the Bench has relaxed the formal environment of the court room. Women judges tend to take a “gentler” approach which emphasizes respect for all parties involved and demonstrates an intolerance towards disrespectful or paternalistic conduct.

In Madam Justice Baker’s view, women judges have and will continue to have a unique impact on the development of the law and of change within the legal community.

Shelley Bentley in in-house counsel at CIBC Trust Corporation in Vancouver.

This article was published in the December 1998 issue of BarTalk. © 1998 The Canadian Bar Association. All rights reserved.