Discussion with the Honourable Louise Arbour

Discussion with the Honourable Louise Arbour

Alison McDougall*

 

The participants of CanArbWeek 2022 had the pleasure of hearing from The Honourable Louise Arbour. Justice Arbour has a long impressive history; she was a Justice of the Supreme Court of Canada from 1999-2004, High Commissioner for Human Rights at the United Nations, Chief Prosecutor at the International Criminal Tribunals for the former Yugoslavia and Rwanda, is Senior Council at BLG, and carried out a review into the Canadian Armed Forces and Department of National Defence in response to reports of harassment and sexual misconduct within the Canadian Military.

 

Justice Arbour spoke about gender and diversity in the judicial space. She began by reminding the audience that even as recently as the late eighties and early nineties, women were severely underrepresented in law schools. While this is not the case today, gender disparity is still very prevalent in the legal profession.

 

Justice Arbour walked the audience through a study conducted some years ago in the United States which looked at decisions of the few female judges then on the bench. This study found that, with regard to that had a gender component; (such as medical malpractice in obstetrics, sexual assault, or child custody)), women judges tended to share similar views. These views also differed from those of most men judges. On issues with no obvious gender component, women judges’ average opinions were similar to those of men judges, but the women clustered at the political the extremes of judicial opinions. The theory offered to explain these trends was that in, order to succeed, women had to be very strong-willed one way or the other.

 

In 2012, American scholar Carrie Menkel-Meadow published an article in the Dispute Resolution Magazine entitled “Women in Dispute Resolution: Parties, Lawyers and Dispute Resolvers”, which examined female jurists’ opinions on judicial, dispute resolution, mediation, and arbitration. Menkel-Meadow found that although gender matters; context of each individual dispute matters more. Justice Arbour revealed that, throughout her career, her intuition has been that one cannot reliable identify the specific impact of gender as a factor in any reasoning or decision-making process because context matters, and there are so many other factors at play. In some areas, the added perspective of women can bring an otherwise missing point of view but, in general, context matters most.

 

Justice Arbour expanded on this somewhat blunt statement by arguing that either diversity matters, or it doesn’t. But if diversity doesn’t matter, discrimination is still illegal and unconstitutional. Therefore, if diversity doesn’t matter to us as a professional community, “we have a very big problem”. Adding to this problem, Justice Arbour believes that many arguments against diversity, including the argument that the “talent pool is just not there” or it’s a “pipeline issue,” are transparently disingenuous.

 

She concluded by returning to her original point that, whether diversity matter or doesn’t, discrimination is illegal and unconstitutional, and we should all be suspicious of institutions that claim to be incapable of developing diversity within their organizations.