The nomination of two Ontario judges to fill Supreme Court of Canada vacancies is a breakthrough for women in the justice field and brings a gender balance to the bench that is unprecedented not only in Canada but elsewhere in the world.
The addition of Madam Justice Louise Charron and Madam Justice Rosalie Abella, both of the Ontario Court of Appeal, will bring the number of women on the nine-member court to four, including its Chief Justice.
"The only two comparables are the United States and the United Kingdom, and we are steps ahead of them on this," said Irwin Koziebrocki, senior partner in the Toronto law firm Levy and Koziebrocki.
The U.S. Supreme Court has nine judges, two of whom are women -- Sandra Day O'Connor and Ruth Bader Ginsburg. In Britain, the 12-member Lords of Appeal or Law Lords functions as the Supreme Court, and has so far included only one woman, Lady Brenda Hale of Richmond, whom the Queen appointed this year. Australia's High Court has had one female member, Mary Genevieve Gaudron, who sat from 1987 through 2003.
Susan Boyd, law professor and chair of feminist legal studies at the University of British Columbia, expects to see more sensitivity to gender dynamics on the Supreme Court, something she said has been missing since the retirement of Claire L'Heureux-Dubé in 2002.
"We're doing really well to have such strong female voices on the highest court," Prof. Boyd said. "I welcome a decision-maker willing to look at the law in its broader gendered social context."
"There's a stronger likelihood of that when you have anyone from a group that has not been as represented as fully in the legal system in the past. It's not like there's going to be a uniform women's voice coming out of Supreme Court decisions. But psychologically, this broadens the perspective."
Mr. Koziebrocki said that while the nominations are good for women, he would ideally like for gender not to be an issue at all because making it a focus detracts from the judges' accomplishments.
"What is so good about it is that you are as close to parity in the Supreme Court as you can get. The more developed we are in this area, the less we will think about gender and talk about competence.
"People ought not to look at it as female and male judges, but rather as someone who has shown competence and deserves to be there. If you look at it from the perspective of gender, I wouldn't call it a step forward. This shows the courts are looking to people no matter what gender they are."
Prime Minister Paul Martin picked the judges to fill two empty spots on the top court, and in a historic, televised appearance today, Justice Minister Irwin Cotler will field questions from a parliamentary panel about the nominees.
The two judges are known for supporting same-sex rights. Mr. Koziebrocki, an appellate lawyer who has argued before them, said, "I have won my share of cases and lost my share of cases in front of both. They are very easy to argue before."
But he said increasing the number of women on the Supreme Court should make little difference in the outcomes of rulings.
"Gender-issue cases are really human-rights cases," he said. "If I happened to be looking at something that was a female issue, I'd look at it the same way as if it were a sexual-orientation issue, a physical issue, or an issue of colour or creed.
"Now that there are four women on the [Supreme Court] that doesn't mean women are going to win all the custody battles. The law doesn't work like that."
Don Stuart, law professor at Queen's University, said both judges possess personalities different enough that they would likely negate any impact gender might have.
"Rosie and Louise are like night and day," he said. "Louise is a craftsman-like judge with a particular interest in the law of evidence. Rosie's essence is to rejuvenate the law through the use of principles. In some cases they might cancel each other out."Report Typo/Error