WINDSOR - Two female legal practitioners from very different backgrounds recently told a mainly female audience at the University of Windsor that their passion for wanting to right wrongs, especially as directed toward minority groups and women, fuelled their desire to practise law.
As an anti-apartheid activist in Toronto in the 1980s after moving to Canada from Jamaica at age 16, to Yola Grant, law seemed like a “perfect escape” through which she could continue her activism yet work with the tools to create change.
“I could work on social issues dear to me and if I caused waves, most people would recognize that as a socially useful function for a lawyer,” she told the 20th anniversary lecture of the Kathleen A. Lahey Feminist Speaker Series organized by Women and the Law at the University of Windsor.
This year’s theme was “What Can Feminists Do with the Law?,” and Grant was speaking on practising from a feminist perspective. Lahey, of the Queen’s law faculty and founding editor of the Canadian Journal of Women and the Law, and long a writer and litigator on issues related to same-sex marriage, lesbian and gay rights - including the Supreme Court of Canada’s same-sex marriage reference - couldn’t attend because her flight was grounded by weather.
The other speaker, Sharon McIvor, an aboriginal woman from British Columbia, said she grew up facing the taunts and slurs in a majority white culture where Indians had little means to fight back. “We had no recourse, we had no way to redress it at all,” she said. “It was just a way of life.” Not surprisingly given her outspoken nature, “I came out of it fighting” and chose law to advance native and women’s rights.
Both women are accomplished practitioners, and have been part of cases at the Supreme Court of Canada. Grant, of Grant & Bernhardt in Toronto, has carved out her niche in employment, labour, and human rights law. McIvor, of McIvor Nahanee in Merritt, B.C., has a practice focused on advancing women’s rights within and outside the aboriginal community in litigation and through the Native Women’s Association of Canada.
Both have been involved in significant Charter equality cases.
Grant, associated for several years with the Women’s Legal Education and Action Fund, worked on Charter appellate litigation. She was lead counsel in R v. RDS at the Supreme Court, where it was argued the reasonable apprehension of bias test should involve a “reasonable” person imbued with equality principles.
And she was co-counsel in Lesiuk v. Canada (Federal Court of Appeal, 2002), where she argued that a government change in employment insurance entitlement was contrary to s.15 because of its disproportionate impact on poor women and those disadvantaged by race, aboriginal status, disability, and ethnicity.
McIvor argued in the case of Terry Grismer (Grismer v. BC Council of Human Rights, 1999) that her now-deceased husband (Grismer) was a victim of discrimination based on disability. The Supreme Court agreed and Grismer was returned his driver’s license, after the B. C. government had taken it away because of a sight impairment that didn’t affect his ability to drive.
Later, she also achieved a “certain victory” in R v Corbiere (1999), where the Supreme Court allowed off-reserve aboriginals to vote in band elections, a decision that in large part benefited native women who had lost their status after marrying and leaving the reserve.
And in R v O’Connor (1995) at the Supreme Court - a sexual assault case involving a clergyman - the defendant’s lawyer had demanded all the records that the defendant had kept on aboriginal girls “to cover up his activity” be turned over. McIvor said the decision “was a partial victory in that the court didn’t give the wholesale access to the records,” but left it to a judge to decide in individual cases.
Moreover, as an activist with the Native Women’s Association of Canada, McIvor had sought equal funding and a “seat at the table” in constitutional talks along with “male-dominated” native organizations, which had opposed her association. “It was like an old boys’ club,” she says. Despite losing at the high court, the federal government eventually granted the organization a seat “but no funding,” she quipped.
McIvor this year successfully challenged in the B.C. Supreme Court (McIvor v. Canada) the continuing preference given males and those whose Indian status is traced from male ancestors. The case, already nearly two decades old and which could affect as many as 200,000 aboriginal women and their descendants, is being appealed by Ottawa, necessitating a major fundraising campaign in the wake of the Harper Government’s cancellation of the Court Challenges Program.
The lawyers told the students that while they obviously supported minority rights, as feminists they found themselves ironically being rejected by some of the left-liberal organizations, such as established aboriginal groups or labour unions, that otherwise defend the powerless.
Grant, for example, said that when she was starting out in 1986, “women students were ignored” by labour law firms. “It was considered quite legitimate to say, ‘Why should we hire you when our carpenters or electricians are not going to want to be served by a woman.’ ” She said that has now “changed tremendously” and that updated law society rules around screening for articling students, such as appropriate interview questions by firms, “have been instrumental” in doing that.
Grant also said she was lucky early in her career to be associated with a feminist law organization, LEAF, as well as being employed by the provincial government doing research on pertinent matters, such as what sectors were being impacted most from newly passed pay equity legislation. She also wrote a cabinet submission resulting in passage of “generous provisions for pregnancy and parental leave” under employment standards legislation.
But based on her experience, she said, idealistic young lawyers shouldn’t forget the larger context in which they study and work, such as writing “the same trust, real estate, tax, and corporate law exams” as others. She also advised against practising corporate or transaction law despite often lower income, noting there are “many opportunities” in government agencies, boards, and commissions, or as a government policy analyst.
And she said young lawyers shouldn’t work in isolation but seek the advice of other and more seasoned lawyers who can provide advice and often suggest different ways of approaching issues. “It’s like an intense articling experience but without the pay and the evaluation.”
McIvor advised students against thinking things can be changed overnight. Despite her successes and the general advancements in law and government policy for women, she says there is still much that is wrong.
“The law has not treated aboriginal women very well, especially in repairing the damage from widespread sexual abuse both off reserve and on.” There’s no way that we can undo the damages that those women have had,” she said. And there are still institutional barriers, such as the Canadian Human Rights Act’s s. 67, which exempts the law’s application to the Indian Act.
But, she added, ultimately, the goal of feminist lawyers, no matter in which areas they practice or in how they affect change, should be “to leave a legacy.”