Episode 1/4 marking the 30th Anniversary of the CBA Touchstones Report, with Patricia Blocksom, Daphne Dumont, Sophie Bourque and Melina Buckley. Hosted by Julia Tétrault-Provencher.
On the occasion of the 30th anniversary of the release of the CBA report, Touchstones for Change, Equality, Diversity and Accountability, we listen in on a kitchen table discussion between 3 of the original task force members, Daphne Dumont, Patricia Blocksom, and Sophie Bourque, and the lead author of the report, Melina Buckley. We get the historical context, where the original authors were, and what the world was like thirty years ago when they began their work on the Touchstones Report, or as they would phrase it, when they joined the Task Force. We learn of the enormity of their undertaking, and the significance of the phrase task force, i.e. the need for clear goals and collective, sustained, effort. We hear about how the Touchstones Report was initially received by the legal profession, a notoriously tough audience to be sure, and how the CBA led the way by very publicly implementing the report’s recommendations. We also learn a lot about the continued history of feminism, the difference between tokenism and real change, and that there is still a long way to go.
Implementation. Led by Bertha Wilson, the Touchstones task force knew that the writing of the report including the research and recommendations was only the beginning. To engineer real societal change, what would happen as a result of the task force’s findings would be essential, as would the CBA. The real story of the Touchstones Report is about the self-reflection and willingness to embrace change on the part of the members the legal profession in the face of, well, the evidence. The CBA not only advocated for change, but it also actually changed itself and continues to do so. We feel that it is fair to say that the Touchstones Report changed the way the legal profession looks at equality and helped us to understand the need for diversity, equity, and inclusion within the profession and how the profession can, does, and should, provide leadership on exactly these areas of human co-existence.
“It is a wise man who said that there is no greater inequality than the equal treatment of unequals.”
-Frankfurter J., quoted by Bertha Wilson in her Introduction from the Chair, CBA Touchstones for Change.
touchstonesForChange.pdf (cba.org)
Touchstones 30th Anniversary – The Bertha Wilson Task Force
[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. I'm from Montreal. I'm a judge of the Superior Court now, not something that anybody could have foreseen when I joined the task force in 1991.
Daphne: Hi, I'm Daphne Dumont talking from Charlottetown, Prince Edward Island.
Sophie: [Laughs]
Daphne: [Laughs] I started whenever we all started.
Patricia: Hi, I'm Patricia Blocksom. I'm joining from Calgary, Alberta, where I practice law, and have been practising law for the last 40 years. I was, along with Sophie and Daphne, a member of the task force that was chaired by Madame Justice Bertha Wilson.
Melina: Hello. I'm also Sophie Bourque. [Laughs] Only in my dreams. I am, my name is Melina Buckley. I'm a retired lawyer now living here in Vancouver. Sort of retired. Semi-retired. I was actually a researcher for the Canadian Bar Association, and so I was working, living [unintelligible 00:01:07] while working at the National office. I'm actually not a task force member, but I was never a task force member.
Daphne: You're just the task force soul. [Laughs]
Melina: I really am, absolutely.
Daphne: [Laughs] You were the task force soul.
Patricia: And you wrote it, Melina, let's be fair.
Daphne: [Laughs]
Sophie: And I can't believe it's been 30 years. Just can't believe. I will do it all again. [Laughs] Madame Wilson said we're not going to make a report about the problems, we know the problems. We're going to focus on the solution. And so that was very interesting. And she also said something that I now, that I'm 61 years old, I realise that this was kind of her wisdom when she said that “I want this report to still be relevant in 20 years.” Well, guess what, it's still relevant 30 years from there, and my God, that was life experience speaking. Because I never thought that in 30 years, you know, it was still going to be relevant.
Melina: Interesting to be 30 years. Wow.
Patricia: I also cannot believe it's 30 years.
Daphne: What distresses me at times and over the last 30 years has distressed me, is that it seems – there have been times during my last 30 years where I thought it didn't make a difference. Now, I don’t believe that today. I do not believe that today, but I will tell you that there have been times where I have heard comments and seen things where I thought, “Did this report really happen? Did the profession actually listen to this?” Because even today, like this last week I had one of our junior lawyers come in and talk about being sexually harassed, and I went – and she was afraid to talk about it because she's so junior. Okay, well, I remember feeling like that. You know, there was, it took a lot of voices lifting this idea up and supporting it for it to get the traction that it did.
Patricia: I think ultimately what we had the privilege of being was sort of like the flame of a spark.
Melina: I do think that it was a large [unintelligible 00:03:22] for the CBA in many ways, partly because there was this group of women inside the CBA. Daphne was one, Sophie was one, Pat was a bit more of an outsider and came in and shook things up. The resolution actually sat on the shelf for a few years and the executive committee didn't move it forward. And there was kind of a real groundswell within the CBA to make sure something happened and to commit to implementation. It was the first time, really, that the CBA did that, with a report. Before that it was very much you have a [unintelligible 00:03:57] panel of the white successful male lawyers who represented the CBA at that time, almost universally., and they would do this brilliant report and they would sit there and that would be it.
And they would have a huge budget to do it and then they would pat themselves on the back and that would be it. And this group of women really were determined to make change, and it just, it started so many things. I think that our initial approach on gender equality, I don’t think we dissected it in the way and through the lens that we would now, right, where we look at every aspect of equality. And that opening up that lens, it's a small lens, opened up so many other lenses within this profession, right, and the CBA is now pursuing concepts not just of gender equality but of diversity, equity and inclusion. I think that's the discussion that we are having now. And I don’t, our discussion wasn't that focussed, I don’t think. We had that discussion but it wasn't, the lens wasn't as bright as it is now nor is the discussion as sophisticated as it is now.
Julia: Hi. I'm Julia Tétrault-Provencher. Welcome to Part One of our podcast miniseries celebrating the 30th anniversary of the CBA Touchstones Report, Affecting Actual Change on EDI in the legal profession since 1993. In this episode, the story of the Bertha Wilson Task Force and the origins of the Touchstones Report. 30 years ago this year the CBA released Touchstones For Change, Equality, Diversity and Accountability, which became the template for the EDI policies that are commonplace in the legal profession today. Little did she know it at the time, but then CBA staffer, Melina Buckley, would be the one to collate the research and [unintelligible 00:06:04] of this new task force and became the lead author of the Touchstones Report. As soon as it was published in 1993 the CBA set about applying the report’s many recommendations to itself. This is a story about self-reflection and a willingness to embrace change on the part of the members, the legal profession in the face of, well, the evidence. The result is a better understanding of how we view equity versus equality and of the impact of intersectionality.
It's a cause for celebration, yes, but though progress continues to be made 30 years on, motherhood continues to be incompatible with the partner track largely due to the billable hours system. We see a high incidence of women leaving law firms after roughly five years, choosing to go solo or join smaller boutique firms, seek more accommodating publishers as in-house counsel, or just leave the profession altogether. Furthermore, equity-seeking groups continue to be severely under-represented all across our profession and overly represented in our [unintelligible 00:07:20].
The CBA task force on gender equity was created in 1991 and was chaired by Madame Justice Bertha Wilson, first ever female justice of the Supreme Court of Canada, the SCC. As we go to air in November 2023, it seems the SCC will be the first court of its kind in the Western world to have a female majority on the bench. It was about time. Let's listen in our kitchen table discussions with three of the original task force members, Daphne Dumont, Patricia Blocksom and Justice Sophie Bourque, as well as the author of the report, Melina Buckley. We start with Justice Sophie Bourque relating a story told to her by Madame Justice Wilson about a landmark Supreme Court ruling in 1990.
Sophie: Oh, let us talk about the Lavallee case. You have heard about that? I hope I'm not revealing any [unintelligible 00:08:39] secrecy of the Supreme Court here, but someone told us basically what happened behind the doors of the Supreme Court in the Lavallee case, which is the battered wife syndrome case. And for me, this is, if there's one feminist case in the Supreme Court, it's the Lavallee case. If there's one case for the importance of diversity on the bench, it's the Lavallee case. Because what she told us is that, so just for those who don't remember that Angélique Lavallee had killed her husband that had been assaulting her for 25 years, and she shot him in the back when he was leaving the bedroom after he left her the repost saying, “Well, when I come back in that room, it's going to be you or me.”
And she shot him in the back as he was leaving the room, and his lawyer – and it's a case from Manitoba, of course. [Mark Redford? 00:09:45], if I remember correctly, a fantastic defence lawyer with curly long hair. It was all down his back, [unintelligible 00:09:55], and, yes, presented the defence that, only that it was self-defence because the only way to save her life was to do what she has done. And he lost in the first instance, lost in the court appeal, and it went to the Supreme Court. And at the time it was Brian Dickson that was the Chief Justice, and Brian Dickson and Madame Wilson were very great friends, they were the two seniors.
So they heard the case and they retired behind those two big doors, and as everybody knows, when they retire they go to the library just across the corridor and they sit around this beautiful table, round table. And at the time it was the youngest judge that expressed his opinion on the case, and then Justice Dickson asked if anybody wants to write a decision? So there it goes around and around and everybody’s saying no defence, no self-defence for that, no self-defence for [unintelligible 00:10:54]. So [unintelligible 00:10:58] nothing. And then Brian Dickson asked, well, who wants to write a decision? So Bertha, she said, “Well, I would like to write that decision, Brian.” And he couldn't refuse or anything because they were so much good friends.
And so they took the elevator, and he has a wooden leg that he lost during the war, the Second World War, so they took the elevator together, and he said that, “Yes, so why do you want to strike a decision? There's nothing in there.” And she said, “Well, I'm not quite so sure, Brian.” And she said that she wrote her opinion, which is really a revolution, and really a feminine view of what self-defence is. You know, she was really – to write the decision she really had to put herself in the shoes of a woman and how she can defend herself. So she writes her opinion and she sends her opinion [unintelligible 00:11:55], and all of her copy came back signed [unintelligible 00:12:00]. None came and discussed it.
There were comments by Justice [Unintelligible 00:12:06], but basically that's how the Lavallee case was decided, and for me, this is the biggest statement for diversity. You know, what it means and how powerful it is on a bench and how it can shape [and for? 00:12:24] any Section 15 decision, I think, this is a very, very powerful example. So I think that's a very, it's a very nice story. And it also shows the open minded that was preached by my community of judges. [Laughs] But that's, and that was in 1990, so that was a long time ago, Lavallee. Well, not so long, not such a long time ago. So it shows the open minded of people of legal backgrounds, of this, all of our legal community.
Daphne: Sophie, that also points to something else, right, is that when you talk about diversity, right? Diversity in our profession, diversity on the bench, that Bertha was the first woman on the Supreme Court of Canada. She did Lavallee, she did Morgentaler, she did Brooks and Canada Safeway. Those were revolutionary decisions under the Charter and they changed the way that we look at equality. And I think that that is, that that's more than powerful support for why we need to continue to have diverse perspectives at every level of our profession, because it will change who were are as lawyers. It will further us along this road of change and equality. Because we can't get there until we really truly start to shift the profession. And when we're talking about kids I sometimes wonder still, we all said we don’t want to have this model that we felt that we had to conform to, which is a white male form. We all need to conform to that, we need to fit into that. And it doesn't fit.
But I still wonder how much women in big firms – maybe in other areas of practice, I'm more familiar with private practice myself – how much they still have to conform to that model, right? It's still that male suit they're trying to fit in, that male culture that they're trying to fit in, because we're still driven so much by billable hours. There might be maternity leave, paternity leave, and equity committees on big firms. The bottom line is that there is still gross under-representation of women in big firm partnerships because that model hasn't really changed much. Because you've got to do those 2200 billable hours a year, you've got to be pitching at clients, most of them male corporations, corporations that still are headed my men, not women. And so I still think we're trying to squeeze ourselves into there, and having more diversity, having our assumptions challenged in a real way, in a meaningful way, to get that culture to change, is a task that we still have ahead of us.
Luckily for us, the timing – the one thing about the delay that was good was that it meant that we could take advantage of the fact that Bertha Wilson retired from the Supreme Court of Canada and Wayne Chapman just happened to be speaking at a conference a week or so after she had announced her retirement, and she, you know, he got in there before all the offers came for her to do a lot of the other exciting things that she did after retiring. And so that really galvanised, those two things were this internal group of women that were really pushing their way up, really working hard within the CBA to become a cohesive leadership, I would say. And then this opportunity with Bertha Wilson coming that gave it, the task force a whole different level of publicity than we would have had otherwise.
It was a time where almost every law society, all the big law societies were already doing work in this area, so it was a bit like what can the CBA add to that? And it was – anyway, so the CBA committed to implementation but also committed to transforming itself. We had an entire chapter, as you all know, about the CBA and how it had to change, and Sophie led us through those recommendations. We did that with the executive before the report was made public. And it was a challenging full-day meeting about that, you know? And there was a lot of – that's actually too strong, but a lot of negative reactions right off the bat. But we persevered, but it was only because that groundwork had really been done by Daphne and Sophie and others that we were able to get there. And so even – sorry, I'm going on too long, but –
Julia: No, this is great.
Daphne: – I did want to make one quick other point, which is that it actually started transforming the CBA during the task force time. So, for example, the CBA, there was a lot going on. I mean, it was a progressive moment within the CBA outsiders, the issue of women in the profession and equality more generally, so it was more of a social justice moment within the CBA, I would say. And so the executive had brought forward this new policy that the CBA would intervene in the Supreme Court of Canada in an appropriate case. And it was as a result of the work that the task force was doing that the first case selected was a science case about the deductibility of child care expenses and whether or not, the fact that they couldn't be deducted was an equality issue, in Fringe Section 50 of the Charter.
And so the very first televised case in the Supreme Court of Canada was Signs versus The Queen, and the CBA was, that was our first intervention nationally. And it was because of the work of the task force. And another important issue that came up in that time was the rape shield law, so the redefinition of consent in the criminal code. And the CBA was the only legal organization that spoke in favour of that huge change in the law. All of the criminal defence organizations were, for understandable reasons, were not supportive of it and were actively trying to make sure that change didn't happen. And the CBA’s voice and submissions through the parliamentary process, I think made a difference. It doesn't stem from that, but we were, the CBA was at the meeting where that was initiated in reaction to the Seaboyer case. It really started before the report came out because of the energy within the organization.
The CBA said two or three years before we really got off the ground, we’ve got to do something about women’s roles at all levels of law, professors, judges, etc, and how are we doing? That was a bit of a – one of the great things about the CBA is it gave that a chance to come forward as a simple resolution that we still do today, saying let's do this. I was at the meeting where the decision was made, and – which was a long time ago, [laughs] – and so what happens was we were put together. I honestly think – I'm sure my colleagues would agree with me – that if they'd picked six or seven other lawyers we would've had the same experience when we picked our judges. We picked, you know, there were probably thousands of professionals in the bar at the time that could've done what we did, given that we could all depend on Melina, who was brilliant in her consolidation of everything we were putting together.
But I do think – I hope the others would agree – that we would go “let's meet with the young lawyers at Windsor Law School.” And then bang, there's this enormous outpouring of frustration about equity and equality as opposed to just women, the multifaceted equality issues that they were experiencing whether they were immigrant lawyers or racialised lawyers or law students. The same with judges, the same with private family lawyers. Government lawyers were just dying to tell us what their experience was under the, what they called a – they said “we don’t have a glass ceiling here in the government, we just have a thick layer of men.” And one thing I do remember, I vividly remember sitting in the great halls of these debates, because there were hundreds of people there – and they're all lawyers and all too much coffee, so it was challenging.
And, but what I do remember, is in the first year – I think you both will as well – they were relatively pompous fellows, and I say fellows advisedly, standing up and saying, “Oh, well, that can't be, that's unfair. If we say that there has to be affirmative action in the hiring of young lawyers, that's just completely against ...” etc, etc, you know? And, but these were devoted members of the organization, and they were swayed by articulate arguments coming, but from prepared other lawyers in the room, and not just us, but so many others. And quite nervous young lawyers would stand up and say, “But, sir, I can tell you that this did happen to me and New Brunswick doesn't treat us well,” and whatever. And the same people who were almost defensively against us at some of the early stages, become some of our biggest supporters down the road. I think we could all think of a few, and a lot of it was just absolute, their level of privilege had just never been challenged.
And they knew themselves as good people who were interested in justice, so that they almost couldn't handle the fact that we were saying, “Well, you're not, we and you aren't doing it right.” But that changed. And I think the same is true of the law firms, I mean, they all have equity committees now. But it just, it took endless pounding and it sure helped to have Bertha Wilson out there in front supporting this from her traditional role as the wife of a Presbyterian chaplain in the Navy to a very serious role in the Supreme Court. And pounding in with judgements as well that gave profoundly scholarly analysis of what we were saying in our profession for other people, mostly women in the other situations. So that was the resistance that surprised me.
These are friends standing up saying “You women, what are you thinking?” I mean, that was the implication we had. But luckily the executor was pretty much on side, most of the staff was very much on side. And there were some lovely sort of undercover feminists in the Canadian versus Asian staff who came out as, you know, became very obviously supporters, researchers. So it was the old suffragettes from the 10s and 20s in England, I can't remember who wrote the book, but one of them wrote a book about the process of getting a vote, and it's called What Glorious Times They Had. [Laughs] And I think for all of this resistance, we were conscious of having a glorious time moving forward and seeing the dissemination of what we were doing being very effective.
Sophie: [Laughs] This is just kind of an anecdote, but do you remember when we issued the report and Bertha Wilson, she was asked by a journalist, I think, after, “Well, what are you going to do, we designed this already in the profession?” And her answer was, “Well, attrition works wonders.” But I thought that it was okay. [Laughs] But although I'm not so sure that it works its wonders now that we are 30 years past. But the fact that you said that law firms, they were all saying not in our firm, not in our firm, we have a little bit the same thing today because women are leaving the profession still in greater numbers than men. And if you ask law firms [unintelligible 00:24:54], they will all say that they have done everything in their power to retain women, and nobody will agree and say, “Well, maybe there's something else to do, because obviously something is not working.”
And it's always surprised me just in terms of billable hours. Back then, 30 years ago, there were still 24 hours in a day, and women lawyers were still having kids and there was a certain number of hours required. This number has only increased. And for me, you know, it's an obvious contradiction when you say that we've done everything we can, and you're increasing the requirements for billable hours, for me it just doesn't make sense. So we still have the same, a little bit of the same argument, not in my back yard. A not in my back yard argument. But at the same time there's discrimination, not because people wilfully want to discriminate. There's discrimination because some people are gettinga benefit from discrimination. Not because they want to hurt people, because they want to retain their privileges there, and sometimes it's very unconscious.
There are very few women, and definitely men, in the last 30 years, that have agreed that they have benefits from the overall discrimination against women, against black people, against Indigenous. No, nobody’s – you talk to people and nobody has benefited from that. So you wonder, well, why is it still around if nobody is taking advantages of discrimination? And I think that once people will recognise that they are receiving benefits from it, from discrimination, in whatever form, that maybe there's going to be a new dialogue about what it is and what are the solutions to eliminate it?
Patricia: There's also a layer of patriarchy, right, and then there are structural forces like systemic racism and patriarchy and misogyny that have a compounding effect. So because social, psychological studies show you're more likely to share with someone who’s like you, who you identify with.
Sophie: [Information? 00:27:30] bias.
Patricia: Yeah. So it takes really active measures to overcome that, and it takes actually really challenging some of those structures because of the transformative part that we're talking about, that we just kind of dance around because it's hard. It's hard and it doesn't happen in one step, so it's, like it's multilayer levels of action because it's attitude and institutional practises and structure of the economy and behaviours. It's like every level of human interaction and societal interaction.
Daphne: I used to quote Nellie McClung a lot when we were doing this report, because her writings from the 20s and the, the 1910s and 20s are just so relevant. And one of the things she said when she talks about – it's essentially she's talking about the duty to accommodate – but she says when women are trying to get the vote and trying to get into politics, that all the more traditional privileged men would say, “Well, we wouldn't want to force women into the hurly-burly of politics because it would rub the bloom off the rose.” And she said, “Oh, yes, sir. You don’t care about the chambermaid that comes in from Western Manitoba and has to walk home after cleaning your office at three in the morning because all of the little buses have stopped running. That doesn't bother you at all, sir. What bothers you is when you're about to lose your comfortable position.” You know? [Laughs] “It's the thought of women getting into well-paid and comfortable positions that wrings your manly heart.” [Laughs]
And that was so true with duty to accommodate because it specifically meant that someone had to say “I'll stay an hour later to let mother Pat be at home with her little girl.” [Laughs] I was, I vividly remember discovering what feminism was when I was about 20. I went to Queen’s University at – we lived in Halifax – but I went to Queen’s in 1970 and did four years there of a degree in philosophy and history, and during that time Germaine Greer came out with the Female Eunuch. The Dean of Women at Queen’s invited her to speak at Queen’s. She was staggeringly good. I remember sitting in a meeting where she, all of us who were around just were amazed and we were very lucky that she would come all the way from, I think it was Australia then, and possibly England. And other people, we shared books, Virginia Woolf, so we read a lot, and I think one of the Betty Friedan books came out as well at that time.
So this was way back in the early 70s, and so as I went through my undergrad and thought I might like to be a lawyer, I could be a lawyer, took a couple of jurisprudence courses, and yeah, I could do this, I would love to be a lawyer. And so I applied and started thinking about law school. But the whole feminist step was from basically nowhere to really getting into it within a very short number of years. But I'll look even back before that. My mother served overseas in London in the Second World War with the Red Cross Volunteer Corp, and she was 22 when she went over there. She sailed across the U-Boat infested North Atlantic and worked over there volunteering with the Red Cross. And I thought, a hundred times I thought, wow, that took a lot of courage, and to stand up to her parents and say I want to provide this service, I think inspired me.
So she was a natural feminist although didn't have intellectual training, although she was a brilliant woman. So I think that helped me. And then I was recommended by my professors at Queen’s for law school. They said, “Well, now you can go anywhere. Do you want to stay in Canada?” So I said, “Well, where else can I go?” [Laughs] And I ended up applying, amazingly, to Oxford University, where I got in. And it always astonished me, but I was the first woman law student in my college, ever. And this was a college of hundreds of years of age, and a university of even more. I was the first woman to actually enter any man’s college as a student because the year that I applied to go happened to be the first year that five of the men’s colleges took the amazing feminist step to say, “We have to bring women in, this is ridiculous.” And so they started bringing us in. So everything there was a bit of a fight. You know, if you – they didn't have a locker room for women.
It was the sort of thing that women went through in the 20s in Canada, or maybe even the 1880s. But, so I was always conscious – I'm not trying to blow my own horn, but just to explain – I was always conscious that women have to fight. It's always a revolution, the revolution is ongoing, it never stops. And over there I was reading Simone de Beauvoir and some of the other great thinkers. But, and it was wonderful. The welcome in my college was so wonderful, we still meet and celebrate how positive they were about this. So then I came back to Queen’s, finished up my law degree, and came back to PEI, little PEI, where I found a community of women who’d been working since the mid – NBP people mostly – but had been working since the mid-60s to try and achieve something for women legally in PEI. It was just around the time of the Iris Murdoch case about farm women not having any rights to the farm.
We all remember this one, or have heard about it, and there were women’s groups and all that was up and going by then, very early. And consequently when I got there was one other woman who had come before me, the first to practice to in PEI, she’d served two or three years before. But she was a married woman with four kids, not a, she wasn't a weak feminist but she just wasn't someone who liked to put herself forward and chair meetings and make plans and join things. So I sort of became, oh, wow, we've got one, you know? [Laughs] So I was a very early practitioner in PEI, the second active – no, I should say the third active practitioner. So that taught me a lot. So I learned a lot about what women needed and what they didn't have and what was wrong with the law just by virtue of being the age I was at the time I was moving through. I mean, I know the women who came before us were phenomenal, but, and we had a lot to learn.
So I was immediately completely committed to doing anything I could do publically in the law, legislation, law reform, whatever, and I had the wherewithal to do it because people were very supportive. And I ended up in the Canadian Bar Association by virtue of putting, sticking my little hand up in a meeting and saying, “I'll be volunteer for Law Day.” Do you remember we developed Law Day, which is a celebration of the Charter that the CBA set up. And I said, “Okay, what's this CBA, I guess I'll join that and I'll run the local Law Day.” And great thing about PEI, you put your hand up, you end up on a national committee because there's not many people here. [Laughs] So that took me into the CBA where I found a wonderful welcome. And I'm not sure why they chose me for the committee, for the Touchstones initiative, but it may have been a combination of a lawyer from a smaller town, someone who’d been around the CBA by then for some years. But I was – as you, Pat, I'm so glad to hear you had the same thing – just sign me up, right away, go, what do I do? I was staggered to be asked, [laughs], but I was very, very happy to be involved.
Patricia: That's so interesting. That's – I didn't know all of that about you, Daphne , but –
Daphne: Oh. [Laughs]
Patricia: – that's so interesting that you went to Oxford.
Sophie: Wow. I agree with you, Pat, this is so incredibly interesting. And it brings me back to how out of place I was feeling in this group, barely understanding English. I want to, I need to remind that, [laughs], I was barely understanding English.
Patricia: Well, we learned something from you, too. I remember, Sophie, your style. You came into that first meeting and French, young, vivacious. You had on some really short skirt and just perfectly put together. And I remember looking at you and going, “Ooh la la, look at her, she is really going to be a lot of fun.” And indeed you were. Yeah, you were always willing to say what you thought, never filtered.
Sophie: Oh, thank you.
Daphne: Yeah. And I always say, Sophie, no reason to apologise for not speaking perfect English. We, Pat and I and others, our French was nowhere, or a little bit, you know? And you did all the work you did either in another language except when we were in Quebec or in areas where there were many francophone lawyers, you took the lead, we needed you so much. And even Bertha Wilson. I think if I'm correct, her French was not at the level that today would be, I would say, at least required of a Supreme Court justice, and she relied heavily on Sophie, and Melina, to assist us, because we were over-anglophone, I would say. And it was exhausting for you, I remember, on some of those long, long days of the resolutions and, you know, to just be hanging in all the time in not your first language when you're such a brilliantly articulate person, you know? So never, never, never apologise.
Sophie: [Unintelligible 00:37:49], that's why it was so fantastic.
Daphne: [Laughs] Yeah.
Sophie: I thought I did very well when I received a phone call from President Chapman. I was leaving the office and I was passing through the reception – and it was in a small law firm doing criminal law and defence – and the receptionist told me, she was actually the receptionist, the secretary, the everything, the accountant and everything, as in small law firm back in the time, and she said, “Oh, you have a telephone from President Chapman.” “President Chapman, who is that?” [Laughs] I picked up the phone and he asked me to be a member of the task force. I didn't have a clue what I was getting involved in, but at the time I was on the Young Lawyers’ Conference of the Canadian Bar Association, and I guess this is where it comes from. I was on the Women’s Committee of the Montreal Bar, and like Pat said, and like you said, I think that being a feminist certainly helped getting on the task force. And I started very young. Actually, I started, I was six years old, in the school yard. And the nuns, too, it was a nuns school back then, it was before Quiet Revolution, and they have long black dress and their cornette and everything. And [Sirjon? 00:39:04] was a teacher of first grade, she was terrifying all of us –
Daphne: [Laughs]
Sophie: – and, but the day before, and early, my little colleague had said that little boys are born in cabbage and girls in roses. And this doesn't, it just, I couldn't leave that there. And I had a book at home from Time Life, I still have that book, my entire life I still have that book. And I saw a little [unintelligible 00:39:31] and a paint image, or a picture of a body of a man and a woman and then you have the man and the woman under a blanket. You just see the black blanket and blah blah blah. So I brought it to the school yard the next day and showed it to my little colleague and suddenly I was very popular. There was a lot of little kids around me, but Sirjon was not very happy with that, and she called home and she said to my mom, “You should be ashamed to let your daughter bring stuff like that at school.” And she said, “She's doing what she wants to do and she's perfectly, what she brought to school is perfectly all right.” And so I was brought up sort of by a feminist mom, which helped. And I was, I think I was the President of the Women’s [Unintelligible 00:40:16] in Grade 1, so that helped, too.
Daphne: [Laughs]
Sophie: But when I was called I was also a member of the Montreal Junior Bar. And when I got there – I was a lawyer in 1984 – and when I went, when I get in the Junior Bar in 87, at that time women lawyers that were pregnant were choosing the hospital where they will be delivering their baby for its proximity with the office. And there was no maternity leave, no nothing. So I raised the issue at the Montreal Junior Bar thinking that everybody will agree that we have to stick our nose into that, and to my great surprise it was under-reaction. The reaction was that, “Well, this is a private concern, we have nothing to do with that.” I think that what, the task force was kind of to see the power of solidarity in action, and it was coming from so many different directions of the profession. But it was also, I think for me, a time where I lost a certain form of innocence that inequality are going to be so evident. It's going to be so self-evident that we have to do something that nobody will contest it, you know, and everybody will get on board to really get rid of injustice and inequality. Well, what a surprise. [Laughs] It was not exactly received like that despite all the work that was done.
For my part, one of the biggest surprise was the cultural differences between feminism in Quebec and feminism in the rest of Canada. And the different positions of women and the challenges they were facing in Quebec and in the rest of Canada. For me – and this is my five cents sociological analysis. So it's worth absolutely nothing, it's only my personal opinion, but in Quebec we have a much softer approach, a little small step approach, step by step we're going to get there, very patiently. For myself, my feeling was that the feminism in the rest of Canada was much more aggressive. At first I just thought that it was a difference in the approach, but I ended up realising that – and this is half a cent of social analysis, it's not even a five cent analysis, it's a half a cent – I think that the Quiet Revolution has made a big difference in Quebec in the relationship between men and women.
Because, and with the Quiet Revolution in the end of the 60s and the early 70s, what, the religion, the Catholic religion was so important in culturally everything in Quebec, but what people don’t remember, that women were dying because when their doctor said you can't have a 13th child but the priest was walking in the house after and say, “it's your duty to God to have that child,” those were things that were lived by my aunt, as an example. We have no idea, but when we throw that away, this coincides with the last wave of feminism. So it's a wave with the same, with the cultural [unintelligible 00:43:58] still, which is one of the biggest, the biggest breakthrough in women’s health and with the Women’s Liberation movement.
So everything was in this big melting pot in Quebec, and I think that the men didn't realise that their women were taking a place. [Laughs] But because everything was in this turmoil. So I felt that the situation might be different in Quebec. I may be completely wrong, but that, for me, was a big surprise. I didn't know much about Canada before going to the CBA. Actually, I knew nothing about Canada before going to the CBA, and I learned a lot about what Canada is, what Canadians are, what are the differences, what are the things that we share and so on. But even on that issue of feminism, there are distinctions. And Quebec is a distinct society, [laughs], even for that. So that was, for me that was a big surprise.
Patricia: I'm going to say that probably most of us that are here in this room today and everybody that was on the task force could be described by the F word. We were all feminists, 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. And I graduated from law school in 1982 and was called to the bar in 1983, and I know that just the experience of going to law school and my experiences before that, made me feel like I needed to be a strong advocate for women. I was – actually, I'm sure that part of the reason they appointed me is that I was a feminist shit disturber, but I also had kids. So I had just had my third child, my first daughter and my third child, in November of 1990, and so I was appointed in August of 1991, I had a baby, right?
And I was back at work – well, when I had her, my partner, Wendy Best, had a baby 12 hours after me. So we had our daughters within 12 hours in a pretty small family practice. And there wasn't really anyone who could pick our practice up, so I was back at work after I had her, really, within days, right, trying to look after my practice. I got appointed to the task force. I didn't hesitate in taking that even though I had a couple of little kids at home. But I do know that she was not a very good sleeper and I was chronically tired. I just, you know, we – I don’t know, we met every six weeks, didn't we, ladies, about six weeks, and it often involved meeting on a Thursday out east, right? So I would go from Calgary to Toronto, Montreal, sometimes Halifax, and sometimes we met in Vancouver, but most of the meetings were in the east.
Sophie: We had quite a lot in Vancouver too.
Patricia: Yeah, there was a few in Vancouver, but I don’t think there were any in Calgary, so I think that they skipped Calgary. But for whatever reason, I was always grabbing a plane and taking off on a Thursday and we would start work on Friday. We worked all day Friday, all day Saturday, and we would usually have an early morning meeting on Sunday, and then I would take off, fly home and I would start work again on Monday morning. And so my – yeah, I was profoundly tired during those years, and I can just remember that. I got sick quite a bit, but you just – I don’t know what it is, you don’t really think about it when you're in it, you just do it because it needs to be done, right?
I needed to do what I could with my kids, and thank God I had someone, a partner that was able to pick up the slack. And I had a firm that was very accommodating to me doing this work. In fact, my partner Jack Dunphy was the president of the Alberta branch when this work was started, right? Cece Johnson was, she was next, she was an incoming national, but she had been the president of the Alberta branch as well. And so I had a supportive firm, I had someone that was helping me at home, but it was chronically exhausting.
Melina: I think for me, the task force was my first big professional project. I was working on the constitutional amendment process at the same time, so they were going through side by side. And I went into it a lot thinking of myself as someone who would work in the realm of ideas, like I was that kind of lawyer. I, dealing with people was not my forte, I was extremely shy. Extremely shy. So what I got, what I eventually had to do when I became the full project director for the task force, was a big stretch for me from that side. Nothing else has, I could write you a hundred page summary of all of the provincial Law Society reports in three days, and I did that, but actually having to deal with people and deal with some of the experts, for example, that we hired to do papers to help the task force and so on, that was a big stretch for me.
And so I think in some ways this project changed my conception of self, at least my conception of myself as a professional. And I went to law school, I did my master's in international relations first, and so I went with this idea that law was a tool to make Canada and the world a place of true social justice and true equality. And I really thought I was going to do that by developing the most brilliant Section 15 of the Charter analysis, like that would, you know, or helping to do that, working with others. But what I learned with the task force was that it's not, it doesn't matter how great the idea is, you have to convince people about it and you have to get people behind that idea, and that there was a big difference between what was there on paper and the reality.
And so that loss of innocence that Sophie was just talking about was definitely something that had a huge impact on me and made me mad, you know? It made me filled with not quite rage – there are many things that made, created rage at that time, in the early years of my career – but short of that, but a real sort of a burning fire, I guess, to figure out how to make equality rights real and what were the avenues for that? And what I really learned from the task force was that hearing people’s voices, hearing about that experience from a whole range of people and somehow capturing that and sharing that and back out in a way that people could hear, would be one way to tell the power of the story, which, of course, is not that novel. But – and lawyers do that as naturally as part of their work – but for me that was a real insight about how to do that, and I think we did a fairly good job of that. I mean, there's always more that you can do, and so that's something that I've carried through in all of my work.
And the other thing was just tenacity. You know, it's just about keeping on doing it day after day and helping people along the way. And one – or not really helping people – but being aware of what other people might need in order for them to achieve their own fulfilment. And one of the comments that really struck me and has stayed with me was about mid-level women lawyers who found there was no support from the more senior lawyers, that much of the attitude was “we got here on our own and we're sort of looking out for ourselves.” It wasn't that sense of solidarity. And I think from what Daphne and Sophie and Pat have said, I know Pat, I mean, all of you have been huge mentors to people, but that was something that, again, sort of the people’s side of it is really what I got out of the task force rather than the idea or having written the report or whatever, that side of it.
I think what's maybe changed now, what we tried to do with the report, was to say the problem is not with the women, right? The profession at that time would say, well, women just have to, you just have to be able to go along with the jokes. Like the problem is you, the problem is that you're not willing to see this is funny, you know, pornography or some kind of belittling of someone, and the problem is with you. And what we were trying to say is no, the problem is with the structure of the profession and to show, by showing that it's being replicated in all areas of the profession through, you know, the different chapters of the report are focussed on that. That's, you know, most of you have will know, but just saying that in case some people don’t remember every word of the report. [Laughs] So, you know, I totally started with law schools and [unintelligible 00:53:39] problems and young lawyers and, you know, family law practice, corporate judges and [unintelligible 00:53:46], government lawyers and so on. Large law firms and small law firms.
So we really tried to – and they were all CBA members, so we had a rationale for doing that. But what we were really trying to say was it's the way the organization is practised, that is the problem, it's not the women that's the problem. And that, I think, where we – I think part of the push in implementation was for all of us, especially Sophie, Pat, me and Daphne, and Cecilia Johnson, who was sort of the incoming, the next president right after the task force report was tabled, and so she led the initial discussions through that. So she was like an intimate part of this. We were out there on the front lines as a, like talking about the report and getting, [laughs], a lot of, suffering a lot of criticism in some very, very difficult situations. I'm sure all of us have our stories about that. Pat has a good story that she shares. But, and so that feeling, like we went from this kind of cosy, really great conversation, as Daphne was saying, where people had open doors and welcomed, or sometimes it was private meetings which we tried to accommodate.
So we, there was kind of this not quite a love-in, but this like we're all in this together, and yes, and we're moving forward and we understand each other, and then, boom, you know? Like we get the reaction, it's like, you know, chief justices and various [unintelligible 00:55:19] are saying “there's no problems on my part, we're not even talking about this report,” and so on, and some truly awful things being said to us and done to us as people who were associated with the report. I mean, none of us has suffered, our careers haven't really suffered, I have to say, [laughs], but the moments were very difficult. Very difficult. And so, but our message was that it was like it's the profession that has to change. Don’t be asking women to change. And I think that was the main message.
Patricia: So I don’t know if this is the time to share, but I think this is what you were referring to. I know Cece Johnson and I, and I can't remember who else was there, some other women that were maybe on the provincial working group in Alberta, made a presentation on the recommendations of the task force report to all of the senior members of the Bar Society, the chief justices – they were all men, right – all the chief justices. And I remember an article for the chief justice at the Court of Queen’s Bench and I asked him before we went in, I said, “What did you think of our report?” He said, “You don’t want to know.” I said, “No,” I said, “I do want to know.” He says, “No, you don’t want to know. You do not want to know what I think about your report.” And then [unintelligible 00:56:43], and I tell you, I had nightmares about doing this because it was so stressful.
There was this critical mass of women in every sector of the profession, and we, I have to say that we talked about all of these issues, but we talked about them often in safe places in hushed tones because it was not safe when I started practising law to have discussions about sexual harassment, about accommodation if you have kids. And I had two kids, in fact, I'd just had a baby when I joined the task force. And so I think that there was this sigh of relief is that we get to say these things, right? We get to have this discussion. And we have it cloaked with the sort of institutional respectability of the CBA. And so they're letting us have a format and we're having this discussion about it.
A lot of these discussions were extraordinarily difficult but there was a place to start having them, and there hadn't – there had been the Law Society, [unintelligible 00:57:47] the Law Society Equality Committee that had started a few years before the task force and we had done our own survey in Alberta, but there was even such a reaction to the fact that we were doing a survey about bias, gender bias. You – like some of the comments that came back from the profession – I don’t know if they were men, but it sounded like men saying it – were horrific comments. Horrific. Horrific, nasty, mean comments. And so we started this work with lots of support but also with a lot of resistance. And I just, I think putting it in that context is that women – and men, too – but particularly women, were having these conversations and they were just so eager to elevate those discussions to a more public level where something could happen and we could potentially get some traction around them.
When we did our first conference, which was October, right, I think it was within the first ten months of the task force being implemented, we invited many, many different groups to that conference, and they said so clearly to us that you need to look at intersectionality and you need to broaden the scope of who’s on this task force because you don’t represent me, right? There's no women of colour on this, there's no Aboriginal women, there's no disabled women, and we really had to regroup and say you're right. That we have to talk about all women. And women aren't just white women, we need to talk about all women when we look at this report, and look at all forms of discrimination. And it was a really important moment for us, and I think it was really critical to the credibility of our task force that we were able to take that feedback and say that you're right, you're absolutely right and we need to expand the scope of our work, our enquiry and the depth of the people that are working on this task force. Not just this task force itself but also our provincial working groups.
And do you know what gets me, too? The one thing I'm really proud about, because I actually think when I think about it, is that we looked at equality through one lens, and if I were to use that as a metaphor, that lens broadened when we did that, right? But that also created a lens for looking at equality in the profession, and when we look at where we're at today and how broad that lens is now, where it's not focussed on gender, it's focussed on diversity, inclusion and equity. And I really believe that the seeds of that were sown in some significant way in the work that this task force did and how we looked at that and really heard the voices of the most marginalised and discriminated people in the profession.
Julia: Intersectionality, a phase coined by Kimberly Crenshaw in 1989, and it is the topic of our third episode in this segment. In episode two, Speaking Truth to Power, we hear not only from our original task force members but also from a cross-section of the leading women in the legal profession today on the impact of the CBA Sexual Report and we will explore some of the often quite negative initial reaction to it back in 1993.
Patricia: And their hostility, I remember one senior member of the profession put his hand up and he said, “You know, no one understands how hard it is these days to be a man.” [Unintelligible 01:01:48] So my –
Daphne Yeah, my statistics.
Sophie: And statistics, exactly. Oh my God, [unintelligible 01:02:00] statistic it's all damn lies, it was only [unintelligible 01:02:03].
Daphne: The resistance was, it was fierce, it was really fierce. And at times it felt like it was dangerous to be sitting on this side of a podium with a microphone in front of you and talking about it, because there were people that were so antagonistic in the audience. They would stand up and challenge you.
Patricia: And I even noticed a slight change when the young women lawyers were coming along in big numbers, that the senior partners who previously wouldn't agree to something like maternity leave until their daughter was pregnant at the next-door law firm and they're, “Oh, my daughter, I'm so proud of my daughter, and my daughter’s a lawyer.” We had 150 years or whatever since our culture came and took over Canada – unfairly – but where they just never saw a woman in their profession enter, under any circumstances. And consequently they never had a child who was dealing with any of this, and, but now that happens all the time. So, but I think that, I think people can adjust, they can identify more with something if it's happening in their own family.
This is the Every Lawyer presented by the Canadian Bar Association
[End of recorded material at 01:03:19]