Touchstones 30th Anniversary - Ep.2: Speaking Truth to Power. The key is to have a critical mass behind you and pick your moment...
To quote Patricia Blocksom: “Equality is a robust concept but a fragile reality.” Fortunately lawyers are good at remaining constantly vigilant and feminism is nothing to be afraid of, quite the opposite: by the end of this our second episode on the Touchstones Report, you will be very grateful you have chosen to let these wonderful women, these wonderful feminists, into your life for a while. Thanks for listening, reach out to us anytime at podcasts@cba.org!
Touchstones Report Executive Summary:
The CBA’s Task Force on Gender Equality’s groundbreaking 1993 Report titled “Touchstones for Change: Equality, Diversity, and Accountability” addresses a range of issues related to equality and discrimination in the legal profession. It focuses on barriers to entry into the profession, including law school admission policies, access to articling positions, and the articling experience. The Report also highlights the unique challenges faced by women in the legal profession, such as employment opportunities, career advancement, and the lack of accommodation for family responsibilities.
Additionally, the Report explores the dynamics within private practice, government legal departments, and corporate legal departments, including issues of employment equality, career opportunities, and instances of sexual harassment. Further, the Report delves into the challenges faced by faculties of law and administrative tribunals, examining issues such as representation, career advancement, balancing career and family responsibilities, and sexual harassment. It also addresses the judiciary and the need for a fair and diverse appointment process, judicial education, and tackling discrimination within the judiciary.
The practice of family law is discussed in detail, highlighting issues related to representation, career advancement, funding for legal aid, and challenges with the substantive law.
The Report also emphasizes the role of Law Societies and the CBA in promoting equality within the legal profession. It explores the need for non-discrimination, monitoring, disclosure requirements, alternative discipline processes, and the importance of implementing the Task Force’s recommendations. Finally, it touches upon the need for gender equality in substantive law and procedure, examining areas such as family law, intellectual property law, criminal justice, and pensions and benefits.
Overall, the Touchstones for Change Report provides a comprehensive overview of the challenges and areas requiring improvement in achieving equality and addressing discrimination within the legal profession in Canada. Reviewing the Summary below, one will see that many of these recommendations have been achieved; however, there is still much to be done to make them all a reality.
Summary of Recommendations
Chapter Two addresses barriers to entry into the legal profession and recommends a range of measures, including consultation mechanisms between law schools and law societies, outreach programs to promote diversity in the profession, education equity initiatives, affirmative action recruitment in law schools, admissions policy improvements, support for part-time studies, child care services on campus, increased funding for scholarships, gender-inclusive language and sensitivity in classrooms, curriculum reforms, potential Indigenous law school, appointment of Equity Officers and establishment of safe spaces in law schools, combating harassment and bias, and inclusion of gender-related courses in the Bar Admission program.
Chapter Five addresses issues within law firm and recommends adopting interview guidelines, implementing employment equity programs, monitoring hiring processes, tracking internal referrals to detect systemic discrimination, supporting female lawyers facing client discrimination, banning sexist activities in client promotion, reviewing promotion practices, establishing mentoring programs for women lawyers, evaluating partnership decision-making processes to eliminate bias, reporting demographic information and retention rates to law societies, establishing parental leave policies, offering child care support, implementing policies to address sexual harassment, promoting workplace equity, conducting educational initiatives and collaborating with relevant organizations to implement and finance these initiatives.
In Chapter Six, the Task Force presents recommendations to address gender equality issues within Government Legal Departments, including ensuring fair allocation of work and gender balance on committees, ensuring representation of minority women in the public service and gender equality in management and promotion processes, endorsing membership in professional associations, reviewing recruitment procedures, providing mechanisms for reviewing discretionary decisions related to family responsibilities, accommodating family responsibilities without hindering career advancement, providing anti-discrimination training, establishing advisory committees on gender issues and equal opportunities, and referring legal work to law firms with inclusive employment equity programs.
Chapter Seven of the Report recommends that corporate legal departments actively promote employment equity by hiring women from minority groups, referring legal work to law firms with strong employment equity programs that include representation of all women, establishing a Subcommittee on Gender Issues within the Canadian Corporate Counsel Association (CCCA) to develop strategies and monitor progress, and utilizing the CCCA as a resource for corporate policies on parental leave, flexible work arrangements, and programs addressing sexual harassment.
Chapter Eight suggests that law schools should prioritize recruiting faculty members from minority groups, regularly review recruitment practices for gender parity and minority representation, ensure affirmative action recruits are recognized as fully qualified, promote women's representation in committees and leadership roles, adopt workplace equity policies, consider women and minority faculty for dean appointments, eliminate gender-based salary differences, address salary inequities, provide reduced teaching loads and sabbaticals, and develop materials and seminars to address gender and minority challenges in teaching, with the Canadian Council of Law Deans playing a supportive role.
Chapter Nine advises governments to actively recruit women and under-represented groups for administrative tribunal positions, establish a re-appointment protocol without term limits, consider tribunal lawyers for other government and senior civil service roles, view tribunal experience as valuable for judicial appointments, review adjudicators' salary levels for potential discrimination, and encourage administrative tribunals to implement flexibility policies and suspend appointments during maternity and parental leave.
Chapter Ten proposes that the CBA create objective criteria for judicial appointments and establish committees for their development, and advocate for an affirmative action policy to appoint women and minority women, while also addressing discrimination in the appointments process; it recommends mandatory sensitivity courses for judges, fair workload allocation for women judges, and the creation of a Commission on Judicial Conduct with public hearings and equal representation of judges, lawyers, and the public.
In Chapter Eleven, the Task Force recommends increasing the emphasis on family law in legal education, improving its status within the legal profession, supporting family law practitioners, and ensuring sufficient funding and judicial resources for family law cases at both federal and provincial levels.
In Chapter Twelve, the Task Force recommends that law societies prioritize diversity and enforce non-discrimination rules. The Task Force also suggests establishing internal procedures within law firms to handle gender discrimination complaints and appointing "safe counsel" to investigate such complaints. Additionally, they propose monitoring the progress of women and minority groups within firms, ensuring compliance with human rights legislation, and developing educational initiatives to eliminate discrimination and promote equality. Law societies are also urged to gather statistics on the representation of minorities and conduct studies on racism in the profession.
In Chapter Thirteen of the Report, the Task Force recommends that the CBA amend its constitution and mission statement to address discrimination, conduct an inquiry into racism, promote accessibility and inclusion, gather statistics on underrepresented groups, establish committees, support lawyers with family responsibilities, advocate for gender equality, and adopt gender-inclusive language policies.
Lastly, the Task Force recommends in Chapter Fourteen that the CBA offer legal education programs on gender bias, develop a national strategy to eliminate gender bias in the justice system, advocate for access to justice measures for women, establish gender issues sub-committees, consult the National Equality Committee on law reform initiatives, and review submissions to address gender-related issues.
touchstonesForChange.pdf (cba.org)
Touchstones 30th Anniversary - Ep.2 Speaking Truth to Power
[Start of recorded material 00:00:00]
This is the Every Lawyer, presented by the Canadian Bar Association.
Sophie: Hi, my name is Sophie Bourque.
Daphne: Hi, I’m Daphne Dumont.
Patricia: Hi, I’m Patricia Blocksom.
Melina: Hello, I am – my name is Melina Buckley.
Julia: Hello, I’m Julia Tétrault-Provencher. Welcome to episode two of our series, marking the 30th Anniversary of the CBD Touchstones Report, effecting actual change on EDI in the legal profession since 1993.
Sophie: Because I’ve seen that 30 years is such a small amount of time for social change.
Daphne: I was always conscious that women have to fight. It’s always a revolution. It’s the revolution is ongoing. It never stops.
Melina: And other thing was just tenacity. You know, it’s just about keeping on doing it, day after day.
Sophie: Well the good thing, you know, with those issues is that you can never retire of those issues, because they’re not – they will never cease to be present, unfortunately. So being a feminist is a lifelong endeavour.
Patricia: I’m going to say that probably most of that are here in this room today and everybody that was on the taskforce could be described by the F word. We were all feminist, okay, and feminists that – feminism that started from a sense of reality of what it was like to be a woman going into the legal profession.
Julia: I am so grateful to these great women and everyone involved in the CBA taskforce that created the Touchstones Report. As one of the many women involved in the making of this series, [Chamar Gi Ti Li Hull] said, “They had my back and I didn’t even know it.”
Episode two, Speaking Truth to Power, although a better title might have been, Speaking Truth to Privilege.
Sophie: There’s discrimination, not because people wilfully want to discriminate. There’s discrimination because some people are getting a benefit from discrimination, not because they want to hurt people, because they want to retain their privileges they have. And sometimes it’s very unconscious. There’s very few men in the last 30 years that have agreed that they have benefit from the overall discrimination against women, against black people, against indigenous. Nobody’s – you talk to people and nobody has benefited from that. So you wonder, but why? It’s still around. It’s nobody is taking advantages of discrimination. And I think that once people will recognize that they are receiving benefit from it, from discrimination or whatever its form, that maybe there’s going to be a new dialogue about what it is and what are the solutions to the discriminated.
Julia: One of the things that made the Touchstones Report unique was its understanding of intersectionality way before that expression became as widely used as it is today. And intersectionality will be the focus of episode three.
The other key thing was the taskforce is you, that the report was the beginning, not the end of a process that would see many of its recommendations actually being implemented, slowly but surely, throughout all areas of the profession, starting with the CBA itself.
So let’s continue now with segments from our fireside chats with Daphne Dumont, Patricia Blocksom, Justice Sophie Bourque and Melina Buckley, after which we welcome Linda Silver Dranoff and Judith Huddart to the podcast. Thanks for listening. Reach out to us any time at podcast@cba.org
Patricia: You know it’s really important to look at the changes that have been made and I think that this taskforce really set the stage and created a monumental platform for change in the time that we were living in. And you know, I just look at how our numbers have changed in the profession. So in our report, I looked at it yesterday, that between 1970 and 1975, 7% of practicing lawyers were women. I mean it’s remarkable when you think about that.
By the time we did this report, 38% of the practicing lawyers were women. Now, that doesn’t speak to the hierarchy within firms or within institutions, that the women at the top would have been really, really grossly underrepresented. But I thought, okay, well how does that compare with today, right, because there’s so many – there’s so much more diversity today than there was then. But it was really surprising to me that there was a survey done in Ontario in 2021: 50% of the associates in private practice are women now.
Okay, so that number is good. 27% of the partners in law firms are women, and 73% are men. Like we are still grossly underrepresented at the top lawyers of our profession. And I think that if you were to break these numbers down more based on gender identity, race, all of the other factors that we looked at, if you were to look at that, not based just on gender, you would see that the – and in fact there’s research that’s been recently done in Saskatchewan, to say that when you break this down to really much more marginalized groups, that they’re so underrepresented still.
So there is till a lot of work that needs to be done in order to move this whole discussion of equality along. Equality is a robust concept, but a fragile reality, and it is constantly under threat. And we need to be vigilant all the time about this. And so you know, I think that should inform where we are right now and not take away from the incredible work that was started by virtue of its [unintelligible 00:06:38]
Julia: The key was implementation. And Cecelia Johnstone, President of the National Bar Association when the report came out, was instrumental in this process.
Daphne: You mentioned Cecelia Johnstone, our second female President of the Bar, national Bar. And she was a huge support throughout the whole thing. And she put so much energy into the continuity of the resolutions and the continuity of the implementation. She was always like implementation is so important, like not just say this, but how are we going to make it happen? When will we know that we’ve achieved the implementation of one of these idealized ideas we had?
So, but it was absolutely exhausting and the writing process was exhausting, the editing process was exhausting, and those of us who were on council, the debate – it was – I don’t know where we got the energy really, I think, because there weren’t many of us.
Sophie: Thing with Cecelia was that – was a fire that was keeping us always aligned. She was the engine behind it all and she kept – and she has come through quite a lot. I remember she actually told me once that when she was appointed to the queen’s bench, one of the first times that she walk into the dinning room with the judges in Edmonton, a male colleague stand up, went to her and told her, “I hate [regovernance 00:08:13]. Just oh my God, you know, this is something absolutely out of this world.
Patricia: I just want to add to that, Sophie, though that Cec was the National President. I just can’t remember which year it was. Was it the year…
Sophie: It was after, yeah.
Patricia: The year after the report came out, she was National President. And so Cec took so much heat on that. I remember her coming and telling us that she went to BC. And she spoke with the Chief Justice in BC. She got a raking over that was blistering, absosutely blistering, personal. And she was so shaken by it. I remember her saying like, “I’m shocked that I took this much heat on a personal basis over this report. But she was – it didn’t stop her, because she was, you know, the National Chair of the CBA. She was in the forefront all the time.
And she did not back down from that challenge one little bit. We spoke. I went out to Edmonton to speak to the first-year class – I might have said this last time – with Cec. And it was a blizzard. And she picked me up at the airport. We get into this ball pit in U of A, and all of the students are there. There’s hundreds of them. And there’s this one guy in the back that was hateful, hateful about the work that the taskforce had done. So we were, you know, we were having to deal with these kind of vitriolic comments. But yeah, no, it certainly wasn’t easy.
Sophie: And when Pat was talking about Cec, was talking about Cecelia Johnstone, and she was really kind of a star in the sky that we’re following to know that she was there, and she has such a force, and that’s why her early and untimely death was such – I think it was something very, very – not only for us personally, but also for the women lawyers in Canada and for the issue of equality. Her name is not cited enough because she was no underreport, but she was very much the person that make it happen behind the scenes.
Patricia: I might actually tear up when I talk about this but when Cec and Sophie and Melina and I had what we call the girlie world tour club, and we spent a lot of time every year doing a trip together, and Cec got sick, and I remember that after Cec died, I really thought about what footprint I wanted to leave in this world.
And I looked at the issue of equality for women around the world, and I made a decision to go to Africa and to explore some issues around women who were living in poverty there. So I ended up going to Ethiopia, working in Ethiopia with a charity, working with a charity in Uganda. And I made several trips there and it really – I mean it opened my eyes in the biggest way possible to, you know, just how deep the issues of inequality are in the world.
So I, you know, I look at the leadership that I’ve been able to provide in my firm and the contributions that my first, which is at least half women, have made to our community, our legal community and the community at large on equality issues, and I can say, you know, at 68 years old that I’m so incredibly proud of that work. I think it’s made a difference and I wouldn’t have had it any other way.
Melina: Well, it was the women coming up within the leadership who had put up with all kinds of difficulties within the CBA in terms of being taken seriously. It was kind of moving in lockstep with the way the legal profession was moving. There was kind of a critical mass of lawyers at this time, by the late 1980s, early 1990s, a critical mass of more senior women within the profession or more, you know. Everybody had described themselves as a junior lawyer, but you’re also at the point in their careers where they could look around and say, you know, “How can I contribute to the justice system? How can I contribute to legal organizations? How can I help my sister lawyers in particular.”
And so that energy, and that sustained energy within the organization, is what got the taskforce going and got this acceptance of this idea of implementation as being something that should be baked right into the report. And so we actually fought for a budget for that, you know, at the same time we were fundraising for the taskforce.
But you know, it wasn’t easy. There was a lot of resistance. We were the first taskforce where we actually had the stage for our budget so we couldn’t spend a dime until we had it in. It had never happened before. It had never happened before. It was a time where the CBA was, like a fiscally responsible time, because there have been some deficits and they have worked hard to get out of that.
And so I’m not saying it was pure gender bias. But it was interesting that it was this work that really, you know, we really had no latitude at all. And the reality was we had no money until – it was only a two-year mandate. And we had no money until 18 months in. We were doing everything, like just shoestring doesn’t begin to describe it. And there was, you know, and so Bertha Wilson at the one-year check-in mark at that Halifax [NL] meeting stood up at the podium and said, “I can’t do my work. I don’t have the money. The CBA isn’t giving me the money.”
You can imagine how that landed. And the reaction was a woman [unintelligible 00:14:52] from Ontario stood up and said, “I have a cheque here. Just my $1000 dollars.” And literally…
Daphne: Joan somebody, Joan somebody.
Melina: Joan MacDonald. I’m pretty sure it was Joan MacDonald. Yeah, but we can check. She’s in the report. But and so it was like this groundswell, and all the branches, like lawyers, you know, and so there were like 350 names of lawyers in the cast women’s report who gave money themselves, an/or raised money, as well as law firms of course, again, like kind of like justice.
And I think people, those people in particular, but other members of the legal profession became invested in it because of that. Like they really saw it. Well, some of them, or a larger number saw it as their work in a way that they wouldn’t have I think otherwise if we hadn’t had some of those difficulties.
But the only way we had a national conference was because we used like a CLE. We made people come, pay to come so that we could consult with them. You know, but we just – and that was Pat’s idea. But we had to. We were just like grasping at straws about how we were going to make this, you know, have it, the substance that it needed to do its work.
Patricia: My recollection is that the raising of the money was easier than a lot of projects, right. I know that we were able to raise quite a lot of money. We got some government funding but the profession itself, people opened their pockets. And at one of the national conferences, people started taking their chequebooks out and waving cheques for 1000 bucks. Some of them were even more than that. But there was an outpouring of funding from the profession itself that really seeded this project.
Daphne: One of the great things about the Canadian Bar Association, which I think you’ll discover is we – because we’re not a group of provinces and territories who have to agree on everything, we have, allegedly at any rate, democratic approach to doing things. And the democratic voting group, the parliament of the CBA is a council. And there’s only five or six hundred people on that out of the 40, 50,000 lawyers that we have as members.
So the council would meet every six months, a day before the annual meeting. And that’s where things would come up, and people who went to their provinces and said, “Please put me on the council, I’m prepared to do, you know, like resolutions. I’m prepared to spend a whole day at a meeting.” Those were often the people that were already very activist and a lot of the people on the council at the time we decided to do this, and continuing through, were people who had an enormous amount of shall I say pollination from outside.
Like at that time, I was on the legislative committee of the Women’s Legal Education Action Fun, LEAF. There was other people who were very active in women’s issues. I remember someone named Mona Brown who was involved in women and farming because she was a farming lawyer. And there were all sorts of women that we just would meet. And it wouldn’t take many of us. I’m sure Melina would agree or everyone would agree, it wouldn’t take many of us sitting around over coffee at the breaks to say, “Here’s what I think we should do.”
And so it just happened to be – and then you could get, particularly by the end of the day of council – Pat will remember – by the end of the day, the 400 people might be gone, and there might be only 180 left. And that was a good time to put a resolution forward. And that’s actually what happened in Banff when we put the resolution forward to do the taskforce. And it was just a lot of things coming together, but a lot of it I think was people who were deeply involved in feminist equality etc. issues, practical, theoretical, legal, academic, outside the CBA. They were also in the CBA.
And so when we went looking for information of expertise, it was all available to us. And consequently, when we would travel and have hearings and meetings and things, this would just pour out. But I think other agencies unlike the CBA might have struggled to pull it together because they didn’t have that sort of democratic central like, ”We all voted for this so we’re going to do it,” motivation that, as Melina rightly said, came into effect just about the time this taskforce was launched.
We were just lucky to be the ones that were assigned to light that spark, and we hung on throughout the whole thing. And luckily we were all relatively well-placed in the CBA to keep pushing the implementation which always, always we thought, this is not just a royal commission, this is implementation, is what this is about. And here we are today.
Patricia: I graduated from law school in 1982 and was called to the bar in 1983. And I know that just the experience of going through law school and my experiences before that, you know, made me feel like I needed to be a strong advocate for women. So I was a member of the National Association of Women Lawyers and the Calgary Association of Women Lawyers. So I was out there grinding away on these issues before there was any kind of formal response to them.
But in – you know, I can’t get the year right. It was before 1991 when the CBA started this taskforce. There were a number of law societies, notably Ontario, British Columbia and Alberta that started doing surveys on the perception of whether or not there was gender bias in the legal profession. And I was on the law society committee that was chaired by Sheilah Martin. And we started looking at those issues in some depth. And we were starting to get a body of knowledge about them.
And when I was asked to join, when I heard that there was going to be a national taskforce on this, and I was asked to join, I was out of my mind with joy. I thought this is such an incredible opportunity. I can’t wait to do this and I’m going to do anything I can to participate in this.
Daphne: One of the strengths that the Canadian Bar Association had to bring to this work, and the strengths that they have shown, although not obviously – not even close to where we need to be yet – that was to focus a lot on young lawyers. Like I know that the national association is a whole young lawyer’s section, that is get to hear what the young lawyers think. Everywhere we went there were lots of young lawyers. They were given a forum. They were included in the meetings. It isn’t the sort of hierarchical organization.
And that was true for all sorts of – but not the law firms. But the law firms I think eventually started thinking, “We have to ask the young ones,” not just even the articling clerks. Students came to our meetings, I mean not in a big way, but I think that’s where the energy comes from. As we age, you know, the young ones are the ones that are still going to be saying, “Yeah we’ve got this maternity leave, we’ve got that.” But I remember one young lawyer from Northern Ontario speaking up and saying, that there was a suggestion that RRSPs were a great idea back when we didn’t have them. And she said, “Well, I practice. I’m the only lawyer in a small town in Northern Ontario. And I do well to make $30,000 a year. So it’s not much help to provide me as a single mother with a tax break for certain – if I find $10,000 to put in my RRSP, A) I can’t and B), I don’t pay taxes anyway much so that’s not going to help me.”
But and then they went on, she went on to say, “And it would be lovely if I could be a member of the bar while I’m off on maternity leave without having to pay.” And we put that in the report. We said – remember that? We said, yeah, and CBA did that. They said, “You’re home on maternity leave. You’re a member, don’t worry about sending us 500 dollars.”
And it was the young lawyers that would say that you rarely heard that sort of thing coming from a 67-year-old guy. So you know, no offence to guys, but you know. So do you think that there’s something in what I’m saying there, that that was a good part of why we achieved what we did?
Sophie: Yes, I think so. And actually this, what you’re talking about, it was – in Quebec we call it the baby bonus. And it was something that has been implemented. I don’t remember if it was before or after but I’m the one that had run this through the Quebec Bar. And at the beginning it was only for women. And it was as a recognition that it will obviously affect women’s career to have a baby. And we were requiring an affidavit from men to benefit from it. But I think that now it’s equally to both parents because it moved and blah blah blah blah blah.
And I remember that, because you know, the idea of going to the RRSP to finance maternity leave was an idea that I brought, because I was responsible that the small law firm, where we don’t have access to the unemployment benefits because we were self-employed. With the Quebec Bar, we managed to have the Quebec Bar to supplement, to make a difference for women that were self-employed. And but the idea of going to the RRSP for me were things I understand. And I understand her argument. But at the same time for me, this was a measure that will benefit not only to women’s lawyers.
And I think that women lawyers as women lawyers, I think that we should open more to what we can do for the society. And when I was appointed to the bench, I was President of the Women’s Committee at the Quebec Bar, and this was the direction that I was taking. That was the kind of measure that will benefit not only women lawyers, but every woman that is self-employed, everywhere in Cananda.
But unfortunately you can still dig in your RRSP to buy your house but not to make a baby. But both of them benefit society greatly actually. But that was the idea a little bit behind that recommendation that was never followed through by the government unfortunately.
Patricia: But the good thing is if we look now, I mean I can only sort of speak to the firms that I know of, my own firm and other firms in Alberta and probably nationally, is that most firms have very robust maternity and paternity policies. And most firms have top-up policies, so they top-up the unemployment insurance for a year, which was unimaginable when I was having my kids. They didn’t even have maternity leave. Like my last child, I was back in the office ten days after I gave birth, right, with my baby laying on the floor, because there really wasn’t any other choice. I was in a small firm. There was no maternity leave. There wasn’t one, no.
Sophie: Now it seems very natural. There’s even paternity leaves. But even that, even that, you know, in the academic circle, I have a friend. She’s a teacher. She’s a law teacher. And she said, “This is so funny. When the woman teachers take maternity leave, when she comes back to university, she’s very tired. She has circles under her eyes, and she’s quite happy to return. When the male teacher goes on a paternity leave, he comes back with a treaty. Well, how interesting. So even into the best of intentions, sometimes there’s still differences that are entrenched in society.
Melina: We’re never going to get rid of those. But you know, I remember we had these discussions and I firmly believe this: is that when men start to want the things that women have done traditionally, like looking after children, cooking meals, being at their kids’ hockey games, being there for their kids and their families, this profession will start to shift. And so I see in my firm, and it’s not a really big firm, but it still has lots of men, that it’s important for them to take time off for their kids. They take their sabbaticals. They don’t go untaken. They spend time with their families. If they’ve got an opportunity to take paternity leave, they’ve all taken it.
All of the male partners in my firm have taken their paternity leave of two months, their paid paternity leave of two months. Before, it used to be the kiss of death. If a firm did have a paternity leave policy, particularly in large firms, even sabbatical policies, men wouldn’t take them because they thought, “I’m going to seen as some kind of loser by taking this time off,” and the firms would have them, but men would not take them. Men want them now.
And many men do. I don’t suppose all men do. But many young men do. And I think they expect that they’re going to have the opportunity to be able to have more of a work/life balance. And I see that as a good thing, a good thing for the profession.
Sophie: Because maybe they will start questioning the structure.
Melina: Yeah, exactly.
Daphne: Peripherally, the entry of men in greater numbers into nursing has raised the status. You know, it’s annoying. But it’s raised the status of the profession. Even if you get a group of 10% or 15% mix of men and then mostly women, then what the political people are saying, “Well I think we won’t raise that salary. We’ll give them the contract they need as a union,” you know. It actually affects the policy makers and the government administrators if there’s 20% of them are guys. It shouldn’t, but they’ll all, “Poor Pete. He’s a single dad and he’s nursing away.” And I think it is always easier to see something happening within your own cohort, whether it’s sex or different genders or whatever.
When we had our big discussions, those long meetings where we’d spend the weekends doing – hearing from people and then meeting and sort of feeding the concepts into the massive report, essentially almost every issue we came up with, whether it was how to include equality rights more broadly, what to do about, I don’t know, private, government lawyers and the difference in their glass ceiling from the glass ceiling of a firm with partners, everything, we talked and talked and talked and talked and talked about it. We massaged around the edges. We got theoretical input and research input and Melina sort of greased the skids of our discussions a lot by staying up until three in the morning and coming up with ways to express everything.
Every single thing we did, we had to find words to express. And we were coming up with hundreds of actual recommendations that we expected the bar to actually implement. So we had to be so careful about our analysis. I think by the end of it we all had an enormously wider understanding of what the issue was in society and within our profession, within the elements of our profession, and we had developed each of us a contribution to the pretty rock solid ground – I don’t know what you want to call it – sort of theoretical grounding.
And I remember working away at those things and discussing. We were all very simple about it. But I don’t think we should use that word, or maybe this or maybe a good example would come in here. But what I liked about it too, and I don’t know what the others think, but I remember we went through the year after year of the debates of the resolutions themselves. What I found was sitting in these big debate halls with the 800 over-caffeinated lawyers that I keep talking about, not a good group to try to argue with if they’re against you, but I felt we all – I’d look across the room and there would be Patricia sitting, or Sophie and Melina.
We’d just sort of be sitting back in our chairs saying like, “We got this.” Well all know the answers to these dopey objections that were being raised, we know that the people who just walked into the room, open the list of the 20 recommendations for the day – that’s not right, I don’t like that – you know – that, we’re on it. And so that balance of practical knowledge and the voices of others plus what we came to understand was the underlying theory, good solid feminist theory, really put us in a fabulous position. I don’t think we relaxed a bit over the years when the CBA actually adopted the resolutions, and then had to implement them and had to check on the implementation.
Julia: Incredible work. So much work. Years turned into decades. Step by step. The EDI policies that we see today trace their roots back to the Touchstones Report. Indeed a simple way to assess progress on EDI in the legal profession for yourself is to read through those recommendations. You will immediately notice that a lot has changed, especially if you’re a member, how common sexual harassment, racism, misogyny and homophobia were in 1993.
We wanted to know if the work of the Bertha Wilson taskforce and other advocacy groups has helped to improve the lives of women in the legal profession. And so we decided to ask you, or well, many of you about it. As our Touchstone series continues, we will be introducing fellow woman lawyers from across the country. Here now is a pressy of a conversation I had with lawyer, feminist activist and author of Fairly Equal, Lawyering the Feminist Revolution, Linda Silver Dranoff, and Judith Huddart, also a lawyer and feminist activist. Judith is Executive Director at the Ontario Association of Collaborative Professionals and is a past chair of the CBA Family Law Section in Ontario and nationally.
Judish and Linda worked together for many years and they both know the Touchstones Report very well. Among other things, we learn what it is to be a feminist boss.
So hi, welcome, hi.
Linda: Hi Julia, nice to meet you.
Julia: Pleasure to meet you as well, thank you very much for agreeing to do this podcast. So yeah, I was wondering what do you think the work that has been done by the Touchstones taskforce and other gender equality advocates – how do you think it has improved your professional life?
Linda: Could we start – that’s the end. If you don’t mind, I’d like to start at the beginning.
Julia: Let’s go to the beginning.
Linda: I’d like to start at the sort of reflections on the 19 – that original Touchstones report, because both Judy and I were around at the time. We were involved. We weren’t on the taskforce, but we were asked by – I was asked by Madame Justice Wilson, as were a number of other lawyers, to lead focus groups of woman lawyers in order to get the kind of information that they needed for their – for the report.
Also, the feminist legal analysis section which I founded in 1992, which was just before the Wilson report, before she was appointed, did a brief on it. And Judy was one of the members of the committee that prepared that brief, sort of an analysis of the report and asking the questions. Will it help the woman lawyers? It was a fabulous report, the Touchstones report, without any doubt.
So if that’s okay with you, I just wanted to remember because I’ve always remembered it and I wanted to memorialize it and the experience I had in that focus group. There were a number of members, a number of women lawyers who were working with large law firms. They were very corporate. They were very corporate lawyers. I was a family lawyer in a small firm. They were very corporate lawyers and we were discussing how it was for them in the legal profession in the context of what the Wilson Report was seeking to find out and convey.
And they were expressing that they had problems. But when I said to them at some point when they said, “We don’t know quite how we’re going to see our future,” when I suggested, “Get your experience at the big firms so that you know what to do, you know who the players are. And you get to meet other people of similar mind. Form your own firm.” Then you can make sure you have a balanced life because you don’t – you’re the boss and nobody else is the boss. And I remember very clearly how they all pounced on me. They were angry. They said, “The legal profession has to accommodate us. The corporate law firms have to accommodate us. We don’t have to go and set ourselves up in some kind of a separate – our separate firms.”
Now, I guess I’ve never really agreed with them because I was always in my own small firm. But to me that was a very interesting expectation on the part of the women who contributed to that first report. They felt the legal profession has to accommodate them. And it’s a real question mark for me, getting to the bottom line, whether or not the legal profession really has accommodated them overall.
Anyway, that’s my big recollection from that study. And I wondered, Judy, if you have any comments on remembering what it was like in 1992, 93.
Judith: I remember when we sat down, and as Linda said, a lot of the people that we worked with on our committee as well were women who worked in large law offices. They were on our executive. They were very interested in I think having a voice for women. And it was our chance to do that. And I remember it as a very exciting time when we were doing this, and we were, you know, exchanging ideas and how we were going to respond to this. And it was really important for us – our sort of fledgling stage as a feminist legal analysis committee.
I think all of us looked at it as a great opportunity. Although I would say just in response to what Linda said about the women in large firms expecting to have – well, to be treated better, I mean there was a lot of pushback about that, right, because oh we’re giving them special status. But what I never understood, and it’s kind of I guess because I worked with Linda so long, is to my mind, they wanted to work and be accepted in what was really designed by men.
And I never understood, you know, whether they understood that, right? I mean when I looked at it coming from an old woman law firm, I really wondered why we weren’t redesigning law firms entirely. Right, why were we working to fit in to that dinosaur male model? So I guess that was the other thought that has come back to me over time as well.
Linda: I don’t think a strong feminist could really manage to survive in some of these large firms. I think that there are some women who got ahead, some women who even rose to the position of managing partners or department heads. In some cases – I can’t, you know, I didn’t do a study. I’m just going by general impression. In some cases, these are women who sort of went along to get alone. And they took the male model of how to practice law, what the goals were, and they applied it.
So they were women, and the men could say, “We’re promoting women.” But many of these women were doing what was expected of them. I mean even this question of how do you balance home life and a career, I remember a client of mine in a family law case telling me that she had been given, in those days, a very unusual opportunity to have a part-time practice, and yet still be a partner in one of the large firms. And I remember asking her, “Really? What does part-time mean in that firm?” And she said, “Nine to five, Monday to Friday.” That’s what they considered part-time in order to give her a modified work assignment.
So when you look at the possibilities of how things have improved over the years, you have to ask yourself: is that still the model?
Judith: Just another thing that occurred to me and I’m sure you’ll remember this, Linda, is a number of women in our committee that which then became a section, did not, when email came in – a lot of this technology was just changing around those times – did not want us to use their office, their work email. They were giving us a home email because they said the feminist legal analysis section, “I my employers or the people I work with thought that I belonged to, well it’s the F word, right, that you know, oh I would be in big trouble.”
So they had to hide underneath, you know, what they were really interested in because of the culture at their firm, which says so much, right. I mean it’s very sad that that was the case.
Linda: There was a study done in one of the largest law firms which will go nameless, maybe 10, 15 years after the Touchstones Report. And the women had been complaining to the management committee that they were not being treated fairly. They were not being given the same compensation as the men and the same advantages and so on and so forth. Well, the firm got in an independent firm to do a research study to do an analysis of the difference in pay between men and women, the difference in working conditions and so on and so forth.
And the report was damning about how this firm treated women as compared to men. So the women said, “See? This is what we’ve been telling you. Now it’s been proven. Now do something about it.” Nothing was done. And one at a time, these women left. I know because I know one of them who talked to me at the time who set up her own practice and is still I think in that practice to this day.
And she said to me, “Why didn’t you tell me,” a couple of years later, “Why didn’t you tell me how great it was to be your own boss, to be in your own practice?” I said, “I tried to tell you. I tried to tell you.” So the fact is, when you look at have things improved over the years, there’s an example of about halfway between now and when the Touchstones Report came out. When this effort was made, the firm really did not want to comply.
So I think you’ll probably hear from young women lawyers today as to how things are for them and I hope they’ll be honest with you and I hope it’s improved.
Judith: My ear to the ground, I’m not sure that there have been as many improvements as we would have liked. Thirty years later, right, and I guess I would say what the expectations were of the Touchstones Report were high. But even within the CBA – and I can say that because I’ve been – I’m a big CBA supporter and I’ve been very involved in the CBA over many, many years, but still, the fact that they didn’t really stand as strongly behind the report as they should have. And I think law societies and the Law Society of Ontario, as it’s now called, didn’t really take up the torch as they could have and should have, in my opinion anyway.
Because I think you don’t know if you have a problem, or you don’t know if you’re making progress unless you can monitor it and report on the progress, and that was a big thing. And I remember for flack, we talked about that at a number of our meetings, about the fact that the law society was not prepared to tell firms, which they have the power to do, that they had to report and say what women were being paid and, you know, what their status was within the firm and how many they had.
Yes, they did a retention of women in private practice working group and came up with a report and then there was [Justicio] Project. But everything, to my knowledge, it was still all voluntary, right. Nobody said to any of these firms, “You must report. You must give us this information so we can measure, so we can know if there’s a difference being made.” And that to this day I think we still wonder, right? We hear anecdotal stories but we really don’t know unless we talk to people. And then again, you know, you’re hearing individual mysteries.
So it’s very frustrating to think that we, you know, we could have had more, we could have done more with this. And it’s still kind of festering a bit in terms of the information that we need to be able to remind people there’s still a problem.
Linda: The Bar Association, when they got Wilson’s report, I think must have gotten more than they were counting on at the time, because the council of the Bar Association at the time decided to accept rather than adopt the report of the Wilson thing, oin other words, big difference, big difference. I’ve scanned some of the old stuff. I found a copy of an article in the Law Times from back then, which is why I can quote with such accuracy about what the bar association did and didn’t do.
But it’s a very significant problem and I give you great credit and the bar association of today credit for investigating this further and seeing where we’re at. And I hope that some major improvements can be made, right.
Julia: When they accepted rather than adopted it, were there any reasons? Why do you think they preferred to accept?
Linda: Well what was said at the time was that they did it. The council decided to accept – and I’m reading from the Law Times now, November 19th, 1993.
Julia: Love it.
Linda: The council decided to accept rather than adopt the report to leave room for objection to the contentious recommendations.
Now, there were two recommendations in there that were very contentious, 5.18 and 5.19 and I’ve looked it up as to what that was. And those were basically mummy track things. Those were the sections that said that there had to be some – here it is.
5.18 had a recommendation that they didn’t want to vote on even. 5.18, 5.19. 5.18 said the taskforce recommends that law firms set realistic targets of billable hours for women with child rearing responsibilities pursuant to their legal duty to accommodate. And the Bar Association says no.
Second, 5.19, the recommendation was the taskforce recommends that as part of the same legal duty to accommodate, the reduced target of billable hours should not delay or affect eligibility for partnership nor affect normal compensation.
Julia: Okay, so these two were contentious?
Linda: Very. And that’s a big issue. Those are the big issues.
Julia: Yeah, still today, still today.
Judith: Yeah, and they talked about it like, well, what are we doing, you know, putting in babysitters for women and you know. It was the same some men react to affirmative action. “Well geeze, I’m just as good as she is,” or, “Why is she getting ahead of me,” or whatever, you know, like no recognition that women had a different – roles to play outside of the law firm that men could not play, right. I mean we knew the joke, right?
“Oh what women lawyers need is a wife at home,” because that’s what a lot of the male lawyers had, and they took it for granted, and they probably still do, a number of them.
Although I would say in fairness, the younger lawyers are doing more in terms of [unintelligible 00:52:00] responsibilities and so forth than they used to, which means that this isn’t just a women’s issue either.
Julia: Exactly. Thank you for all the research that you made. Honesty, I’m just amazed. But I would also like to hear because you’ve been repeating the word feminist, which is one of my favourite words in the world. And I think, well, sometimes you know, people are scared of using it, still today, or even more so today sometimes.
What I’d like to know, when you said you were lucky, Judy, because you were part of a – you had a feminist boss, and I’d like to know what is it to be a feminist boss? Like how should bosses be to be feminist? How do you put that in practice?
Judith: Now you’re on the spot, Linda.
Julia: It can be both of you.
Linda: You know what, I’m going to quote Judy. This is what a feminist boss is. When Judy articled for me and I offered her the job to come back and work afterwards, I think I was a five-lawyer firm at that point. I had a larger group. But all women – it was my personal affirmative action program at the time.
In any event, and I remember we went out for lunch. And she’d said – Russian restaurant, right in the Sheraton – and she told me that her and her husband were planning to have a family and maybe I didn’t want her to come to work because this would be a problem. I said, “That’s okay. We’ll work it out. Have you figured out what you’re going to do and how you’re going to do it?” And she said, yeah. And I said, “So we’ll deal with it, not a problem.” And that was that.
And she took the job. She had two beautiful children, who when we moved to a new office, I still have pictures of them running in and out of the closets to check out the place. But that’s a feminist boss, saying having children doesn’t affect the fact that you’re going to have a job. You’re going to be able to figure out a way to pull it all together, because women do. And there’s no reason why a boss can’t cooperate in that.
Judith: The other thing though that I think you and I have both done, Linda, is young lawyers or women who are thinking of going into family law, right. I know you’ve met with them. I’ve certainly met with them. And people send them to me, because I love talking to the young’uns.
And I think that’s really important too, especially if they’re going into family law which was our main area of practice. Getting a better handle on what that involves and what the expectations are and what it will be like, you know, and just talking about your own experiences, to share those with them, is a big thing for them. Because they’re starting out, they don’t know anybody often.
I mean I didn’t know any lawyers when I went to law school, no one. No one in my family were lawyers, nobody I didn’t know from nothing. I would have loved to have had that conversation. But I think that something else that we have both done, Linda, which I think – and we’ve had people come back later, right.
Oh and you had your column in Chatelaine. A lot of people talked about that, how that got them into the law, because they read your column in Chatelaine.
Linda: Yeah, I remember there was some young woman from out west who said they never saw or heard of a woman lawyer and it was only reading me in Chatelaine that made them think it was possible. I would hope that there’s been improvement, real improvement for women over the years since the touchstone report. I think Madame Justice Bertha Wilson would really have liked that, if doing that report, which she did after she stepped down from the bench, had some, you know – was important for women lawyers.
Unfortunately, and I think that many of the recommendations that were less controversial, the ones at the law school level for instance, and that sort of thing, have probably been implemented. There’s probably been advances made on a number of levels, because the Touchstones Report dealt with an awful lot of things, rather than just women in private practice. And many of them I would imagine have been successful, because women are now – we are a majority in the legal profession.
And on the other hand, I don’t know where that is reflected in our – the partnership opportunities, the pay, the opportunities and so forth that are being offered to women. And I just hope that research finds that women have advanced. But if not, I would hope that the women who have not been treated fairly understand that it’s not because they lack merit, but because there are systemic problems, systemic biases within the whole infrastructure of the legal profession that affects their ability to advance.
I think too many women do not advance in the ways that they wish, blame themselves rather than saying, it’s not me, it’s the system. This matter of systemic change is a very important issue, I think.
Judith: And I just want to say, because I don’t want us to lose sight of this, and I know it was a bit of a sore spot when the Wilson Report came out, but the number of women coming into the legal profession now that are racialized, that there’s much more diversity, but they face multiple discrimination.
I mean we’re kind of the white bread of the legal profession talking here. But I think that there are many more issues for those women. And we want a diverse, as Linda said, a diverse legal profession, and that incudes women and racialized women. And I hope that you’re going to be hearing from some of those women.
Julia: That is exactly what we will be doing in episode three of this series. The taskforce very quickly repositioned itself, adding Doctor Sharon MacIver and Judge Corrine Sparks to their number and consulted with women from every walk of life working in the legal profession, quickly learning that for some, it was not a glass ceiling, but a steel door.
Sophie: It was this women was from the Black Association of Black Women Lawyers, or black lawyers. And she said something like, “If you think you have a glass ceiling, we have a steel door. We can’t even get in the profession.” That was a very strong metaphor. And she was explaining that the gold medal student of U of T happened to be a black man, that year or the year before. And it took him 100 CV that he send before having an interview, while the second and the third kind of got hired, you know, by doing nothing.
Julia: In episode three, we hear from our original authors, Daphne, Sophie, Pat and Melina on how the work of the taskforce helped form their and our understanding of intersectionality and the multiple levels of this discrimination many people continue to face, and speak to women lawyers from different equity seeking groups from across Canada on the state of EDI in the legal profession today.
This is the Every Lawyer, presented by the Canadian Bar Association.
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