Too Soon to Say: On the Gender-Balanced Bench, Feminist Criticism and Justice Karakatsanis

Wednesday, October 19, 2011

When Prime Minister Stephen Harper (finally) announced yesterday that Ontario appellate judge Andromache Karakatsanis will fill one of two vacancies on the Supreme Court of Canada, Kirk Makin, the Justice Reporter for the Globe & Mail, concluded that her appointment “would forestall feminist criticism by maintaining the court’s complement of female judges at four.”[1]

Sorry Mr. Makin; we’re not that easy to shut up.

Critiques by feminists and other equality-seekers run deeper and are far more diverse than calls for formal gender parity at the Supreme Court. We want women on the bench for symbolic and substantive reasons,[2] yes, but we are not operating under the delusion that female-ness is a proxy for feminist, nor that every female judge will be a champion of equality. Feminist critiques emphasize the importance of diversifying the Supreme Court beyond the dimension of gender by including men and women from visible minority groups and other marginalized communities of identity, because doing so would improve the quality of decision-making and the democratic legitimacy of the Court.[3] Feminists are concerned not only with the personal attributes and life histories of judges, but also with their records of decision-making and what past judgments indicate about their unique understandings of complicated social-legal concepts like systemic discrimination, stereotyping, and substantive equality. How is a new judge likely to engage in equality analysis under section 15 of the Charter? How might she approach a case of workplace harassment based on allegations of institutional racism? What about cases of competing rights like religion and expression? Does she have experience adjudicating cases dealing with Aboriginal legal issues, human rights or international law?

When it comes to Justice Karakatsanis, it is near impossible to anticipate answers to these and a host of similar questions likely to be of interest to feminists and equality-seekers. While we know something of her personal background as a trilingual Greek-Canadian woman, her judicial persona remains largely a mystery, and her slim file of judgments tells us little about her decision-making style or likely approach to equality issues.[4] This uncertainty – in combination with Karakatsanis’ connections in the Conservative government – may be cause for concern for many feminists, particularly given that a number of controversial cases on issues including sex workers’ rights and euthanasia are currently snaking their way through the lower courts in Canada.

The justices of the Supreme Court possess enormous power in this country, and it is too soon to say how Karakatsanis might wield that sword when it comes to equality. A gender-balanced bench is a valuable good, but is insufficient to allay the diverse concerns and critiques of feminists and equality-seekers. It remains to be seen what the new gender-balanced bench will mean in practice for equality in Canada, yet one thing seems certain: feminist criticism will not be forestalled by gender parity alone.

Jenna McGill is a Professor at the University of Ottawa Faculty of Law.

[1] Kirk Makin, “Harper to appoint Ontario judges Karakatsanis and Moldaver to Supreme Court: reports”, The Globe & Mail (16 October 2011) online: The Globe & Mail .
[2] See e.g. Madame Justice Bertha Wilson, “Will Women Judges Really Make a Difference?” (1990) 28 Osgoode Hall LJ 507; and Dahlia Lithwick, “The Fairer Sex: What do we mean when we say we need more female justices?” (11 April 2009), online: Slate .
[3] See e.g. Diana Majury, ‘‘The Charter, Equality Rights, and Women: Equivocation and Celebration’’ (2002) 40 Osgoode Hall LJ 297.
[4] Further information about Justice Karakatsanis’ past judgments is available as part of the dossiers provided to members of the Ad Hoc Committee to Review the two Nominees for the Supreme Court of Canada, online: Office of the Commissioner for Federal Judicial Affairs Canada .
Designed by Rachel Gold.